Title Walsh.M

Al Haje v Elassaad [2024] NSWSC 13

In this matter, Greg Walsh acts for the Plaintiff, Wisam Al Haje.

The Plaintiff sought an order against the Defendant for his costs for interlocutory proceedings that have resulted from the Defendant’s breach of an undertaking given on 3 September 2023, connected with an asset preservation order first made by Bellew J on 1 September 2021. Costs were sought on an indemnity basis under r.42.7(2) Uniform Civil Procedure Rules. This provides that costs may be payable forthwith rather than at the conclusion of the proceedings.

An order was sought that pursuant to s.98(4)(c) of the Civil Procedure Act 2005 (NSW), the Court should assess the quantum of costs in a specified gross sum. The matter was heard before Fagan J on 13 and 17 October 2023.

The Plaintiff commenced proceedings in the Supreme Court on 2 August 2021 alleging the Defendant assaulted him on 24 January 2021. The original asset preservation order, obtained ex parte, restrained the defendant from disposing of, dealing with, or diminishing the value of his assets generally. Such assets included a residential property at 170 Roberts Road, Greenacre, a second residential property at 69 Northcote Road. Greenacre and a half interest with his father in a third property at 83A Northcote Road, Greenacre.

On 3 September 2021, when the ex parte order was first returnable, Mr Khouzame was on the Court record as the defendant’s solicitor. On his application the order was varied to permit sale of the Roberts Road property on condition that the sale price should be not less than $1,350,000 and that on completion the net proceeds of the sale would be paid into the defendant’s solicitors’ trust account. An undertaking of the Defendant was given to the Court by his solicitor on his behalf.

That undertaking was to cause the net proceeds of any sale of the Roberts Road property to be paid on completion into a trust account operated by the First Respondent’s solicitors who were on record in these proceeding’s and will not direct that the proceeds be dissipated without an order of the Court.

The orders were varied so as to remain in force until 24 September 2021. They were subsequently varied so as they were in force up to 20 February 2024.

On 3 September 2021. after the asset preservation order had been varied and the undertaking given to the Court, the Defendant terminated his instructions to Mr Khouzame. He was not thereafter represented in these proceedings until he appointed Mr Kyriacou as his solicitor on some date prior to 20 October 2021. Mr Kyriacou continued on the record until the Defendant again changed his representation in May 2023.

The Defendant gave oral evidence before Fagan J on 13 October 2023 that he was unaware of the undertaking to pay the net proceeds of the sale of the Roberts Road property into his solicitors’ trust account. He stated that he was not present at the hearing on 3 September 2021 and that he was informed by Mr Khouzame later in the day that he was restrained from disposing of his other real property interests but was free to sell the Roberts Road property and to deal with the proceeds as he saw fit.

Fagan J found that it was highly improbable that the solicitor would not have fully and accurately informed the Defendant of the orders made and the undertaking given on the Defendant’s behalf. His honour was reluctant to accept the Defendant’s assertion unless he heard from the solicitor himself. No explanation was given for the Defendant’s failure to call Mr Khouzame. It was put to him in cross-examination that he well knew of the existence of the undertaking, and His Honour observed that his answers were unresponsive and evasive. His Honour made a specific finding that:

l found him to be a very untrustworthy witness. I do not accept that he was unaware of the undertaking given to the Court on his behalf. I am satisfied that on and from 3 September 2021 he knew of his obligation to pay the net proceeds into trust. Even if the defendant did not know of the undertaking that his solicitor had given on his behalf, that could only have been through his own fault. He was well aware that the plaintiff was seeking an order to restrain him from dealing with his assets and it was incumbent upon him, as the respondent, to ascertain the outcome of the interlocutory proceeding.

The Defendant after 3 September 2021, entered into a contract to sell the Roberts Road property at a price of $1,315,000. The sale was completed on 4 February 2022. The defendant did not cause the net proceeds to be paid into the trust account of Mr Khouzame’s firm or into any other solicitor’s trust account. The Plaintiff did not learn of this breach until 3 March 2023. Greg Walsh conducted a Land Registry search and ascertained that there was a transfer dated 4 February 2022 which had been lodged and that Mr Khouzame had acted in connection with the transfer.

An application was then made to the Court to then remedy the situation. On 6 March 2023 Weinstein J ordered that the asset preservation order be extended to 4 September 2023, with certain variations. There was a specific order that a sum of money equivalent to the net proceeds of sale of [the Roberts Road property] be paid into a trust account operated by the respondent’s solicitor who is on the record in these proceedings, that is Mr Kyriacou, by 13 March 2023.

