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Without reasonable prospects of success

Bmaus v The Owners Strata Plan 56983 [2011] NSWSC 909. McDougall J.

LPA s 347(2) A law practice cannot file Court documentation on a claim or defence of a claim for damages unless…

[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 the document for use in the 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 it being placed in the appropriate Court file.

To put in another way, I do not think that the notion of filing the 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”.

Andrew Marshall v Stacks/Goudkamp PL [2011] NSWDC 5. Colefax DCJ.

[34] The leading authority on the principles informing the exercise of the discretionary power given in section 348 of the Legal Profession Act is Lemoto v Able Technical Pty Limited (2005) 63 NSWLR 300. But as McColl JA makes clear in Lemoto, it was not Parliament's intention to sterilise the organic operation of the common law (my words, not her Honour's).

As her Honour further made clear, an application of the section requires a balancing of competing public interests; and consequently the circumstances in which a personal costs order will be imposed upon a solicitor must be approached cautiously and availed of only in clear cases: see also Fowler & Ors v Toro Constructions PL [2008] NSWCA 178.

[35] It is important to note that in Lemoto the Court of Appeal specifically approved of the judgment of Barrett J in Degiorgio v Dunn (No. 2) (2005) 62 NSWLR 284 in which his Honour, inter alia, considered the meaning of the expression "without reasonable prospects of success". Barrett J held that that expression "equates" with "so lacking in merit or substance as to not be fairly arguable": see Lemoto at 331.

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