Yarraside brief fights over solicitor’s bill … Failure to abide by court direction … Judicial review of costs order … Too much delay … The cruel clock … Health issues … Personal difficulties … General drama … Alan Zheng reports
The Victorian Barrister, who is also described as a “Senior Partner,” “CEO” and interpreter, claims she won 90 percent of her cases – an enviable record.
The Victorian legal community must have been in shock after a recent stoush in the Victorian Supreme Court was the latest addition to the 10 percent.
Nida had retained Belleli King & Associates to advise on the purchase of a franchised sports retail business for her son.
The instructions were clear, the matter was well within Belleli’s expertise and by all reasonable measures, things should not have devolved into agitation and antipathy in the way they did.
When the BKA requested payment of its costs back in early 2016, Nida refused. She believed Belleli had acted for free despite being sent a costs agreement that she never signed.
In the alternative, she claimed to have approached the firm on behalf of her son. If anyone was going to be sued for debt, it ought to have been her son, described by the judge as “unwell”, or her son’s company.
BKA presses on, claiming $15,000 in unpaid fees. For a brief moment, it seemed long-running litigation would be averted – the firm scored an early victory, entering default judgment while Nida was overseas.
On her return she had the default judgment set aside.
The court heard that when the firm effected service of the debt claim, Nida ripped up the documents, threw it back at Jerry Belleli and stormed out.
Belleli knew how to save paper, and stuck his claim back together and sent to Nida.
When trial came around in May 2018, Nida sought an adjournment. She had obtained several medical certificates indicating symptoms of tiredness, stress and headache.
“[Nida] needs relaxation time and a period of – to get rid of – get rid from the pressure she is on,” one of Nida’s doctors wrote in a sentence that needed more work.
Before this issue could be resolved, a photograph of Nida sent the magistrate down memory lane.
“Yes, that’s the woman I’m thinking of,” the magistrate remarked.
In a previous appearance, it was Nida who had disobeyed a court direction, the beak recalled. Nida’s conduct had been viewed unfavourably, so much so that it raised concerns in the magistrate’s mind that Nida breached her responsibility as an officer of the court.
As it was necessary for Nida to attend court to consider whether to seek the magistrate’s recusal, the matter was adjourned.
Despite noting the potential for apprehended bias, the magistrate ordered Nida to cede costs under a self-executing order. She was warned that her defence hung in the balance if she failed to attend court on the adjourned date.
Nida treated the costs order in much the same way she treated the costs agreement with Belleli. Neither properly existed as far as she was concerned.
Later, she would say the costs had been paid, pointing to an electronic transfer receipt that did not exist.
Nida’s defence was subsequently struck out. BKA entered a default judgment and then served a bankruptcy notice. By September 2019, the costs and the debt remained unpaid.
However, the Dandenong barrister was not one to pass up the opportunity for a come-from-behind victory, whereupon she sought judicial review of the initial costs order.
It was procedurally unfair and irrational, she argued. However, Associate Judge Nemeer Mukhtar found the timing of her application was a spanner in the works.
Babies had been born, pandemics had been primed, the monarchy (of Hutt River Principality) had fallen. More than a year had passed from the initial costs order when Nida finally filed for review, a timespan that even the most liberal of judges would have trouble bringing within the ordinary 60 days on review applications.
The clock had run down. Without special circumstances, there would be no judicial review.
Simply because Nida had made other attempts at having the costs order set aside did not amount to special circumstances, particularly when those attempts had been legally incompetent and dismissed with indemnity costs.
Nida also pleaded that there were extenuating factors at play due to her role as a single parent who was caring for a son with health problems.
“I have been unable to properly deal with the matters contained in the Originating Motion until now,” Nida wrote in her affidavit, pointing to a shopping list of personal difficulties which included her status as an Afghan woman who migrated to Australia; her marriage at a young age; her abuse at the hands of her ex-husband; their divorce; her son’s condition; his refusal to seek medical help and its impact on her professional life.
Nida claimed that these matters meant she had been unable to focus on her practice.
Belleli King & Associates, in a concerted effort towards deforestation, adduced 581 pages of materials to discredit Nida’s submissions.
Nida’s son had been residing with his uncle, Nida had consulted a silk for advice and was continuing to publicise and conduct her chambers.
She found the time to “promise real change” in her foray into the electoral arena, running as a candidate for the “Transport Matters” Party for the Victorian Upper House in the the 2018 State Election. which involved positing as a candidate in her wig and robes.
With 61 likes on her Facebook page and third on the Transport Matters ballot, that foray was short-lived.
Even though Richard W. McGarvie QC had saddled up for Nida, the Supreme Court dismissed the application for judicial review, finding that Nida had taken “an insouciant approach to the responsible conduct of legal process, at least as it affects her”.
While Nida’s personal circumstances could not be disregarded, the court doubted that those personal problems had caused the intolerable delay. It laid the blame on the fact that “Ms Nida, ostrich-like, [had] put her head in the sand” and refused to file the application at the first opportunity.
In the end, it was tardiness that chalked up the loss for Nida.
Her former United Chambers digs in Dandenong – once a site of almost guaranteed legal victory – is up for lease for $6,000 pa.