Fitzgerald v F.J. Leonhardt Pty Ltd

[1996] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D2 of 1996

B e t w e e n -

COLIN JOHN FITZGERALD

Appellant

and

F.J. LEONHARDT PTY LTD

Respondent

Application for order that solicitor has ceased to act

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 JULY 1996, AT 9.38 AM

Copyright in the High Court of Australia

MR T.S. LEE:   May it please the Court, this is my application that I no longer be the solicitor for the applicant, Colin Fitzgerald.  Appearing with me is my articled clerk, Miss Julie Holtham.  (instructed by T.S. Lee & Associates)

HIS HONOUR:   Mr Lee, I understood that there may be somebody appearing here for your client in relation to this application.  Is there any appearance?

MR LEE:   Yes, your Honour.

MR M.D. CARTER:   Your Honour, I am not a solicitor on the record for either of the parties in this appeal but I have been asked by Mr Fitzgerald to appear and oppose this application.

HIS HONOUR:   Yes, Mr Carter.  Are you a solicitor on the roll of this Court?

MR CARTER:   I am.  I am a solicitor on the roll of the High Court of Australia.

HIS HONOUR:   Very well.  Thank you.  Mr Lee, we will hear from you first.

MR LEE:   Thank you, your Honour.  I refer to the summons that was filed on 25 June 1996.  In this summons I seek:

(1)      that T.S. Lee & Associates be declared to have ceased acting for the Appellant

(2)      that the appellant to pay the costs of this procedure

(3)      any other orders this Honourable Court deems just

Your Honour, I am relying on my affidavit which was sworn on 6 June 1996. 

HIS HONOUR:   Yes, I think I have that affidavit.

MR LEE:   Would your Honour like me to go through the affidavit?

HIS HONOUR:   I have read the affidavits, Mr Lee.  You have another affidavit, do you not, on 1 July?  Is that correct?

MR LEE:   Yes, that is correct.  This is the affidavit of service.

HIS HONOUR:   Yes.  And the affidavit of service contains, amongst other things, a copy of your earlier affidavit.

MR LEE:   That is correct, sir.

HIS HONOUR:   I have read that affidavit, Mr Lee.

MR LEE:   Thank you, your Honour.  Would you like me to elaborate on any of the points or to make any points clear?

HIS HONOUR:   I think it might be easier if I were to ask Mr Carter what the grounds of objection are to the application.

MR LEE:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Carter.

MR CARTER:   Mr Fitzgerald does not consent to the application.  He opposes it on the basis that for Mr Lee at this point in the progress of the appeal to cease to act would be, on my instructions, a breach of the terms of his appointment.  I refer your Honour to the annexure marked E to the affidavit of Mr T.S. Lee which is before you, dated 6 June 1996.  That is a photocopy of an agreement - or at least a notice in Mr Lee’s writing which is dated 22 February 1996.

HIS HONOUR:   Which annexure is it?

MR CARTER:   It is annexure E, your Honour.

HIS HONOUR:   Yes.

MR CARTER:   And it says:

I agree to charge Colin Fitzgerald only on disbursements, including counsel’s fees if Colin loses his appeal in the High Court.

Signed, “T.S. Lee”, dated “22 February”.  My instructions are that the agreement between the lay client and the solicitor was that Mr Lee would not charge Mr Fitzgerald anything at all except agreed counsel’s fees for taking the matter to an appeal in the High Court.  The status of the appeal at the moment, your Honour, is that special leave was granted by the Court and the matter is to be listed for a hearing.

The argument that Mr Fitzgerald asked me to put to you, your Honour, is that he would be financially embarrassed by Mr Lee ceasing to act at this point because he entered into the appeal on the basis that he would not have to pay his solicitor’s fees except in the event that he won the appeal and in those circumstances, although it is not referred to in the note, my instructions are that it was expected that the unsuccessful appellant or, at least, the respondent to the appeal, F.J. Leonhardt Pty Ltd, being a company which is believed to be a company of substance, would have the financial resources to pay Mr Lee’s bill.

