Patakas v Bevan [2016] NSWSC 1618

Patakas v Bevan [2016] NSWSC 1618

The interlocutory injunction should continue because the solicitor established arguable issues, particularly as to estoppel, limitation, interest and jurisdiction, and the balance of convenience favoured having common entitlement issues determined once by the Supreme Court rather than separately by costs assessors. The evidence concerning alleged non-recourse representations was important to the solicitor's case and was admitted, but protected by non-publication orders because the public interest in preserving confidential communications outweighed open justice to that extent.

Jurisdiction
Australia
Judgment Date
18 November 2016
Procedural Posture
Equity Proceedings Seeking Interlocutory Injunction and Supervisory Relief Concerning Costs Assessment Applications / Application for Continuation of an Interlocutory Injunction
Outcome
Interlocutory injunction continued; parties directed to bring in draft orders.
Legal Topics
['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'costs Assessment Applications' 'protected Confidences' 'non Publication Orders' 'improperly or Illegally Obtained Evidence' 'misleading or Deceptive Conduct' 'estoppel' 'limitation Defences' 'interest on Legal Costs']
['practice and Procedure' 'equity' 'evidence' 'legal Profession' 'costs Assessment' 'consumer Law'] ['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'costs Assessment Applications' 'protected Confidences' 'non Publication Orders' 'improperly or Illegally Obtained Evidence' 'misleading or Deceptive Conduct' 'estoppel' 'limitation Defences' 'interest on Legal Costs']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Interlocutory Injunction and Supervisory Relief Concerning Costs Assessment Applications / Application for Continuation of an Interlocutory Injunction

Legal Issues

  1. 1 ["Whether there were serious questions to be tried in relation to the solicitor's claims for final relief, including estoppel, contract, limitation, misleading or deceptive conduct, fraud, supervisory relief, interest and jurisdictional objections to the costs assessments." 'Whether the balance of convenience favoured continuing the interlocutory injunction and having common entitlement issues determined by the Court rather than by individual costs assessors.' "Whether affidavit evidence of conversations concerning clients' financial position or health should be excluded as protected confidences under s 126B of the Evidence Act 1995 (NSW), or as improperly or illegally obtained evidence under s 138." 'Whether a non-publication order should be made so that evidence could be received while protecting confidential communications.' 'Whether applications for costs assessment raised jurisdictional issues under s 352 of the Legal Profession Act 2004 (NSW), including whether at least 30 days had passed since the relevant bills were given.']

Ratio Decidendi

The interlocutory injunction should continue because the solicitor established arguable issues, particularly as to estoppel, limitation, interest and jurisdiction, and the balance of convenience favoured having common entitlement issues determined once by the Supreme Court rather than separately by costs assessors. The evidence concerning alleged non-recourse representations was important to the solicitor's case and was admitted, but protected by non-publication orders because the public interest in preserving confidential communications outweighed open justice to that extent.

Court Disposition

Interlocutory injunction continued; parties directed to bring in draft orders.

Orders

  • ['The existing interlocutory injunctive regime is to continue.' 'The solicitor is to move to have the hearing of the case expedited and undertake to do all that he can to prepare for the earliest possible hearing that can be given.' 'The parties are to prepare and submit within seven days draft orders to give effect...