Harrison v The State Transport Authority

[1990] HCATrans 194

-!.i"1USTRALIA,,L!"

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A20 of 1988

B e t w e e n -

PETER LINDEN HARRISON

Respondent Applicant

and

THE STATE TRANSPORT AUTHORITY

Applicant Respondent

Application to withdraw from

record

BRENNAN J

(In Chambers)

Harrison 1 23/8/90

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 23 AUGUST 1990, AT 9.15 AM

Copyright in the High Court of Australia

MR R. MELLOWS: If your Honour pleases, I appear for the

applicant on the' summons in this matter.

(instructed by Morgan & Associates)

MR P.L. HARRISON:	I am Harrison; I appear for myself.
HIS HONOUR:	There is just a delay while we get hold of the papers, gentlemen. But you could explain to me
what the nature of your application is.

MR MELLOWS:  Yes, Your Honour. Your Honour, this is an

application under Order 7 rule 7 of the High Court

Rules, that Messrs Morgan cease to be the

solicitors for the appellant in this matter.

Your Honour should have before you the affidavits

filed in support of the summons, namely the

affidavit of David Glyn Morgan, sworn 20 August

1990, and a further affidavit of Wayne Eckert sworn

20 August.

HIS HONOUR:	Your material is the summons of 20 August, is that correct - the affidavit of David Glyn Morgan?
MR MELLOWS:	Yes, Your Honour - affidavit of Wayne Eckert as

to service, and there is a further affidavit, which

Your Honour should have of Russell Bruce Campbell,

dealing with the service of the summons.

HIS HONOUR:  Yes, I have those and I have read those

affidavits.

MR MELLOWS:  Yes. Does Your Honour wish me to recite the

basis of the application at any length - - -?

HIS HONOUR:	No.
MR MELLOWS:	It is set out in the affidavits and - - -
HIS HONOUR:	What is the relevant rule?
MR MELLOWS: Order 7 rule 7, Your Honour.
HIS HONOUR:	Yes. Well I understand the nature of the

application and perhaps I should hear what your

erstwhile client has to say. Mr Harrison.

MR HARRISON: Yes, Your Honour. Well, I wish to have that

application dismissed, Your Honour. So, can I

proceed ahead with my reasons?

HIS HONOUR:	Yes.
MR HARRISON:	Thank you, sir. Before responding to the

affidavits attached to the present application

dated 20 August 1990, I state my reasons why the present application should be dismissed. Two, I

hold the sealed order of the Chief Justice Mason,

Harrison 2 23/8/90

dated 24 August 1989, dismissing a previous

application by the solicitors, dated

22 August 1989. Three, the circumstances under

which that order was made are as follows: (a) the

solicitor filed an application dated

22 August 1989, which was heard by the

Chief Justice on 23 August 1989 and ruled on by

His Honour that day. (b) Counsel for the

solicitors sought and obtained an adjournment of

proceedings to 24 August 1989. (c) The solicitors

filed a further application dated 23 August 1989

which was dismissed by His Honour on 24 August 1989

for the reason that a ruling on the application

dated 22 August 1989 had been made on

23 August 1989. (d) Accordingly, any further

application by the solicitors following the

application dated 22 August 1989 would fail on

His Honour's ruling of 24 August 1989, in respect

of a further application, and (e) therefore the

solicitor is retained on record until the

High Court action A20 of 1988 is finalized as a

result of the existence of the sealed order, dated

24 August 1989.

Four, the present application is an attempt to overturn an existing sealed order of the Court. I

say that if this were possible, which is denied, it

would render the sealed order dated 24 August 1989

irrelevant and of no effect. Five, alternatively,

the remedy available to the solicitor was by way of

an application to the Full Court of the High Court

for special leave to appeal against the previous order of the Chief Justice dated 24 August 1989.

This the solicitor did not do, but now seeks to

bypass the existing order of the Court, dated

24 August 1989, which I believe is not available to

him. He had his opportunity to appeal to the

Full Court prior to the order being sealed by the

Registrar during February 1990 on my application.