His Honour observed that the Defendant did not comply with order 2. He also did not provide copies of statements of bank accounts in his name for the period following settlement of sale on 4 February 2022 as required by the orders. It became apparent that the net proceeds of sale had been deposited into the trust account of Percentage Property Pty Ltd, the real estate agent thorough which the Defendant had affected the sale. There was no disclosure by the Defendant or on his behalf as to whether the funds were still held by Percentage Property Pty Ltd, or if not, how the funds had been applied.

A Notice of Motion was then filed by Greg Walsh on behalf of the Plaintiff on 29 May 2023, seeking an order that the Defendant pay into Court the proceeds of sale of the Roberts Road property. The Plaintiff appeared unrepresented when the motion was before Rothman J on 1 June 2023. His Honour ordered that the Defendant pay into Court “the proceeds of sale, if any” and that he provides within 28 days an account of all money disbursed from the proceeds. The Defendant was ordered to pay the costs of the notice of motion.

On 6 July 2023, the Defendant filed an affidavit purporting to account for disbursement of the proceeds of sale. That affidavit confirmed that the Defendant had not merely failed to pay the proceeds into trust, in breach of his undertaking, but that he had disbursed the proceeds, or allowed them to be disbursed so that a significant component of the original asset preservation order had been frustrated. This caused the Plaintiff to file on 1 September 2023 his notice of motion seeking the appointment of a receiver over the defendant’s assets.

As His Honour observed, there was no application to set aside the original asset preservation order as modified on 3 September 2021 nor to be released from the undertaking of 3 September 2021.

The only practical remedy was for the appointment of a receiver, however, His Honour suggested that the parties consider alternatives, such as the Defendant offering mortgages over his remaining real property to secure any judgment that the plaintiff may recover, as an alternative to incurring the professional fees of a receiver.

His Honour was satisfied that the Plaintiff was entitled to his costs in respect of the application to Weinstein J on 6 March 2023. He was also entitled to the costs in respect of proceedings before Rothman J and also Campbell J on 5 and 14 September 2023. Such costs will be assessed on an indemnity basis.

In the context of whether a lump sum order should be made, His Honour made findings as to the conduct of the Defendant which gave rise to the interlocutory contest which was unreasonable. His Honour ultimately made a finding that the case was not suitable for an order that the costs of the various interlocutory proceedings be paid a specific gross sum. His Honour made an order that such costs be assessed and be paid on an indemnity basis and paid forthwith.

The Case for Redemption

In the King v RR, Hunt DCJ of the District Court at Sydney, NSW, on 29 September 2023, sentenced an offender in respect of two groups of offences.

The first being, the counts of supply drug contrary to s.25A(l) of Drug Misuse and Trafficking Act 1985(NSW). The second being, property contrary to s. 193C(1) of  Crimes Act 1900 (NSW), and to aggravate, take and detain contrary to s.86(2) of Crimes Act 1900 (NSW).

RR was 39 years old at the time of sentencing and sadly, had a problematical upbringing. This involved her natural father, who was a chronic alcoholic, and her parents separating when she was very young. RR’s mother re-married. RR’s stepfather and mother had been very positive in attempting to deal with the very difficult issues involving the long-term addiction to illicit substances by RR.

RR was introduced to such substances in or about 2012, when she obtained work where such drugs were freely available. She thereafter became chronically addicted to such drugs, and continued offending over a number of years up until 2022.

The offender had been sentenced to imprisonment on a number of occasions and found such, a very difficult experience. She tragically experienced significant subjective problems whilst in custody. It was very difficult for her to receive appropriate treatments whilst in custody.

RR had been referred to a General Practitioner (GP), who had been treating her mother for a number of years. This GP was familiar with RR’s subjective history involving her natural father, who had passed away. The GP assessed and treated RR in very difficult circumstances, and ultimately, provided comprehensive reports and treatment records to the sentencing Judge and to the Probation and Parole Service. The GP did not give up in his efforts to assist RR in rehabilitating herself.

Two things occurred in RR’s life at around 2022. She was referred to a Counsellor and Social Worker, Gaye Cameron, and to The Farm at Galong, a Rehabilitation centre for women. The CEO of The Farm is Kate Cleary.

The Farm operates an incredibly successful program for women who wish to remain absent from alcohol and drugs. In particular, it addresses underlying problems experienced by its clients who are suffering from depression and PTSD. RR, on 25 July 2022, entered Stage  and progressed at a very early time to Stage 2 of the Rehabilitation Program. RR impressed staff with her motivation and responsible behaviour, and was promoted to having a leadership role within the program. It was of much significance that RR completed Stage 2 of the Program in only 5 months and was promoted to Stage 3. RR also undertook a Certificate IV in legal services, which normally takes a period of 24 months. RR has now one further subject to complete her Diploma in Paralegal Services. Her progress was described by Kate Cleary as “outstanding

In a truly remarkable development, RR obtained employment with a law firm in the ACT, Australia. RR has been employed as a legal clerk and has undertaken her employment duties in a very dedicated manner. RR has obtained her own rental unit and a motor vehicle.

