Harrison v The State Transport Authority

[1991] HCATrans 63

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A24 of 1990

B e t w e e n -

PETER LINDEN HARRISON

Applicant

and

THE STATE TRANSPORT AUTHORITY

Respondent

Application for special

leave to appeal

DAWSON J

McHUGH J

Harrison 1 8/3/91

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 MARCH 1991, AT 3.33 PM

Copyright in the High Court of Australia

DAWSON J:	Mr Harrison, you appear in person, do you?
MR P.L. HARRISON:	Your Honour, I am the applicant in this

matter.

DAWSON 0:  You are appearing for leave to appeal against the order made by Justice Brennan, is that not so?

MR HARRISON:  Yes, Your Honour. What I would like to do,

Your Honour, is present three arguments why I

consider that the solicitor should remain on the

record. Then after that, Your Honour, my basic

reason is I contend I hold a cause of action and

then, if the Court permits, maybe you would allow

me to go into that matter.

DAWSON J: That will not be relevant on this application, Mr

Harrison. What you have to show is at least a

prima facie case that Justice Brennan was in error

in making the order which he did. That is really

the only question to which you can usefully address

yourself.

MR HARRISON: Right. With respect to paragraphs (a), (b),

(c) and (d) at pages 26 and 27 of the notice of

appeal, the sealed order of His Honour

Chief Justice Mason dated 24 August 1989 applied to

two separate applications made by the solicitor on

22 August 1989 and 23 August 1989 under Order 7

rule 7(1) of the rules by way of separate

summonses. His Honour in making the finding on the

application dated 22 August 1989, on 23 August 1989

dismissed the second application dated

23 August 1989 on 24 August 1989 on the basis that

a finding had been entered on the first application

dated 22 August 1989.

In effect, by His Honour's ruling, the first

application dated 22 August 1989 acted as an

estoppel to the second application dated 23 August

1989 rendering Order 7 rule 7(1) of the rules
inoperative for the second application.	As a

consequence His Honour's ruling on the first

application dated 22 August 1989 and the subsequent
sealed order dated 24 August 1989 acted as an
estoppel to all further applications, including the

present application dated 20 August 1989.

DAWSON J:  Can I stop you there, Mr Harrison. The reason

why His Honour refused to make an order that the

solicitor's name be removed from the record was

that there was inadequate material before the Court

at that time. Is that not so?

MR HARRISON:  No, the order was made, Your Honour, as I

understood.

Harrison 2 8/3/91

DAWSON J: This is the order of the Chief Justice made on

24 August?

MR HARRrSON:  Yes. It was a defective service.

DAWSON J'":	The order was that the application be dismissed.
MR HARRISON:	Yes.
DAWSON J:	And that order was made because there was

inadequate material to grant the application.

MR HARRISON:  As I understood it, Your Honour, if it means

the same thing, it was a defective service.

DAWSON J:	Now subsequently, a fresh application was made.
MR HARRISON:	Yes.
DAWSON J:	And that application came before

Mr Justice Brennan?

MR HARRISON: That is right, Your Honour.

DAWSON J:	The material before Mr Justice Brennan was different from the material which was before
His Honour the Chief Justice.
MR HARRISON:	They both amounted to the same thing.
DAWSON J:	The application was the same but the supporting material was different.
MR HARRISON:	Yes, but in respect of the first one before

the Chief Justice the Chief Justice dismissed both

applications because of faulty service of

documents.

DAWSON J: Yes, he was not satisfied that the solicitors had

in fact ceased to act, on the material.

MR HARRISON~ Yes, that is correct, Your Honour. In the

second one - - -

DAWSON J:  Now, the second one which was before

Justice Brennan, on the material before him

Justice Brennan was satisfied that the solicitors

had ceased to act and, accordingly, he made an

order.

MR HARRISON:  That is right. But what he did in that order

was he said - - -

DAWSON J: Now, there was no estoppel there. This was a

fresh application before Justice Brennan and he had to deal with the application on the material before

him.

Harrison 3 8/3/91

MR HARRISON:  I see, so what you are ruling on is that it

was different circumstances virtually.

DAWSON J: Different material, yes.

MR HARRi~ON:  I will move to the second point, Your Honour.

