COLLIER and ANOR v BURN and ORS [1994] NSWCA 53

COLLIER v BURN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, MAHONEY and PRIESTLEY JJA 4 July 1994, 4 July 1994

[1994] NSWCA 53

CONTEMPT — failure to show a cause of action — motion to strike out summons — charge by litigant against former barrister of mortgagee — allegation that he read affidavit which was false or in breach of undertakings earlier given to court by client mortgagee — held: (1) There was no evidence that the affidavit read was false or otherwise objectionable; (2) The affidavit did not disclose any contempt; (3) Summons against barrister dismissed.

LEGAL PRACTITIONERS — barrister — contempt of court — reading affidavit to court — alleged to be false or in breach of client's earlier undertaking — held: No evidence false or in breach — no contempt — summons against barrister dismissed.

ORDERS

1. That the name of Mr John Burn is removed from the summons brought by Mr and Mrs Collier against Mr Paul Sheridan Sengos and Mr Domenico Mosca;

2. That there be struck out of the summons the three charges which have been brought by Mr and Mrs Collier against Mr Burn; and

3. Mr and Mrs Collier are ordered to pay Mr Burn's costs of the summons and of the motion.

Kirby P The Court has before it a summons which has been issued by Mr Robert Collier and Mrs Marion Collier (the claimants). The summons names three persons and charges them with contempt of court. The persons named are Mr Paul Sengos, Mr Domenico Mosca, solicitor, and Mr John Burn, barrister.

On the return of the summons before the Court today, the claimants were represented only by Mrs Marion Collier. For reasons which were not entirely clear, Mr Collier was not present at the Court today. However, by an affidavit of Mr Justin Kavanagh, commercial agent, it was proved that Mr Collier had been served with a motion to which I will shortly turn. He was, therefore, aware of the proceedings. Mrs Collier acknowledged that this was so. She indicated that she was speaking to the Court with Mr Collier's knowledge and consent.