The sentencing of RR was a difficult exercise. The sentencing Judge, Hunt DCJ, had granted conditional bail to enable RR to attend The Farm Rehabilitation Centre. RR did not let the Court down. There was no doubt that the offences in respect of which RR had pleaded guilty, were serious and involved what can only be described as a difficult sentencing exercise.

Greg Walsh emphasised to His Honour that RR was at the crossroads of her life and had demonstrated an enormous effort to rehabilitate her life before being sentenced.

The factors of childhood disadvantage are referred to in the High Court decision of Bugmy v The Queen [2013] HCA 37 in the context of individual offenders. It was submitted that childhood deprivation is not limited to Aboriginal Members of the Community; Kennedy v The Oueen [2010] NSWCCA 260 at [21 – 57]. As Rothman J observed in BP v R, sentencing principles apply to any persons who come from “particularly disadvantaged backgrounds”; see BP v R [2010] NSWCCA 159. As His Honour said, “it is by a better understanding that the cause of criminal behaviour (wherever it occurs and in whatever community or circumstances) that one can better fashion sentences that achieve the required outcomes of deterrence (general and specific) and rehabilitation”.

It was submitted and ultimately accepted by the sentencing Judge, that RR’s addiction reduced the seriousness of offending, and also the need for general deterrence. It promoted less need for specific deterrence and enhanced the prospects of rehabilitation. See R v Henry [1999] NSWCCA 111; Simpson J. As Her Honour observed in R v Henry:

“Drug addicts do not come to their addiction from a social or environmental vacuum. This Court should not close its eyes to the multifarious circumstances of disadvantage and deprivation that frequently precede and precipitate a descent into illegal drug use. I do not suggest for a moment that all drug users fall into this category. It is because some do and some do not that I believe rigid rules about the impact on sentencing of drug dependency cannot be laid down.” [337].

“I cannot accept that the blameworthiness of one drug taker is (even excepting that small number of individuals who begin drug taking with medically prescribed drugs) always to be treated as being at the same level as the blameworthiness of the next. Nor can I accept that the exercise of free choice in the use of drugs is always of equal dimensions. It is not every decision to use drugs that can properly or fairly be characterised as a decision made in the exercise of free choice. The will of an individual can be overborne or undermined, not only by acts of another person, but also by the pressure of circumstances. I do not accept that most drug offenders are truly exercising free will when they choose the degradation, despair, criminality and cycle of imprisonment that can follow the initial use of illegal drugs. The circumstances that propel the offender to the use of drugs are often, if not usually, beyond his or her control. They may or may not be combined with a vulnerable personality or even a weakness of character” [338]

In the context of rehabilitation, the reports from The Farm carried considerable weight in this factor in regards to the sentence.

The sentencing Judge, Hunt DCJ, imposed a sentence, which ultimately was to be served by way of an Intensive Correctional Order to enable the Offender to continue her rehabilitation in the community, subject to conditions. RR continues to attend upon her GP and psychologist, and is in frequent contact with The Farm and Ms Cleary. RR also attends at The Farm to speak to other persons in the program.

 

Roberts v R [2023] NSWCCA 187

In this matter, Greg Walsh previously represented William Keith Roberts (Applicant) in an application for leave to appeal arising from his conviction of historical sexual abuse of his daughter following a trial by jury in the District Court. He was 84 years old at the time of the trial and gave evidence. the Crown relied upon the manner in which he gave evidence in a particular way in support of the contention that he was lying in his evidence. he was found guilty on three counts and not guilty on two other counts and sentenced to a prison term of 5 years with a non-parole period of 2 years.

The Applicant sought leave to appeal from his convictions on two grounds:

  1. That a miscarriage of justice occurred by reason of the fact that he was not or may not have been fit to stand trial;
  2. That the guilty verdicts on two counts were Unreasonable and cannot be supported having regard to the evidence.

Prior to the sentencing of the Applicant, reports have been obtained from experts that he was suffering from dementia at the time of the trial which affected his fitness to be tried. This issue was not raised at the trial and first raised on appeal. The hearing of the appeal, evidence was given by three experts as to the Applicant’s fitness. Greg Walsh and Matthew Johnston SC, who was Senior Counsel at the trial, also gave evidence. audio recordings of the Applicant giving evidence at trial was also relied upon.

‘The Court upheld ground one of the appeal by majority (per Yehia J and Davies J agreeing, Kirk JA dissenting) but unanimously dismissed ground two.

The issue of principle based upon R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283, is that the appellate court engages in a question that is not based upon the identity of the decision-maker but on whether a miscarriage of justice has been occasioned at [160] and [168].

