Supreme Court New South Wales

• Medium Neutral Citation: Bmaus v The Owners Strata Plan 56983 [2011] NSWSC 909
• Hearing dates: 12/08/2011
• Decision date: 12 August 2011
• Jurisdiction: Equity Division - Technology and Construction List
• Before: McDougall J

Decision

Order for certificate under s 347 Legal Profession Act discharged.

• Catchwords: PRACTICE - discharge of court order requiring counsel to complete and serve a certificate under section 347 of the Legal Profession Act 2004 (NSW) - order inappropriate - meaning of 'filing' for purposes of s347 of Legal Profession Act 2004 (NSW) - decision of fact.
• Legislation Cited: Legal Profession Act 2004 (NSW)
• Category: Procedural and other rulings
• Parties: BMAUS Pty Ltd (ACN 086 238 486) (Plaintiff); The Owners - Strata Plan No. 56963 (Defendants)
• Representation: Counsel: M Lawrence (Plaintiff); F Corsaro SC (Defendant); Solicitors: Lawson Plowes Lawyers (Plaintiff); Self-represented (Defendant)
• File Number(s): 2010/159585

Judgment (ex tempore)

1 HIS HONOUR: On 1 July 2011, the court made orders that, among other things, required the defendant or cross-claimant to file and serve a certificate by its counsel or senior counsel under s 347 of the Legal Profession Act 2004 (NSW). The party in question (the Owners Corporation) is self-represented, in the sense that Mr George Vok of its executive committee has been responsible for filing documents on its behalf in these and related proceedings.

2 The order in question was made either by consent or without opposition - I am not sure which, and there is no evidence on the point - but, nonetheless, it is an order of the court.

3 The Owners Corporation moves for the discharge of that order on the basis that s 347 has no application. For the reasons that follow I think that this contention is correct.

4 Section 347(2) of the Legal Profession Act prohibits practitioners from filing court documentation without the appropriate certificate:

(2) A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

5 There is no doubt that when one tracks the tangled skein of statutory definition through, those at whom the order of 1 July 2011 was directed were a "law practice" because each of them was an Australian legal practitioner (see the definitions in s 4 of the Act, and see specifically the definition of Australian legal practitioner in s 6).

6 The question is not, however, whether counsel retained directly by the Owners Corporation are a "law practice" but whether they have filed "court documentation". The documents in question assert, on their face, that they have been filed for the Owners Corporation and give Mr Vok's name as the contact person. The clear inference is that they have been filed by the Owners Corporation, presumably through a human agent being one of its executive committee, but that is not of great importance.

7 For the purposes of s 347, I think, a document is filed if it is given to the court registry either so that it may be placed into a new file opened for the purpose of commencing proceedings or so that it can be placed into an existing file. The act of filing is, in my view, the precise act of giving the document in question as one required to be kept in the particular court file. Thus, the Court from time to time gives directions for documents to be filed, or filed and served. They are filed by being given to the Court.

8 I do not think that a person who settles a document for use in Court, on direct access instructions from the person on whose behalf the document is to be filed, himself or herself files that document unless he or she takes it to the registry and hands it across for the purpose of its being placed in the appropriate court file. To put it another way, I do not think that the notion of filing a document, which is the trigger for the operation of s 347(2), extends beyond the limited concept to which I have referred to the antecedent steps that have taken place in the course of the document's preparation and finalisation.

9 For those reasons, I am satisfied that it was inappropriate for the order in question to have been made and I discharge it.

10 There is a slight dispute as to costs. The plaintiff says that the Owners Corporation has required an indulgence and should pay the costs of obtaining that. The Owners Corporation says that the application should not have been opposed. Balancing those considerations, the appropriate order, which I make, is that there be no order as to costs of this application.

11 Now, do you need to come back on the 2nd?

12 CORSARO: Yes, your Honour.

13 LAWRENCE: Yes, your Honour.

14 HIS HONOUR: And are there any other directions you need? Do you need the like Scott schedule direction, Mr Lawrence?

15 LAWRENCE: Yes, I do.

16 CORSARO: We'll take the directions made in those proceedings as applicable to the Bmaus proceedings without your Honour having to specifically make it.

17 HIS HONOUR: We'll do more than that, Mr Corsaro.

18 I make the like direction mutatis mutandis for the filing of a Scott schedule and as to the contents of that Scott schedule in these proceedings as I made earlier today in proceedings 2011/87530. I stand the matter over to the directions list on 2 September 2011. I make the like direction in relation to the filing of an affidavit if the owners' corporation apprehends that it may not be able to comply with the order for a Scott schedule.

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Decision last updated: 22 August 2011