Farrell v Royal Kings Park Tennis Club (Inc) [No 2]
[2007] WASCA 193
•25 SEPTEMBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FARRELL -v- ROYAL KINGS PARK TENNIS CLUB (INC) [No 2] [2007] WASCA 193
CORAM: BUSS JA
HEARD: 23 AUGUST 2007
DELIVERED : 25 SEPTEMBER 2007
FILE NO/S: CACV 37 of 2006
BETWEEN: CAROL FARRELL by her next friend RONALD CHARLES WAUGH
Appellant
AND
ROYAL KINGS PARK TENNIS CLUB (INC)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JOHNSON J
Citation :FARRELL -v- ROYAL KING'S PARK TENNIS CLUB (INC) [2006] WASC 51
File No :CIV 2147 of 2000
Catchwords:
Appeal - Application by solicitors for leave to cease acting - Supreme Court (Court of Appeal) Rules 2005 (WA), r 24(c) - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 70 r 1, O 70 r 2(3)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1), r 24(c)
Result:
Application granted
Category: B
Representation:
Counsel:
Appellant: In person (by her next friend Mr R C Waugh)
Respondent: No appearance
Kitto & Kitto : Mr J G Kitto
Solicitors:
Appellant: Kitto & Kitto
Respondent: Talbot Olivier
Kitto & Kitto : Kitto & Kitto
Case(s) referred to in judgment(s):
Farrell v Royal King's Park Tennis Club (Inc) [2006] WASC 51
Plenty v Gladwin (1986) 60 ALJR 665
BUSS JA: By an application dated 23 June 2007, the solicitors for the appellant, Kitto & Kitto, have sought the court's leave under r 24(c) of the Supreme Court (Court of Appeal) Rules 2005 (WA) to cease to act for the appellant.
Background to the application
On 4 April 2006, the appellant filed an appeal notice against the judgment of Johnson J in Farrell v Royal King's Park Tennis Club (Inc) [2006] WASC 51. After a trial, her Honour dismissed the appellant's action against the respondent.
[[3] ‑ [5] deleted pursuant to cl 12, Sch 1 of the Guardianship and Administration Act 1990 (WA)].
[Deleted]
[Deleted]
[Deleted]
By an application dated 14 May 2007, the appellant and Mr Waugh applied, relevantly, for:
•an order appointing [Mr Waugh] as next friend of the Appellant in this appeal; and/or
•[Deleted pursuant to cl 12, Sch 1 of the Guardianship and Administration Act 1990 (WA)].
On 22 May 2007, Pullin JA heard the application ex parte. His Honour ordered, relevantly, that the title of this appeal be amended so that the appellant be shown as 'Carol Farrell by her next friend Ronald Charles Waugh', and that the application otherwise be dismissed.
The hearing on 23 August 2007
On 23 August 2007, I heard Kitto & Kitto's application for leave to cease to act for the appellant. Mr Johnson Kitto appeared for Kitto & Kitto. The appellant's next friend, Mr Waugh, appeared and opposed the application. Mr Kitto and Mr Waugh made oral submissions. Before the hearing, Kitto & Kitto had filed and served affidavits dated 25 June 2007 and 2 August 2007 sworn by Mr Johnson Kitto in support of the application. The appellant had not filed or served any affidavits in opposition. Mr Waugh, in the course of his oral submissions, referred to and read from various documents. After the oral submissions were completed, I made orders which permitted the appellant to file and serve affidavit material in opposition to the application, and to file and serve written submissions. I also made orders permitting Kitto & Kitto to file and serve responsive affidavits and written submissions. I reserved my decision on Kitto & Kitto's application, and the parties consented to the application being decided on the basis of the oral submissions I had heard, the papers which had been filed and served, and any papers which were subsequently filed and served pursuant to my orders.
Mr Kitto's affidavit sworn 25 June 2007
In his affidavit sworn 25 June 2007, Mr Kitto merely deposes that the appellant terminated her retainer agreement with Kitto & Kitto on 12 June 2007, or alternatively, that Kitto & Kitto terminated its retainer agreement with the appellant on 13 June 2007. No particulars are given.
Mr Kitto's affidavit sworn 2 August 2007
In his affidavit sworn 2 August 2007, Mr Kitto deposes, relevantly and in effect, that:
(a)The appellant retained Kitto & Kitto, in relation to this appeal, on 29 March 2006.
(b)At that time the appellant was living in the United States of America, and requested that Mr Kitto correspond with and take further instructions from her former husband and trusted friend, Mr Waugh, who lived in the Australian Capital Territory.
(c)Mr Kitto sent, to each of the appellant and Mr Waugh, a letter dated 1 May 2006 enclosing an engagement letter for them each to sign. Mr Waugh was asked to sign an engagement letter to ensure that Kitto & Kitto could continue to act for the appellant if this court required Mr Waugh to act as the appellant's next friend.
(d)Mr Waugh returned his signed engagement letter to Mr Kitto. The appellant told Mr Kitto that she had sent her signed engagement letter to him, but Mr Kitto never received it.
(e)On 1 December 2006, Allregal Enterprises Pty Ltd (Allregal) retained Kitto & Kitto to act for it in Supreme Court action 2205 of 1997 and later in Supreme Court action 1453 of 2007 (Supreme Court actions). The appellant is a director of Allregal and the appellant's children (by virtue of a family trust) are beneficially interested in the subject matter of the Supreme Court actions.
(f)The appellant told Mr Kitto to take instructions in relation to the Supreme Court actions from Mr Waugh.
(g)By May 2007, the solicitor/client relationship in the Supreme Court actions had broken down as a result of Allregal's failure or refusal to secure Kitto & Kitto's ongoing professional fees, and the appellant's refusal to accept the advice of Mr Kitto, or of counsel, Mr Jeremy Ludlow, on the future direction of the Supreme Court actions.
(h)On 29 May 2007, Mr Waugh emailed Mr Kitto, requesting that Kitto & Kitto defer his threatened application to 'get off the record' in relation to the Supreme Court actions until Mr Kitto met with the appellant in person, who was returning from the United States.
(i)On 7 June 2007, Mr Kitto met with the appellant. Mr Ludlow was present. At this meeting, it became clear to Mr Kitto that the issues described in (g) above could not be resolved.
(j)On 13 June 2007, at a case management conference for the Supreme Court actions before the Chief Justice, the appellant attempted, without notice to Mr Kitto, to tender an email written by Mr Waugh the previous day. The court refused to receive the email, and Mr Kitto did not annex the email to his affidavit because 'it is defamatory of me and incorrect'.
(k)It was now obvious that Kitto & Kitto could no longer act for the appellant, and that the relationship of trust and confidence between Kitto & Kitto, and the appellant and Mr Waugh, had irretrievably broken down.
(l)On 13 June 2007, Kitto & Kitto emailed and posted letters to the appellant and Mr Waugh, confirming the termination of 'the retainers'. The appellant and Mr Waugh have acknowledged receipt of these letters.
(m)On 27 June 2007, the Chief Justice gave Kitto & Kitto leave to be removed from the record as Allregal's solicitors in the Supreme Court actions. Other solicitors have now been appointed. Later that day, the appellant informed Mr Kitto that she was considering appointing a Ms Carol Pinkhurst as her replacement solicitor in this appeal. Mr Kitto has had no contact from a Ms Pinkhurst or any person wishing to commence acting for the appellant in this appeal.
Mr Waugh's affidavit sworn 28 August 2007
In an affidavit sworn 28 August 2007, Mr Waugh deposes, relevantly and in effect, that:
(a)On 21 March 2006, the appellant's barrister, Mr Ludlow, sent an email to the appellant, stating that he was confident an appeal from Johnson J's judgment could succeed, that he was willing to act on a 'no win no fee' basis, and that he had a 'solicitor friend' who would be likely to act on the same basis.
(b)On 22 March 2006, Mr Ludlow sent an email to the appellant, naming Mr Kitto of Kitto & Kitto as the solicitor, and confirming that both he and Kitto & Kitto would act on a 'no win no fee' basis.
(c)On 28 March 2006, Mr Ludlow sent an email to the appellant clarifying that Kitto & Kitto would act on the basis that the appellant must sign Kitto & Kitto's standard form costs agreement, and that Kitto & Kitto would charge the appellant a small fee (win or lose) for briefing Mr Ludlow to act as counsel in the appeal, and for any other necessary work (which would probably involve, mainly, the preparation of the appeal books, with Mr Ludlow's assistance). Mr Ludlow also said that he did not expect the appeal books to be very bulky, and outlined for the appellant the fees involved in filing the notice of appeal ($109), the appellant's case ($1,635), and the appeal books ($545).
