G.W. Glenn Road Transport v Glenn G.W.

[1995] FCA 218

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG 3400  of 1993
  )
GENERAL DIVISION                 )

BETWEEN:G.W. GLENN ROAD TRANSPORT

Applicant

AND:GREGORY WARREN GLENN & ANOR

Respondent

21 MARCH 1995

REASONS FOR JUDGMENT
LOCKHART J.
     This matter has an unfortunate history. It was listed for final hearing on a date in the latter part of last year but that date had to be vacated because the court was unable to hear the matter that day.  The matter was again fixed for hearing today and the parties had ample notice of that date. 

On 17 March last - that is last Friday - a letter was received by the New South Wales District Registry from the solicitors for the respondents, Messrs Mitchell McKenzie and Co of Echuca, Victoria, stating that they no longer act on behalf of the respondents and that they have informed the solicitors for the applicant of that fact.

My associate received a telephone call yesterday afternoon from a gentlemen who purported to be, and no doubt was, the first respondent, Mr Glenn, saying that he had just been informed by his solicitors that they had ceased to act for him and his wife, and he wanted to have the matter adjourned.  My associate suggested to him that he send his request by fax, which he did late yesterday and my associate sent a copy of that fax to the solicitors for the applicant.

In the fax Mr Glenn said that he wanted to have the hearing date today vacated, and he had been told only on yesterday itself by his solicitors that they were no longer acting for him, so he needed time to instruct another solicitor.  I have been told from the bar table that the solicitors for the respondents had informed the respondents in writing some time ago, that unless they were put in funds for the hearing of the case by 1 March, they would not be able to act for them.

Counsel for the applicant seeks to have the matter proceed today; but I have indicated that in all the circumstances - although they are very unsatisfactory - it would not be right to have the trial proceed today.  Mr Darvall of counsel appears as amicus curiae for the respondents for the purposes of seeking an adjournment of the matter and I am disposed to accede to that application.  He has indicated to me that a hearing date not less than one month from today should be sufficient to enable his clients to make suitable arrangements for representation on that occasion.

Counsel for the applicant then seeks an order that the costs of today and otherwise thrown away by the matter not proceeding today, which was estimated to be about a half day matter, should be paid by the solicitors for the respondents. 
     The rules of court are clear about this sort of problem.  Order 45 rule 7 provides that where a solicitor who acts for a party and ceases to act, he may file notice of the change and serve it upon the other parties, subject to subrule (2). That subrule provides that a solicitor shall not file or serve a notice of change without leave of the court unless he has, not less than seven days before doing so, served on his former client notice of his intention to file and serve the notice of change.

Subrule (3) provides that the solicitor filing a notice of change shall, except where the notice is filed with the leave of the court, file and serve with the notice an affidavit showing service and compliance with subrule (2).  Rule 8 provides that a change of which notice is required by, interalia, rule 7 shall not have effect as between a party or solicitor to which the change relates on the one hand and the court or any other party on the other hand, until notice of the change is filed and, as regards any other party, is served on that other party.

Those provisions have not been complied with.  There is no prescribed form of notice of change and the letter from Messrs Mitchell McKenzie and Co of 17 March to the Court is certainly not a notice of that kind, although it does operate to indicate that those solicitors have concluded they no longer act for the respondents.  Until the notice of change has been filed or the court grants leave to the solicitors under subrule (2), those solicitors still remain on the record, and indeed the effect of rule 8 is they still remain the solicitors for the parties.

I have been asked by counsel who is appearing for the solicitors for the respondents to grant the requisite leave under subrule (2) of rule 7.  There is no evidence in support of that application. I am not disposed to grant it today but I will not dismiss that application, which is made orally from the bar table.  It seems to me the appropriate course to take is to stand over the question of costs of today and otherwise thrown away by the vacation of the fixture and adjournment of the matter to the date on which the matter is to be finally heard. On that occasion the Court will deal with any motion by the solicitors for leave under rule 7 subrule (2), and also deal with the application by counsel for the applicant that their costs of today and otherwise thrown away should be paid by the solicitors, who will remain on the record until they either comply with rule 7 or obtain the Court's leave.

There may be of course no bar to the solicitors now or soon hereafter filing a notice of change under subrule (1), which would then operate according to its terms after seven days - that is a matter for the solicitors themselves to look at and have regard to. 

Accordingly, the Court directs that any evidence that is sought to be filed by the solicitors presently on the record for the respondents, Messrs Mitchell McKenzie and Co, in relation to the question of costs of today and thrown away by today's adjournment, should be filed in affidavit form on or before 28 March next and served on the solicitors for the applicant.  Any evidence in reply by affidavit shall be filed and served by the solicitors for the applicant on or before 4 April.

I also direct that any of the affidavits to which I have just referred by any party should also be served on Mr and Mrs Glenn at their last known address or addresses.

I specially fix the matter for final hearing on 2 June next at 10.15am in Sydney and direct the respondents, in the event that they should wish to rely on evidence further to that comprised in their present affidavits filed on their behalf, to file and serve any further affidavits not later than Tuesday, 18 April next; and any affidavits in reply on behalf of the applicants to be filed not later than 16 May next.
     On the basis that the respondents have been in default in the past, and not the applicants, if any default occurs in relation to complying with those directions on the part of the respondents, there must be filed on their behalf an affidavit or affidavits, by the due date for the affidavits, setting out why the direction has not been complied with.  The court would be disposed to proceed to hear the matter on 2 June next, and would need very persuasive evidence and special circumstances to vacate that date. If any attempt is made to vacate that date by the respondents, it must be supported by affidavit evidence to be filed and served not later than 18 April next.

Costs of today and costs thrown away by today's adjournment will be reserved until 2 June.

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  21 March 1995

Counsel for the Applicant    :        R. J. Webb

Solicitors for the Applicant :        Walsh and Blair

Counsel for the Respondent   :        J. Darvall
(amicus curiae)
Solicitors for the Respondent     :        Mitchell McKenzie & Co

Date of Hearing             :        21 March 1995
Date of Judgment            :        21 March 1995