However, had the solicitor sought leave to

appeal, leave would not have been granted for the

reasons expressed by the Chief Justice in

dismissing the previous application.

Alternatively, unless leave were granted by the

Full Court based on the application dated

22 August 1989, then the solicitor is estopped and

precluded proceeding with his present application.

The previous application dated 22 August 1989 acts

as an estoppel to the present application dated

20 August 1990.

Six, in the alternative I rely upon the

precedent, Plenty v Gladwin, 67 ALR 26, at 27, for

the following matters, namely: that the Court has a

discretion whether or not to make the order sought

in the present application, and circumstances exist

Harrison 23/8/90

which render it expedient to retain the solicitor
on the record. Seven, I will list some of the
circumstances which render is expedient to retain
the solicitor on the record: in reliance on
correspondence with the solicitor held on record by

the High Court and on correspondence with the

Registrar of the High Court. Does Your Honour wish

me to proceed into those matters?

HIS HONOUR: Well, you make whatever submissions you wish,

Mr Harrison.

MR HARRISON:  Thank you, Your Honour. (a) I refer to my

letter dated 19 July 1990 and enclosures to the

Registrar of the High Court, setting out, inter

alia the terms under which the solicitors are bound

to continue to act on my behalf on consideration

made in this matter and in view of the existence of

trust moneys held by the solicitors, amounting to

$3214.50, the property of the applicant.	Can I
forward that letter to you, Your Honour?

HIS HONOUR:  If you wish to, yes. You have no objection,

Mr Mellows?

MR MELLOWS:	I would like a copy of the letter.
HIS HONOUR:	Do you have a copy that you could provide?

MR HARRISON:  No, I have not got a copy, Your Honour. The

Court has the copy -

HIS HONOUR:  Well, perhaps if you show it to Mr Mellows

first then I can see it afterwards.

HIS HONOUR:	Do you have any objection to my seeing this?
MR MELLOWS:	No, I have no objection to Your Honour looking

at the letter, nor to the other documents which are

being handed up with that, Mr Mellows?

MR MELLOWS:  To the extent that we have copies of them,

Your Honour. I have not seen -

HIS HONOUR: Well, you had better have a look at the other

documents and see if there is anything else there.

MR MELLOWS:  Yes, I do not object to Your Honour looking at

those.

HIS HONOUR:  Yes. Now I have read the letter of

19 July 1990 to the Registrar. Are there some

other documents in this other bundle that you have

handed up that you think I should read,

Mr Harrison?

Harrison 4 23/8/90

MR HARRISON: Anything before the first page, Your Honour,

would be in connection with fees paid. In other
words, the documents before more or less confirm

the agreement in the front.

HIS HONOUR:  Yes. The purpose of showing me these, I take

it, is to make our your case that the solicitors

are bound to continue to act for you; is that the

situation?

MR HARRISON: That is correct, Your Honour, yes.

HIS HONOUR: Well now, perhaps you should give some

consideration to another problem, and that is, it

is one thing for the solicitors to be obliged to

act for you if your submissions are right; it is

another thing whether they are, in fact, acting for

you.

MR HARRISON:  Yes.

HIS HONOUR:  And the question of their being on the record

as your	solicitors depends more on whether they are
in fact	acting for you than whether they are bound
to act.	Do you understand the distinction between
the two?

MR HARRISON:  Yes, Your Honour.

HIS HONOUR: Well now, it may be that if you show me a

bundle of correspondence to prove, in your

argument, that they are bound to act for you, you

may not be meeting the real point of this

application, which is that they have ceased to act

for you.

MR HARRISON:  Yes, well that will come on, I think,

Your Honour, as I move into this submission.	I
think it will come out of it, Your Honour.

HIS HONOUR: Very well. Well, I will not go into the rest

of these documents at the moment. I will take it

that they relate to the question of whether the

solicitors are bound to act for you.