The evidence before the Court raised a question about the propriety of the conviction because the Applicant may have been unfit to stand trial at [172]. The opinions expressed by two of the three medical experts are a sufficient basis to conclude that the RTI test is met at [173].

The Applicant’s ‘argumentative and obstructive’ presentation, and his denials that he had given earlier evidence in a particular way, was ceased upon by the Trial Crown in support of the contention that the Applicant was lying in his evidence, at [193]. The jury did not know that the Applicant had dementia at [199].

Where a miscarriage of justice arises from the Applicant’s fitness to be tried with factual matters the subject of tested evidence in the appeal court, then miscarriage will only be made out if the Court is satisfied that the applicant was not fit to be tried or sufficiently persuaded that it appears unjust or unsafe to allow the verdict to stand: at [51], [52], [55]; MRW v R [2011] NSWCCA 260; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA29; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

 It was held that the Applicant’s capacity to give evidence was somewhat affected by his dementia and reduced in comparison to if he gave evidence without that condition. That does not suffice to establish that he was not fit to be tried. The legal requirement sets a minimum standard, not a relative one; at [127].

Mr Walsh gave evidence in the Court of Criminal Appeal and his evidence is referred to at [72] – [75].

James Hulse v Insurance Australia (trading as NRMA)

Member — Belinda Cassidy
Dated 14 December 2022

In this matter, Greg Walsh acted for James Hulse in respect of a decision made by NRMA Insurance denying liability on the basis that the Claimant had been charged with and had been convicted of a serious driving offence connected with the accident. The Claimant sought an internal review and on 13 September 2022, NRMA issued its internal review decision affirming the original decision to deny liability.

The Claimant referred the dispute to the Personal Injury Commission and the proceedings were allocated to Member, Belinda Cassidy.

Background

On 11th September 2020, the Claimant was riding his motorcycle on Shaw Street in Kingsgrove. He came to the intersection at Berith Street, where the driver of a Toyota Sedan, turned right across his path and a collision occurred. The Claimant sustained injuries to his wrists, penis, testicles, hips and lower back. A claim was made on 23 December 2020 and NRMA accepted liability for the statutory benefits claim. On 2 September 2022, a further liability announcement was sent denying liability on the basis that the Claimant had been charged and convicted with a serious driving offence connected with the accident. The Claimant made a claim for statutory benefits under part 3 of the Motor Accidents Iniuries Act (2017), which comprised of weekly income support benefits in accordance with division 3.3 of the Act, and treatment and care benefits in accordance with division 3.4 of the Act.

There are a number of limits to the benefits of Part 3 such as ss 3.1 1 and 3.28, if a claimant is wholly or mostly at fault, no benefits are payable after the first 26 weeks following the accident. As the claimant was not wholly or mostly at fault, and received serious injuries, these sections will not be applicable to him and his claim.

Under s 3.37 of the Act, benefits are restricted if a person is charged with, or convicted, of a ‘serious driving offence’ that is ‘related to a motor accident,’ where no statutory benefits are payable.

Evidence relied upon

The police report referred to 7.72g of cannabis located in the Claimants’ jacket pockets. The Claimant had consumed ‘Wild Turkey (alcohol) and cannabis’, and an alcohol sample was taken. The blood alcohol result was negative. The insurers internal review decision referred to evidence that was not before the Assessor. The Claimants lawyer, Greg Walsh, did not challenge this evidence. The blood tested positive for amphetamine, methylamphetamine and cannabis. The Claimant’s police statement confirmed he had consumed a small quantity of illicit drugs the night before the accident.

Greg Walsh provided the Member with a copy of the Court result on 8 November 2022. The order of the Magistrate in the Court result document was ‘the offender… is found guilty without proceeding to conviction the matter is dismissed pursuant to s 10.1(1)(a) of the Crimes (Sentencing and Procedure) Act 1999‘. The Claimants first submissions asserted that the claimant was not convicted of a serious driving offence and no charges pending therefore, s 3.37(1) does not apply at all. According to the insurer, if a claimant is charged with a serious driving offence, then no statutory benefits are payable. If a claimant is convicted of a serious driving offence, there are no statutory benefits payable. The first submissions on behalf of the Claimant referred to the Court making a conditional release order under ss 9(1)(b) and 10(1)(b) of the CSP Act. However, under s 3.37(4), there are no proceedings pending because the charges have been dismissed ‘without proceeding to conviction’. In the context of the two decisions of ANN v AQQ, as referred to in the review proceedings of Abberton, the issue of causal relationship was not required to be determined and that there is no binding authority in the operation of s 3.37(1) whether a causal connection is required between the serious driving offence and the accident. It was further submitted on behalf of the Claimant by Greg Walsh that s 3.37(1) in context of ss 3.37(2), 3.38(2)(a) and 3.38(6) requires a causal connection between the serious driving offence and the motor accident before the Claimant is disentitled to statutory benefits.

