CARSON v LEGAL SERVICES COMMISSIONER and ANOR (NO 3) [1997] NSWCA 60

CARSON v LEGAL SERVICES COMMISSIONER (NO 3)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and STEIN JJA, and GILES AJA 16 December 1997

[1997] NSWCA 60 Sheller, Stein JJA and Giles AJA

Summons

By a summons filed on 28 November 1997, Nicholas Roderick Carson seeks leave to appeal from a decision of Barr J given on 24 November 1997 and asks that, if leave is granted, the appeal be heard instanter and allowed.

Mr Carson is the claimant in a summons originally filed in this Court seeking relief against the Legal Services Commissioner. The summons was listed for hearing before this Court, as presently constituted, on 26 August 1997. On 29 August 1997 the Court remitted the proceedings to the Common Law Division for determination. On 15 September 1997 a directions hearing took place before Simpson J. Her Honour was not prepared to expedite the matter but listed it at the end of other matters expedited in the call-over to be held towards the end of the year. On 24 October 1997 a call-over took place before Barr J. His Honour fixed the matter for hearing on 2 February 1998.

On 14 November 1997 the Commissioner's solicitors filed and served a notice of motion and an affidavit of Ian David Hill, a solicitor having the carriage of the matter for the Commissioner, to have the hearing date of 2 February 1998 vacated. On 24 November 1997 Barr J vacated the hearing date and set the matter down for hearing for 25 May 1998. Mr Carson seeks leave to appeal from that decision.

Before Barr J no part of the affidavit of Mr Hill was objected to, nor was he cross examined. However, Mr Brereton, counsel for Mr Carson, called for the production of documents pursuant to a notice to produce addressed to the Commissioner and served the previous Friday. Mr Haylen QC, who appeared for the Commissioner, said the notice asked for memos of fees. While he wished to be heard on the relevance of the documents sought, he was prepared to provide a summary of time spent by counsel briefed by the Commissioner which was noted on a piece of paper handed to Mr Brereton at the bar table. Mr Brereton said the notice to produce went to paral! of Mr Hill's affidavit and the claim by the Commissioner that the briefing of new senior counsel to appear on 2 February 1998 would result in substantial fees already paid to senior counsel being thrown away. He said the notice sought documents which detailed not only time spent but also quantum of fees. He again called on the notice to produce. Barr J said: "What is produced is produced". Mr Brereton then tendered the document which had been handed to him and was headed "Summary of quantum of work done by counsel" in the matter.