(d)On 29 March 2006, Mr Waugh responded by email to Mr Ludlow and accepted Mr Ludlow's offer to act on a 'fee for win' basis, and Kitto & Kitto's offer to charge 'small costs'. Mr Waugh also said that he was prepared to sign one of Kitto & Kitto's standard form costs agreements.
(e)On 26 April 2006, Mr Kitto sent a letter to the appellant, by email, requesting that $3,289 be deposited into Kitto & Kitto's trust account (which comprised $2,289 for the filing fees for the appeal notice, the appellant's case and the appeal books; and $1,000 towards Kitto & Kitto's professional fees and disbursements).
(f)On or about 28 April 2006, Kitto & Kitto sent the appellant a tax invoice dated 28 April 2006 in the amount of $408.10, for fees and disbursements. This is the only invoice which has been received by the appellant or Mr Waugh from Kitto & Kitto.
(g)As requested, on 5 May 2006, Mr Waugh deposited $3,289 on behalf of the appellant into Kitto & Kitto's trust account. This amount exceeds Kitto & Kitto's only invoice to date in this appeal. Kitto & Kitto's application for leave to cease to act was made 'despite the appellant having met her known future financial commitments'.
(h)Kitto & Kitto wrote a letter dated 12 June 2007 to the respondent's solicitors (Talbot Olivier) advising them 'prematurely' that it no longer acted for the appellant in this appeal.
(i)Kitto & Kitto were the solicitors in the Supreme Court actions from 29 November 2006 to 29 June 2007, when different solicitors were retained.
(j)On 13 June 2007, Mr Kitto offered the appellant and Mr Waugh the continued services of Kitto & Kitto in the Supreme Court actions if $10,000 of the amount then owing to Kitto & Kitto was paid within seven days, and if Allregal executed a charge over a trust property immediately. Allregal did not fulfil these conditions, and Kitto & Kitto ceased to act for the appellant in the Supreme Court actions.
(k)Mr Kitto informed the appellant and Mr Waugh, however, 'in a spirit of goodwill', that although Kitto & Kitto's retainer with Allregal was terminated, Mr Kitto wished the proceedings to succeed, and he would do all he could to assist the new solicitors, by supplying files to the new solicitors, and conferring with them and Mr Ludlow.
(l)Mr Kitto's attitude gives Mr Waugh 'complete confidence that Kitto & Kitto would act professionally in this appeal despite possible differences it may have had in the unrelated Allregal matter'.
(m)Mr Ludlow has advised the appellant and Mr Waugh that solicitors have little work to do in this appeal (preparing appeal books, filing, serving and receiving court documents) because Mr Ludlow would do 'pretty much everything else'.
(n)Attempts by the appellant to retain new solicitors have failed.
(o)Mr Kitto's affidavit sworn 2 August 2007 'relies overwhelmingly upon his differences with the unrelated Allregal matter'. The affidavit and annexures 'JGK2' and 'JGK3' contain numerous references to Allregal, and virtually none to the appellant.
Mr Waugh's affidavit sworn 11 September 2007
In an affidavit sworn 11 September 2007, Mr Waugh deposes, relevantly and in effect, that:
(a)The dispute between Kitto & Kitto, and the appellant and Mr Waugh, only relates to the Supreme Court actions and is unrelated to this appeal. Mr Waugh says that:
At no time in this matter have the appellant or I failed to fulfil our obligations under the retainer agreement or sought to terminate it. To do so would have been counter-productive. All fees are currently paid in advance including the filing of an appeal book.
(b)At all times, Mr Waugh and the appellant believed that this appeal was being conducted on a 'no win no fee' basis by Mr Ludlow and Mr Kitto, or if there was another basis on which Mr Kitto was engaged, 'it would have been on the proviso of extremely modest client payment prior to judgment'.
(c)Mr Waugh and the appellant have faith in Kitto & Kitto and do not believe that the solicitor and client relationship has failed.
(d)Since the hearing of Kitto & Kitto's application on 23 August 2007, Mr Waugh and the appellant have made numerous unsuccessful attempts to engage solicitors or seek assistance from litigation funding providers. An application for legal aid has been refused.
The merits of the present application
Rule 24 of the Court of Appeal Rules provides:
A lawyer who is said to be acting for a party by reason of a Form 1, 2, 4 or 5 that has been filed is to be taken to be acting for the party until -
(a)another lawyer files a Form 5 under r 23;
(b)the party files a Form 6 notifying the court that the party is self‑represented; or
(c)the court gives leave for the lawyer to cease to act.