Findings of Member Cassidy

Member Cassidy made a finding that the offence of possession of an illicit substance, cannabis, was not a serious driving offence because it is not a driving offence. The Claimant had a small quantity of an illegal drug for personal use, which is a charge that does not fall within any sections of the Road Transport Act 2013 identified in s 3.37(5).

The other charge concerned driving with an illicit substance. A serious driving offence includes a ‘major offence’ under the Road Transport Act 2013. Section 4(d) of that Act defines a ‘major offence’ as including events under ss 111 and 112. Section 111 relates to having a prescribed illicit drug present in a blood or urine test while driving a vehicle. Section 112 concerns the ‘use or attempted use of a vehicle under the influence of alcohol or any other drug’. The Claimant was charged under s 111(1)(a). There was no issue by Greg Walsh as to whether this was a ‘serious driving offence’. Member Cassidy referred to the insurers submissions that s 3.37(1) should be interpreted as referring to the historical factor of a charge made regard as to whether the charge is dropped or pursued, or whether the charge is proven or not. Member Cassidy went on to find that an actual conviction is required in the test proposed under s 3.37(1). In such circumstances, member Cassidy found that the Claimant is entitled to the continued payment of statutory benefits.

Katie Roberts v NRMA

Claimant — Katie Roberts
Applicant — the insurer PRC Matter Number WM 10541033/22
Medical assessment conducted by Philip Truskett
Date of original certificate 13 September 2022 President’s delegate — Rachel Bittliff
Date of decision 13 December 2022

In this matter, Dr Katie Roberts suffered serious injuries to her left knee on 1 July 2015.

On 13 September 2022, Assessor Philip Truskett found her left knee bone graft, as recommended by Dr Berton, related to the injury caused by the accident and was reasonable and necessary considering the circumstances. The insurer, NRMA, sought to have Assessor Truskett’s assessment reviewed on the basis that it was incorrect in material respect. Greg Walsh represented the Claimant and did not agree that a review was warranted in the matter and addresses the issues raised by the applicant. Section 63 of the Motor Accidents Act 1988 provides that if the president is satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect in material respect, the review application will be referred to a Review Panel. The insurer lodged an application under s 133A of the Personal Injury Commission Rules 2021.

Assessor Trsukett’s certificate was issued to the parties on 22 September 2022. In accordance with s 63(7) of the Act, the parties had 28 days from 22 September 2022 to make an application for a Panel Review of Assessor Truskett’s assessment. The final date to make the application was therefore, 20 October 2022. The insurer made its application on 21 October 2022.

The President’s delegate, Rachel Bittliff, determined that the loss of the right to make the application, does not work demonstrable and a substantial injustice. The delegate referred to Rae v Nominal Defendant [2020] NSWSC 1612 which at [80], the court observed the medical assessor was not obligated under the Motor Accidents Compensation Act 1999 or Medical Assessment (Guidelines) to refer to every report before him. Rather, he was obligated to explain his path of reasoning in sufficient detail to determine whether he fell into error.

The delegate made a finding that Assessor Truskett was not obligated to discuss each document, but was required to consider them. As such the delegate was not satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect and the material respect on the basis that Assessor Truskett did not have regard to relevant material at the time of the assessment.

 

R v Dawson (2022) NSWSC 1632

On 2 December 2022, Harrison J sentenced Christopher Dawson to imprisonment for 24 years commencing on 30 August 2022 expiring 29 August 2046 with a non-parole period of 18 years expiring on 29 August 2040.

Christopher Michael Dawson was convicted on 30 August 2022 following a trial before his honour without a jury of the murder of his wife Lynette Dawson on or about 8 January 1982. Facts upon which his sentence are set out in his honour’s verdict judgment (R v Dawson [20221 NSWSC 1311).

Harrison J set out in his remarks on summary of the facts found against Mr Dawson. His Honour found that Mr Dawson killed his wife by a voluntary act performed by him with the intention of causing her death. His Honour found that this increased the objective seriousness of the offence of murder, in contrast or death caused by an act committed with the intention merely to inflict grievous bodily harm. As Lynette Dawson’s body has never been found, the precise way in which she died is not and cannot be known. This was found by his Honour to be an aggravating circumstance of the offence of murder, R v Wilkinson (No 5) [2009] NSWSC 432 [61]. Harrison J found that objectively the crime was a very serious one. His Honour found that Mr Dawson planned to kill his wife, and he did so in a domestic context.

