Benched solicitor out of time in defamation action … Second bite of the defamation cherry with law firm and barrister in the frame … Nick Bonyhady reports courtside  

Late last month, Associate Justice Melissa Daly of the Vic Supremes delivered summary judgment against Brott in a defamation case, finding he was out of time.  

Brott, who is in Family Court proceedings against his former partner Natalie McAra over the distribution of their assets, had attempted to sue McAra’s solicitors and barrister. 

The allegedly defamatory material was a letter the accountancy firm PKF had sent the Australian Tax Office in connection with the Brott-McAra Family Court proceedings.

Brott had first filed proceedings against McAra and the accountants over the letter in 2016 but settled after mediation in mid-2017. The letter was retracted, but evidently unsatisfied, Brott went back for more.

On August 18, 2017, just a day before the expiry of the limitation period, Brott’s solicitors sent a concerns notice to Farrar, Gesini & Dunn Lawyers (FGD), who were acting for McAra in the Family Court proceedings. McAra’s barrister Martin Bartfeld QC was never served but was named as a defendant. 

Attempting to convince the judge that he deserved an extension of time, Brott said that he had only become aware of FGD’s alleged role in the preparation of the letter after McAra answered interrogatories in the first proceedings in July 2017. 

However, Daly AssJ noted that that still left Brott several weeks to commence proceedings prior to the expiry of the limitation period. 

Brott attributed this additional delay to his attempts to clarify Bartfeld QC’s potential role in drafting the letter. However, HH held that it would have been “common sense” for Brott to start the proceedings and then seek to join any additional parties if he discovered they were involved, given the impending deadline.

Her Honour was not convinced that Brott’s apparent illness made it reasonable for him to have not commenced proceedings until after the limitation period had expired.  

“Apart from the fact that the evidence about Mr Brott’s health is somewhat vague … this assertion [that illness explains Brott’s untimeliness] sits uncomfortably with the evidence that Mr Brott has given instructions to bring and defend applications and appeals in the Family Court proceeding involving some 45 hearings over recent years.”

Finally, while Brott is technically bankrupt, Daly noted the fact that his counsel was willing to act on a credit basis meant that his money troubles would not have interfered with his ability to commence proceedings. 

Her Honour accepted that it may have made it difficult for Brott to brief counsel later on, but held that “that of itself does not excuse the delay in issuing the proceeding”.

Brott’s bid for a second bite of the defamation cherry was dismissed.

For readers who are unfamiliar with Brott’s lengthy file, this is far from the first time that the Yarraside operator has been mentioned in dispatches. 

After his stoush with the Legal Services Commission in 2011 we reported Brott, “had commenced and acted in legal proceedings on behalf of people who had no knowledge of the matter and had given no instructions to act”. 

For that severe indiscretion, Brott was sidelined from the track until  January 4, 2019.

Earlier in the noughts, our dearly departed columnist Barry Lane wrote that Brott had been sanctioned for an array of “misdemeanours, including trust account breaches, confusion with a client over costs and permitting a ticketless acquaintance, one Xavier David Holden, to engage in legal practice”.

With Brott scheduled to be eligible return to the trade in less than a year, this may not be the last we have heard of the legendary Brottie. 

Other reports are available here, here, here, here and here.

Issac Alexander Brott v FGD Pty Ltd t/a Farrar Gesini & Dunn (ABN 44 075 255 006) & Ors