NATALE LAURO Other: MR E LAURO (AS LITIGATION GUARDIAN) v MINTER ELLISON (A FIRM) [2025] SASC 90

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (HER HONOUR AUXILIARY ASSOCIATE JUSTICE FLOURENTZOU) CIV-22-005455 Appellant: NATALE LAURO Other: MR E LAURO (AS LITIGATION GUARDIAN) Respondent: MINTER ELLISON (A FIRM) Counsel: MR R HARMS - Solicitor: MINTER ELLISON Hearing Date/s: 30/05/2025 File No/s: CIV-25-002750 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LAURO v MINTER ELLISON (A FIRM) (No 2) [2025] SASC 90 Decision of the Honourable Justice B Doyle 3 June 2025 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS The appellant appeals against a decision by an Auxiliary Associate Justice to decline to recuse herself from the conduct of the appellant’s application for a taxation of costs as between solicitor and client. By interlocutory application filed on 9 May 2025, the appellant’s litigation guardian seeks an order pursuant to r 23.4(4) of the Uniform Civil Rules 2020 (SA) (‘UCRs’) requiring disclosure of the names and addresses of the partners of the partnerships ‘associated with these proceedings and the proceedings at first instance’ as at 31 May 2001, 18 May 2022, 11 March 2025 and as at dates associated with the departure of a number of partners. Held, dismissing the application: 1. the respondent’s response to the appellant’s request pursuant to r 23.4(1) of the UCRs has not been shown to be non-compliant; 2. there is therefore no basis for the Court to make an order pursuant to r 23.4(4) of the UCRs; 3. even treating the application as one that might have been made pursuant to r 23.4(3) of the UCRs, there are not proper grounds in the interests of justice to make the orders sought in the appellate proceeding. Supreme Court Civil Rules 2006 (SA) r 86; Uniform Civil Rules 2020 (SA) rr 23.1, 23.2, 23.4, referred to. Lauro v Minter Ellison (A Firm) [2025] SASC 77, discussed. -- 1 of 8 -- -- 2 of 8 -- LAURO v MINTER ELLISON (A FIRM) (No 2) [2025] SASC 90 Single judge appeal – civil 1 B DOYLE J: As explained in my reasons for declining to recuse myself from hearing the appeal in this matter, the underlying proceeding involves an application by the appellant for a taxation of costs as between solicitor and client.1 2 By interlocutory application filed on 9 May 2025, the appellant seeks an order that the respondent ‘disclose the name and address of each person who is or was a partner of the MinterEllison partnerships associated with these proceedings and the proceedings at first instance’. 3 The appellant’s litigation guardian, Mr Lauro, has affirmed an affidavit in support of that application, in which he deposes that he wrote to the respondent in these terms: My request to Minter Ellison to “confirm if and when Grant Mitchell, Gary Coppola and Adam Bannister and any other NT/SA [read, SA/NT] partners stopped being employed and/or associated with Minter Ellison” has been ignored. Consequently, TAKE NOTICE that, pursuant to Rule 23.4(1) of the Uniform Civil Rules 2020 (SA), you are required to disclose the name and address of each person who was a member of the partnership comprising Minter Ellison / Minter Ellison Group / Minter Ellison Legal Group (as appears on the relevant retainer), and similar information for Minter Ellison (SA/NT). Please note that, in accordance with Rule 23.4(2), you are required to file and serve a notice disclosing the requested information within 14 days of service of this notice (i.e. by or before 1 May 2025). 4 Mr Lauro affirms that on 2 May 2025, he received an inadequate response from the respondent and that it ‘purported to provide only details for ‘MinterEllison (A Firm) (ABN 77478593704) Partners’ as at 18 May 2022 and 11 March 2025 (which are dates linked to these proceedings)’. 5 Mr Lauro affirms that the respondent did not provide ‘any details as at the time of the ‘relevant retainer’ (i.e. 31 May 2001) or as at the relevant, unknown dates of when the individuals explicitly mentioned in my notice ceased being partners’. 6 Mr Lauro goes on to affirm that a search on the Australian Business Register reveals that the entity name associated with the ABN mentioned above is not ‘MinterEllison’ but ‘A.S Bannister & L.A Drew’ trading as ‘Minter Ellison’ and that ‘MinterEllison’ which ‘is the partnership associated with the underlying retainer subject to taxation, and its ABN is 91 556 716 819’. 1 Lauro v Minter Ellison (A Firm) [2025] SASC 77 at [1], [49]. -- 3 of 8 -- [2025] SASC 90 B Doyle J 2 7 In his affidavit, Mr Lauro formulates the order he seeks pursuant to r 23.4(4) in the following terms: [T]he disclosure of both partnership details as at 31 May 2001, 18 May 2022, 11 March 2025 and as at the relevant dates associated with the departure of the aforementioned individuals. 8 Mr Lauro’s affidavit concludes with the statement that: … I also confirm that, if the current proceedings and those at first instance do not list MinterEllison as a party, it is a functional consequence of the CourtSA portal not permitting multiple ABNs to be listed and also, a consequence of the MinterEllison having ignored the issue for years, until my formal notice issued to them on 16 April 2025. 