Margiotta v Legal Services Commissioner [2000] NSWSC 835

New South Wales Supreme Court

CITATION : Margiotta v Legal Services Commissioner [2000] NSWSC 835 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 02600/00 05/06/00 HEARING DATE(S) : 17/07/00 14/08/00 18/08/00 JUDGMENT DATE : 22 August 2000

PARTIES : Anthony Steven Margiotta Legal Services Commissioner JUDGMENT OF : Dowd J at 1

COUNSEL : Mr R Perrignon Mr T Lynch SOLICITORS : Margiotta Solicitors Mr K Pehm CATCHWORDS : Legal Profession - Solicitor's lien - Power of the Legal Services Commissioner to order waiver LEGISLATION CITED : Legal Profession Act 1987 (NSW) Bankruptcy Act 1966 (Cth) Re Jalmoon Pty Ltd (1986) 2 Qd R 264. CASES CITED : In re Carter; Carter v Carter (1885) 55 LJ Ch 230. Bolster v McCallum (1966) 85 WN (NSW) 281. Hammerstone v Lewis (1994) 2 Qd R 267. DECISION : 1. That the notice issued by the defendant on 5 May 2000 be set aside; 2. In holding any documents of the plaintiff, that such documents the subject of the complaint be held by the defendant so as to maintain the plaintiff's solicitor's lien over those documents; 3. That the defendant pay the plaintiff's costs of these proceedings.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

DOWD J

Tuesday 22nd August 2000

N02600/00

ANTHONY STEVEN MARGIOTTA V LEGAL SERVICES COMMISSIONER

REASONS FOR JUDGMENT 1 These are proceedings to set aside a notice issued by the defendant against the plaintiff under the Legal Profession Act 1987 ('The Act'), directing the plaintiff to waive a solicitor's lien claimed over certain files held by the plaintiff for unpaid costs. 2 The plaintiff solicitor is a principal of Margiotta Solicitors, who acted for a Mr and Mrs Agostino Bertone in court proceedings, both in bringing court proceedings and in defending bankruptcy proceedings brought against them. As a result of the latter, both Mr and Mrs Bertone were declared bankrupt. 3 The Bertones were subsequently discharged from bankruptcy by operation of law in 1997. 4 In October 1999, the Bertones brought a complaint to the defendant, the Legal Services Commissioner, concerning the failure by the plaintiff's firm to release all files held by the solicitors relating to the Bertones' affairs. This was supported by a series of requests by the Bertones' solicitors and an organisation called the Building Action Review Group. 5 A previous complaint against the plaintiff by the Bertones had been investigated by the Law Society Professional Standards Committee. As a result of this investigation , on 14 July 1998, the complaint was dismissed by the Professional Standards Committee as it was satisfied that there was no reasonable likelihood that the plaintiff would be found guilty by the Legal Services Tribunal of either unsatisfactory professional conduct or professional misconduct. The complaint had related to a series of alleged failures by the plaintiff in relation to the litigation and the conduct of the matters relating to the bankruptcy. 6 A complaint to the defendant resulted in a review of the Law Society's handling of the Bertones' complaint to that body. The decision of the Law Society was upheld by the defendant. This decision was communicated to the plaintiff by letter dated 4 June 1998. 7 In a letter dated 11 October 1999, the plaintiff claimed a solicitor's general lien for unpaid costs for work carried out for the Bertones. In that letter he pointed out that the bankruptcy did not extinguish the lien, and the lien continued to exist notwithstanding that the debt for legal costs was statute-barred. 8 By letter dated 18 November 1999, the office of the defendant sought the release of the Bertones' files to him, pursuant to s152(2) of the Act. Section 152 of the Act is in the following terms: