New South Wales Supreme Court CITATION : Barber v The Law Society of NSW [2000] NSWSC 466 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10479 of 2000 HEARING DATE(S) : 12 May 2000 JUDGMENT DATE : 31 May 2000 Charles William Barber (Plaintiff) PARTIES : v The Law Society of New South Wales (Defendant) JUDGMENT OF : Master Malpass COUNSEL : Kelly Rees (Plaintiff) Mr B Skinner (Defendant) SOLICITORS : Dianne Burn & Yvonne Swift (Plaintiff) A S Brown (Defendant) CATCHWORDS : Determination of claim against Fidelity Fund - extension of time to bring appeal - consideration of merits, delay and prejudice. LEGISLATION CITED : Legal Profession Act 1987, s 80. CASES CITED : N/A. DECISION : See paragraph 28. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS WEDNESDAY 31 MAY 2000 10479 of 2000 CHARLES WILLIAM BARBER v THE LAW SOCIETY OF NEW SOUTH WALES JUDGMENT 1 During a period from about 1984 to 1992 the plaintiff paid moneys totalling $325,000 to Mr Hill (who was then a solicitor). The moneys were paid to Mr Hill in cash. The plaintiff was to receive interest at the rate of 16% clear of tax. He was told that the investment was guaranteed because Mr Hill was a member of The Law Society and they had a fidelity fund. Initially, he was told that the money would be invested in bridging loans. At some stage, he became aware that it was being used in developments including in villas in Queensland. It was important to the plaintiff, that Mr Hill was a solicitor. 2 Upon the making of each investment, the plaintiff was given a receipt (the new receipt was given in exchange for the previous one). The face of the receipt contained an expression of the purpose of the payment (the word "trust" usually appeared). The back of each receipt had a stamp placed on it which disclosed the name of Mr Hill, the fact that he was a solicitor and his address. It appears that the moneys were not recorded in the solicitor's trust documentation. 3 It appears that interest was paid on time until about late 1992. The moneys paid to Mr Hill have not been recovered. At about that time Mr Hill came under investigation by the Drug Enforcement Agency. In 1996, Mr Hill was sentenced to imprisonment. The moneys invested by the plaintiff had been used for the financing of a laboratory. The court was told that the factory had been used for the manufacturing of amphetamines. 4 A claim was made against the Fidelity Fund (section 80 of the Legal Profession Act 1987). The claim was determined by a disallowing of it on 22 October 1996. It was disallowed on the basis that the moneys were not received by or entrusted to the solicitor in the course of his practice. At this stage, no finding of dishonesty has been made. 5 These proceedings were commenced by Summons filed 21 September 1999. On 20 October 1999, the defendant filed a Notice of Motion seeking an order dismissing the Summons. 6 The first order sought in the Summons is an order extending the time for the bringing of an appeal against the disallowing of the claim. The defendant seeks to have the Summons dismissed because it seeks to bring an appeal out of time. Both of these matters were heard on 12 May 2000. 7 The plaintiff relies on a number of affidavits. Two of them have been sworn by the plaintiff himself. He has been cross-examined. The defendant relies on an affidavit sworn by Brent McDonald and an affidavit sworn by Anne Siddons. There has been some cross-examination of Anne Siddons. 8 The submissions saw an attack being made on the plaintiff's credibility. It was said inter alia that there was a lack of candour and a gilding of the lily. Whilst it is not necessary to form any view on these matters, it may be observed that the evidence does throw up some conflicting material. 9 The course adopted by the parties is to the effect that unless an extension is granted the defendant is entitled to have the Summons dismissed. The court has a discretionary power to grant an extension. The rules prescribe that the appeal should have been brought within 28 days. The discretionary power is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The plaintiff bears the onus of satisfying the court that he has an entitlement to the exercise of the power in his favour. 10 A number of discretionary considerations have been agitated by the parties. Firstly, there is the question of whether or not the appeal has prospects of success. Secondly, there are questions of the delay and the explanation offered for that delay. Thirdly, there is the question of prejudice. 