9 In the course of the hearing of the interlocutory application, the respondent provided me with a copy of their response of 2 May 2025, about which complaint has been made.2 The response comprised an email sent to Mr Lauro in the following terms: Dear Mr Lauro We refer to refer your email Sophie Carman and Jon Downes dated 17 April 2025 in relation to CIV-25-02750. Partnership Details Pursuant to rule 23.4(1) of the Uniform Civil Rules 2020 (SA), you may by written notice require a party to a proceeding joined in the name of a partnership to disclose the name and address of each person who was a partner at the relevant time. “Relevant time” is defined in clause 23.1(1) of the Uniform Civil Rules 2020 (SA). The relevant time in the case of proceedings commenced by originating application is the time when the party was joined to the proceeding. Both the current appellate proceeding and the first instance proceeding were commenced by applications and are not claims. Your request did not specify a relevant time within the meaning of the Rules however we have sought to nonetheless address the request. I understand your request is made in the appellate proceeding where your email subject refers to that action number. Therefore, the relevant time is 11 March 2025, being the date when the Notice of Appeal (FDN1) was filed and the Respondent was joined to the proceeding. If your request was intended to be in respect of the first instance proceeding (CIV-22- 005455), the relevant time is 18 May 2022, being the date when the Originating Application (FDN1) was filed and the Respondent was joined to the proceeding. In the hope of avoiding unnecessary correspondence, we attach partnership details of the Respondent in both proceedings, being MinterEllison (A Firm) (ABN 77478593704), as at 18 May 2022 and 11 March 2025. Whilst the composition of the partnership has been a matter of focus in your recent communications it is not as all clear why that is the case. Your fathers [sic] application identifies the party to which it relates and, as I have identified previously, the substantive 2 The email was marked MFI-A on the application. -- 4 of 8 -- [2025] SASC 90 B Doyle J 3 issue that we think the parties should obtain clarity about is whether the application can be pursued given how long out of time it was brought. Kind regards James Kearney Partner 10 The email then attached two tables listing the partners and their address at each of the two dates mentioned in the email. Rule 23.4 of the UCRs 11 Rule 23.4 of the UCRs is located within Division 1 (‘Partnerships and unincorporated associations’) of Part 3 (‘Particular Parties’) in Chapter 3 (‘Parties and Representation’). It provides that: 23.4—Disclosure of members (1) A party may by written notice require a party to a proceeding or appellate proceeding joined in the name of a partnership or unincorporated association to disclose the name and address of each person who was a partner or member at the relevant time. (2) A party who receives such a notice must within 14 days file and serve on each other party to the proceeding a notice disclosing the name and address of each person who was a partner or member at the relevant time. (3) The Court may at any stage order that a party to a proceeding or appellate proceeding joined in the name of a partnership or unincorporated association file and serve a notice disclosing the name and address of each person who was a partner or member at a specified time and, if it thinks fit, that the notice be verified on oath. (4) If a party fails to comply fully with an obligation imposed by subrule (1) or (2) or an order made under subrule (3), the Court may make such orders as it thinks fit. 12 Rule 23.1 provides that the expression ‘relevant time’ means, unless the contrary intention appears: (a) in the case of a claim—when the cause of action arose; (b) in the case of an originating application—when the partnership or unincorporated association is joined as a party to the proceeding; or (c) in any case—such other time as the Court may order 13 The context which explains why a rule such as r 23.4 may have been considered to be beneficial is that a partnership or firm has no legal existence as such. Rule 23.2, like its predecessor in the Supreme Court Civil Rules 2006 (SA), r 86, facilitates, as a matter of convenience, the partners of a partnership suing or being sued in the name of the partnership. Rule 23.4 then assists the parties in clarifying or ascertaining the identity of the partners who are in substance the real parties to the action. -- 5 of 8 -- [2025] SASC 90 B Doyle J 4 14 Sub-rules 23.4(1) and (2) apply without qualification. Unless an order of the Court were made dispensing with compliance, they apply and may be availed of by another party as of right and without the need for some special justification. 15 By contrast, r 23.4(3) is discretionary. It empowers the Court to order that a party provide the details of the partners of a partnership at a ‘specified time’, which may be different from the ‘relevant time’. Like all discretionary powers of that kind, it is to be exercised where proper reason is shown and where the interests of justice support its exercise. 16 Finally, there is r 23.4(4). It applies where there is demonstrated non- compliance with the earlier sub-rules or an order made pursuant to them. It confers a discretionary power to make such orders as the Court thinks fit. Consideration 17 As earlier noted, Mr Lauro relies on r 23.4(4). In order to make an order under that sub-rule I would need to be satisfied of non-compliance with the earlier sub-rules. 18 Having said that, if I am satisfied that there are good reasons in the interests of justice to make the orders sought by Mr Lauro, I could make orders under r 23.4(3) of my own motion. 19 I commence by considering the application for disclosure of partnership details as at 18 May 2022 and 11 March 2025. These were the ‘relevant dates’ in respect of the originating application and the appeal respectively. Prima facie, Mr Lauro is entitled to details of the partners of the respondent partnership at those dates. The issue is whether he has already been given those details, as set out in the email from Mr Kearney and its attachments. 