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

Copyright in the High Court of Australia

AlTl/1/JH 1 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.

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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 I can

only say to you that, you know, you ought to

carefully consider your position and act in

accordance with legal advice given to you; otherwise,

it seems to me, you are likely to run yourself into

a great deal of unnecessary expense.

MR HARRISON:	Yes, Your Honour.
HIS HONOUR:	Now, thank you for indicating to me what your

attitude is. Mr Besanko, I have read the affidavit,

do you have a copy of the letter of 22 August with

you?

MR BESANKO:	Yes, I do, Your Honour.
HIS HONOUR:	Now, would you show it to Mr Harrison? Perhaps

Mr Harrison has the original letter.

MR HARRISON:  No, Your Honour, this is the latest letter. I

have not read the letter at all, Your Honour.

HIS HONOUR:	You have not read the letter?
MR HARRISON:	No.
HIS HONOUR:	Would you have a look at it?
MR HARRISON:	Yes, Your Honour, that is the first time I

have read that.

HIS HONOUR:  You have not received that letter?

MR HARRISON:  I have not got it, Your Honour, no; I have

not read that. I got home very late last night,

Your Honour, I think about 7.40 pm, and the

process server came around, I think, at about 7.50 pm,

and I had just come in from work outside and then I

had to go out irrnnediately after that and make certain

telephone calls and so on. I never gct:to do

anything at all, Your Honour; collecting up the

letters which you might have wanted to see, Your Honour;

that was all done in the haste of the time.

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Harrison

HIS HONOUR:  Do you have any objection to me looking at the

letter, Mr Harrison?

MR HARRISON:	No, not at all, Your Honour.
HIS HONOUR:	Would you hand it up, Mr Besanko?
MR BESANKO:	Yes, Your Honour.  Your Honour, the copy I

showed Mr Harrison had some highlighting; perhaps

I could hand up a clean copy to Your Honour?

HIS HONOUR:  Yes. I will return the letter .

Now, Mr Besanko, it seems to me that under this

rule in order to succeed in obtaining an order

the applicant's solicitor must demonstrate that he

has ceased to act for the client.	Now, your
affidavit does not establish that.

MR BESANKO:  Not expressly, if Your Honour pleases, because

I accept that paragraph 8 of the affidavit

details the advice that an application would be

made; it would have been better if, in fact,

Mr Harrison had been advised directly that the

solicitors had ceased to act.

HIS HONOUR:  Yes, exactly. And, then, the paragraph

proceeds on the footing that a solicitor does not

cease to act until such time as the solicitor's

name is removed from the record by order of the

court. Now, the rule does not proceed on that

footing at all. The rule proceeds on the footing -

if you look at the case of PLENTY V GLADWIN that

is reported in the Australian Law ~ournal Reports -

this would have been about - oh yes, I see - well,

it is in the ALR's too; the copy I have is in

67 ALR 26. You will see that it makes it clear that

all that the Court is doing is making a declaration

that acknowledges the existing state of facts.

MR BESANKO:  Yes.

HIS HONOUR: Well, in those circumstances you cannot

succeed in obtaining an order, can you, on the

material that is currently before me?

MR BESANKO:  Well, if Your Honour pleases, the only thing

I could put to Your Honour is that it is implicit

in the advice given to Mr Harrison that an
application would be made that the solicitors were

unwilling to act any further for Mr Harrison.

In other words, I would submi4 Your Honour, that

it could have been better expressed but the effect

is the same in either event.

HIS HONOUR:  And, there is the further problem, of course,

that Mr Harrison says he did not receive the letter. Are you able to prove that the letter was delivered to him?

AlTl/4/JH	4	HARRISON	23/8/89
Harrison

MR BESANKO:  Yes, Your Honour, I have an affidavit from a

process server indicating that the letters were

served on Mr Harrison last night.

HIS HONOUR:	Well, you had better file that affidavit.
MR BESANKO:	I beg your pardon, Your Honour?
HIS HONOUR:	I think you ought to file that affidavit in

Court.

MR BESANKO:	Yes, if Your Honour pleases.
HIS HONOUR:	I will take a note of it.  What is the name

of the deponent?

MR BESANKO:  Alan Robert Robertson sworn on 23 August,

Your Honour.

HIS HONOUR:  Would you show Mr Harrison a copy of that

affidavit and if you would hand the original

affidavit in to my associate.

MR BESANKO:  Your Honour, I must correct something. The

affidavit that has been handed to Your Honour's

associate proves that a further letter was served

on Mr Harrison advising him at the time and place

of this hearing this morning; it does not

establish that the letter that Your Honour saw was

served on him last night although those are my

instructions.

HIS HONOUR:  Well, you are unable to produce evidence that

the letter in question - that is the critical

letter of 22 August - was served on Mr Harrison?

MR BESANKO:  I am not able to produce that evidence at the

moment, Your Honour

HIS HONOUR:  No. That being so, I do not think it

would be proper for me to make an order on the

materials as they currently stand.	What do you want
to do with the application?

MR BESANKO:  Well, Your Honour, I would seek in those

circumstances to have it adjourned for a short
period so that either a further letter can be sent
to Mr Harrison or, in addition, an affidavit can

be obtained proving service of the letter of 22 August.

HIS HONOUR:  I think there is a difficulty about relying on

a termination of services after the application has

been filed in this Court. Essentially, the

application seeks an order that at a time prior to

the filing of the application the solicitor had

ceased to act. It would not be proper for me to

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Harrison

make an order, I think, based on material that

showed that the solicitor had ceased to act

after the filing of the application.

MR BESANKO:	Yes.
HIS HONOUR:	But, I will stand the matter over until

9.15 am tomorrow and you can consider your

position. The application for special leave

will not be listed at this sitting of the Court;

it is obvious in the circumstances that Mr Harrison

would not be able to obtain counsel to present the
application but you can consider, Mr Besanko,

what you are going to do in the meantime.

MR BESANKO:	If Your Honour pleases.
HIS HONOUR:	I will adjourn the matter, Mr Harrison, until

9.15 tomorrow morning.

MR HARRISON:  Yes, Your Honour, thank you.

AT 9.27 AM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 24 AUGUST 1989

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Harrison