Kennedy v Qantas Ground Services Pty Ltd (No 4)

[2025] ACTSC 66

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kennedy v Qantas Ground Services Pty Ltd (No 4)

Citation: 

[2025] ACTSC 66

Hearing Date: 

27 February 2025

Decision Date: 

27 February 2025

Before:

Mossop J

Decision: 

(1)     The proceedings are adjourned until 9:15am on 20 March 2025.

(2)     Leave is given to Mr Kennedy to provide by email to my Associate any directions that he proposes to be made on 20 March 2025, but any communication is not to include any submissions or other correspondence.

Catchwords: 

PRACTICE AND PROCEDURE – SUPREME COURT PROCEDURE – Solicitor on the record – party for whom solicitor acting non-compliant with court orders – withdrawal of solicitor on the record two days before directions hearing – failure by solicitor to comply with rule 2806 of the Court Procedures Rules – adjournment granted to unrepresented plaintiff – conduct of solicitor referred to the Law Society

Legislation Cited: 

Court Procedures Rules 2006 (ACT), rr 2806, 2807

Cases Cited: 

Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232

Kennedy v Qantas Ground Services Pty Ltd (No 3) [2024] ACTSC 271

Parties: 

Ross Kennedy ( Plaintiff)

Qantas Ground Services Pty Ltd (First Defendant)

Qantas Airways Limited (Fifth Defendant)

Representation: 

Counsel

Self-represented ( Plaintiff)

D Crowe ( First and Fifth Defendants)

Solicitors

Self-represented ( Plaintiff)

Sparke Helmore ( First and Fifth Defendants)

File Number:

SC 253 of 2019

MOSSOP J:  

Introduction

1․The previous history of this matter is described in my earlier reasons for various procedural decisions: see Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232; Kennedy v Qantas Ground Services Pty Ltd (No 3) [2024] ACTSC 271.

2․On 8 October 2024, I made a series of orders requiring:

(a)the defendants to serve a defence by 22 October 2024;

(b)the plaintiffs to serve any expert evidence by 17 December 2024;

(c)the defendants to serve any expert evidence by 28 January 2025;

(d)the plaintiff to file and serve a statement of particulars by 11 February 2025;

(e)the parties to participate in a private mediation by 25 February 2025; and

(f)the matter be listed before me today for further directions.

3․Only the first of those orders was complied with; the defendant filed a defence on 18 October 2024.

4․When those orders were made, the solicitor on the record for the plaintiff was Katherine Deves of Alexander Rashidi Lawyers. Mr Kennedy has told the court that Ms Deves ceased employment with Alexander Rashidi Lawyers on 22 November 2024. Prior to departing, she appears to have retained senior counsel to act on behalf of Mr Kennedy. She also provided the sensible advice that “we advise against engaging in skirmishes over procedure that have the effect of detracting from an efficient administration of justice”.

5․Following the departure of Ms Deves, no notice of change of solicitor was filed appointing another solicitor from that practice. It appears as a practical matter that Mr Alexander Rashidi, the principal of the practice, became responsible for the matter. Mr Kennedy communicated with Mr Rashidi, complaining in some detail about the lack of action to revisit the directions that were made on 8 October or to arrange for the preparation of expert reports. He also drew attention to the terms of Practice Direction 2 of 2014 in relation to non-compliance with orders.

6․An informal settlement conference was intended by the plaintiff to occur on 20 December 2024. There was a dispute between the parties as to whether, and to what extent, such a settlement conference took place.

7․On 25 February at 6:46pm, Mr Kennedy communicated with my chambers that he had received a notice of termination of retainer from Mr Rashidi effective immediately which was sent at 11:55pm on 24 February 2025. He sought a vacation of the directions hearing.

8․On 26 February 2025 at 9:26am, my Associate wrote to Mr Kennedy, Mr Rashidi and the solicitor for the defendant indicating that there was no material on the file indicating that rr 2806 and 2807 of the Court Procedures Rules 2006 (ACT) had been complied with by the current solicitor on the record.

9․At 4:06pm, Mr Rashidi wrote to my Associate attaching a copy of a notice of ceasing to act that had been filed via e-lodgement that day “in accordance with the Court Procedures Rules”.

10․That notice said:

I, Alex Rashidi, of Alexander Rashidi Lawyers have ceased to act as the solicitor on the record for, Mr. Ross Patrick Kennedy, in this proceeding. I served a notice of intention to withdraw on 25 February 2025. Since that time, Mr. Kennedy has engaged directly with the Court. Mr Kennedy has confirmed his intention to represent himself. Accordingly, I now file this Notice.