The court's power to grant leave under r 24(c) is expressed in general terms, without restriction or qualification. No criteria are specified which control or guide its exercise.
The power under r 24(c) is conferred in the context of a presumption that a lawyer who 'is said to be acting for a party' by reason of a Form 1, 2, 4 or 5 that has been filed, continues to act for the party in question until par (a), (b) or (c) of r 24 is satisfied. The presumption arises from the words 'is to be taken to be acting for the party'. It may be, for example, that a lawyer who is said to be acting for a party, by reason of a Form 1, 2, 4 or 5 that has been filed, may never, in fact, have acted for the party in question, and the statement to that effect in the relevant form was false. Further, it may be, for example, that a lawyer who was acting for a party, as stated in a Form 1, 2, 4 or 5 that has been filed, has ceased to act as a result of his or her retainer having been terminated, but another lawyer has not filed a Form 5 (as contemplated by par (a) of r 24) and the party in question has not filed a Form 6 (as contemplated by par (b) of r 24).
It is unnecessary and undesirable, in determining the present application, to enunciate exhaustively the circumstances in which leave should or should not be granted under par (c) of r 24. It is sufficient, for present purposes, to state that leave should ordinarily be granted if the lawyer has, in fact, ceased to act for the relevant party. In other words, leave should ordinarily be granted so that this court's record as to a party's representation reflects the position which, in fact, exists. Compare the observations of Wilson, Brennan, Deane and Dawson JJ in Plenty v Gladwin (1986) 60 ALJR 665, at 666, in relation to the then O 7 r 7(1) of the High Court Rules.
In the present case, it is apparent that the relationship of solicitor and client between Kitto & Kitto and the appellant (and also the relationship between Kitto & Kitto and Mr Waugh) has irretrievably broken down. It is plain from the evidence before me that Kitto & Kitto:
(a)do not trust the appellant or Mr Waugh;
(b)have, for some time, acted on the basis that their retainer in this appeal has been terminated; and
(c)refuse to act or continue to act for the appellant in relation to this appeal.
It is true that Mr Waugh has deposed, in essence, that he and the appellant repose trust and confidence in Kitto & Kitto in relation to their acting as solicitors for the appellant in this appeal, notwithstanding the difficulties which emerged in the context of the Supreme Court actions.
However, the relationship of solicitor and client may irretrievably break down even though one of the parties genuinely desires the relationship to continue. The existence of such a relationship is, of course, consensual, and it is unable to be maintained where one of the parties refuses to acknowledge its existence or treats it as having been terminated.
It is neither appropriate nor possible for me to make any decision, in the context of the present application, as to the material facts relating to:
(a)the terms and conditions of Kitto & Kitto's retainer;
(b)the circumstances in which Kitto & Kitto ceased, in fact, to act in this appeal; or
(c)the rights and liabilities of Kitto & Kitto as against the appellant, or the rights and liabilities of the appellant as against Kitto & Kitto, in relation to the retainer or its termination.
I am satisfied, on the basis of the facts and matters which I have recounted at [16] ‑ [19] above, that Kitto & Kitto have, in fact, ceased to act for the appellant, and that leave should be granted under r 24(c).
The granting of leave under r 24(c) does not affect the rights or liabilities of Kitto & Kitto and the appellant as between themselves.
The necessity for a next friend to act by a solicitor
Order 70 r 2(3) of the Rules of the Supreme Court 1971 (WA) provides that a next friend or guardian ad litem of a person under disability must act by a solicitor. The appellant is a 'person under disability' as defined in O 70 r 1 and within the meaning of O 70 r 2(3). By r 5(1) of the Court of Appeal Rules, the Court of Appeal Rules must be read with the Rules of the Supreme Court.
Mr Waugh argued, in substance, in the course of his submissions on the present application, that if Kitto & Kitto were granted leave under r 24(c), then I should make an order permitting:
(a)Mr Waugh to represent the appellant, with Mr Ludlow acting as counsel, without solicitors; or
(b)Mr Waugh to represent the appellant alone, without counsel or solicitors.
It is not appropriate, in the present application, to deal with Mr Waugh's argument. If the appellant wishes this court to consider whether orders to the effect sought by Mr Waugh should be made, then a formal application must be filed. It should be served on the respondent's solicitors and, if the application as filed affects Mr Ludlow, it should also be served on him.
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