Harrison v The State Transport Authority - [1989] HCATrans 188

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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

Applicant

and
THE STATE TRANSPORT AUTHORITY

Respondent

Application for solicitor
to be removed from record

MASON CJ

( In	Chambers)
Harrison

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1989, AT 9.15 AM

AlTl/1/JH

23/8/89

MR A.J. BESANKO:

If Your Honour pleases, I appear for

the firm Morgan & Associates. (instructed by

Morgan & Associates)

HIS HONOUR: What is the date of the summons?

MR BESANKO:	22 August, Your Honour.
HIS HONOUR: Yes.	Mr Harrison, you appear in person, do you?
MR P.L. HARRISON:	Yes, Your Honour.

HIS HONOUR: Mr Besanko, you move on the affidavit of

Mr Morgan?

MR BESANKO:

Yes, I do, if Your Honour pleases.

HIS HONOUR: 22 August. Before I refer to that affidavit,

I should ask Mr Harrison, do you oppose this
application?

MR HARRISON:

Well, yes, Your Honour, I think Mr Morgan

should stay on the file and to enable the High Court to give its decision. I am not opposed to him at
all; I want him to remain on the file.

HIS HONOUR: Yes, but Mr Harrison, the problem is that the

Court does not rule whether a solicitor should
continue to act for a client, Inan application of

this kind he Court is only concerned to
ascertain whether or not the solicitor has ceased to act for the client and whether or not his name has been removed from the record except, perhaps,
in the absence of special circumstances.

MR HARRISON:	I see, Your Honour.
HIS HONOUR:	So, it is not a question of my reviewing whether

it is proper for your solicitor to continue to act
for you; the question is, has he ceased to act
for you?

MR HARRISON:

Is that in accordance with his affidavit, is

it, Your Honour; do you decide this affidavit?

HIS HONOUR:	Yes.
MR HARRISON:	I see, Your Honour.
HIS HONOUR:	Yes, I have got to look at the affidavit and

see what the affidavit says and ascertain whether
the solicitor has demonstrated that he ceased to
act for you.

MR HARRISON:

I see, Your Honour.

AlTl/2/JH	2	BESANKO	23/8/89
Harrison

HIS HONOUR:

And, Mr Harrison, I was going to say you, in

any event it seems to me very unsatisfactory that
your matter should continue in circumstances
where you have a solicitor who is unwilling to act
for you.

MR HARRISON:

Well, I only raise the point, Your Honour, that

this has been a rather culpable action and it has
gone on for years and I am most anxious to have

the matter settled by the High Court. I just feel,
Your Honour, if it goes on any more it will never end and I want the High Court to finish the action.

HIS HONOUR:

Well, I realize that, Mr Harrison, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1989] HCATrans 188
Decision Date

CaseChat Overview and Summary

In the High Court of Australia, Mr Peter Linden Harrison appeared in person to oppose an application by the firm Morgan & Associates, represented by Mr A.J. Besanko, to be removed from the record as his solicitors. The dispute centred on whether the solicitor had ceased to act for Mr Harrison, a matter the Court could only determine based on the solicitor's affidavit and the circumstances presented.

The primary legal issue before the Court was to ascertain whether the solicitor, Morgan & Associates, had demonstrably ceased to act for Mr Harrison. The Court clarified that its role was not to adjudicate on the propriety of the solicitor continuing to act for the client, but rather to determine if the solicitor had indeed ceased to act, absent any special circumstances.

The Court's reasoning indicated that for the application to succeed, the applicant's solicitor bore the onus of proving they had ceased to act for the client. The Court found that the affidavit provided by the solicitor did not expressly establish this cessation. Mr Harrison expressed a desire for his solicitor to remain on the record to facilitate the High Court's decision on his matter, which he wished to see settled, but the Court cautioned him about the potential for unnecessary expense if he did not act in accordance with legal advice.

Orders