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Sir Terence O'Rort
20 July, 2009  
The life and times of Monte Di Carlo

Brisbane barrister Sammy Di Carlo is in a spot of bother over his relationship with an ACC lawyer … Don’t you worry about that … Monte is one hell of a ducker and weaver … He has weaved his way around plenty of tight corners … Sir Terence O’Rort shows us how


imageWorthy types are saying that as a result of the Gordy Nuttall case a whiff of corruption hangs heavy in Queensland’s ozone.

My feeling is that if private financial arrangements between citizens of this state are so readily misunderstood and criminalised, then what future do we have?

The Nut’s affairs are not the only source of unpleasant pongs.

Allegations have emerged that one of the stars of the Brisvegas bar ‘n’ grill, ex-copper Salvatore di Carlo, has struck grief.

The Brisbane Bugle reported that Di Carlo had a longstanding relationship with Maria Zappala, a legal officer with the Australian Crime Commission and that she helped him prepare a defence for one of his drug trafficking clients who had been busted in a joint ACC operation.

There are other allegations, including:

* Di Carlo told his former client of some of the contents of relevant ACC secret hearings held in relation to the client;

* Di Carlo had read parts of the transcripts of the secret hearings;

* Di Carlo told the client that his relationship with Maria Zappala could actually be beneficial in fighting the trafficking charges;

* Di Carlo has a gambling addiction and spends up to $10,000 a week on online flutters;

* He and Maria Zappala have jointly amassed $3 million worth of assets over the course of their 10-year relationship.

imageSnap – Sam Di Carlo and Maria Zappala (Courier-Mail)

The ABC news reported that the Bureau de Spank in Queensland, “is aware of the case and is taking the appropriate action”.

Frankly, Sam (Monte) Carlo has been a much misunderstood barrister for a long time.

* * *

If there is one thing I cannot stand it is the tireless pomposity and self-promotion by members of the Sydney and Melboring bars.

Flashy websites, pages and pages of dubious bios, where even barristers in their first year of practice are said to specialise in “equity, trusts, commercial litigation, insolvency, professional negligence …”

It’s as if the recitation of this mantra, like a Harry Potter spell, will suddenly transform them from Phillip Street hacker into G. Barwick et al.

There’s none of this malarkey at the Brisvegas bar ‘n’ grill.

In the kingdom of Captain Bligh barristers roll up their sleeves and get on with the lawyering business without the bluster or theatrics that unfortunately is the hallmark of our southern colleagues.

* * *

Which brings me to back to the misunderestimated career of Slammin’ Sam Di Carlo.

Let’s start in 2003 with Breen v Larkin.

We all know how precious Court of Appeal judges are about their petty practice directions, outlines of arguments and all that guff.

In Breen’s case an outline of argument had been filed by the appellant’s solicitors, which was signed by Cooke QC and submitted in the name of Cooke and Di Carlo as his junior counsel.

The solicitors delivered the appeal books to Cooke’s chambers but he was unable to appear on the appeal.

The solicitors told the court that they had briefed Di Carlo to conduct the appeal, but they could not locate two of the three volumes of the appeal brief.

Of course, the firm was Baker (Rhino) Johnson.

Di Carlo’s secretary collected the two missing volumes from the Court of Appeal registry.

Masterfully, Sam told the court that he had never accepted a brief to appear in the appeal and had simply said to the solicitors that he would consider accepting it.

On the Friday before Monday’s appeal, Sammy wrote a letter to the registry saying that his secretary had collected the appeal books from the registry “without his express authority”.

Strangely, Di Carlo then appeared seeking an adjourned because he had not had time to prepare an outline of argument.

Sam completely outmaneuvered Doc McPherson, who was so confused he adjourned the appeal.

It was a brilliant display of barristerial footwork.

* * *

Let’s jump forward 18 months, or so.

District Court judges hearing appeals from the Magistrates’ Court can also get uppity about time limits, but clients shouldn’t be unduly fussed about that if Monte is on the case.

In Russo v Labdan Pty Ltd unfortunate punters had judgment entered against them by default and an application to set it aside had been unsuccessful. Monte rode to the rescue.

Regrettably a small minded court official referred the appeal to Robin DCJ because Di Carlo had failed to file an outline of argument as required by the relevant practice direction.

Sammy played the health card. Robin DCJ said:

“Mr Di Carlo has explained that professional pressures and some personal problems have stood in the way of his getting the drafting of the outline completed and he asked for a further three weeks. It is fair enough for the court to grant that. Mr Di Carlo has asked for liberty to apply to be inserted in the order in case the difficulties that have applied over the past few weeks should re-emerge and cause problems.”

Judge Robin gave Di Carlo a further three weeks to file the outline, but ordered that the appeal be struck out if the outline was not filed by December 13, 2004.

Monte filed the outline of argument on December 15, 2004, two days after the the guillotine order took effect, with the result that the appeal was struck out automatically.

Cleverly the outline of argument was dated December 13, 2004.

Judge Robin found:

“The ‘explanation’ for the appellants’ failure to comply in time with the order of November 22, 2004 was not anything health-related, but rather Mr Di Carlo’s somehow coming and acting under the belief that he had a few more days to settle the outline of argument than my order allowed.”

The judge noted that the outline filed bears the date December 13, 2004, adding:

“It may have represented some attempt to present a picture of compliance with the deadline in the order, but that would be somewhat pointless, as the filing date would speak for itself.”

The judge then set aside his earlier self-executing order and gave Monte’s client another chance.

How’s that for smart lawyering?

* * *

The good thing about Monte Di Carlo is that he is not one of those equity whisperers from the commercial list or the Federal Court.

