Murphy Schmidt Solicitors v Martinek & McDermott

[2005] QDC 317

[2005] QDC 317

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 5293 of 1997

MURPHY SCHMIDT SOLICITORS

Applicant

and

PATRICIA ELIZABETH MARTINEK

and

MICHAEL McDERMOTT

Plaintiff

Defendant

BRISBANE

..DATE 13/10/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 991, r 992 on granting plaintiff's solicitors leave to withdraw - the Court identified in its order the appropriate address for service for use by the defendant until a new one be filed.

HIS HONOUR: This is an application by the plaintiff's solicitors on the record for leave to withdraw pursuant to rule 991.

It is characterised by a level of concern for the plaintiff's interests which is not commonly encountered in applications of this kind. 

She failed to appear when called today but it is clear that no later than 10th of October, 2005 when a conversation with her occurred, she had received an Express Post envelope including the application.

Mr Robison, a law clerk in the firm, on that same day, attended at the plaintiff's home at 4 Kennedy Street, Ipswich, to deliver a copy of Mr Murphy's affidavit which Ms Moody confirms was not included in the Express Post envelope.

Mrs Martinek, the Court is told, is relatively elderly and also quite unwell.  She is suing the defendant in respect
(who is a dentist) of injuries received when his dentist's chair collapsed.

The applicant's firm has been assiduous to protect the plaintiff's interests - which has involved ensuring that the claim does not risk being the subject of a strike-out application based on want of prosecution or facing any necessity to seek leave under rule 389.
It has been necessary to defend assertions from the defendant's solicitors about the applicability of rule 389.  Material before the Court includes detailed communications passing between the firm and the plaintiff focusing on getting steps taken with sufficient regularity to ensure that the plaintiff's ability to continue with her claim is not endangered; that care for the plaintiff's interests has continued to the last.

The procedures set out in rule 990 and following have been somewhat protracted and obviously, out of concern for the plaintiff, but the time has come when the firm finally wish to implement their intention to withdraw.  The rules have been complied with.

The Court has a concern, in the interests of the defendant, to ensure that an address for service which the defendant may use is stipulated.  The plaintiff's residential address is no longer that shown in the plaint.  It seems that the plaintiff is in the process of engaging other solicitors but has been frustrated by health problems.  The applicant intends to liaise with any new solicitors appointed.

The proposal that might have existed or found expression in a document, that the plaintiff be ordered to pay costs of the application (which is commonly pursued) is not persisted in on this occasion.

Ms Moody has informed the Court that, by inadvertence, the person preparing Mr Robison's affidavit described him as a solicitor, which he is not.  He signed the document and it reached the file yesterday, although it has not got into the Court room today, without noticing the mis-description.  

So far as I know, there is not the slightest basis for thinking that Mr Robison has ever masqueraded as a solicitor.  He had no intention to do so on this occasion.  I am making these comments to protect his interests in the most unlikely event though at some time in the future, he might need to produce them.

The Court orders in terms of the initialled draft which provides:

1. The applicant be given leave to withdraw as solicitors from the record pursuant to rule 991 of the Uniform Civil Procedure Rules;

2. Unless and until the plaintiff files a different address for service, her address for service shall be 4 Kennedy Street, Ipswich.

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