Supreme Court New South Wales Medium Neutral Citation: R v Seller; R v McCarthy [2015] NSWSC 1181 Hearing dates: 19 August 2015 Date of orders: 19 August 2015 Decision date: 19 August 2015 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Application refused Catchwords: BARRISTERS – criminal trial – application to return brief to defend a charge of a serious criminal offence – where barrister concerned about payment of outstanding fees and fees to be incurred for the trial – delay in application to return brief – where trial due to commence in two working days – where insufficient time for another legal practitioner to take over the case properly before the hearing – where client does not consent to the application – application refused Legislation Cited: Legal Profession Uniform Conduct (Barristers) Rules 2015 Cases Cited: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Category: Procedural and other rulings Parties: Ross Edward Seller (Accused) Patrick David McCarthy (Accused) Representation: Counsel: P McGuire (Crown) D K L Raphael (Seller) P Bruckner (McCarthy) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Gibson Lawyers (Seller) Hardin Law (McCarthy) File Number(s): 2009/237556; 2009/237509 Judgment 1. HIS HONOUR: The trial of these matters is scheduled to commence on Monday 24 August 2015, or two full working days from today. That date has been known for a considerable time. 2. The proceedings were listed before me today on the application of Mr D K L Raphael of counsel for the accused Mr Seller. In essence, Mr Raphael seeks leave to withdraw from the proceedings as defence counsel for Mr Seller because Mr Seller has neither provided Mr Raphael with funds sufficient to cover his anticipated legal costs of appearing at the trial nor has he otherwise satisfied Mr Raphael that he will be able to do so. 3. The application is made pursuant to rule 107 of the Legal Profession Uniform Conduct (Barristers) Rules 2015. That rule is in these terms: "107 A barrister must not return under rule 105 a brief to defend a charge of a serious criminal offence unless: (a) the barrister believes on reasonable grounds that: (i) the circumstances are exceptional and compelling; and (ii) there is enough time for another legal practitioner to take over the case properly before the hearing: or (b) the client has consented after the barrister has clearly informed the client of the circumstances in which the barrister wishes to return the brief and of the terms of the rule." 1. Rule 105(d) provides that a barrister may return a brief to appear before a court if the barrister has reasonable grounds to doubt that his fees will be paid reasonably promptly or in accordance with a costs agreement. 2. Mr Raphael's application is supported by an affidavit sworn by him today. It reveals that Mr Raphael has been retained as counsel for Mr Seller since August 2014. On 3 July 2015 Mr Raphael wrote to Mr Seller in the following terms: "Dear Ross, Further to memorandum to you of yesterday, attached is a statement of fees rendered with respect to fees due by you in various matters. According to my records you have paid me on account three amounts of $5,000 and one of $1,000. Please confirm whether or not your own records indicate funds over and above a total of $16,000 having been paid." 1. Annexed to that correspondence was a schedule of outstanding costs owed to Mr Raphael by Mr Seller for a variety of matters totalling $139,870. Of that sum, $62,338 would appear to be owing in respect of the present matter. 2. On 20 July 2015 Mr Raphael wrote to Mr Seller again, this time in the following terms: "I refer to my telephone discussion with you of Saturday the 11th instant in which I explained to you that, given that you already owe me somewhat in excess of $120,000 simply cannot give up 6 weeks of my time (this includes a further 7 days preparation) without there being a minimum of $75,000 being paid to me in reduction of your existing indebtedness to me or being held in a solicitor's trust account to cover most of my fees of the hearing. I had said I would, as a favour to you, only charge you $2,750 per day including GST. This would inevitably also require me to do some work on the weekend during the trial. Even without weekends my fees at the above low rate would be $82,500 but, if you can put into trust $75,000 that would suffice. I am sorry if you believe I am letting you down but since September last year you have only paid me $1,000. If you are unable to pay that amount of $75,000 then I should return to you the copy documents served upon me. I tried to speak with you both on Thursday and Friday to no avail. I really think you and I need to talk in person." 