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. However, following the first mention of the matter before the Court on Monday last, Mr Burston, advised by his counsel, agreed to release all of the documents in his possession which Mr Menyhart sought for the purpose of his legal aid appeal. It seems that there are three letters outstanding in this respect. Arrangements have been made between Mr Menyhart and counsel for Mr Burston by which those letters also are to be supplied. Accordingly, the first dispute between Mr Menyhart and Mr Burston was satisfactorily resolved. As I have said the Legal Aid Review Committee now has before it an appeal against the refusal of legal aid to Mr Menyhart. This has not been formally proved. But there is no reason to believe that Mr Menyhart would have gone to the trouble he has to secure the documents (and to list the matter before the Court for that purpose) if he did not really have an application before the Review Committee. I am prepared to accept that he has. 2 UNREPORTED JUDGMENTS By s57 of the Legal Aid Commission Act, 1979 it is provided that, where a party to proceedings before a court has appealed to the Legal Aid Review Committee then, except in certain very limited circumstances, the court is obliged to adjourn any proceedings affected to a date, presumably a date after it thinks that the function by the Review Committee will be completed. It is obvious to me that the review by the Legal Aid Review Committee could not be completed by 10 April 1992. At the most optimistic, it might be completed just before that date. However, that would scarcely allow Mr Menyhart time to instruct solicitors, for them to retain counsel and for counsel to present the appeal on Mr Menyhart's behalf. It is preferable, from the point of view of the Court and the parties, that the matter should not be listed for hearing until the Legal Aid Review Committee has discharged its function and the consequences pursued by Menyhart. If legal aid is granted, legal representatives can then be retained on behalf of Mr Menyhart. If not, Mr Menyhart will have to prepare to present the appeal himself or to abandon it. Mr Hayes, who appeared today before me for Mr Golotta, saw the force of this logic. However, he suggested that it might be possible to invoke para(b) of s57 of the Legal Aid Commission Act. He suggested that this could be established by requiring Mr Menyhart to give evidence by affidavit before the Court of the fact of his application to the Legal Aid Commission, its initial refusal, the appeal to the Legal Aid Review Committee and the grounds of the appeal. He suggested that, only in this way would the Court be satisfied as to the bona fides of the appeal. Having regard to the fact that the Legal Aid Commission Act provides for confidentiality in the dealings between an applicant for legal aid and the Legal Aid Review Committee, I would be disinclined to require Mr Menyhart to disclose more of his dealings with that Commission than that he has made the application and now the appeal. As those facts are not seriously in doubt or dispute, there would be no point in requiring the facts to be proved by affidavit. For all of these reasons, it seems appropriate to me that the date assigned for the hearing of the appeal on 10 April 1992 should be vacated. The orders which I therefore make are: 1. Vacate the hearing date of the hearing of the appeal between the parties herein for 10 April 1992; 2. Give liberty to the parties to approach the Registrar for the relisting of the appeal immediately after the outcome of the appeal to the Legal Aid Review Committee is known; 3. In such circumstances, direct that the hearing of the appeal, as relisted, be accorded expedition category B, to the intent that it will be heard within one month of the signification that the Legal Aid Review Committee has completed its functions; and 4. The costs of the proceedings before the Court today to be costs in the appeal. Counsel: Claimant: In person 1st Opponent: M Scott/G Burston URJ MENYHART v GOLOTTA t/as GALLUZZO and GOLOTTA (Kirby P) 2nd Opponent: P Hayes Solicitors: Claimant: In person Opponents: Galluzzo and Golotta