Sweet Angels Family Day Care Scheme Pty Ltd v Department of Education

[2021] NSWSC 957

Supreme Court

New South Wales

Medium Neutral Citation:	Sweet Angels Family Day Care Scheme Pty Ltd v Department of Education [2021] NSWSC 957
Hearing dates:	2 August 2021
Date of orders:	2 August 2021
Decision date:	02 August 2021
Jurisdiction:	Equity
Before:	Parker J
Decision:	See [20]
Catchwords:	CIVIL PROCEDURE – interlocutory application – withdrawal of solicitor – where the application was made less than 28 days from the hearing date – where withdrawal would leave the plaintiff company unrepresented – application refused
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 7.29
Cases Cited:	Street v Luna Park Sydney Pty Ltd (2009) 223 FLR 245
Category:	Procedural rulings
Parties:	Hisham Karnib (Applicant) Department of Education (Respondent/Defendant)
Representation:	Appearances: H Karnib (Solicitor Advocate) (Applicant/Plaintiff) A Avery-Williams (Counsel) (Respondent/Defendant) Solicitors: Karnib Saddik Law Firm (Applicant/Plaintiff) Hunt & Hunt Lawyers (Respondent/Defendant)
File Number(s):	2019/276885
Publication restriction:	Nil

Judgment – EX TEMPORE

Revised from transcript; issued 3 August 2021

1. This is an application by the solicitor for the plaintiff to be permitted to cease to act in the proceedings. It has been brought before the Court at short notice because the trial of proceedings is fixed to begin next Monday, 9 August 2021.

2. The plaintiff in the proceedings is Sweet Angels Family Day Care Scheme Pty Limited. As its name suggests, it operated a day care facility for children. In order to carry on that business it required approval from, and was the subject of administrative supervision by, the Department of Education (“the Department”), which is the defendant.

3. In May 2019 Ms Yasmin El Sulaiman, who is the sole director of the plaintiff, executed on its behalf a notice of surrender of its approval from the Department. The result is that since that date the plaintiff has been unable to carry on business as a day care facility. I assume that it has not done so.

4. In these proceedings the plaintiff seeks orders from the Court which would have the effect of rescinding (if that is possible) the notice of surrender. The plaintiff seeks an order allowing it to withdraw the notice of surrender "as though it was never served" or a declaration that the notice of surrender is "not binding on the plaintiff" and that the Department was not entitled "to rely or to act upon" the notice of surrender. There is also a claim for damages "on indemnity basis" for financial losses suffered by the plaintiff as a result of the closure of the business.

5. The plaintiff’s cause of action is obscure. It seems that the background to the notice of surrender was a visit by departmental officers to the business premises of the plaintiff in which those officers indicated that the plaintiff was not in compliance with the conditions of its approval and the Department intended to take action, unless the approval was surrendered. These representations are now said to have been incorrect and to have amounted to some form of duress.

6. It is not suggested there has been some form of misfeasance in public office or deceit, nor is it clear that the claim involves conduct in trade or commerce, since it relates to the carrying out by the Department of its regulatory functions: see Street v Luna Park Sydney Pty Ltd (2009) 223 FLR 245 at 299-303 [210]-[225].

7. The hearing date was fixed as long ago as 1 September last year. Since June I have been attempting to convene a pre-trial directions hearing with a view to finding out more about how the plaintiff puts its case and about whether the matter is ready for hearing at all.

8. On 18 June the matter was listed for pre-trial directions. Mr Conomos, solicitor, appeared for the plaintiff on behalf of the firm that was then on the record, but he indicated that he had no instructions and needed further time. The matter was adjourned to 2 July when Mr Jobson of counsel appeared for the plaintiff, but it was indicated that the plaintiff's solicitor had served notice of intention to file a notice of ceasing to act, which would come into effect on 28 July or thereabouts.

9. The matter was adjourned to 13 July when Mr Jobson again appeared. Ms El Sulaiman was also present. I allowed her to address the Court, even though no leave had been obtained for her to represent the plaintiff company. I made it clear that if the solicitors withdrew then the Rules required that the plaintiff be represented by some other solicitor, unless leave was granted to allow Ms El Sulaiman to represent the company herself. I indicated to Ms El Sulaiman that if she was to do this an application would be required and I would require persuasion as to why I should allow her, as an unqualified person, to conduct the plaintiff’s case.

10. Then on 21 July Mr Hisham Karnib, solicitor, filed a notice of change of solicitor indicating that he had been appointed to act for the plaintiff. Apparently, he had represented the plaintiff at an earlier stage of the proceedings.

11. At a directions hearing on 28 July Mr Karnib was unable to answer my questions about the nature of the plaintiff's claim but I made it clear to him that the proceedings would be going ahead on 9 August as the plaintiff had had ample opportunity to consider its case and, if necessary, apply for an adjournment. I made supplementary directions for the preparation of submissions, objections and the like for the conduct of the hearing.

12. Then last Friday, 30 July, Mr Karnib made the present application. It was supported by an affidavit, but the affidavit was very uninformative. All it stated was that on 29 July (last Thursday) Mr Karnib had a conference with "the plaintiff" (by which I assume he means Ms El Sulaiman) whereby "they" agreed that "they" no longer wanted to instruct him in the case and that this had been confirmed by email on 30 July.

13. A point was raised by counsel for the defendant on this application that the email purports to be from Ms El Sulaiman, but her name was spelt incorrectly and does not come from the email address for her which has been used for the purposes of these proceedings. However, no application was made to cross-examine Mr Karnib on the affidavit. I proceed on the basis that those in control of the plaintiff do not wish Mr Karnib to continue to act.

14. However, the wishes of those who control the plaintiff company, although relevant, are not determinative for the purpose of this application. Leave is required because the application has been made less than 28 days before the trial: see Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 7.29(2)(a).

15. The history that I have briefly recounted indicates that the plaintiff has had ample opportunity to obtain legal representation for the purpose of the hearing. No reason of substance has been put forward to support the plaintiff's change of mind about who it wants to represent it. There is no reason to think that Mr Karnib would be unable to advance on the plaintiff's behalf such merits as the claim may have.

16. Furthermore, at present there is no legally qualified person to replace Mr Karnib. In his remarks from the Bar Table Mr Karnib indicated he had been told by his client that another solicitor was to be retained, but there is no evidence that that has happened at this point.

17. It is always open to the plaintiff to file a notice appointing a new solicitor, if one is prepared to act, in place of Mr Karnib, although it must be clearly understood that this will not affect the timetable which has been laid down for the hearing. But as matters stand there is no one to take over from Mr Karnib and the result would be to leave the company without representation. This would mean that the company would be unable to conduct the proceedings at all unless leave is granted for some unqualified person to act on its behalf: see UCPR, r 7.1. That is in no one’s interest. It is not in the Court's interest and it is not in the plaintiff's interest either.

18. Bearing in mind the questions about whether the plaintiff actually has a valid claim, this is par excellence a case where the company should, unless circumstances are absolutely extraordinary, be required to present its case through the medium of a legally qualified person.

19. In these circumstances, difficult as it is for Mr Karnib to have an unwilling client, I think I must refuse his application to withdraw. I have every sympathy for Mr Karnib but I feel bound to point out that it was ultimately his decision to accept instructions on the company's behalf less than 28 days before the trial was due to begin.

20. For these reasons the Court makes the following orders on Mr Karnib’s notice of motion filed 2 August 2021:

1. Order that the motion be dismissed;

2. Order that Mr Karnib pay the defendant's costs of the motion.

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