Bryan v Moloney

[1994] HCATrans 90

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
             Melbourne    No H10 of 1993

In the matter of -

BRYAN

and

MOLONEY

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 3 NOVEMBER 1994

Copyright in the High Court of Australia

HIS HONOUR:   Yes, Mr Ahearn.

MR G.J. AHEARN:   Your Honour, I appear on behalf of Sly and Weigall.

HIS HONOUR:   Yes.

MR AHEARN:   In this application, which is made by summons dated 19 October for an order pursuant to order 7 rule 7 declaring that Sly and Weigall has ceased to act as solicitors for the appellant, Mr Bryan.

HIS HONOUR:   Yes.

MR AHEARN:   Your Honour, I have only just been informed that a summons that was also returnable before your Honour today in which the parties were the - Maloney and the Housing Industry Association has in fact been taken out of the list by consent.  I have not had an opportunity to discuss that development with Mr Bryan, who I have not been able to contact this morning.  In the circumstances, subject to the position of the court, Sly and Weigall are content to remain on the record as solicitors for Mr Bryan.

HIS HONOUR:   That is really not the question.  Has the firm ‑ ‑ ‑

MR AHEARN:   The firm has ceased to act, your Honour.  The firm has ceased to act.

HIS HONOUR:   What is the point of remaining on record, then?

MR AHEARN:   Well, the firm may be able to come to some arrangement with Mr Bryan under which it can continue to act for Mr Bryan, your Honour.

HIS HONOUR:   Well, it seems to be in a position where it cannot make up its mind;  either it is acting or it is not acting, and until it gets further instructions, if it is not acting, it is not acting.

MR AHEARN:   Yes.  Your Honour, the primary issue was one concerning significant costs that would be incurred in relation to defending applications for costs.

HIS HONOUR:   In other words, you are prepared to continue acting, or to appear to be continuing to act so long as there is no expense involved;  is that what it amounts to?

MR AHEARN:   That is what it amounts to, your Honour.

HIS HONOUR:   Why should you be able to do that?

MR AHEARN:   Well, if there is no significant expense to be involved, your Honour.

HIS HONOUR:   Well, it is a matter for the firm, I suppose.  You do not have to persist with the application that you are making;  and as I understand you, you are not persisting.

MR AHEARN:   That is correct, your Honour.  We would seek to have the matter ‑ ‑ ‑

HIS HONOUR:   But so far as the court is concerned, that means that you continue to act for Mr Bryan.

MR AHEARN:   Yes, we understand that, your Honour.  Would your Honour be prepared to adjourn the summons sine die?

HIS HONOUR:   No, I do not think I should leave it in a state of suspension like that, I will dismiss the application.  I mean, either you are going to continue to act or you are not going to act.

MR AHEARN:   Well, as I said, your Honour, I have only found about this development this morning.  I have tried to contact Mr Bryan who is in the backblocks of Launceston somewhere on a building site, without any success.

HIS HONOUR:   Yes.

MR AHEARN:   And that is the predicament that I find myself in this morning before your Honour.

HIS HONOUR:   Yes.  Well, I do not think I should leave the thing hanging like that, so far as the court is concerned;  you continue to act and that means that the application ought to be dismissed.  Very well, I will dismiss the application.

MR AHEARN:   If your Honour pleases. 

HIS HONOUR:   Is there anything else?

MR AHEARN:   No, your Honour.

AT 9.38 AM THE MATTER WAS ADJOURNED SINE DIE