DAWSON J: But you are free to address and say why, on that

material, Justice Brennan was wrong in making the

order which he did.

MR HARRISON:  May I just finish off that clause then,

Your Honour, and I will move to the second one.

DAWSON J: Yes.

MR HARRISON:	As a result of the existence of the sealed order of His Honour dated 24 August 1989, the
solicitor is required to remain on the record until
the principal matter of A20 of 1988 against the
State Transport Authority is finalized or until
steps are taken by the applicant to have the
solicitor removed from the record.
Now with respect to the second matter, in respect of those matters raised by
paragraphs (e),(f) and (g) at pages 27 and 28 of
the notice of appeal, for the preclusion of Order 7 rule 7(1) of the rules, in the solicitor's present application dated 20th day of August 1990, the applicant relies on the solicitor's previous
applications dated 22 and 23 August 1989, in which
notices of ceasing to act dated 22 August 1989 and
23 August 1989 were exhibited in proceedings before days of August 1989. Under Order 7 rule 7(1) and
Plenty v Gladwin, 67 ALR 26, the solicitor was required -

to have satisfied the condition precedent

imposed by o 7, r 7(1) namely that the

solicitor was required to have acted for

the applicant in the proceedings prior to
the issuing of a Notice of Ceasing to

Act.

The presence of the solicitor's previous notices of

ceasing to act served as evidence establishing that

the solicitor could not have satisfied the

condition precedent imposed by Order 7 rule 7(1)

for the purposes of his present application, dated
20 August 1990, when his previous notices of

ceasing to act dated 22 and 23 August 1989 confirm

he had ceased to act on or after the 22 August

1989.

Harrison 4 8/3/91

For this further reason, the solicitor is

precluded a reliance on Order 7 rule 7(1) in his

application dated 20 August 1990 and his present

Notice of Ceasing to Act dated 14th day of August

1990, Exhibit "WEl'' dated 20/8/90 is invalid or

; irrelevant and no defence.

McHUGH J: Well, Mr Harrison, the affidavit filed on behalf

of the solicitors by Mr Morgan states that they did

take action on your behalf after the date of the

Chief Justice's order.

MR HARRISON:  They did act after that date?

McHUGH J: Yes. For example, in paragraph 4 of the

affidavit, "We briefed Senior Counsel in this

matter on the 10th of May 1989 -

MR HARRISON:  Excuse me, Your Honour, which one are we

looking at?

McHUGH J: Well, this is the appeal book, page 3,

Mr Morgan's affidavit, paragraph 4 says that

counsel was briefed and were instructed to

terminate. And then:

On the 23rd day of May, 1990 we were advised

that such Senior Counsel had not yet had

sufficient time to consider the brief.

And then in paragraph 6:

We advised our client of these facts by letter

dated the 24th of May 1990. We then made enquiries as to the availability of other

Senior Counsel -

MR HARRISON: Well the situation, Your Honour, is that when

we have the trial before Justice Brennan, when the matter went before Justice Brennan, I obtained the

consent of the Court to exhibit certain letters

with the consent of the solicitors, counsel for the

solicitors, and His Honour, having read those

letters, made a finding in my favour in the sense

that he took my point and the point taken was that

the solicitor did not act.	And that was the
judgment of Justice Brennan.

McHUGH J: Well, His Honour said that they had ceased to

act.

MR HARRISON:	The words, as : understood it, and that would have to go back to the transcript, was that the
solicitor did not act.

DAWSON J: Yes.

Harrison	8/3/91
MR HARRISON:	So if the solicitor did not act, that confirms

that his previous notices of ceasing to act have

application in the matter.

DAWSON J: His Honour found quite clearly that the

- solicitors had ceased to act, did he not?

MR HARRISON:  No, excuse me, Your Honour. Justice Brennan

read certain letters that were exhibited and I will

refer you to that point, Your Honour. It is in my

affidavit at page 21, clause 23, there are certain

letters there:

As a result of my address in reply which I

read to the Court from prepared notes on 23rd

day of August 1990 and consisting of eleven

(11) matters raised in paragraphs 1 - 11

inclusive without objection by counsel and on

introducing the following letters as exhibits

with the consent of counsel namely:

and certain letters -

His Honour made a finding that my point had been taken namely that I had shown the

solicitor had not acted for me in the

proceedings.

