Cloud Top Pty Limited & Anor v Toma Services Pty Limited & Anor
[2008] NSWSC 278
•28 March 2008
CITATION: Cloud Top Pty Limited & Anor v Toma Services Pty Limited & Anor [2008] NSWSC 278 HEARING DATE(S): 28/03/08 JURISDICTION: Equity Division
Commercial ListJUDGMENT OF: Einstein J EX TEMPORE JUDGMENT DATE: 28 March 2008 DECISION: Notice to produce struck out. CATCHWORDS: Notices to produce - Rights of audience - Counsel refused leave to appear on defendants' behalf where purporting to be instructed by solicitors who had ceased to act - No such thing as a 'Claytons solicitor' CATEGORY: Consequential orders PARTIES: Cloud Top Pty Limited (First Plaintiff)
Dawcam Pty Limited (Second Plaintiff)
Toma Services Pty Limited (First Defendant)
Alister Toma (Second Defendant)
G Cooper Pty Limited as trustee for Cooper Trust trading as G Cooper Hotel Brokers (Third Defendant)
FILE NUMBER(S): SC 50068/07 COUNSEL: Mr E Hyde (Plaintiffs) SOLICITORS: Don McDougall Lawyer (Plaintiffs)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST
Einstein J
Friday 28 March 2008 ex tempore
Revised 1 April 2008
50068/07 Cloud Top Pty Limited & Anor v Toma Services Pty Limited & Ors
JUDGMENT
The motion
1 In proceedings number 50068 of 2007 the plaintiffs move on a notice of motion filed on 18 March 2008. The orders sought seek to strike out or set aside paragraphs 1, 2, 3, 4 and 5 of a notice to produce to the plaintiffs/first and second defendants to the first cross-claim served on behalf of the first and second defendants/cross-claimants to the first cross-claim and dated 6 March 2008.
2 The notice to produce is before the Court, as is a bundle of correspondence passing between McCabe Terrill and Don McDougall, lawyer. Together the notice to produce and that set of correspondence will be marked exhibit P1 on the application.
3 The principled exercise of the material discretion is to set aside the notice to produce. It was inappropriate to serve a notice to produce in a circumstance where discovery had not been sought by the defendants, the notice itself amounting in several places to a request for discovery in circumstances where the notice is served just prior to the defendants evidence being due. Where Commercial List proceedings are on foot, the conventional approach is that documentary exchange takes place, in the usual course of events, by agreed categories of discovery or, where agreement has not been able to be reached, categories of discovery determined by the Court. In any event I am not satisfied that the notice to produce is shown to be relevant to the issues before the parties to permit it to stand the notice to produce, even if the usual procedures had been adopted.
The right of audience
4 One of the unusual parameters of the application this afternoon has been the application of Mr Cutler of counsel to appear for the defendants. The appearance sheet which was signed in the usual way, identifying ‘party’ ‘appearance’ and ‘instructed by’, reads in the relevant line, "Defendants: P Cutler instructed by C Rawlins". In fact, as Mr Cutler accepted on the matter being raised by the plaintiff, McCabe Terrill the former solicitors on the record for the defendants, had some time ago, having given notice of their intention to cease to act, ceased to be the solicitors for the defendants on the record. In that circumstance, Mr Cutler was forced to accept that Ms Rawlins, whom he has identified as his instructing solicitor for the purpose of appearing on the motion, is not in fact a person representing any solicitor on the record.
5 As it seems to me, where Mr Cutler does not suggest that he has been personally retained sans any solicitor, that is to say he accepts that he does not himself as counsel represent the defendants, it is quite clear that he has no right of audience when purporting to represent the defendants through a firm of solicitors which itself, no longer represents the defendants. For those reasons Mr Cutler's right of audience was not permitted [following the Court, having given a proper opportunity to Ms Rawlins to contact the relevant partner of McCabe Terrill in order to be in a position to give an undertaking that if the Court would permit Mr Cutler to be heard today, instructed by Ms Rawlins, then by five o'clock today there would be a further notice of appearance filed in the Court registry]. The stringent approach to these questions which has informed the entitlement of the legal profession to represent clients is of the utmost importance in the administration of justice and there is no such thing as a ‘Claytons type solicitor’.
6 The orders of the Court are:
2. The defendants are ordered to pay the plaintiffs’ costs of the plaintiffs’ notice of motion.
1. The Court makes orders in terms of paragraph 1 of the notice of motion filed on 18 March 2008.
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