20 Mr Lauro complains that that response is inadequate. He submits that his request pursuant to r 23.4(1) required disclosure of the partnership details of the respondent as described in his originating application. In that document, he named as the respondent: MINTER ELLISON (A FIRM) (ABN: 77478593704) Trading as MINTER ELLISON (ABN: 77478593704) 21 Mr Kearney’s email provides the partnership details for the respondent ‘being MinterEllison (A Firm) (ABN 77478593704)’. The absence of a space is said to make the email non-responsive to the request. In my view, given the common ABN references, there is nothing of significance in that difference. It follows that I am not persuaded the respondent failed to comply with r 23.4(2), nor that there is a reason to make a further order requiring disclosure of partnership details pursuant to r 23.4(3) with reference to the two dates mentioned. 22 Insofar as the appellant seeks disclosure with respect to what may be a different partnership, being a partnership associated with the ABN 91 556 716 819, -- 6 of 8 -- [2025] SASC 90 B Doyle J 5 I am not satisfied that r 23.4(2) required disclosure with respect to a partnership that has not distinctly been named in the proceeding. As earlier noted, Mr Lauro’s evidence is that the CourtsSA portal does not facilitate the entry of multiple ABNs for a party name. Be that as it may, it would appear that the appellant did not take the step of naming two different partnerships or firms as separate respondents. 23 Next, I consider the request for disclosure of partnership details as at 31 May 2001. This is said to be the date of the retainer. I do not have any evidence of that fact, but for present purposes I will assume it to be correct. 24 In the underlying taxation, a change in the composition (or even identity) of the partnership between 2001 and the institution of the originating application may be of some legal or forensic significance. Even if I assume that it is (and I have not heard detailed submissions that would allow me to make that conclusion at this stage), I am unable to see why it would be a proper exercise of discretion to make the order sought in the appellate proceeding. 25 The Court’s function on appeal focuses upon the correctness of the challenged order. The proper respondent to the appeal is the respondent named at first instance. Whether or not in due course there may be a change to the composition of the underlying proceeding, or a point of significance arising from the current identity of the partners of the respondent firm (when compared to the partners of the firm with whom the appellant entered into retainer agreements), I do not consider that, in dealing with this appeal, it is appropriate for me to make orders directed to inquiring into those issues. Generally speaking, the exercise of procedural powers by a judge seized with considering an appeal should be exercised for purposes which are incidental to the appeal, and not more broadly. 26 The same observations apply to the request for disclosure with respect to the dates upon which particular partners may have left the partnership. 27 In the course of oral argument, Mr Lauro contended that the partnership details at those dates was relevant to my function on appeal because I had, in the course of making disclosure in connection with the recusal application, informed Mr Lauro that during the time that I practised as a barrister, I had accepted briefs on instructions from lawyers at Minter Ellison including in respect of insurance matters. Mr Lauro says that some of the partners who have departed were members of the ‘insurance team’. Be that as it may, I have dealt with and refused the recusal application. Even it remained live, I would not regard it as an appropriate exercise of discretion to make the orders sought. It is and was obvious, in the context of the recusal application, that I had numerous dealings with lawyers at Minter Ellison who were partners of the firm at the time that I dealt with them. In terms of considering whether I should recuse myself, nothing would be served by requiring disclosure of all partners of the respondent firm at times that any particular partner departed the firm. -- 7 of 8 -- [2025] SASC 90 B Doyle J 6 28 Mr Lauro also argued that the orders sought were relevant to the Court’s function on appeal because one of the complaints made about the conduct of the Auxiliary Associate Justice (and relied upon as giving rise to an apprehension of bias) is that her Honour declined to deal with issues respecting the identity of the partners of the firm at relevant times as a preliminary or threshold question. 29 Whilst I will need to consider that issue in the context of the appellant’s contentions on appeal, it will be for a particular purpose, namely with a view to considering whether a fair-minded lay observer might reasonably apprehend that by approaching the conduct of the proceeding as she did, the Auxiliary Associate Justice engaged in conduct which suggests that she might, in deciding procedural or substantive matters, deviate from the merits. A consideration of those issues would not be assisted by me granting the orders sought ahead of the hearing of the appeal. Conclusion 30 My conclusion is that because I am not satisfied the respondent has failed to comply with r 23.4(2), I am not empowered to make an order pursuant to r 23.4(4), as Mr Lauro seeks. However, even treating the application as one that might have been made under r 23.4(3), I do not consider there are proper grounds in the interests of justice to make the orders sought. 31 I dismiss the application made by paragraph 3 of the applicant’s interlocutory application filed on 9 May 2025, as refined or amended by paragraph 8 of Mr Lauro’s affidavit affirmed on the same date. I reserve the question of the costs of the application to the hearing of the appeal on 27 June 2025. -- 8 of 8 --