Lawrence v Sammut [2022] NSWSC 344

Supreme Court New South Wales

Medium Neutral Citation: Lawrence v Sammut [2022] NSWSC 344 Hearing dates: 10 March 2022 Date of orders: 10 March 2022 Decision date: 28 March 2022 Jurisdiction: Common Law Before: Lonergan J Decision: The plaintiff's notices to produce dated 7 October 2021 and 7 February 2022 are set aside. Catchwords: CIVIL PROCEDURE – notices to produce set aside Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Wayne James Lawrence (Plaintiff) Alice Alexandria Sammut (First Defendant) Paul William Ciantar (Second Defendant) Representation: Counsel: JC McDonald (Defendants)

Solicitors: Self-represented (Plaintiff) McLean & Associates (Defendants) File Number(s): 2021/57931 Publication restriction: Nil

Judgment 1. These proceedings comprise an appeal under section 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) from a determination of a Costs Review Panel dated 25 February 2021. The appeal was commenced by Summons filed 1 March 2021. At that time the plaintiff had a solicitor acting for him, Mr Hedges of Walker Hedges. The Summons seeks various orders associated with determinations of the costs assessor and Costs Review Panel. The costs arose from proceedings in Equity heard by Henry J in 2019. 2. The matter was listed before me on 11 February 2022, however the plaintiff informed the Court that his lawyer had in the last few days ceased acting for him, and so he was at a disadvantage. He had prepared no Court Book and there was no clarity as to the purpose of the listed hearing or the orders for which the plaintiff was pressing at that hearing. 3. There was no Notice of Ceasing to Act filed and there seemed to be some ambiguity about the position of Mr Hedges' retainer. I took the view that the hearing could not proceed as the plaintiff was not ready. He asserted that his lawyer had "just dropped him in the last few days", he thus had no legal representation and wanted to obtain a lawyer. He did not appear to be otherwise able to articulate the orders he planned to seek. 4. Counsel for the defendants, Ms McDonald, gave an outline of the history of the matter which included a referral to a costs referee (by consent) which was one of the alternative orders sought in the Summons. That referee provided a report in August 2021 assessing the "fair and reasonable" costs. That assessment was approximately $20,000 less than the amount affirmed by the Costs Review Panel. 5. The defendants wish to argue that this Court should simply affirm the decision of the Costs Review Panel because the difference is minor, (less than 10% of the total costs figure), and the jurisdictional limit is not met and so the plaintiff requires leave, there is a lack of proportionality and so the matter should not proceed any further. 6. I was informed that there had been some discussions between the parties to try and resolve their differences but to no avail. 7. I decided that the question of Mr Hedges' retainer needed to be clarified and so the matter had to be adjourned. 8. It was in this context that I was asked by Ms McDonald to consider the position regarding two notices to produce that had been issued by the plaintiff in October 2021 and February 2022. 9. I was asked by Ms McDonald to suspend compliance with those notices, pending evidence being filed in support of an application to set them aside. 10. I acceded to that request and made directions for affidavits in support of and in response to the defendants' proposed application and adjourned that issue to 10 March 2022. 11. On 10 March 2022, having read the affidavit material, I set aside those notices to produce. These are my reasons.