MENYHART v GOLOTTA t/as GALLUZZO and GOLOTTA [1992] NSWCA 151

MENYHART v GOLOTTA t/as GALLUZZO and GOLOTTA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 2 April 1992, 2 April 1992 [1992] NSWCA 151

COSTS — legal aid — appeal to Legal Aid Review Committee statutory stay — hearing date vacated. LEGAL PRACTITIONERS — solicitor — lien for unpaid costs — release of documents — payment of most of costs — prosecution of appeal against refusal of legal aid.

Legal Aid Commission Act 1979, s57.

Kirby P This case came before the Court on short notice because of a pending appeal which is listed for hearing on 10 April 1992. On that day, the Court is scheduled to hear an appeal from a judgment of the District Court (Johnston DCJ) terminating litigation between the appellant, Mr Menyhart, and his former solicitor, Mr Ross Golotta trading as Galluzzo and Golotta.

The purpose of the listing of the matter today was twofold: First, to ensure that certain papers which are needed for an application for legal aid should be provided to Menyhart if that was lawful and proper. After he lost his case in the District Court Mr Menyhart retained another solicitor, Mr Burston. Mr Burston took his papers and performed certain professional duties. However, subsequently Mr Menyhart withdrew Mr Burston's retainer. Mr Burston continues to hold all the papers given to him by Mr Menyhart pursuant to a solicitor's lien for unpaid costs.

Mr Menyhart, meanwhile, applied for legal aid to prosecute the appeal in his action against Mr Golotta. His legal aid application was, as he has informed me, refused. He has now appealed to the Legal Aid Review Committee. For the purpose of that appeal he says that he needs the papers which are still held by Mr Burston. The Court was told that Mr Burston had been paid some $4,000 for the consultations in preparation for the appeal. However, he claimed that some $800 were still outstanding as unpaid costs. He was therefore not, at first, prepared to release the documents to Mr Menyhart.