Leila Chafei (as Executrix of the Estate of the late Sidney Chafei) v Tony Barakat, Russell Walter Keddie, Scott John Roulstone t/as Keddies Lawyers & Stephen Paul Firth [2011] NSWDC 153

District Court New South Wales

Medium Neutral Citation: Leila Chafei (as Executrix of the Estate of the late Sidney Chafei) v Tony Barakat, Russell Walter Keddie, Scott John Roulstone t/as Keddies Lawyers & Stephen Paul Firth [2011] NSWDC 153 Hearing dates: 27 & 28 July 2007 & 13 & 14 September 2011 16 & 26 September 2011 Decision date: 30 September 2011 Before: Ashford DCJ Decision: Judgment on Motion Catchwords: Power of the Court to set aside a judgment order that has been entered - Court is functus officio - power of the Court to join a party to proceedings - application to refer solicitors to the Legal Services Commissioner - appropriate costs orders Legislation Cited: UCPR - Legal Profession Act - Civil Procedure Act 2005 Cases Cited: Day v Perisher Blue Pty Ltd (No2) [2005] NSWCA 125 Category: Procedural and other rulings Parties: Leila Chafei (plaintiff) Tony Barakat, Russell Walter Keddie, Scott John Roulstone t/as Keddies Lawyers (1st defendant) Stephen Paul Firth (2nd defendant) Representation: Prominent Lawyers (plaintiff) Adams & Co Lawyers (1st defendant) Firths Lawyers (2nd defendant) File Number(s): 11691 of 2011

Judgment

Introduction 1By way of background I note these proceedings were part heard before me on 27 and 28 July 2011 and were then stood over to 13 and 14 September 2011. 2I was advised by the Court Registry on 7 September 2011 that the matter had been removed from the list as terms of settlement had been filed. It appears from the JusticeLink website that an attempt to file the terms was made on 7 September 2011 but the Court Registry rejected them on that date raising a requisition relating to whether an order had been made for the executrix of the estate of Sidney Chafei to be substituted as the plaintiff. 3It now appears that the terms were accepted in the Registry on Friday, 8 September 2011 and entered on the JusticeLink website on that day. 4It appears that prior to filing those terms of settlement a Notice of Removal of Solicitor was filed on 7 September 2011 by the plaintiff thus terminating the authority of Stephen Paul Firth of Firth the Compensation Lawyers to act on her behalf in the proceedings. That Notice of Removal of Solicitor appears to have been signed by Leila Chafei on 5 September 2011. The document was actually filed by Tony Barakat, Russell Walter Keddie and Scott John Roulstone, trading as Keddies Lawyers and the legal representative for the filing party was noted to be Tony Barakat of Slater and Gordon Lawyers. 5Also on 7 September 2011 a second Notice of Removal of Solicitor was filed in the Registry. This Notice of Removal of Solicitor related to the removal of Robert Tassell of Verekers Lawyers to act on the defendants behalf in these proceedings. That document was signed by Tony Barakat on 5 September 2011 and filed by the defendants Tony Barakat, Russell Walter Keddie and Scott John Roulstone, trading as Keddies Lawyers. 6The sealed envelope containing the Terms of Settlement was retained on the Court file. 7On Tuesday, 13 September 2011 the matter was listed before me in relation to a Motion on Notice which was sought to be filed by the plaintiff's former solicitors Firths the Compensation Lawyers. 8That Motion sought orders that:- 1. Stephen Paul Firth be granted leave to appear in these proceedings. 2. That Mr Firth be granted leave to examine the file in these proceedings, in particular any terms of settlement filed between the plaintiff and the defendants. 3. That in respect of any agreement reached between the plaintiff and the defendants reflected in the Terms of Settlement (a) in the event that no orders have yet been made in respect of the Terms of Settlement direct that no orders be made entered pending further order of the Court. (b) alternatively, if orders have already been made and entered, then those orders be stayed pending further order of the Court. 9Mr G Watson of Senior Counsel sought leave to appear on behalf of Firths. Mr D Currie sought leave to appear for Mr Roulstone of Slater and Gordon in lieu of Ms Castle who had appeared for the defendants at the hearing of the substantive claim. I granted leave to both counsel. Mr Currie advised me of his difficulties in meeting the matters raised and the orders which were being sought and asked that time be given to allow his client to respond to the allegations which had been made. 10At that stage Mr Watson asked that a temporary stay of the orders be given and I acceded to that request. The matter was then stood over to 16 September 2011.