His Honour, in accordance with s 28 of the Crimes (Sentencing and Procedure) Act 1999, considered victim impact statements read to the Court on behalf of Lynette Dawson’s daughter Shanelle, her brother Gregory, and sister Patricia. His Honour considered the subjective circumstances of Mr Dawson who was born on 1948 and was 74 years of age at the time of sentence. His Honour found that he suffered a fractured hip, a fractured rib and moderate aortic regurgitation. A brain scan on April 2021 revealed what appears to be microangiopathic vasculopathy. Dr Olav Nielssen who examined Mr Dawson on several occasions, found that he was suffering from a depressive illness. His Honour referred to a number of testimonials that spoke of Mr Dawson’s characteristics, as a “loving father, a dad and grandfather, and a loving and loyal husband’.

In respect of the issue extra curial punishment, his Honour rejected a submission by Greg Walsh that the extraordinary publicity was a matter that ought to be taken into account upon the sentencing of Mr Dawson. His Honour was referred to the findings of Fullerton J in R v Dawson [2020] NSWSC 1221 and the observations of Bathurst CJ in Dawson v R [2021] NSWCCA 117. His Honour acknowledged that the publicity has undoubtedly been intent on. However, his Honour made a finding that as Mr Dawson’s crime is a matter of intense public interest, such attention that he has received is directly referrable to that interest.

His Honour referred to the issue of delay and that Mr Dawson was to be sentenced at the time the offence was committed, in so far as those sentencing practices can be ascertained. His Honour rejected a submission by Mr Walsh that any delay between the commission of the offence and Mr Dawson’s arrest and trial were not attributable to the operation of the criminal justice system in the relevant sense. His Honour found special circumstances under s 44(2) of the Crimes (Sentencing and Procedure) Act 1999.

 

Malicious Prosecution

Greg Walsh OAM

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Racial Stereotyping of Suspects

Greg Walsh OAM

October 2022


The racial stereotyping of persons within our community, is a matter of some considerable concern. Such involves a fixed over generalisation belief about a particular group of people based on their race. It involves discrimination or prejudice of a person or a group of people based on their skin colour, language, religion, customs and or beliefs. It has, as demonstrated in the United States of America for instance, that it can have an enormous negative impact upon our society.

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Council of the Law Society of NSW v Alkhair [2022] NSWCATOD 111

In this case Greg Walsh represented Mr Alkhair in respect of an allegation of professional misconduct made against him by the Law Society of NSW.

Rule 9 of Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 prohibits the disclosure by a solicitor of any information which is confidential to the client acquired by a solicitor in the client’s engagement. The rule provides that in certain circumstances, a solicitor may disclose information which is confidential to the client.

The solicitor was admitted on 13 February 2004. He had acted for Mr Navid Moraki and Mrs Moraki on the purchase of two properties at Warrigee and Castle Hill. The Moraki’s had entered into a loan agreement one Omar El-Cheikh dated 12 October 2016. Mrs Moraki borrowed $900,000 from Mr El-Cheikh based on the Castle Hill property as security,

The solicitor acted for Mrs Moraki in connection to the loan agreement. Mr Joseph Di Mauro of DSA Law acted for Mr El-Cheikh in connection with the loan agreement.

A dispute arose in respect of Mrs Moraki and Mr El-Cheikh in relation to the loan agreement and proceedings were commenced in May 2017 in the Supreme Court by Mr El-Cheikh and El-Cheikh Group Pty Limited against Mrs Moraki and Iconic Constructions Australia Pty Limited to recover the loan funds of $900,000. Those proceedings were heard by Kunc J.

A critical issue in the proceedings before NCAT was whether the solicitor had breached client confidentiality. He in his Reply had admitted that he had breached client confidentiality, however, this was on the basis of quite exceptional circumstances. 

The Tribunal referred to a number of important judgments including Riordan J and Babcock and Brown DIF Ill Global v Babcock & Brown International Pty Ltd [201 5] VSC 433. His Honour referred to an exception that manners of common or public knowledge between a client and a solicitor are otherwise confidential against all persons unless by reason of implied direction or otherwise, the solicitor was authorised to provide confidential information to a third party. There is no doubting that circumstances of confidence can lose its characterisation of confidential if it has been released into the public domain; Nash v Timber Corp Finance Pty Ltd (in Liq) in the matter of bankrupt estate of Nash [2019] FCA 957 at 77.

At the time of the solicitor speaking to Mr Di Mauro, he was aware that Mrs Moraki was denying the advance of monies by Mr El-Cheikh in the Supreme Court proceedings. However, Mr Di Mauro was not a partner, principal, director or employee of the solicitor’s law practice, or a person otherwise engaged by that law practice for the purposes of delivering or administering legal services in relation to Mr and Mrs Moraki. As such, the information provided by the solicitor to Mr Di Mauro was confidential to Mr and Mrs Moraki, in that it concerned communications between Mr and Mrs Moraki, and the solicitor in relation to or connected with the loan agreement.