MR HARRISON:  Yes. In addition to the solicitors' attempted

departure from those terms, I refer to copies of

solicitors' letters dated 30 May 1989, and

3 July 1989, of solicitors' refusal to accept, and

act upon, the applicant's written instructions,

forming part of the brief, accepted by the

solicitors and on which consideration was made.	I
refer to my letter and enclosures dated

3 August 1990 to the solicitors, in answer to their

letters of 30 July 1990 and 3 July 1990,

instructing the solicitors to comply with the terms

Harrison 23/8/90

of the brief and advising the Registrar the name of

counsel.

I refer to my letters of 28 August 1989, and

5 September 1989, together with my letter and

enclosures dated 3 August 1990, as sufficient

response to the solicitors' letters dated

8 August 1990. Nine, I refer to a letter dated

4 June 1990 from the Registrar, acknowledging my

letter of 23 May 1990, and enclosures.	Do you want
that, Your Honour?

HIS HONOUR:	Have you seen this document, Mr Mellows?
MR MELLOWS:	Pardon me, Your Honour.  Yes we have. I have

no objections, Your Honour.

MR HARRISON:	A further letter.
HIS HONOUR:	Yes.
MR MELLOWS:	No objections to Your Honour looking at that

letter.

HIS HONOUR:  Yes, well I have now read the letter from the

Registrar of 4 June 1990 and I have perused, but have not fully digested as yet, the letter of

23 May 1990 to Messrs Morgan & Associates from

Mr Harrison, but I see the general purport of what

that letter is, Mr Harrison.

MR HARRISON:  Yes, thank you, sir. The Registrar is stating

from that letter, I quote:  "The matter will not be

listed until such time as I am informed of your

solicitor of counsel who will be appearing on your

behalf." end of quote. I refer to a further

letter dated 23 July 1990, from the Registrar,
acknowledging my letter of 19 July 1990 and

enclosures.

HIS HONOUR:	Mr Mellows.
MR MELLOWS: There is no objection.

HIS HONOUR: Yes, I have read that letter.

MR HARRISON:  The Registrar is stating, I quote, "I shall be

writing to them shortly, concerning the Adelaide

sittings, advising them that the application is

being listed for hearing, and requesting the names

of counsel who will be appearing on your behalf."

end of quote. As a result onus was on the solicitor

to comply with the Registrar's direction on my

acceptance of the transfer of the matter from

Mr Hayes, QC to Mr Bleby, QC, the transfer of the

matter, having been requested by the solicitors and

agreed to my myself on the condition that the

Harrison 6 23/8/90

Registrar be notified the name of counsel. The

matter of complying with the Registrar's direction
remained entirely a matter between the Registrar and

the solicitor and not involving the applicant.

Ten, it is expedient, if not just, that the

solicitor remains on the record to enable a cause

of action for money claims existing independently

of the condition precedent imposed by clause 35 of

the contract to be endorsed by the Court against

the respondent, the State Transport Authority. The

applicant relies upon the majority judgment of the

High Court in (1973) 130 CLR 506 in the event of an

attempt to exclude the jurisdiction of the Court to

enforce the cause as being contrary to public

policy. The applicant says that the solicitors'

present application for removal from the record, if

granted would obstruct justice in view of the

applicant appearing to hold a valid cause of action

independently of the need of a certificate, order

or award, and the High Court decision and order in

(1973) 130 CLR 506. I refer to my letters and

enclosures dated 19 July 1990, to the Registrar of

the High Court, including my letters dated

25 June 1990, 23 May 1990 and 8 November 1989,

containing the principal matter which were

instructed to be raised and argued before the High

Court to establish those causes of action existing

against the respondent and on which immediate

relief was sought from the High Court. I refer

again to my letter dated 3 August 1990, informing

the solicitors of my reliance on the earlier

High Court judgment for public policy matters in

the event of an obstruction to justice.

Eleven, I briefly respond to the affidavit of

David Glyn Morgan, attached to the present

application, dated 20 August 1990. Paragraph 3 is

denied. The matter was to proceed on written

instructions, an existing statement of claim,

including the written advice of D. Angel, QC, as he

then was, dated 31 May 1977, and under the terms of

an agreement an attachment dated 6 February

1989 -

HIS HONOUR:  Mr Harrison, I do not wish to interrupt you in

the presentation of your argument, except to say

that it will not be for me to decide whether or not

your version or Mr Morgan's version of the terms of

your retainer of the solicitors is the correct one.