11․The text of the notice goes beyond what is required by the approved form. The most obvious feature of the notice is that it identifies that the notice of intention to withdraw was served on 25 February 2025, the day before the notice of ceasing to act was filed.

12․Rule 2806 provides:

(1)A solicitor may withdraw from the record as solicitor for a client in a proceeding if the solicitor, in accordance with this rule—

(a)serves a notice of intention to withdraw on the client; and

(b)files a notice of ceasing to act in the court.

…

(2)Except with leave of the court—

(a)a notice of intention to withdraw must not be served less than 28 days before the date for the hearing of the originating process; and

(b)a notice of ceasing to act must not be filed less than 7 days after the notice of intention to withdraw has been served.

…

(3)Leave may be granted under subrule (2) if the court considers it appropriate in the circumstances.

(4)A notice of intention to withdraw must—

(a)state that the solicitor will cease to act for the client not less than 7 days after the notice is served on the client; and

(b)ask the client to file and serve on each other active party to the proceeding—

(i)   a notice appointing another solicitor; or

(ii)     a notice of acting in person.

…

(5)A notice of ceasing to act must—

(a)state that the solicitor has ceased to act for the client; and

(b)state—

(i)   the date the notice of intention to withdraw was served on the client; or

(ii)     if the court granted leave under subrule (2)—the date leave was granted.

…

13․Although the notice of intention to withdraw given on 25 February 2025 was not provided to the court, Mr Kennedy stated that it said, “I will cease to act for you after 4 March 2025”.

14․It will be apparent that the notice of ceasing to act did not comply with the Rules in that it was served prior to the end of the seven-day period identified in the notice of intention to withdraw and in circumstances where the seven days’ notice required by the Rules had not been given. The other matters referred to in the terms of the notice did not provide a basis for failing to comply with the Rules. Mr Kennedy has not filed a notice that he is acting in person and has not filed a notice of change of solicitor. He appears to have been corresponding directly with the court because of the very unsatisfactory position that his solicitor has put him in.

15․In summary:

(a)There was no explanation as to why a notice of change of solicitor was not filed following Ms Deves’ departure from Mr Rashidi’s practice.

(b)There was no explanation from Mr Rashidi as to why either the steps required by the orders made on the previous occasion had not been carried out, or why the matter had not been relisted before the court pursuant to the terms of Practice Direction 2 of 2014.

(c)There was no explanation as to why, contrary to the Rules, Mr Rashidi ceased to act without giving the required notice to the client and in circumstances where a directions hearing relating to that client’s non-compliance with orders of the court was to be addressed.

16․The ultimate point is that, except where a final hearing is approaching (as to which, see r 2806(2)(a)) solicitors are, so far as the court is concerned, entitled to cease to act on seven days’ notice to the client. This is separate from any question as to whether ceasing to act is consistent with the terms upon which the solicitor was retained or whether the conduct of the solicitor prior to ceasing to act involved any breach of professional duty. The seven-day notice period is significant in that it avoids the client being “dumped” at the last minute prior to an interlocutory hearing or some step that needs to be taken in the proceedings, and allows the client a limited period in which to make other arrangements. The present case appears to involve the client being “dumped”.

17․The chronology that I have recited earlier indicates that Mr Rashidi has not acted in a manner consistent with an understanding of the Rules and his duty to the court expected of a person acting in proceedings in the court. I will refer the conduct of Mr Rashidi, along with the correspondence to and from my chambers, to the Law Society of the Australian Capital Territory for it to take such action as it sees fit.

18․In circumstances where Mr Kennedy is unrepresented, and unrepresented at short notice as a result of Mr Rashidi’s conduct, and where Mr Rashidi has not appeared to represent him today, and where the defendant has reluctantly, but fairly, conceded that an adjournment is appropriate, I will adjourn the proceedings until 9:15am on 20 March 2025. I will note that, on that occasion, I will consider the directions proposed by the defendant. A second order that I will make is that I will give leave to Mr Kennedy to provide by email to my Associate any directions that he proposes to be made on 20 March, but any communication is not to include any submissions or other correspondence.

19․The orders of the Court are:

(1)The proceedings are adjourned until 9:15am on 20 March 2025.

(2)Leave is given to Mr Kennedy to provide by email to my Associate any directions that he proposes to be made on 20 March 2025, but any communication is not to include any submissions or other correspondence.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 5 March 2025