HIS HONOUR:   But, Mr Carter, has this got anything to do with the nature of the application?  You see, the provisions of Order 7 rule 7 have been held by this Court to be concerned not with the relationship of the solicitor and client but with the regularity of the Court’s records, so that whatever decision might be made in relation to the removal of a name of a solicitor from the Court’s records does not affect whatever contractual relationship the retainer may have given rise to.  I do not know whether you are familiar with the cases that have dealt with this particular rule and order but they are Plenty v Gladwin, 67 ALJR 26, and Harrison v State Transport Authority, (1991) 65 ALJR 260.

MR CARTER:   I regret I am not familiar with those authorities.  I received instructions in this matter last night and we were only served with this affidavit this morning.  While I appreciate the fact that the Court is only concerned with the regularity of its own records, if this application were granted, then we would oppose costs on the basis that Mr Lee, on my instructions, is in breach of his contractual relationship with Mr Fitzgerald and that if Mr Lee does have a remedy, which is a contractual remedy, then he should proceed with it in the local court in Darwin for recovery of his fees and also after due inquiry and evidence, if he is entitled to costs on this application, there would seem to be no reason why a magistrate should not order that Mr Fitzgerald pays those costs.

HIS HONOUR:   Yes.As you are not familiar with the authorities, let me quote to you some of the principles or quote to you the principle which is relevant, I think, in the present case.I am taking this from the judgment of Justices Dawson and McHugh in Harrison v State Transport Authority (1991) 65 ALJR 260:

an order will be made as of course in the absence of special circumstances upon proof that the solicitors have, in fact, ceased to act in the matter and that no steps have been taken to take the solicitors’ name off the record.

Now, if I am satisfied that Mr Lee has in truth ceased to act in the matter, it is clear that no steps have been taken to take his name off the record, I should make the order, unless there is something very special in the case.  What is clear from the authorities is that a dispute between the solicitor and the client as to fees are not special circumstances for the purposes of this rule.

MR CARTER:   Your Honour, I cannot add anything to what your Honour has said but I merely repeat what I previously said about the question of costs, which was the second leg on the application.

HIS HONOUR:   Yes, very well.  Thank you, Mr Carter.

MR CARTER:   May it please the Court.

HIS HONOUR:   Mr Lee, what do you have to say?

MR LEE:   In my affidavit you will notice that I have many times been in contact with Colin Fitzgerald and also written to him and all the times he has not honoured his words.  I have very reluctantly put in this application on my own behalf.  So I ask for costs for this application.  If Mr Fitzgerald has honoured his commitment to the agreement such as paying by instalment, this application would not be on foot.  He failed in all aspects and he has put me in a very embarrassing position, especially so when his cheque has been dishonoured, despite the facts that I make many allowances for him to redeem the breaches of his own contract.  So I have no choice except to seek this application and I therefore ask for costs.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you, Mr Lee.

I propose to make the order in accordance with Order 7 rule 7 but as I regard the rule as one which is intended to preserve the correctness of the records of the Court and applications under that rule as primarily concerned with the relationship between a solicitor on the roll of solicitors of this Court and the Court itself, I do not think it is appropriate to make an order for costs in this case.  I do not, therefore, propose to make an order for costs as requested.

I might add that if the record in this appeal, that is in the appeal as between Mr Fitzgerald and Messrs F.J. Leonhardt Pty Ltd were ready in time, the matter could be heard and would be heard in the Adelaide sittings.  That is something which, if I could ask you, Mr Carter, to convey to Mr Fitzgerald when you speak to him.  It would be desirable for him to be in touch with the Registry in order to discover as quickly as possible the course which the appeal should take.

The formal order, therefore, that I make is that the name of T.S. Lee be removed as solicitor on the record and I do not propose to make any further order on the summons.  The Court will adjourn to a date to be fixed.

MR LEE:   Thank you, your Honour.

AT 9.51 AM THE MATTER WAS CONCLUDED