1. Mr Seller replied later the same day as follows: "I will get back to you. An old uncle, my mother's brother, died last week so have had my mind on other things. I think as nothing has changed since we last spoke just hang on till 7th August when the HC Special leave hearing is on and see if the trial will as a result go ahead in August. Also hopefully Brereton J will hand down his decision soon and we will know the likelihood of getting money out of that source, albeit that it may be delayed it will provide a strong indication of how much we should expect from that decision." 1. Mr Raphael deposed to the following matters in paragraphs 5 to 9 inclusive of his affidavit: "5. On the 3rd August 2015 I had a conversation with Mr Seller. I said to him 'What can we do about this fee basis, I just cannot proceed without certainty of payment.' He said to me 'We really hope to have the hearing date vacated by reason of a successful special leave application on Friday of this week.' I said to him 'I certainly hope that you are successful because there is certainly no money going to come to you from the Aquatic Air case. Ben DeBuse has told me that they will appeal the orders which we are seeking in that matter and likewise I said the same to him.' 6. On the 14th August 2015 I had yet another telephone conversation with Mr Seller. I said to him 'Without cash in the solicitor's Trust Account there is just no way I can appear for you.' He said 'I am going to make an application for Legal Aid.' I said to him 'Well I hope you are successful but the fees they pay are less than $1,000 per day and that is not acceptable to me.' We had a similar telephone discussion last weekend. 7. On Tuesday the 18th August 2015 I appeared on behalf of Aquatic Air Pty Limited (a company controlled by Mr Seller) in relation to orders to be made in relation to the case of Equatic [sic] Air Pty Ltd v Siewert. That matter, after two hours debate before his Honour Brereton J, is still unresolved with further submissions as to the nature and quantification of the orders to be lodged not late [sic] than the 21st of this month. 8. Mr Seller said to me at [sic] after we returned to my chambers yesterday 'I just have no money to pay you'. I said to him 'As I told you yesterday, I am going to have to apply to the Judge to be released from my retainer.' 9. Early this morning I had the benefit of conversations with the Ass to Justice Harrison. Around 9.10a.m. she telephoned me to say that she had listed the matter at 3.00p.m. before his Honour and that I would have to have Mr Seller there. I said 'I do not know if I can arrange it, I will do my best.' She said 'Get back to me as soon as possible.' I telephoned Mr Seller and said to him 'Ross you have to be at Court at 3.00p.m. today before Justice Harrison. Justice Harrison is in Court 10B.' Mr Seller said to me 'All right well I'll have to drive up to Sydney, I will see you in Court'. 1. There was no other material relied upon in support of the present application. Significantly, there is no evidence that Mr Seller consented to Mr Raphael returning his brief. Mr Seller was present in court when the matter came before me. He gave no evidence and was not asked to do so. Mr Raphael did not suggest that his application was based upon Mr Seller's consent to the course that is proposed. 2. It is important to observe that this is not an application by Mr Seller based upon Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. Mr Seller does not contend that he is without funds or assets and that, through no fault of his own, he is unable to obtain or retain suitable legal representation at his trial. 3. Mr Raphael has, for better or worse, quite apparently extended considerable generosity to Mr Seller with respect to payment of his outstanding fees. Mr Raphael has not however, as far as I can determine, ever indicated to Mr Seller that he proposed to return his brief if his fees were not paid or were not adequately secured. That may be a function of the friendship between the two men but it does not reduce or remove Mr Raphael's ethical obligation to conform to the rule. Experience indicates that postponement of difficult decisions is often generated by a hope, far less an expectation, that things will work out for the best given time. Unfortunately, in the context of a looming criminal trial of a serious criminal offence, the luxury of indecision is not available. 4. I indicated in open court that Mr Raphael would in these circumstances have to remain in the matter as defence counsel for Mr Seller. The foregoing are my reasons for coming to that decision. 5. My formal order is that the application is refused. ********** 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. Decision last updated: 28 September 2015