Re XYZ, Solicitor [2005] NSWSC 72

New South Wales Supreme Court

CITATION : Re XYZ, Solicitor [2005] NSWSC 72

HEARING DATE(S) : written submissions in Chambers

JUDGMENT DATE : 16 February 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Complaint not made

CATCHWORDS : PROCEDURE - Supreme Court procedure - compliance with court directions - whether non-compliance should be the subject of a complaint of professional misconduct against the solicitor involved - PROFESSIONS AND TRADES - Lawyers - compliance with court directions - whether non-compliance should be the subject of a complaint of professional misconduct against the solicitor involved

PARTIES : Undisclosed

FILE NUMBER(S) : SC Undisclosed

COUNSEL : Undisclosed

SOLICITORS : Undisclosed

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

16 FEBRUARY 2005

RE XYZ, SOLICITOR JUDGMENT 1 HIS HONOUR: Recently a case was listed before me for hearing. The hearing of the case had been expedited. Pre-trial directions had been given requiring, amongst other things, notification of objections to affidavits, and provision of bundles containing working copies of affidavits and pleadings. 2 The plaintiff was seriously late in complying with various steps of the interlocutory timetable. Some of the documents which the plaintiff had been directed to make available to the court were not delivered by the plaintiff until 7 p.m. on the working day before the trial was due to start. Others, including objections to affidavits and an outline of submissions, were not delivered at all. 3 This had the effect that, in particular, I did not have the opportunity to make annotations on working copies of affidavits at the time of reading affidavits before the trial, and could not give consideration in Chambers to objections to affidavits which were to be made. The time taken for the hearing of the case in court is minimised if the judge has the opportunity to do these things in advance. Minimisation of court hearing time, insofar as can properly be done, is very important not only because court time is a scarce resource from the court's point of view, but also because the hearing is a time when all the legal representatives of the parties are present at the one time, and so is likely to be the time when the rate of incurring legal costs is at its highest. It is very wasteful if the legal representatives are all waiting in court while the judge reads material that could have been read in Chambers. 4 On the first day of the hearing, the case settled without the hearing actually beginning. When the settlement had been achieved, I inquired of the legal representatives of the plaintiff whether there was any reason why I should not make a complaint of professional misconduct against the solicitor for the plaintiff, concerning non-compliance with the court's directions. Failure to comply with court directions can in some circumstances be professional misconduct, although there are some circumstances, which are essentially outside the control of the solicitor, when it is not. 5 Counsel appearing for the plaintiff requested time to seek instructions, and inquire whether the plaintiff was prepared to waive client legal privilege. 6 The plaintiff has agreed to the solicitor for the plaintiff placing certain facts before the court, though in the expectation that those facts will, in their detail, remain confidential. An affidavit has been filed by the solicitor, explaining the circumstances which led to the various non-compliances. By far the most significant cause of non-compliance is the failure of the plaintiff to place the solicitor in funds, and the failure of the plaintiff to provide the solicitor with necessary information. The terms of engagement of the solicitor entitled the solicitor to cease work if funds were not provided. There was a subsidiary reason, in that the defendant was a few days late in some steps of the timetable, which would have caused a consequential delay in the plaintiff's compliance, but that is a very small contributing cause to the overall non-compliance. 7 The solicitor for the plaintiff has recognised that there were some errors of judgement in the way she dealt with the plaintiff's failure to provide funds, and has apologised to the Court for the non-compliance. A senior partner of the firm of which she is a member has given evidence that it has put in place a litigation protocol, setting out in writing what it expects of members and employees of the firm concerning conduct of litigation. That protocol makes appropriate reference to the importance of compliance with court directions and practice notes. 8 In these circumstances I shall take no further action. 9 Where I have decided to take no further action, but have given reasons in open court for taking that course, it is appropriate to preserve the anonymity of those concerned. I order: