Bexson Pty Ltd v Staneton Pty Ltd

JUDGMENT NO. ...&M A .

C A T C H W O R D S

PRACTICE AND PROCEDURE - Brisbane solicitors engaged Perth agents

to act for respondent -

address for service given as agent's

address - agents unable to contact principals for further lnstructlons- application by agents to be "withdrawn Erom record" - no specific provision in Federal Court Rules - Court's implied incidental power to order that address of agent shall no longer be address for service of party - considerations to be taken into account in exercise of power.

Federal Court Rules

0.7 r.6, 0.9 r.4, 0.45 r.4

BEXSON PTY LTD V STANETON PTY LTD

NO. WAG 69 Of 1986

FRENCH J.

PERTH

19 AUGUST 1987

L - \

IN THE FEDERAL COURT	1
OF AUSTRALIA	1

WESTERN

AUSTRALIA

DISTRICT

EGISTRY

NO. WAG 69 of 1986

B E T W E E N :

BEXSON PTY LTD

Applicant

and

STANETON PTY LTD

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:

FRENCH J.

DATE OF ORDER:	19 AUGUST 1987
WHERE MADE:	PERTH

THE COURT ORDERS

THAT:

The

Perth

agents

of the solicitors for the

respondent

have leave from 4pm on 24 August 1987 to refuse to

service

of any further

document

in these

proceedings.

2. The address for service of the respondent as from 4pm on

24 August 1987 shall

no longer be the offlce of Messrs.

Corser h Corser.

The

respondent

OK before 25 August

1987

file

notice showing a new address for service and deliver a

copy to the solicitors for the applicant.

2 .

4 . The agent solicitors do forthwith deliver by the fastest practical method a copy of this order to the solicitors

for the respondent in Brisbane and to the sollcltors for

the applicant.

Costs on this motion are

reserved.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT	1
OF AUSTRALIA	1

WESTERN

AUSTRALIA

DISTRICT

REGISTRY

NO. WAG 69 of 1986

B E T W E E N :

BEXSON PTY LTD

Applicant

and

STANETON PTY LTD

Respondent

CORAM:

FRENCH J.

19 AUGUST 1987

REASONS FOR JUDGMENT

In this application, which was

instituted on 10 July

1986, the applicant, a West Australian company, claims damages

against the respondent, a Queensland company, for contravention of

s.52 of the Trade Practices

Act.

The contravention is said to have arisen out of representations made by the respondent prior to entering into a distributorship agreement with the applicant in relatlon to the sale in Queensland of an automotive device known as the Pacemaker Safety Power Switch.

An appearance was filed on 28 July 1986, desi~,-ating

a Brisbane firm as solicitors €or the respondent.

The address for service was shown

as that O E the offices

of a Perth firm of solicitors, Messrs. Corser & Corser.

2 .

The appearance was signed

by:-

"Corser 6 Corser,

Sollcltors

acting

agents

for-

Michael Quinn 6 Co.,

Sollcitors for the Respondent."

Most of the

documents

ubsequently

filed

in the

proceedlngs on behalf

of the respondent have been endorsed "Corser

6 Corser, Solicitors acting as agents for Michael Quinn

h Co."

The affldavit

discovery however, bears the name

"Messrs. Michael Quinn	6	Company" on the backing sheet. The
certrficate at the foot	of	the aEfidavit appears to be signed by

that firm and the place for inspection	of documents is shown as
its office in Brisbane.

On 17 July 1987 the Deputy District Registrar set the

application down for hearlng over 3 days commencing 26 August

1987.

By a motion filed 13 August and returnable on 18 August,

the Perth agents for the respondent seek orders	in the following
terms:-

"1.

Corser 6 Corser have leave to withdraw their name

from the record as Solicitors acting as agents for

Michael

Quinn

h Co., Solicitors

for

the

Respondent: and

The costs of and incldental to this application be

taxed and paid

by Messrs. Michael Quinn

6 Co. in

any event. "

3 .

The motion was supported by an affidavit which showed that the Perth agents were instructed	in July 1986 by their
Brisbane principals.

Various interlocutory steps were carried out

on the

instructions of the Brisbane firm.

However, since 19 May 1987 there seems to have been a complete break-down in communicatlons. According to the affidavit, all attempts to contact the Brisbane firm by telephone and letter to obtain instructlons, including instructions to brlef counsel for the trial, have been to no avail.

On 6 August the Perth agents wrote

to their Brisbane

principals indicating that they regarded the agency agreement as at an end and glving notice of their intention to apply to the Court to have their name "removed from the Court record".

Under the provisions of 0 . 7

r.6(2),

the address for

service of a person represented by a solicitor shall be the office

of the solicitor or his agents.

Order 7 r.6(1) imposes the limitation that an address for service shall be the address of a place within 10 kilometres

of the registry.

The requirements €or a notice of appearance are set out in 0.9 r.4 and include a requirement that :-

4 .

"(l) A notice of appearance shall show -

(c)

where the

person

entering

the

appearance

appears by a solicitor and that solicltor has

another solicitor as agent for hlm in the

proceeding, the

name, address and telephone

number of the agent; and

(d) an address

for service."

Changes of solicitor are regulated by the provisions of

0 . 4 5 .

Order 4 5 r.4

provides for change of agent:-

"Where

solicitor (in thls rule called the principal

solicitor) acts for

a party in any proceeding and

another

solicitor

acts

agent

for

the

principal

solicitor in the proceeding and the principal solicitor

changes the solicitor acting as agent, the party shall

file notice

the change and serve the notice on the

other parties and on the former agent

solicitor."

This rule is silent, however, on the case where an agent

solicitor wishes to terminate his

agency.

The Court has a concern in such a case, which I think is

two-fold. The first element

its concern relates to the

necessity to maintain an address for service for the party

affected.

If the agency

is terminated, then

it is the obligation

of the party concerned to ensure that

a new address for service

found which complies with the requirements

of the rules.

The

Court

in such a case

should

ensure

that

principal solicitor has sufficient notice

the termination to

enable him to take steps to arrange

a new address for service.

The second element

of the Court's concern arises when

the agent appears in substance to have the conduct	of the case for
the party it represents.

In such

case the Court may wish to ensure that the

principal solicitor has notice

the termination sufficient to

enable him to discharge hls responsibility	of arranging continuing
representation for his client.

The agent in this case comes to Court seeking leave to

withdraw its name from the record.

In substance,

I regard the motion as

a motion to

determine the use

the agent's address as the address for

service of the respondent.

In my opinion, the Court, as part

of the power it has to

regulate its own proceedings, has an implied incidental power to

order that the address

an agent solicitor shall no longer be

the address for service of the party concerned and to attach conditions to or make further directions consequential upon such an order.

6 .

In the circumstances of this case I am satisfied that

the agents have taken all reasonable steps

to communicate with and

seek instructlons from the principal solicitors, and that the circumstances left them with very little choice but to terminate the agency arrangement.

Having regard to the concerns of the Court to which

have already adverted, I propose to make the following orders:-

1. The Perth agents of the solicitors for the respondent have leave from 4pm on 24 August 1987 to refuse to accept service of any further document in these proceedings.

The address for service of the respondent as from of Messrs. Corser 5 Corser.

3 . The respondent do on or before 25 August 1987 file a notice showing a new address for service and deliver a copy to the solicitors for the applicant.

4. The agent solicitors do forthwlth deliver by the

fastest practical method

a copy of

this order to

the solicitors for the respondent in Brisbane and

to the solicitors for the applicant.

5. Costs on this motion are reserved.

I certify that this and the preceding

five ( 5 ) pages are a true copy of the

Reasons for Judgment of his Honour

Justice French.

Associate:

Date :

I .

No appearance €or the Applicant.

Counsel for the Respondent: Mr R. McCormack

Solicitors for the Respondent: Mrchael Quinn b Co.

Date of Hearing:

18 August 1987

Date of Judgement: 19 August 1987

JUDGMENT No. .L&+ .-&L

C A T C H W O R D S

PRACTICE AND PROCEDURE - Brisbane solicitors engaged Perth agents to act for respondent - address f o r service given as agent's

address - agents

unable

contact

principals

for

further

instructions- application

by agents to be "withdrawn from record"

- no specific provision in Federal Court Rules - Court's implied

incidental power to order that address

0: agent shall no longer be

address for service

of party - considerations to be taken into

account in exercise of power.

Federal Court Rules 0.7

r.6,

0.9

r . 4 , 0.45

r . 4

BEXSON PTY LTD

V STANETON PTY LTD

NO. WAG 69 Of 1986

FRENCH J.

PERTH

19 AUGUST 1987

IN THE FEDERAL COURT	)
OF AUSTRALIA	1

WESTERN

AUSTRALIA

)

DISTRICT

EGISTRY

)

NO. WAG 69 Of 1986

B E T W E E N :

BEXSON PTY LTD

Applicant

and

STANETON PTY LTD

Respondent

MINUTE OF ORDER

'DGE MAKING

ORDER:

FRENCH

DATE OF ORDER:	19 AUGUST 1987
WHERE MADE:	PERTH

THE COURT ORDERS

THAT:

The

Perth

agents

the

solicitors

for

the

respondent

have leave from 4pm

24 August 1987 to refuse to

service

of any

further

document

in these

proceedings.

2. The address for service of the respondent as from 4pm on 24 August 1987 shall no longer be the office of Messrs. Corser h Corser.

3 .

The respondent do on

before 25 August 1987 file a

notice showing a new address for service and deliver a

copy to the solicitors

for the applicant.

2 .

4 .

The agent solicitors do forthwith deliver

by the fastest

practical method a copy of this order to the solicitors

for the respondent in Brisbane and to the solicitors for

the appllcant.

5. Costs on this motion are reserved.

Note: Settlement and entry

of orders is dealt with

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT	1
OF AUSTRALIA	1

WESTERN

AUSTRALIA

)

DISTRICT

EGISTRY

)

NO. WAG 69 Of 1986

B E T W E E N :

BEXSON PTY LTD

Applicant

and

STANETON PTY LTD

Respondent

CORAM:

FRENCH

19 AUGUST 1987

REASONS FOR JUDGMENT

this application, which was instituted on

July

1986, the applicant,

a West Australian company, claims damages

against the respondent, a Queensland company, for contravention of

s.52 of the Trade Practices Act.

The

contravention

ald

to have

arisen

out

representations made

by the respondent prior to entering into

distributorship agreement with the applicant

relation to the

sale in Queensland of an automotive device known as the Pacemaker

Safety Power Switch.

An appearance was filed

on 28 July 1986, desibpsting

a Brisbane firm as solicitors for the respondent.

The address for service was shown as that of the offices

of a Perth firm of solicitors, Messrs. Corser 6 COrSer.

2 .

The appearance was signed

by:-

"Corser 6 Corser,

Sollcltors

acting

agents

for..

Michael Quinn 6 Co., Solicitors for the Respondent."

Most of the

documents

ubsequently

filed

in the

proceedlngs on behalf of the respondent have been endorsed "Corser

6 Corser, Solicitors actrng as agents for Michael Quinn 6 Co."

The affidavit of discovery however, bears the name

"Messrs. Michael Quinn

Company" on the backing sheet. The

certificate at the foot of the affidavit appears

to be signed

that firm and the place for inspection	of documents is shown as
its office in Brisbane.

July 1987 the Deputy District Registrar set the

application down for hearing over 3 days commencing 26 August

1987.

By a motion filed 13 August and returnable on 18 August,

the Perth agents	for the respondent seek orders	in the following
terms:-

"1.

Corser 6 Corser have leave to withdraw their name

from the record as Solicitors acting as agents for

Michael

Quinn

6 Co.,

Solicitors for the

Respondent: and

The costs of and incidental to this application be taxed and paid by Messrs. Michael Quinn 6 Co. in any event. "

3 .

