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Holborow v MacDonald Rudder

Holborow v MacDonald Rudder

Case [2002] WASC 265 15 November 2002

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HOLBOROW & ORS -v- MACDONALD RUDDER [2002] WASC 265

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 265
Case No:	CIV:2271/1999	Heard:	7 OCTOBER 2002
Coram:	EM HEENAN J	Delivered:	15/11/02
No of pages:	20	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
PDF Version

Parties:	VALERIE HOLBOROW ROBERT BOONA COLIN COSMOS KEVIN COSMOS JANICE COSMOS MARY COSMOS SUSAN MOWARIN LINDA DELOWER AUDREY COSMOS DANNY COOPER DORENE WESCOMBE MARGARET BOONA BARBARA SINCLAIR GAIL SINCLAIR DORRIE WALLY MACDONALD RUDDER PAUL THOMAS WILLIAMS
Catchwords:	Legal practitioners Application to restrain former solicitor acting other than as a witness Alleged breach of duty to court Injunction refused
Legislation:	Rules of the Supreme Court, O 18 r 6(2)(b)
Case References:	Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372 Cargill v Bower (1878) 10 Ch D 502 Clay v Karlson (1997) 17 WAR 493 Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467 Fox v Bannister, King and Rigbeys [1988] QB 925 Fraser v Evans [1969] 1 QB 349 Giannarelli v Wraith (1988) 165 CLR 543 Grimwade v Meagher [1995] 1 VR 446 Gugiatti v City of Stirling (2002) 25 WAR 349 Hampton Goldmining Areas Ltd v Metals Exploration Ltd (1995) 17 WAR 30 Holborrow & Ors v MacDonald Rudder (A Firm) [2001] WASCA 91 Johns v Law Society of New South Wales [1982] 2 NSWLR 1 Maguire v Makaronis (1997) 188 CLR 449 Mallesons Stephen Jacques v KPMG Peat Marwick (1991) 4 WAR 357 McVeigh v Linen House Pty Ltd [1993] 3 VR 394 National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 Newman v Phillips Fox (1999) 21 WAR 309 Pritt v Clay (1843) 6 Beav 503; 49 ER 920 Re Bolster [1973] Qd R 467 Re LPO Transact Pty Ltd (In Liq); Williamson v Nylant [2002] WASC 225 Re Strong (1886) 32 Ch D 342 Stewart v Strevens [1976] 2 NSWLR 321 Swinfen v Lord Chelmsford (1860) 5 H & M 890 T M Burke Estates Pty Ltd v P J Constructions (Vic) Pty Ltd (in Liq) [1991] 1 VR 610 Tito v Waddell (No 2) [1977] Ch 106 Wan v McDonald (1992) 33 FCR 491 Wicks v Bennett (1921) 30 CLR 80 Abse v Smith [1986] QB 536

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HOLBOROW & ORS -v- MACDONALD RUDDER [2002] WASC 265 CORAM : EM HEENAN J HEARD : 7 OCTOBER 2002 DELIVERED : 15 NOVEMBER 2002 FILE NO/S : CIV 2271 of 1999 BETWEEN : VALERIE HOLBOROW

ROBERT BOONA

COLIN COSMOS

KEVIN COSMOS

JANICE COSMOS

MARY COSMOS

SUSAN MOWARIN

LINDA DELOWER

AUDREY COSMOS

DANNY COOPER

DORENE WESCOMBE

MARGARET BOONA

BARBARA SINCLAIR

GAIL SINCLAIR

DORRIE WALLY

Plaintiffs

AND

MACDONALD RUDDER

Defendant

AND

PAUL THOMAS WILLIAMS

Third Party

(Page 2)

Catchwords:

Legal practitioners - Application to restrain former solicitor acting other than as a witness - Alleged breach of duty to court - Injunction refused

Legislation:

Rules of the Supreme Court, O 18 r 6(2)(b)

Result:

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.

Continue reading Holborow v MacDonald Rudder

Details

AGLC: Holborow v MacDonald Rudder [2002] WASC 265
Case: [2002] WASC 265
Decision Date

CaseChat Overview and Summary

This case involved an application by the defendant, Macdonald Rudder, to restrain the former solicitor of the plaintiffs, Paul Thomas Williams, from being involved in any way other than as a witness in the proceedings against the defendant. The application was dismissed by Heenan J. The court found that Mr Williams was not a party to the proceedings and should have been joined if his presence was necessary to ensure that all matters in dispute could be effectually determined. The court also found that there was no basis for restraining Mr Williams as he was not acting or proposing to act for the plaintiffs, and the control of the claims was in the hands of the new solicitors. The court held that the application was premature and that the allegations made by both parties should be evaluated after the principal issues in the proceedings had been finally decided.

Orders