McHUGH J:  Not that they had not acted, but that they had

ceased to act for you.

MR HARRISON:  Yes, well what I am saying there, Your Honour,

they did not act on the finding of the judge, so
that the previous notices of ceasing to act were

still operative.

DAWSON J:	I am afraid I am not following you, Mr Harrison.
MR HARRISON:	How can I explain it a little

McHUGH J: Well Mr Harrison, we have a copy of the

transcript from the last occasion, 23 August 1990,

where His Honour said,

Thank you, Mr Harrison.

hear you in reply, Mr Mellows, because of the
matters that I have already raised with

I do not need to

Mr Harrison.

Order 7 rule 7 of the rules of the

High Court is designed to ensure that there is

a correspondence between the existence of a

retainer on the part of a solicitor for a

client who is a party to litigation in this

Court and the Court records.

Harrison 6 8/3/91

It appears from the affidavits in support of the present summons that there is a

disparity between the reality and what appears

on the Court records. It is therefore

desirable that an order should be made under

Order 7 rule 7 in accordance with the summons.

Now, that seems - - -

DAWSON J:	And then His Honour makes a declaration.
MR HARRISON:	I see. Well then I will move to my third

point, Your Honour.

DAWSON J: Very well, thank you.

MR HARRISON: With respect to paragraphs (k), (1), (m) of the notice of appeal at pages 29, 30 and 31, the applicant relies on authority Plenty v Gladwin,

(1986) 67 ALR 26 at page 27, commencing at line 40,

namely:

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.

The point I make there, Your Honour, is the

applicant asserts the existence of causes of action
against the respondent, The State Transport

Authority, in the principal matter of A20 of 1988,

over which the Court holds jurisdiction to enforce

against the respondent and on which thae applicant

is seeking immediate relief. As the rules preclude

the applicant effecting personal representation in

th€ principal matter for those causes, it is

therefore necessary to retain the solicitor on the

record to pursue the relief sought on the

applicant's behalf. Hence, the special

circumstances which are claimed to justify not

making the order is the existence of causes of

action against the respondent.

DAWSON J: But you see, that is not a basis on which one

should refuse to make an order under this

particular rule. The Court is not concerned, when

it is applying this rule, with the rights and

wrongs of the situation; whether the solicitor has

rightly or wrongly terminated the relationship of

solicitor and client. It is really only a matter

of putting the records of the court.in order. If,

Harrison 8/3/91

in fact, the solicitor has ceased to act, whether rightly or wrongly he has done so, in the absence of very special circumstances, then the records of

the court must be amended so as to show the actual

fact.

MR HARRISON: Yes, sir. Well I will proceed on to my final

one, Your Honour.

DAWSON J: Alright.

MR HARRISON: In addition and under authority South

Australian Railways Commissioner v Egan, (1973)

130 CLR 506 at 523 line 22. The applicant relies

on provision in that High Court judgment applying

in A20 of 1988, namely:

If it appeared that a cause of action existed independently of the obtaining of the

certificate, order or award, an attempt to
exclude the jurisdiction of the Court to
enforce it would be contrary to public policy.

The applicant says that a release of the solicitor from the record, in the face of the applicant

holding cause of action against the

respondent - - -

McHUGH J: Could I just stop you there at this stage. It is

not really a question of releasing the solicitor

from the record; he, rightly or wrongly, has
refused to act for you, and the whole purpose of
the rules, it was said in Plenty v Charles, is to

bring the record of the court into line with

reality, and Mr Justice Brennan said the same

thing. Your rights against your solicitor, if you

have any, have got to take place in some other

forum, but Order 7 rule 7 is not concerned with

rights and wrongs between the parties, but except
in very special circumstances the court will amend

its records to disclose the reality of the

ralationship.

MR HARRISON:  I see, Your Honour. What I am after, of

course, is representation to enforce a cause of

action.

McHUGH J:	I appreciate that, yes.
MR HARRISON:	And I have relied upon the solicitor to

represent me before the court and - - -

DAWSON J: See, what you have got to understand, we are not

in a position to force the solicitors to act for

you. We cannot do that. If you have any rights

against them, as Justice McHugh points out, well then you must pursue those in other proceedings,

Harrison 8 8/3/91

but we are not in a position to do what you would

want us to do. We cannot.