The motion was supported

an affidavlt whlch showed

that the Perth agents were instructed in July 1986 by their

Brisbane principals.

various interlocutory steps were carrled out on the

instructions of the Brisbane

firm.

However, since 19 May 1987 there seems to have been a

complete

break-down

communlcatlons.

According

the

affidavit, all attempts to contact the Brisbane firm by

telephone

and letter to obtain instructlons, including instructions	to brief
counsel for the trial, have been to no avail.

On	6 August the Perth agents wrote to thelr Brisbane

principals indicating that they regarded the agency agreement as

at an end and giving notice of their intention to apply to the

Court to have their name "removed from the Court record".

Under the provisions of 0.7

r.6(2),

the address for

service of a person represented by a solicitor shall be the offlce

of the solicitor or his agents.

Order 7 r.6(1)

imposes the limitation that an address

for service shall be the address of a place within	10 kilometres
of the registry.

The requirements €or a notlce of appearance are set out

in 0.9

r .4 and include a requirement that :-

4 .

"(l) A notice of appearance shall show -

(c)

where

the

person

entering

the

appearance

appears by a solicitor and that solicitor has

another solicitor as agent for him in the

proceeding,

the

name,

address

and

telephone

number of the agent: and

(d) an address

€or service."

Changes of solicltor are regulated by the provisions of

0 . 4 5 .

Order 45 r .4 provides for change of agent:-

"where

solicitor (in this rule called the principal

solicitor) acts for

a party in any proceedlng and

another

solicitor

acts

agent

for

the

princlpal

solicitor in the proceeding and the princlpal solicitor

changes the solicitor acting as

agent, the party shall

file notice of the change and

serve the notice

on the

other parties and on the former

agent solicitor."

This rule is silent, however, on the case where an agent

solicitor wishes to terminate his agency.

The Court has a concern in such a case, which I think is

two-fold. The first element of its concern relates

to the

necessity	to	maintain an address for service €or the party
affected.

If the agency is terminated, then

it is the obligatlon

of the party concerned to ensure that

a new address for service

found which complies with the requirements of the

rules.

5 .

The

Court

in such

acase

should

ensure

that

principal solicitor has sufficient notice

of the termination to

enable him to take steps to arrange a new address for service.

The second element

of the Court's concern arises when

the agent appears in substance to have the conduct of the case for

the party it represents.

In	such a case the Court may wish to ensure that the

principal solicltor has notrce of the termination sufficient to

enable him to discharge hrs responsibility of arranging continuing

representation for his client.

The agent

in this case comes to Court seeking leave

withdraw its name from the record.

In substance,

regard the motion as a motron to

determine the use

the agent's address as the address for

service of the respondent.

In my opinion, the Court, as part

of the power it has to

regulate its own proceedings, has an implied incidental power

order that the address

of an agent solicitor shall

no longer be

the address for service of the party concerned and

to attach

conditions	to or make further directions consequential upon such
an order.

6 .

In the circumstances of this case I am satisfied that

the agents have taken all reasonable steps to communicate wrth

and

seek instructions from the prrncipal solicitors, and that the circumstances left them with very little choice but to terminate the agency arrangement.

Having regard to the concerns

of the Court to whrch

have already adverted, I propose to make the following

orders:-

The

Perth

agents

of the

solicitors

for

the

respondent have leave from 4pm on

24 August 1987 to

refuse to accept service of any further document	in
these proceedings.

The address for service

the respondent as from

4pm on 24 August 1987 shall no longer be the office

of Messrs. Corser L Corser.

3 . The respondent do on or before 25 August 1987 frle a notice showing a new address for service and

deliver a copy to the solicitors

for the applicant.

The agent solicitors do forthwith deliver

the

fastest practical method a copy

this order

the solicitors for the respondent

in Brisbane and

to the solicitors for the applicant.

5. Costs on this motion are reserved.

I certify that this and the preceding

five ( 5 ) pages are a true copy

of the

Reasons for Judgment of his Honour

Justice French.

[1987] FCA 634

19 Aug 1987