New South Wales Court of Appeal CITATION : Sorridimi v Moros & Anor [2004] NSWCA 168 HEARING DATE(S) : 28/05/04 JUDGMENT DATE : 28 May 2004 JUDGMENT OF : Ipp JA at 1; McColl JA at 13; Cripps AJA at 14 DECISION : (1) Leave to appeal granted (2) Appeal upheld (3) Order made by Herron ADCJ refusing the appellant's application that costs be paid by the second opponent's solicitors (under s 198M of the Legal Profession Act 1987 (NSW)) be set aside (4) Matter remitted to the District Court for hearing according to law (4) Costs of today's hearing be costs in the cause. CATCHWORDS : PRACTICE AND PROCEDURE - Application in District Court for costs order under s 198M of the Legal Profession Act 1987 (NSW) - Where District Court Judge dismissed application without hearing material in support of the application - whether failure of natural justice - Whether matter should be remitted to the District Court. ND LEGISLATION CITED : Legal Profession Act 1987 (NSW), s 198M Michael Sorridimi (Claimant) PARTIES : Anthony Moros by his Tutor Stelios Moros (First Opponent) Nicholas Karefylakis (Second Opponent) FILE NUMBER(S) : CA 40760/03 H Marshall SC/J Young (Claimant) COUNSEL : No Appearance (First Opponent) M C L Dicker (Second Opponent) SOLICITORS : Gillis Delaney Brown (Claimant) Yeldham & Associates (Second Opponent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 8357/97 FILE NUMBER(S) : LOWER COURT Herron ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40760/03 DC 8357/97 IPP JA McCOLL JA CRIPPS AJA Friday 28 May 2004 MICHAEL JOHN SORRIDIMI v ANTHONY MOROS & ANOR Judgment 1 IPP JA: This is an application for leave to appeal and an appeal against a decision by Herron ADCJ. 2 The issue that his Honour was required to deal with, the subject of the present proceedings, was an application for a costs order against a legal practitioner in terms of s 198M of the Legal Profession Act 1987 (NSW). 3 His Honour had delivered his reasons as to the relief sought in the trial proceedings before him. Counsel for the successful party (the present claimant) thereupon informed his Honour that the claimant wished to make an application under s 198M for an order for costs against the plaintiff's (the present second opponent) solicitors. The Judge indicated in a peremptory way that the application had no prospect of success and dismissed the application. 4 The claimant, although this was not explained to the Judge, wished to file a notice of motion and an affidavit in support of the application. His Honour, however, dismissed the application before counsel had an opportunity of advising his Honour of his intended course. 5 Generally speaking, it is the obligation of counsel, even when faced with this kind of situation, to express politely but firmly to the judge the error in proceeding without giving the party concerned the opportunity of presenting his case properly. 6 Be that as it may, however, in this case I think that there has been a failure of natural justice and the primary relief sought by the claimant should be granted, that is, that the orders made by the Judge should be set aside and the matter remitted to the District Court. 7 In that regard we have been informed that Herron ADCJ's term as an acting judge has expired. Whether or not his Honour is empowered to deal with the matter once it is remitted is not clear. Whatever the position may be in this regard, it is a matter for the District Court to deal with. 8 Mr Marshall SC, who appeared for the claimant, submitted that this Court should not remit the matter to the District Court without identifying the material which the second opponent would rely on in resisting the application made. 9 The Court thereupon inquired from Mr Dicker, who appeared for the second opponent, whether he wished to file affidavit material explaining the actions of the legal practitioner concerned. Mr Dicker replied in the affirmative and briefly summarised the kind of evidence that he said would be adduced. This included steps taken by the legal practitioner in prosecuting the case on behalf of his client and explanations as to why those steps were taken. 10 Mr Marshall nevertheless continued to submit that the contemplated affidavit should have been filed before the present proceedings. He submitted that it might well be futile sending the matter back at all. 11 It is not entirely clear whether the claimant will rely solely on the material presently before the Court in the appeal book. The second opponent made it clear in his written submissions that he wished, should the matter be remitted, to file affidavit evidence. I consider that the second opponent's conduct in this regard has been reasonable. In my opinion, the second opponent was entitled to await the results of this application and appeal before producing his evidence formally. In my view it is unnecessary to inquire further into that material and the statement made by Mr Dicker in this regard should be accepted. 12 For those reasons I propose that the Court orders that: (1) Leave to appeal be granted. (2) The appeal be upheld. (3) The order made by Herron ADCJ refusing the appellant's application that costs be paid by the second opponent's solicitors (under s 198M of the Legal Profession Act 1987 (NSW)) be set aside. (4) The matter be remitted to the District Court for hearing according to law. (5) Costs of today's hearing be costs in the cause. 13 McCOLL JA: I agree. 14 CRIPPS AJA: I agree. ********** Last Modified: 06/08/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.