Supreme Court
New South Wales
Medium Neutral Citation: Angius v Salier (No 4) [2019] NSWSC 1698 Hearing dates: 25 November 2019 Date of orders: 25 November 2019 Decision date: 25 November 2019 Jurisdiction: Equity Before: Parker J Decision: See [18]
Catchwords: CIVIL PROCEDURE — Appearance — Withdrawal of appearance — Leave of court – further application to withdraw – client unable or unwilling to provide meaningful instructions – whether client fit to attend trial – appointment of tutor pursuant to Court’s parens patriae jurisdiction. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.18(1) Cases Cited: Bobolas v Waverley Council [2017] NSWCA 126 Texts Cited: Nil Category: Procedural and other rulings Parties: John Angius (Plaintiff)
Gordon Albert Salier (First Defendant)
Angius Hotel Investments Pty Ltd (Second Defendant)
Togumi Pty Ltd (Third Defendant)
J&L Angius Pty Ltd (Fourth Defendant)
Tararba Pty Ltd (Fifth Defendant)
Angius Investments Pty Ltd (Sixth Defendant)
Robert Angius (Seventh Defendant)Representation: Counsel:
Solicitors:
C Birtles (First Defendant)
H Wrench (Second to Sixth Defendants)
V Culkoff (Seventh Defendant)
Gregory Falk & Associates (Plaintiff)
Teece Hodgson & Ward (First Defendant)
Carneys Lawyers (Second to Sixth Defendants)
PV Lawyers (Seventh Defendant)
File Number(s): 2016/142494 Publication restriction: Nil
Judgment – EX TEMPORE
Revised and reissued 29 November 2019
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Last Wednesday the solicitor for the plaintiff, Mr Falk, applied to the Court for leave to withdraw from acting as the plaintiff's solicitor. I refused that application. The evidence on the application showed that Mr Falk had been unable to obtain money from the plaintiff to pay for the costs of conducting the proceedings and for the retaining of counsel. Nevertheless, I considered that in view of the long history of the matter and the fact that Mr Falk had waited until less than twenty-eight days before the trial was to commence (it is to begin this Thursday 28 November) I could not justify permitting Mr Falk to withdraw on that ground. I was concerned in particular that if I permitted Mr Falk to withdraw it might be impossible to conduct the hearing within the time that has been allocated to it.
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Mr Falk was placed in a difficult position by the Court's refusal of his application. In the best tradition of the legal profession, he has nonetheless sought to represent Mr Angius, the plaintiff, to the best of his ability and to prepare for the hearing.
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Today Mr Falk has made a further application. The application arises out of attempts that Mr Falk has made to confer with Mr Angius and to take instructions from him with a view to conducting Mr Angius’ case in the proceedings (which include a cross-claim against him). In summary, Mr Falk has been unable to obtain any meaningful instructions from Mr Angius. According to Mr Falk's affidavit, Mr Angius has taken the unhelpful position of saying that it is Mr Falk's responsibility to defend the proceedings on his behalf, although at other times Mr Angius said that he did not wish to pursue his claims and…
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- AGLC
- Angius v Salier (No 4) [2019] NSWSC 1698
- Case
- [2019] NSWSC 1698
- Decision Date
CaseChat Overview and Summary
The court considered the specific circumstances of the case, including the client's mental health issues and the lack of meaningful instructions provided. The judge examined whether the client was fit to attend the trial and whether the appointment of a tutor under the court's parens patriae jurisdiction was appropriate. The court also had to determine if the lawyer's application to withdraw was justified under the circumstances.
In reaching its decision, the court concluded that the client was not fit to attend the trial due to their mental health condition and the lack of meaningful instructions. The court found that appointing a tutor was not a suitable alternative in this case, as it would not enable the client to participate effectively in the trial. Consequently, the court granted the lawyer's application to withdraw from the case. The decision highlighted the importance of considering the client's fitness and the quality of instructions in determining whether a lawyer can be relieved from continuing representation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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