An issue that arose was that the receipt of funds by Mrs Moraki pursuant to the loan agreement was a matter directly in issue in the Supreme Court proceedings. As such, the communications between the solicitor and Mr and Mrs Moraki were of a kind that they would expect to be kept confidential.

Greg Walsh on behalf of the solicitor raised three arguments in respect of the proper characterisation of the solicitor’s conduct.

Firstly, it was pointed out that the solicitor was simply stating in reality what was the obvious and that both Mr Di Mauro and the solicitor’s client were frequently parties to the disclosure of the nature and effect of instructions provided by Mrs Moraki in respect of the conveyancing and loan transactions for the Castle Hill property.

Greg Walsh also submitted that the disclosure to Mr Di Mauro by the solicitor involved open or shared communications, such that the Conduct Rules permitted that disclosure as far as the solicitor’s state of mind was concerned, it was submitted by Mr Walsh that having regard to conversations of Mr Moraki, the solicitor believed that there was no dispute by him that monies were owed to Mr El-Cheikh. Also, that such communications had been carried out by Mr El-Cheikh to Mr Di Mauro who was his solicitor in Supreme Court proceedings.

The solicitor conceded that he had not sought specific consent from the solicitor Mr Alameddenie to make disclosure of the otherwise confidential information to Mr Di Mauro.

Greg Walsh relied upon the decision of the NSW Court of Appeal in Marshall v Prescott [2015] NSWCA 110 and the passage from the judgment of Beazley P with whom MacFarlen JA and Emmett JA agreed. On behalf of the solicitor, it was contended that what had occurred was that of ‘shared information’ to the effect that monies had been advanced by Mr El-Cheikh under the loan agreement to enable the purchase of the property by Mrs Moraki.

The NCAT made findings that the solicitor had breached client confidentiality. However, there were a number of factors which were relevant to whether there was any implied authority to disclose confidential information to Mr Di Mauro. It was the finding of the Tribunal that the conduct which was established on the evidence and admitted by the Respondent were serious and went beyond merely falling short of a standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent lawyer within the meaning of s.296 of the Uniform Law.

The solicitor was reprimanded and fined $4,000 and ordered to undertake appropriate courses so as to maintain the highest professional standards within the legal profession.


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Bouchere v Car Festivals Pty Ltd [2022] FCA 1070

In this matter, Greg Walsh for Lynelle Bouchere.

The initial advice provided was to the effect that the circumstances of the accident was one which arose as a result of a motor vehicle accident arising from a burnout competition, when pure methanol fuel generated by the competitor in the course of the competition, ignited rubber detritus situated in close proximity to the spectator watching the event. As a result, a number of spectators were severely burnt and others suffered psychological injury.

Greg Walsh met with the Claimants in Darwin and accepted instructions on a ‘no win no fee’ basis and also agreed to pay the disbursements of the Claimants. Greg Walsh made the decision not to seek to engage a litigation funder, so as to avoid the Claimants losing up to 60% of any verdict or settlement.

The case was brought against Car Festivals Pty Ltd, Summernats Pty Ltd and Northern Territory Major Events Company Pty Ltd.

Greg Walsh acknowledged that the litigation was extremely hard for and involved enormous effort of not only his part, but that of his staff and with the support of the Claimants. Greg Walsh was of the opinion that the injuries suffered by the Claimants arose not as a result of a motor vehicle accident, but as a result of a breach of the Australian Consumer Law (ACL) and in negligence. This meant that the very restrictive conditions of the Motor Accidents Compensation Act (NT) did not apply.

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NT Spectators – ‘Injury’ case settles for for excess of 3.4 million

NT SPECTATORS – ‘INJURY’ CASE SETTLES FOR IN EXCESS OF 3.4 MILLION

NT Spectator Injury Case at RedNATS Event Alice Springs Raceway settles for $3.4 million and sends clear message to organisers as to the impact of breach of duty of care

A number of Northern Territory and Western Australian Claimants have settled a class action in the Federal Court of Australia at Sydney for an amount of $3.4 million in damages and insurance benefits, with the case highlighting the extent of personal injuries suffered as a result of serious injuries sustained by spectators at the Alice Springs Inland Dragway on 3 September 2017.

The case was conducted by Greg Walsh OAM of Greg Walsh & Co Solicitors of Oatley in Sydney. The initial advice provided to the Claimants was to the effect that the circumstances of the accident was one which arose as a result of a motor vehicle accident arising from a burnout competition, when pure methanol fuel generated by the competitor in the course of the competition, ignited rubber detritus situated in close proximity to the spectator watching the event. As a result, a number of spectators were severely burnt and others suffered psychological injury.

