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Around The Firms
28 October, 2008  
Money no object when egos go to court

Humble magistrate tears strips off luminous Sydney lawyer … Court warns celebrity solicitor John Atanaskovic that he’s on “thin ice” with intemperate correspondence to his opponents and to Clutz … Time to take a step back


The Pistilli v Atanaskovic dispute rolls on.

The latest excitement is a judgment from the NSW Local Court giving the plaintiffs leave to amend a statement of claim.

The leave was accompanied by some acerbic observations from senior civil magistrate David Heilpern about the conduct of Number One defendant, John Atanaskovic.

Mark Pistilli, Diana Chang and Danny Simmons bailed from law shop Atanaskovic Hartnell on June 30 2006. Numerous disputes arouse, including AH’s ventures into horse breeding.

This one seems to be about how the billable costs owing on the dissolution of the partnership should be calculated.

Among other things the plaintiffs claim that the defendants breached their warranty as to the “previous practice” for calculating the billings.

The case commenced in the Supreme Court but was transferred to the Local Court last July. It has not yet been set down for hearing and there is no timetable for service of evidence.

This has not stopped a fearsome amount of money being flung at the stoush.

Antagonistic Heartless expended $22,695 on the Supreme Court phase of the proceedings.

Another $86,000 (largely at $600 an hour) has been channelled into the Local Court fight – even though the actual time in court, prior to the motion to amend the statement of claim, was approximately six minutes.

As magistrate Heilpern put it:

“If they choose to spend 143 hours at $600 an hour on a Local Court matter before it is even set down for hearing, there is little that the court can do… I am not sure what was done in all of the 142 hours and 54 minutes given that it equates to three or four weeks full-time work for a partner of a major commercial firm.”

The fact that only $60,000 is the issue between the parties makes the costs so far seem a little disproportionate.

Atters & Co resisted the amendments to the statement of claim on the grounds that they are futile, embarrassing, prejudicial, expensive and would slow things down.

Heilpern said that a reading of the correspondence in the case, “particularly in the letters penned by Mr Atanaskovic, could lead to the conclusion that the issue is not costs or delay, but ego and entrenched position”.

The magistrate referred to “the threatening and prolix letters of Mr Atanaskovic” (including to the plaintiffs themselves, faxed, on the weekend) that could be seen as “designed to inflame rather than resolve”.

“Of particular concern is a letter of Mr Atanaskovic to his existing partners regarding the litigation. He deliberately sent this on to others, including the managing partners of Clayton Utz, the solicitors for the plaintiffs ‘so that none can later assert that he/she was not an author of what may prove to be his/her/their own later misfortune’.

“I note he refers to them as ‘Clutz’, perhaps seeking to demean with reference to the Yiddish for ‘thick head’, or to Captain Klutz the comic-book antihero.

“In that letter he threatens Clayton Utz, and the plaintiffs with referring the matter to the Legal Services Commissioner ‘and perhaps elsewhere as well’.

“This threat is repeated. Mr Atanaskovic is treading on very thin ice. It is a serious criminal offence to threaten a potential witness with a detriment – s.326(2) of the Crimes Act 1900.

“It is, at the very least, ridiculous to throw such threats around in an effort to effect the conduct of litigation, and then claim prejudice and a breach of s.56 [Civil Procedure Act] when the threats and demands are not heeded.

“If this matter were to have any hope of being settled, I would urge the parties (and Mr Atanaskovic) in particular to take a step back and allow lawyers with the carriage of the matter to manage it on a sensible basis.”

Leave to amend granted. There are to be submissions on a proposed order that the defendants pay indemnity costs.

See full judgment