McHUGH J: See, in fact the removal of the solicitors from

the record actually facilitates the enforcement of

-your action, because it now enables you to get

other solicitors to go on the record.

MR HARRISON:  His Honour did make the comment you made,

Your Honour, and it does assist me to prosecute.

McHUGH J:  Now there may be practical difficulties about

that.

MR HARRISON: Well I did list those practical difficulties

at the back of the application book. One of the

main difficulties, of course, Your Honour, is the

settlement of fees, first of all, with the

solicitor. You see, when a solicitor does not act

for you and then claims that moneys are owed for
services rendered, when in actual fact they are
not, it is very difficult to have to pay out money

for services not rendered for a cause the man did

not proceed upon.

DAWSON J:  We can understand that, but the most we can do is

sympathize with you, because when we are dealing

with an application under this rule, those matters

are not really relevant.

MR HARRISON:  I have taken your notice, Your Honour. So

that all I can say, Your Honour, to wind up the

three arguments that I had put to the court is, I

will just read out the last part. The applicant

says that a release of the solicitor from the

record in the face of the applicant holding cause

of action against the respondent would amount to an

obstruction of justice in constituting an attempt

to exclude the jurisdiction of the court to enforce
those causes is provided under 130 CLR 506.

What I am really saying there, Your Honour,

the provision was provided in the old High Court

decision of 1972 and 1973 - - -

McHUGH J: Are you talking about Egan's case?

MR HARRISON:  Egan's case, Your Honour, that an attempt to

exclude the jurisdiction of the court, I have
construed that if the solicitor can, when it suits

him, escape from his obligations to me to enforce a

cause of action that would, in effect, be an

attempt to exclude the jurisdiction of the court

and therefore I could never get my cause of action

enforced by the High Court.

Harrison 9 8/3/91

DAWSON J: Well, not with these solicitors acting for you.

But just as you are free to terminate the retainer

of your solicitors if you are dissatisfied with

them; they too are free to terminate their retainer

with you and it is just a matter, as it has been

--explained, of putting the record in order.

MR HARRISON: Oh yes. Well, Your Honour, if I cannot

convince the Court to do any more than that, well

that is my case, I cannot go any further than that.

DAWSON J: Well, you understand that we are constrained in

the situation?

MR HARRISON:  Oh yes, I do, Your Honour. You have explained

it to me quite well. I understand what the problem

is. I cannot add any more to it than that. Thank

you very much.

DAWSON J: Well, thank you, Mr Harrison. If you just resume

your seat for a moment.

In this matter the applicant seeks leave to

appeal against an order made by Justice Brennan

pursuant to Order 7 rule 7 declaring that

Messrs Morgan & Associates had ceased to be the

solicitors acting for the applicant. Before

Justice Brennan made the order which he did, an

application for the same order had been made to the

Chief Justice, who refused to make it because the

material before him did not establish that

Messrs Morgan & Associates had ceased to act for

the applicant.

It has been contended by the applicant that

the Chief Justice's refusal to make an order

precluded Justice Brennan from doing what he did.

But the application made to Justice Brennan was a

fresh application and he was satisfied on the
material before him that Messrs Morgan & Associates

had, in fact, ceased to act for the applicant and

nothing that Mr Harrison has raised before us

· indicates that His Honour was in error in reaching

that conclusion.

That being so, and there being no special

circumstances making it expedient to retain the

solicitors on the record, there can be no question

that Justice Brennan was correct in making the

order which he did. Order 7 rule 7 is not
concerned with the rights and wrongs of the

termination of the solicitor/client relationship;

it is concerned with the record of the Court and

with the service of documents. No doubt the Court

has a discretion whether to make an order under the

rule, but an order will be made as of course in the

absence of special circumstances upon proof that

Harrison 10 8/3/91

the solicitors have, in fact, ceased to act in the
matter and that no steps have been taken to take

the solicitor's name off the record.

In those circumstances we must refuse leave to

- appeal.

AT 3.57 PM THE MATTER WAS ADJOURNED SINE DIE

Harrison 11 8/3/91