Greg Walsh met with the Claimants in Darwin and accepted instructions on a ‘no win no fee’ basis and also agreed to pay the disbursements of the Claimants. Greg Walsh made the decision not to seek to engage a litigation funder, so as to avoid the Claimants losing up to 60% of any verdict or settlement.

The case was brought against Car Festivals Pty Ltd, Summernats Pty Ltd and Northern Territory Major Events Company Pty Ltd.

Greg Walsh acknowledged that the litigation was extremely hard for and involved enormous effort of not only his part, but that of his staff and with the support of the Claimants. Greg Walsh was of the opinion that the injuries suffered by the Claimants arose not as a result of a motor vehicle accident, but as a result of a breach of the Australian Consumer Law (ACL) and in negligence. This meant that the very restrictive conditions of the Motor Accidents Compensation Act (NT) did not apply.

If the Claimants had continued with their claims under MACA, they would have been only entitled to very limited compensation and also real practical difficulties in the nature of medical assessment and treatment. Greg Walsh was able to, for instance, arrange for Associate Professor Haertsch AM to assess the Claimants. Professor Haertsch treated that wonderful Australia, Turia Pitt, in respect of her catastrophic burn injuries. Greg Walsh was also able to have the Claimants examined by an eminent Sydney forensic psychiatrist, namely Dr Peter Klug and this was of considerable assistance to them.

If persons suffer any personal injury, whether it arises from a sporting event, motor vehicle accident, work related accident, bullying, then they should contact Greg Walsh and his team.

 

Braun & Bond v Legal Complaints Review Officer & Simone Harris [2022] NZHC 1501

In this matter, Greg Walsh acted on a pro bono basis for Simone Harris, the Second Respondent.

An application was made by the Applicants for judicial review of a decision of Legal Complaints Review Officer (‘LCRO’) asserting that there was a slip in a decision of the Law Society Standards Committee which should have been corrected by the LCRO.

The Second Respondent’s late father, Mr Harris, assisted his daughter in respect of a costs dispute with the Applicants. That dispute was the subject of a referral to a Costs Assessor in respect of twenty bills which totalled $52,958.50. The Assessor in his report included GST (the GST error). He recommended that the total fee was fair and reasonable for the work performed.

On 25 May 2021, the LCRO sent the Assessor’s report to the Applicants with a notice of hearing, setting the matter down on 7 July 2021. Submissions were provided. The Applicants did not notice the GST error in the Assessor’s report. The Applicants contended that this was an oversight on their behalf.

On 30 May 2021, the Second Respondent made submissions by way of a one page letter from her father, the late Mr Harris, accepting the findings of the Assessor and as a gesture of good faith, paying a sum of NZ$30,000 leaving a balance of NZ$22,000 in the event that the findings of the Assessor were adopted.

On 17 August 2021, the Committee sent the Applicants it notice of determination which again referred to the figure of $52,958.50 including disbursements and GST. It resolved to accept the recommendation of the Assessor and decided to take no further action on the complaint.

In the letter of 30 May 2021, Mr Harris had made submissions in respect of various issues including abuse of process and issue of estoppel.

On 15 September 2021, the Professional Standards officer informed the Applicants that the Committee had sought clarification on the Assessor who agreed that he had made an error. The Second Respondent’s concern was not forthcoming to the correction of that error.

On 24 September 2021, the Applicants applied to the LCRO for a review of the Committee’s decision. On 14 January 2022, the LCRO issued a decision striking out the application as an “abuse of process”. A number of errors were contended on behalf of the Applicants and in respect of each they were successful in the judgment of Gordon J. Mr Walsh prepared submissions on behalf of the Second Respondent and these were filed and served though time constraints did not permit Mr Walsh to personally appear in the matter as there was not sufficient time for an application under the relevant legislation to be dealt with by the New Zealand Law Society to be admitted in New Zealand for the purposes of representing the Second Respondent in these proceedings.

The Court made orders that the Committee could not rectify the error and re-issued its decision and the s.161 certificate had the Second Respondent considered to the correction of the error. The tests applied by the LCRO were found to be in error and the application for judicial review was granted and the Committee’s decision of 17 August 2021 and s.161 certificate were admitted so the alleged tax invoices total $52,958.50 excluding GST and disbursements. It is apparent that in New Zealand, law practices charge a flat 15% interest for outstanding costs and disbursements. There is no requirement for disclosure as to an estimate of total costs as provided in the legislation throughout Australia, such as the Legal Profession Uniform Law (NSW) (‘LPUL’).

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New Zealand Herald – The three-year battle: Lawyers win fight for extra 15 per cent after fees mistake.