MR HARRISON:	Yes, Your Honour.
HIS HONOUR:	What I am concerned to discover, and concerned

only to discover is whether the firm of solicitors

who applies to have their name taken off the record

at this stage is now acting as your solicitor.

Harrison 7 23/8/90

They say they are not and it does not really answer

that proposition for you to say, "But they should be". Perhaps they should be, but if they are not then the name must be removed and then it is open
to you to retain other solicitors who can act for

you.

MR HARRISON: Well, sir, I came back to the original

argument: the first part of my presentation to you

was concerning moneys. I would have thought,

Your Honour, that they could not get a release from

the file while you have that question of trust

moneys involved in the matter and so on.

HIS HONOUR: Well, I can understand that you would think

that. But if you look at the actual rules that

govern this you will see that the rule is designed

to ensure that the public records of the Court

correspond with the reality, not that they
correspond with any contractual obligation and the

reason for that is because the clients are entitled
to have on the record the solicitors who are

actually acting for them, and their opponents are

entitled to know, from the record, who is acting

for the client on the other side. If the record

falsely portrays these solicitors as acting for

you, when they have ceased to act for you, whether

rightly or wrongly, then the Court records may well

be a source of confusion.

MR HARRISON:	Yes, sir.
HIS HONOUR:	The purpose of rectifying the Court records is

to ensu~e that the way is clear, if you wish to do.

so, to retain other solicitors who will act for

you, and then those solicitors will be able to take

up, on your behalf, any ground of complaint you

have got against the solicitors whom you first

retained. I thought I should explain to you what

the purpose of this rule is so that you will

understand that it is not a question of making a

decision adverse to your claims against the

solicitors. It is a question simply of seeing

whether the record corresponds with the reality.

MR HARRISON:  One major difficulty I would like to say,

Your Honour, is the notoriety of the case anyway,

having gone on so many years. Your Honour would

understand the hesitancy of most solicitors to want

to become involved in the case - - -

HIS HONOUR:	I can understand that.
MR HARRISON:	- - - so one of the greatest issues,

Your Honour, speaking from the heart, is to keep

somebody there, at least because, maybe if that

person is not there, maybe I cannot get justice.

Harrison 23/8/90

HIS HONOUR: Well, it is fairly clear at the moment, it

would seem that so long as the solicitors remain on

the record as your solicitors, they do not propose

to act upon your version of their retainer.	So
nothing is going to happen.	Now that is a very sad
state of affairs.

MR HARRISON:  It is an extremely sad state of affairs,

Your Honour, but I think on the other side, too, that if they go there is no way of ensuring

instructions are met and so on and are able to be

released, what hope has a person to get justice if

you cannot retain another solicitor, in view of the

nature of the case and the notoriety of it and -

the checkered history of the case has extended

something like 25, 26 years, where all one wants to

do is finalize the case.

HIS HONOUR:  I can understand that, Mr Harrison, and really

what I am suggesting to you is that this might be a

good step on the way to finalizing the case,

because at the moment there is an impasse.

MR HARRISON: There is certainly an impasse, Your Honour,

yes, I must concede that point.

HIS HONOUR:  And once the record is clarified then the way

is open for you to pick up your papers and to go

and do what you have to do to get solicitors to

represent you. When I say, "pick up your papers"

of course, I am not endeavouring to prejudge any

relationship between you and your existing

solicitors.

MR HARRISON:  No, .of course not, Your Honour. Could I act

on your advice, Your Honour?

HIS HONOUR: Well, I am not in the position to give you

advice, I am merely pointing out what the nature of

the rule is that I am concerned to apply to this

application, and the reason why it exists.

MR HARRISON:  Would you just allow me, Your Honour, to

complete what I have got to say here, Your Honour,

and make a ruling accordingly - whatever you do.

HIS HONOUR: Well, by all means, though the time is

necessarily qualified and I would be grateful if

you would bear in mind that the thing that I am

going to have to decide is whether they are acting

for you or not.

