Angius v Salier (No 4) - [2019] NSWSC 1698

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:
C Birtles (First Defendant)
H Wrench (Second to Sixth Defendants)
V Culkoff (Seventh Defendant)
Solicitors:
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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Angius v Salier (No 4)

Details

AGLC: Angius v Salier (No 4) [2019] NSWSC 1698
Case: [2019] NSWSC 1698
Decision Date: 25 November 2019

CaseChat Overview and Summary

The case of Angius v Salier (No 4) dealt with the issue of a lawyer's ability to withdraw from a case, particularly in the context of a client who appeared unable or unwilling to provide meaningful instructions. The dispute was heard in the Supreme Court of Victoria. The primary legal question the court had to address was whether the lawyer could be granted leave to withdraw from representing the client due to the client's inability to provide meaningful instructions and the impact this had on the client's fitness to attend the trial.

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