WA barrister cannot represent his brother and their company in a fee dispute … Potential conflict of interest … Solicitor chasing money from counsel … Solicitor-barrister duo the team of choice for sub-contractors on many major projects in WA during the boom times … Sadly, now in court wresting over money … Jenek Drevikovsky reports
For now the WA Supreme Court has banned Clifford, the barrister, from representing his own company, which is a party to the proceedings.
Rumsley, principal at Perth shop Allan Rumsley Commercial Disputes Lawyer, is suing Clifford’s company, Sheraz Pty Ltd for unpaid fees, said to total about $500,000.
Sheraz’s two directors are Phillip Clifford and his brother Mark Clifford. Sheraz was the family company, acting as trustee for the Clifford trust. In an earlier court skirmish, a judge called Sheraz “the alter ego” of Phillip Clifford.
It was Phillip’s brother, Mark, and the company itself that Rumsley chose to sue in this matter. Not a defendant himself, Phillip said he would appear as Sheraz’s barrister.
The main dispute concerns work Rumsley says he did for Sheraz and the Cliffords between 2009 and 2015. At the time, the pair were a legal power couple, working together on a number of commercial matters.
Acting on Phillip Clifford’s instructions, Rumsley brought an action against surfwear-maker Vegas Enterprises, after Sheraz’s investment in the company went down the gurgler. The action failed, as did several appeals. Rumsley says he hasn’t been paid.
The solicitor also wants to claw back legal fees he paid to Sheraz, on behalf of clients who used Phillip Clifford’s barristerial services. His argument is that Sheraz was not a legal services provider, and so couldn’t charge fees under the Legal Profession Act.
The total claim is for somewhere around $750,000. Rumsley has already tried to recover his debts in several ways, with debt notices (that led to a Federal Court case) and an action in the WA Dizzo.
In reply to the allegations, the defendants say Rumsley delayed over six years before sending his bill. They also point to procedural irregularities involving the Legal Profession Act and say that Rumsley’s claims have either been extinguished or are live issues in other court matters.
It’s also alleged that Rumsley told pork pies, with Phillip referring to “the plaintiff’s conduct in filing a false set of statements”.
The fee-question was not decided in the November hearing. Instead, the question for Justice Jeremy Curthoys was whether Phillip Clifford should be allowed to appear as the defendants’ counsel.
Rumsley submitted that Phillip had a conflict of interest, as a director and shareholder of Sheraz, one of the two defendants.
The judge had some difficulty with Phillip Clifford’s reply:
“As is too often the case in submissions filed in this court, [the submissions] failed to deal with the central issue in the proceedings and complain about alleged procedural irregularities that have little or no relevance to the matters the court is required to determine.”
After some mental gymnastics, HH thought the gist of Philip Clifford’s response was that the entire matter should be struck out or dismissed and since there would then be no trial, no conflict of interest would arise.
The judge rejected the defendants’ submission, finding it “artificial” to draw a line between pre-trial and trial procedures.
HH thought it likely that Phillip would be called to give evidence, and noted that in an earlier matter the Court of Appeal had serious concerns about the barrister appearing for Sheraz.
“The Court of Appeal could not have made the potential for conflict any clearer to Phillip Clifford given his relationship to Sheraz. The fact that he entered an appearance for Sheraz Pty Ltd illustrates a fundamental failure to appreciate his actual or potential conflict.”
Phillip Clifford was restrained from appearing for Sheraz and his brother, with the defendants up for costs.