Some of his most fascinating triumphs can be found in the traffic court.

I refer you to Johnstone v Karydis.

Di Carlo was acing for a punter who was convicted of speeding – more than 40 kilometres over the limit. As a result he lost his licence for six months.

Again Monte drew Judge Philip Robin on an application to extend the time for the filing of an appeal against the magistrate’s ruling.

Sam explained that his client was driving a medical practitioner to see his ailing grandmother and that this was an emergency, which should excuse the punter from speeding.

Robin granted an extension of time but after the order was made Di Carlo sent the judge’s associate an email saying:

“I may have unintentionally misled His Honour in respect of some facts I put up. In response to a question from His Honour, ‘was the doctor in the car with him?’ I indicated ‘yes’. I later wondered whether my recollection was accurate and hence I contacted the appellant to clarify this. In fact, the doctor was not in the car with him.”

Further, the email said that the punter drove to his grandmother’s house in his own car with the doctor following.

Let’s face it, that’s a mistake anyone could make specially a busy advocate at the height of his powers.

* * *

Jealous people often make personal attacks on freedom fighters like Sammy Di Carlo.

In Di Carlo v Sefton Slammin’ Sam himself was in the gun – in another traffic matter.

Di Carlo’s son, also named Salvatore Di Carlo, while driving Dad’s car, was involved in a motor vehicle accident.

The lad made full admissions that the accident was his fault and gave his address at 19 Doone Street, MacGregor, where he resided with his famous advocate father.

There was never any allegation that our Monte was the driver of the vehicle.

Proceedings were issued and served and judgment by default obtained against bambino Di Carlo.

In a comedy of errors enforcement proceedings were served upon Di Carlo senior.

Monte then brought an application to set aside the judgment on the basis that while he was not the driver of the vehicle he knew the identity of the driver.

This rather Delphic submission did not impress the magistrate who declined to set aside the judgment.

Sam was not done yet and sought leave to appeal the magistrate’s decision to the District Court.

Di Carlo told the court that he thought that he was being sued as principal and wanted to fight the matter on the basis that he was not the driver.

Forde DCJ dismissed Monte’s appeal and ordered him to pay costs, commenting that when he had been served he could have spoken to Sal junior about the bingle and proceeded to defend the matter in the normal manner.

Forde DCJ attributed the whole mess to, “some confusion in the domestic situation of the Di Carlos at the time which led, perhaps, to a misunderstanding”.

Obviously the judge did not understand Monte’s beautifully layered argument about vicarious liability.

* * *

While traversing Monte’s life and times it would be careless to omit the unfortunate misunderstanding between Monte and Magistrate Zac Sarra at the callover in the Police Court No.1 Roma Street.

Given the nature of the matters dealt with in the Police Court (mostly remands and minor matters) it is difficult to understand how Sambo could get into any trouble at the callover.

According to a report in zgeek.com this is what happened:

“COLOURFUL barrister Salvatore ‘Sam’ Di Carlo spent several hours behind bars yesterday after he launched a scathing personal attack on a magistrate in the Brisbane Magistrate’s Court.

Magistrate Zac Sarra ordered police seated in Roma St’s No.1 court to take Di Carlo into custody after he accused the magistrate of having something personal against him.

Mr Sarra said it was the second time Di Carlo had caused a scene and displayed very disturbing behaviour in his court and he decided to place him in custody after he made irrelevant comments and showed no respect for the court.

An impeccable source reports the exchange that led to Mr Di Carlo’s temporary detention took place as follows (more or less) ...

Magistrate Sarra: Your name?

Mr Di Carlo: D, i, space, C (getting louder) ... A … (louder still) R … (louder still) ... L … (almost shouting now) ... O.

Sarra: I’ll stand this matter down … Call the next matter madam prosecutor.

Di Carlo: You’ll have to deal with this matter your Honour I’m not leaving the bar table.

Sarra: Call the next matter madam prosecutor.

Di Carlo: I’m not leaving the bar table you’ll have to take me into custody.

Sarra: Very well sergeant take Mr Di Carlo into custody.

Di Carlo: You’ll have to deal with this sometime I am aware of your problems with the problems between your family and mine but my client shouldn’t be inconvenienced by your problems.

Sarra: Take him into custody sergeant please.

Di Carlo: On what grounds … I want to see the chief to sort this out once and for all. Is there any chance we could see the chief today?

Sarra: Next matter madam prosecutor.”

The sergeant took Di Carlo into custody.

The magistrate was perplexed because, despite the barrister’s notoriority, Sarra didn’t have a clue who Di Carlo was.

According to a report in The Bugle:

“Mr Sarra said the apparent reason for Di Carlo’s behaviour was related to some perceived ‘personal history’ and a supposed link to a family in-law.

‘The fact he may know who I am doesn’t mean I know who he is,’ Mr Sarra said.

‘The other thing that concerns me is this is the second time it has happened.’

He said he found Di Carlo’s behaviour, ‘very disturbing’.”

Di Carlo regained his freedom but only after his counsel told the court that his client was deeply remorseful and wished to apologise for his actions.

* * *

At some point I’ll have to draw a line under the long-running Sammy Di Carlo saga.

But I can’t leave without a fleeting mention of the long running matter of Di Carlo v Dubois – variants of which have been to the Court of Appeal eight times and to the trial division on six occasions.

Without Sammy Di Carlo the legal profession in Queensland would be a poorer place.

Life for magistrates and Dizzo judges would be far less stimulating.

I, for one, am not going to stand idly by while a freedom fighter and defender of battlers is tortured by the LSC plod and other do-gooders.

Sir Terence O’Rort reporting