11 I shall first turn to the question of the merits of the proposed appeal. In relation to this question, the parties agitated only one matter. It was whether or not there was an arguable case that the moneys had been received by or entrusted to Mr Hill in the course of his solicitor's practice. On this matter, there was real issue between the parties. 12 In his affidavit evidence, the plaintiff has provided great detail as to his dealings with Mr Hill. This material was supplemented by what was said in his oral evidence. 13 In substance, the material placed before this Court was similar to that which was put before The Law Society. The dealings certainly had unusual features. It is unnecessary to repeat the detail of what appears in the affidavit and oral material. I have already mentioned certain of it. The plaintiff has referred the court to some of the decided cases. The case law provides but limited guidance and, generally speaking, each application will turn on its own particular circumstances. 14 It would be futile to grant an extension of time if the proposed appeal had no prospects of success. Whilst the plaintiff's case on the relevant question may not be hopeless, at best, the prospects of success are slender. 15 I now turn to the question of delay and explanation for delay. It is conceded that the delay is a long one. 16 The explanation offered for the delay is to be found in the affidavits of the plaintiff and his oral evidence. Again, it is not necessary to reproduce the detail of that material. I shall merely refer to some of it (this reference is not intended to be exhaustive). 17 A solicitor (Mr Ellison) was acting for the plaintiff prior to the determination by The Law Society. The plaintiff says that he was not aware of having had any right of appeal until June 1997. It does seem that he might have been told by Mr Ellison to the effect that the matter was not worth pursuing. 18 Despite this, he did pursue it and he sought help inter alia from the police and his Local Member. This has been described as pursuing the political route rather than pressing his legal rights. These activities seem to have been relatively unproductive. 19 At least by June 1997, he had been advised by the Attorney General of his right to appeal against the determination. He approached a number of solicitors in the Kogarah and Hurstville area. He was unable to get anyone to act for him. He approached both The Law Society and Legal Aid. He did not get anyone to assist him. He was told in effect that his case had poor prospects of success. 20 In the period between May and July 1998, he had the assistance of a solicitor (Mr Jessop ) and a barrister (Mr Whitelaw). The affidavit material suggests that he lost confidence in Mr Jessop. The oral evidence suggests that he received advice to the effect that he did not have a case. He did not like this advice. 21 It seems that his claim was brought again to the attention of The Law Society. Whilst the position is not entirely clear, it seems that the matter was ventilated without any change of view by The Law Society. 22 The plaintiff did not give up his pursuit of the matter. He says his unhappiness with the legal advice led him to return to the police for assistance. He was then referred to an investigator. Whilst it appears that the investigator spent a lot time and produced little result, he did refer the plaintiff to his present solicitors. The plaintiff saw his present solicitors in May 1999. 23 The proceedings were not commenced until September, 1999. They did not come on for hearing until May this year. 24 Whilst the material offered on behalf of the plaintiff goes some way towards explaining the long delay, it does fall short of affording a satisfactory explanation. 25 There remains the matter of prejudice. The defendant relies on what appears in the affidavit sworn by Anne Siddons. It is not said that this particular matter of itself would cause prejudice. Rather, it said that if there is a practice of allowing late claims, this will cause administration difficulties for The Law Society. 26 Whilst there is some force in the contention made on behalf of the defendant, I do not think it is a matter to which great weight should be given. 27 The reaching of a decision in this case is not an easy task. It is one of those finely balanced situations. Whilst great sympathy may be had for the plaintiff's predicament, the court must decide cases according to law. After much reflection, I have come to the decision that the plaintiff has failed to discharge the onus of demonstrating an entitlement to the extension sought by him. 28 I dismiss the Summons. The plaintiff is to pay the costs of the proceedings. The exhibit may be returned. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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