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Clairs Keeley (a Firm) v Treacy

Clairs Keeley (a Firm) v Treacy

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CLAIRS KEELEY (A FIRM) -v- TREACY & ORS [2004] WASCA 277

Reported Decision:	(2004) 29 WAR 479
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 277
Court:	THE FULL COURT (WA)
Case No:	FUL:114/2002	Heard:	7 SEPTEMBER 2004
Coram:	STEYTLER J TEMPLEMAN J MCKECHNIE J	Delivered:	25/11/04
No of pages:	38	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
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Parties:	CLAIRS KEELEY (A FIRM) JOANNE MARIE TREACY GEORGE ROBERT SOULLIER MARY JOY SOULLIER COLIN DOUGLAS HENNING DOREEN RUTH HENNING
Catchwords:	Practice and procedure Application to lift stay of proceedings Maintenance and champerty Whether change in circumstances since stay granted Whether potential for abuse of process Whether solicitors independent from financiers of proceedings Whether, therefore, solicitors in potential conflict with clients Whether plaintiffs have been advised sufficiently of their position
Legislation:	Nil
Case References:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Arkin v Borchard Lines Ltd [2003] EWHC 2844 Brimaud v Honeysett Instant Print Pty Ltd, unreported; SCt of NSW; Library No 3059; 19 September 1988 Brown v Talbot & Olivier (1993) 9 WAR 70 Buiscex Ltd v Panfida Foods Ltd (in liq) (1998) 28 ACSR 357 Clairs Keeley (A Firm) v Treacy & Ors (2003) 28 WAR 139 De Crittenden v Bayliss [2002] EWCA 50 Elfic Ltd v Macks [2003] 2 Qd R 125 Giles v Thompson [1993] 3 All ER 321 Giles v Thompson [1994] AC 142 Gulf Azov Shipping Co Ltd v Idisi [2004] EWCA 292 In re Trepca Mines Ltd [1963] Ch 199 Leslie v Hydro-Electric Corp (1997) 7 Tas R 239 Nominal Defendant v Manning (2000) 50 NSWLR 139 R (Factortame Ltd & Ors) v Secretary for Transport Ltd (No 2) [2003] QB 381 Todd v Novotny [2000] WASC 308 Wentworth v Rogers, unreported; SCt of NSW (Sperling J); 9228 of 1982; 28 April 1995 Arata Potato Co Ltd v Taylor Johnson Garrett [1995] 4 All ER 695 Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-ing Burkhardt Gmb [2001] 1 Qd R 461 Bandwill Pty Ltd v Spencer-Laitt (2000) 23 WAR 390 Callery v Gray [2002] 3 All ER 417 Cattanach v Melchior (2003) 215 CLR 1 Choules v Siglin [2002] WASC 230 Clare v Joseph [1907] 2 KB 369 Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 1 ALR 201 DA Christie Pty Ltd v Baker [1996] 2 VR 582 Ellingsen v Det Skandinavske Co [1919] 2 KB 567 Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 Gore v Justice Corp Pty Ltd (2002) 119 FCR 429 Hamilton v Al Fayed (No 2) [2003] QB 1175 Henderson v Henderson (1843) 3 Hare 100 Hill v Archbold [1968] 1 QB 686 Jarbin Pty Ltd v Clutha Ltd (in liq) (2004) 22 ACLC 550 Kuligowski v Metrobus (2002) 26 WAR 137 Kuligowski v Metrobus (2004) 208 ALR 1 Lyddon v Moss (1859) 4 De G & J 104 McIntyre v Attorney-General of Ontario (2002) 218 DLR (4th)…

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.

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Details

Case: [2004] WASCA 277
Decision Date: 25 NOVEMBER 2004

CaseChat Overview and Summary

The matter of Clairs Keeley (a Firm) versus Treacy came before the court as an application to lift a stay of proceedings. The dispute between the parties centred on issues of maintenance and champerty. The applicants, Clairs Keeley, sought to proceed with their litigation against the respondent, Treacy, by lifting the stay that had previously been imposed. The court had to determine whether there had been a change in circumstances since the stay was granted, whether there was a potential for abuse of process, and whether the solicitors were independent from the financiers of the proceedings, which would place them in potential conflict with their clients. Additionally, the court had to consider whether the plaintiffs had been sufficiently advised of their position.

In assessing the application, the court examined the potential for abuse of process and the independence of the solicitors from their financiers. The court found that there had been no change in circumstances warranting the lifting of the stay, and that the solicitors were not independent from their financiers, thereby placing them in potential conflict with their clients. Furthermore, the court was of the opinion that the plaintiffs had not been sufficiently advised of their position. Consequently, the court dismissed the application to lift the stay of proceedings.

The court's decision was based on the factors of potential abuse of process, the independence of the solicitors, and the adequacy of advice provided to the plaintiffs. The court found that the applicants had not demonstrated sufficient grounds for lifting the stay of proceedings, and that there was a potential for abuse of process, as well as a conflict of interest between the solicitors and their clients. As a result, the application was dismissed, and the stay of proceedings remained in place.

Orders

Orders of the court

Application dismissed

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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