MR HARRISON:	Of course, Your Honour, yes.
HIS HONOUR:	So, perhaps do not spend too much time on the question of the arguments.
Harrison	23/8/90
MR HARRISON:	Only a couple more minutes, Your Honours, and

I will finish my address.

HIS HONOUR:  Very well.

MR HARRISON:  Thank you. Paragraph 4 of the affidavit,

"The solicitors were instructed to engage

Mr B. Hayes, QC by letters dated 28 August 1989 and
5 September 1989." Paragraph 6 of the affidavit,

"By solicitor's letter dated 24 May 1990, the

solicitors terminated the brief held by Mr Hayes

without my knowledge or consent and contrary to

written instructions issued in my letter dated

23 May 1990. By solicitor's letter dated
31 May 1990, the solicitors demanded instructions

to transfer the matter to Mr Bleby, QC, which was

consented to by my letters of instructions dated

6 and 15 June 1990, on the proviso that the

Registrar be informed of the name of counsel."

Paragraph 7 of the affidavit is denied.

Proper instructions were given pursuant to the

terms of the brief to transfer the matter to

Mr Bleby, QC and under threat that the solicitor

would withdraw from the record unless the transfer

was agreed to. The new terms for continuing to act

proposed by the solicitors were again rejected by

the applicant.

Paragraph 8 of the affidavit is denied. My

letter of instruction dated 3 August 1990 required

the solicitor to inform the Registrar the name of

counsel and paragraph 10 is denied. The solicitors

held written instructions prior to and on

8 August 1990 under the terms of the brief. That

is my presentation, Your Honour, thank you.

HIS HONOUR:  Thank you, Mr Harrison. I do not need to hear

you in reply, Mr Mellows because of the matters

that I have already raised with 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.

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.

I should say that it is of the greatest

importance to the clients who are involved in

Harrison 10 23/8/90

litigation in this Court that the records of this

Court should be in accordance with the reality so

that litigation can proceed in an orderly manner.

It is of equal importance that solicitors who, for

one reason or another, invariably find in some

instances difficulties in their relationship with

their client should not, by any failure of the

Court to make an order under Order 7 rule 7, find

themselves in a position of tension between their

duty to act professionally towards this Court and

their duty to act towards their client.

In those circumstances, I propose to make an

order in this case pursuant to Order 7 rule 7
declaring that the applicant's solicitors have
ceased to be the solicitor acting for Mr Harrison

in this proceeding.	The consequences of Order 7
rule 7 will follow.	The order is made and the

declaration is made accordingly.

Now, that means, Mr Harrison, that your

erstwhile solicitors will be removed from the

record as your solicitors and that will leave the

way open to you to appoint new solicitors and have

them come on to the record as your solicitor.

MR HARRISON: Thank you, sir. Sir, could I just make one

further statement? In you making this order,

Your Honour, it does not affect the present

position with my application for special leave to

appeal to the High Court?

HIS HONOUR:  Your application remains on foot but it will

need to be prosecuted with some degree of diligence

and that will involve you perhaps in getting

further legal assistance.

MR HARRISON: So, it will be removed from the present list?

HIS HONOUR:	It will not be in the present list.
MR HARRISON:	Thank you, Your Honour.
MR MELLOWS:	Thank you, Your Honour.

HIS HONOUR: Mr Harrison and Mr Mellows, the documents that

were handed up by Mr Harrison seem to me to perhaps

not provide any necessary encumbrance to the Court

file and if you think it appropriate they will be

returned to Mr Harrison. Do you have anything to

say about that?

MR MELLOWS:	I have no objection to that, Your Honour.
HIS HONOUR:	Mr Harrison?
MR HARRISON:	Thank you, sir, yes.

Harrison 11 23/8/90

HIS HONOUR:  I will give them to my associate and he can

return them to you, Mr Harrison.

MR HARRISON:  Thank you, sir.

AT 9.50 AM THE MATTER WAS ADJOURNED SINE DIE

Harrison 12 23/8/90