Soloman v Savage (No 2)

First, Mr El Khoury’s submission makes a series of statements of fact which are unsupported in his further affidavit; this suggests a defective appreciation of the difference between evidence and submission.

Secondly, Mr El Khoury’s affidavit is entirely silent as to how the documents in this Court with his name and signature came about. His submission states that “It is evident that I was not involved directly in the preparations or the filing of any of the appeal books”. The submission is difficult to reconcile with the two documents at pages 18 and 19 of the Orange Book, both purporting to have been signed by Mr El Khoury as “Solicitor for the Appellant”. The signature is illegible, but appears to be similar to that on his most recent affidavit. Those documents are statements pursuant to UCPR rr 51.28(3)(a) and 51.29(5)(b). The two pages certify that “there was no transcript of the hearing” (and hence no Black Appeal Book) and “there were no documents before the Court below (other than those in the Red Book) relevant and necessary for the hearing and determination of the proceedings” (and hence no Blue Appeal Book). Contrary to what was certified, there was a transcript and there was documentary evidence which was necessary for the hearing and determination of the appeal, but for present purposes what matters is that those pages are difficult to reconcile with the submission that Mr El Khoury was not involved directly with the preparation of the appeal books. Rather, he appears to have been responsible for the failure to provide all of the documents necessary to hear and determine Mr Soloman’s appeal.

Thirdly, Mr El Khoury’s submission says that “I only volunteered to witness some court documents for Mr Soloman who decided to represent himself. I was doing so not as Mr Soloman’s legal representative but rather for the purpose of not putting Mr Soloman in a disadvantaged situation” (original emphasis). It is not clear whether the certifications pursuant to UCPR rr 51.28(3)(a) and 51.29(5)(b) are the documents to which he referred (although there seem to be no other documents signed by Mr El Khoury in the appeal books). If he was referring to those documents as the court documents which he “volunteered to witness”, his submission that he did not do so as Mr Soloman’s solicitor is difficult to reconcile with the “Capacity” of “Solicitor for the Appellant” under what is apparently his signature. Further, Mr El Khoury was not “witnessing” a document. He was certifying that, contrary to the usual position, no Blue or Black Appeal Books needed to be filed.

Fourthly, Mr El Khoury’s submission, when addressing the consequences of his receipt of instructions to attend the District Court in Bega, stated, “As a legal practitioner I am a creature of instructions and I would be liable if I would act contrary to my client's instructions”; this suggests a serious failure to appreciate his overriding obligation to the Court.

Fifthly, Mr El Khoury’s submissions (but not his affidavit) state that his client had advised him (Mr El Khoury) that the client had received substantial threats to both his life and the lives of his legal team. The text messages said to have been forwarded by the client and indeed the client’s text message to Mr El Khoury do not contain any threat to the legal representatives, as distinct from a threat to the client. Why in these circumstances Mr El Khoury believed that the filing of the notice of motion and the supporting affidavit constituted an adequate explanation to the Court for his own non-compliance remains unclear. Similarly, it remains unclear why Mr El Khoury apparently made no attempt to contact the Court directly to explain his position.

Sixthly, Mr El Khoury has referred twice in support of his conduct to “the matter of HUA LI v ZE CHENG JIN matter number (p) SYC 4052/2013” (it is the only reference to the decision of any court mentioned in his submission). The impression gained from the submission is that the reference is to something that a Federal Circuit Court judge said when submissions were made by a practitioner after a client withdrew instructions. Putting to one side the question of the weight (if any) to be given to it, there is no ready way to access the transcript from the reference provided, despite Mr El Khoury’s statement that “the transcript of that matter … is on the record of the Federal Circuit Court in the Sydney registry”.