Falgat Constructions Pty Limited v Lightning Readymixed Concrete Pty Ltd

[1996] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S185 of 1994

B e t w e e n -

FALGAT CONSTRUCTIONS PTY LIMITED

Applicant

and

LIGHTNING READYMIXED CONCRETE PTY LIMITED

Respondent

Application for order that solicitor has ceased to act

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 22 MAY 1996, AT 9.33 AM

Copyright in the High Court of Australia

MR S.R. BAINY:   Your Honour, I appear on behalf of the solicitor for the applicant in this matter.  (instructed by Kemp Strang & Chippindall)

MR D.E. COLLINGE:   May it please your Honour, I appear for the respondent.  (of P.W. Turk & Associates)

HIS HONOUR:   I do not think it is strictly necessary for you to be here.  You have no real interest in what happens this morning.

MR COLLINGE:   No, your Honour.  

HIS HONOUR:   Except perhaps contingently.

MR BAINY:   Your Honour, a summons has been filed by the solicitor on the record seeking orders from the Court that he cease to act in these proceedings.

HIS HONOUR:   Yes.  You are moving under Order 7 rule 7, is that correct?

MR BAINY:   Yes, your Honour.

HIS HONOUR:   Yes.  What are the affidavits you read?

MR BAINY:   The affidavit sworn by James David McKenzie Graham on 7 May 1996.

HIS HONOUR:   Yes, I have  read that affidavit.

MR BAINY:   A further affidavit, your Honour, sworn by Mr Graham on 21 May 1996.

HIS HONOUR:   Yes, I have read that affidavit.  Thank you for making that inquiry.  That was done at my suggestion yesterday through the Registrar.  There is also here an affidavit from Les Flanagan.

MR BAINY:   Your Honour, I believe that is an affidavit of service of the summons upon ‑ ‑ ‑

HIS HONOUR:   That ought to be read as well.

MR BAINY:   Yes.  I would have your Honour read that too.

HIS HONOUR:   Yes, very well.  Well, I have read each of those affidavits.  Have you seen any of these affidavits, as you have turned up, Mr Collinge?

MR COLLINGE:   No, I have not, your Honour.

HIS HONOUR:   They merely depose to the endeavours by the solicitor to make contact with the appellant and to the service of the documentation on the appellant, so I do not think it is necessary for you to see them.

MR COLLINGE:   If your Honour pleases.

HIS HONOUR:   You ask me to make the orders under Order 7 rule 7?

MR BAINY:   Yes, your Honour.

HIS HONOUR:   Yes, very well, I will make those orders. 

There is presently before the Court an application for special leave to appeal by Falgat Constructions Pty Limited (“Falgat”) from a judgment of the Court of Appeal of New South Wales dated 25 November 1994.  By that judgment, that court dismissed an appeal from orders of the Common Law Division of the Supreme Court of New South Wales (Staff AJ).  The solicitor for Falgat now seeks relief under O 7 r 7 of the High Court Rules.  So far as is material, that rule reads:

“Where a solicitor who has acted for a party in a proceeding has ceased so to act and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, the solicitor may.....apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the proceeding, and the Court or Justice may make an order accordingly.”

Read before me this morning were three affidavits.  The first was an affidavit of Mr James Graham, solicitor, sworn 7 May 1996.  This deposes to the fact that he is the solicitor presently on the record acting on behalf of the applicant, Falgat.  On 21 June 1995 he was informed by a Mr Gattellaro, who is a director of Falgat, that it had instructed another firm of solicitors to advise in relation to the matter.  He states that he had not received any further instructions from the applicant since that time.  By letter dated 26 June 1995, posted to Falgat on or about that date, he advised Mr Gattellaro that he was not, in the circumstances, able to continue to act on behalf of Falgat in the proceedings and that he would take steps to cease to act in the proceedings.  I consider that that letter constitutes a notice to Falgat of the solicitor’s intention. 

An affidavit of Mr Les Flanagan, licensed commercial sub-agent, of 17 May 1996 deposes to delivery of a later notice to Falgat on 16 May 1996.  Finally, an affidavit of 21 May 1996, also sworn by Mr Graham, deposes to a telephone conversation which took place yesterday.  This conversation took place pursuant to a direction which I gave to the Registrar to indicate that I would feel more comfortable to make the order sought this day, in the absence of the applicant, if the applicant were notified that the matter was before the Court today.  The affidavit by Mr Graham indicates that such notification was given. 

According to the last mentioned affidavit, Mr Graham telephoned Mr Gattellaro on a mobile telephone.  A conversation then took place which clearly indicates that Mr Gattellaro is on notice that the matter is before this Court today.  Mr Gattellaro indicated that he was involved in another court case.  He said that he had not had time to think about the matter.  He was in conference at the time of the telephone call.  He did not know whether he would attend court today.  The matter has been called before me.  No person has appeared for Falgat.  Mr Gattellaro has not appeared.  It therefore seems safe to assume that he has elected not appear before the Court today.

In Plenty v Gladwin (1986) 67 ALR 26 at 27, this Court constituted by Wilson, Brennan, Deane and Dawson JJ explained the purposes of the subject rule. Their Honours stated:

The purpose of the rule is quite different.  Its concern is with the record of the court and with the service of documents.  It comes into play when, rightly or wrongly, a solicitor has ceased to act and the party has not given notice of change of solicitor or notice of intention to act in person.  The solicitor may then take steps to have his name removed from the record.  The first step is by applying to the court or a justice for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the proceeding.  As we have noted the court has a discretion whether or not to make the order, but unless there are special circumstances which render it expedient to retain the solicitor on the record the order will generally be made as a matter of course upon proof that the solicitor has in fact ceased to act for the party and that no steps have been taken to take the solicitor’s name off the record.  Order 7, r 7(4) makes it plain that an order made under the rule does not affect the rights or liabilities of a solicitor and a party as between themselves.

Having regard to this explanation of the purpose of the rule, to the clear notification that has been given by the solicitor both in writing and orally to the applicant through its officer, and to the fact that no notice of change of solicitor has been filed by Falgat, it is appropriate that the order sought should now be made.  I therefore make an order in accordance with O 7 r 7(1) declaring that the solicitor presently on the record for the applicant has ceased to be the solicitor acting for the applicant in the proceedings.

Do you ask for any order in relation to costs or is that really a matter between you and your former client?

MR BAINY:   If Your Honour is minded to grant costs, I will leave it in your hands.  It has not really been raised.

HIS HONOUR:   Yes.  I do not feel comfortable to make an order against a party who is not here.  You are still that party’s solicitor.  As to the costs of the proceedings before the Court today, because they were not specifically  raised with Falgat and because that company is not present, I will reserve the costs.  However, I record that the steps which the solicitor took were proper steps to have himself removed from the record.  It would seem appropriate that Falgat should pay the costs occasioned by this application.  However, I will not make any order in that regard but I will reserve liberty to the solicitor to apply if there is any difficulty, giving notice of the claim for such costs to Falgat.

The order is made in accordance with the application.  Costs are reserved.

AT 9.42 AM THE MATTER WAS CONCLUDED