Henderson v Hewitt - [2006] WASC 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HENDERSON & ANOR -v- HEWITT & ORS [2006] WASC 201

CORAM: MARTIN CJ

HEARD: 7 AUGUST 2006

DELIVERED : 7 AUGUST 2006

FILE NO/S: CIV 1163 of 2000

BETWEEN: KEVIN LESLIE HENDERSON
First Plaintiff
HENDERSON CORPORATION PTY LTD
Second Plaintiff
AND
ANDREW MALCOLM RUPERT HEWITT
First Defendant
GIBRAE PTY LTD
Second Defendant
BARRINGTON PARTNERS (A FIRM)
Third Defendant
SAMIT PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Application by solicitors acting on behalf of the third defendant (partners of a firm of solicitors) to withdraw appearance - Where solicitors on the record for the party named as third defendant entered an unconditional appearance on behalf of that party - Effect of unconditional appearance - Where misapprehension as to the identity of the partners in the firm at the time the cause of action accrued - Powers conferred by the Supreme Court (Court of Appeal) Rules 2005 to permit those to withdraw the appearance

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), O 8, O 8 r 7, O 71 r 1, O 71 r 2

Result:

Application dismissed
The third defendant pay the first and second plaintiffs' costs fixed in the sum of $1500

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr J R B Ley
Second Plaintiff            :     Mr J R B Ley
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     Mr K E Yin
Fourth Defendant          :     No appearance

Solicitors:

First Plaintiff                :     Arthur Metaxas & Co
Second Plaintiff            :     Arthur Metaxas & Co
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     Murcia Pestell Hillard
Fourth Defendant          :     No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

MARTIN CJ: There is before me today an application for the withdrawal of an appearance entered by solicitors acting on behalf of the third defendant to these proceedings. The third defendant is named in the proceedings as Barrington Partners (A Firm). The summons also seeks in the alternative an order that the plaintiffs' action against the third defendant being certain specified partners be dismissed.
Counsel appearing on instructions from the solicitors who have entered the appearance, to which I have referred, does not press for relief in that form. Counsel accepts that given that the thrust of the argument that is brought in relation to the primary application is that the clients, from whom his instructing solicitors take instruction, are not in fact parties to the proceedings; that form of relief would be inappropriate.
It is unnecessary for the purposes of this application to chart the sorry history of these proceedings in full, other than to say that they have been beset with an unfortunate degree of interlocutory disputation. What is however clear is that on 19 August 2005 the solicitors who are on the record for the party named as the third defendant entered an unconditional appearance on behalf of that party.
In my view, the effect of that unconditional appearance is clear and it was that the firm in question was unconditionally appearing for the persons identified by O 71 r 1, being the partners in the firm when the cause of action accrued. However, at the time that appearance was lodged the firm in question endeavoured to limit its effect by specifying the persons from whom they were taking instructions.
In my opinion, that attempt was misconceived. An unconditional appearance is exactly what it suggests; that is, it is an appearance to the proceedings in unconditional terms on behalf of the defendant or defendants who have been sued. When proceedings are brought against a firm - in the name of the firm - the effect of O 71 r 1 is that those proceedings are brought against the partners in the firm at the time the cause of action accrued; and it follows that it was those persons for whom the solicitors then appeared unconditionally.
It seems clear that they were then under a misapprehension as to the identity of the partners in the firm at the time the cause of action accrued. If they had any doubt on that subject, the proper course, in my view, was to take the avenue expressly provided by O 71 r 2, which was to serve a notice on the plaintiff requiring the plaintiff to specify the names and places of residence of all the persons who were partners of the firm at the time when the cause of action accrued.
Had that course been taken and perhaps the matter held by the entry of an unconditional appearance while those particulars were provided by the plaintiff, many of the current difficulties which have arisen could have been avoided. If it transpired that the parties who were being sued by the plaintiff were not in fact persons from whom those solicitors were receiving instructions, they could have withdrawn their appearance.
However, none of this has happened. The current application has been brought to withdraw the appearance without there being any evidence before me as to precisely who it is that is being sued by the plaintiff. More particularly and more significantly, there is no evidence of those persons having been given notice by the firm of solicitors said to represent them by reason of lodging an appearance on their behalf that they are effectively seeking to withdraw that appearance, and which would, of course, leave them vulnerable to judgment.
In my opinion, before I could exercise the powers conferred by the Rules to permit those solicitors to withdraw the appearance, which they have entered on behalf of the persons who were sued at the time these proceedings were commenced, I would have to be satisfied that those persons have been given notice of the application by the solicitors who are applying and that they were also given the opportunity to indicate to those solicitors whether they wish them to continue to act on their behalf or alternatively, whether they wished other solicitors to be appointed.
If those persons wish other solicitors to be appointed, of course the problem would be simply obviated by the lodgement of a change of solicitor in respect of the appearance that has already been entered and no question would arise of withdrawal of the appearance. If, on the other hand, after service of notice of the persons who the plaintiff is in fact proceeding against, those persons indicate that they do not wish to instruct alternative solicitors, it will be open to the solicitors who have appeared on their behalf to apply under O 8 for permission to cease to act pursuant to O 8 r 7, if they do not wish to accept those instructions for good reason.
In the event of failure to take the course expressly provided by the rules under O 71 r 2 and in particular, the failure to give notice to the persons on whose behalf the appearance has in fact been entered, I am not satisfied that it is presently appropriate for me to make an order withdrawing the appearance. In my view, the proper course would be for the solicitors concerned to follow the steps I have suggested, namely to serve the notice pursuant to O 71 r 2 and to obtain the particulars which will be required to be provided upon the service of that notice.
If it transpires that they are not acting for any of the parties who are being sued, notice should be given to the people who are - explaining the circumstances that have arisen and to seek advice from them as to whether they wish to instruct alternative solicitors or alternatively, whether they wish those solicitors to continue to act on their behalf.
Once that course has been taken, appropriate steps can be taken pursuant to O 8 to resolve any differences between the defendants and the solicitors on the record for them which, in my view, is the proper course, rather than raising questions as to withdrawal of appearances that have already been entered. For those reasons I propose to make the following orders:
1.Application dismissed;
2.The third defendant pay the first and second plaintiffs' costs fixed in the sum of $1500.