Plenty & Plenty v Dickson & South Australian Conference of the Seventh Day Adventist Church - [2009] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
PLENTY & PLENTY v DICKSON & SOUTH AUSTRALIAN CONFERENCE OF THE SEVENTH DAY ADVENTIST CHURCH
[2009] SASC 133
Judgment of The Honourable Justice Gray
20 May 2009
PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR AND CLIENT
PROFESSIONS AND TRADES - LAWYERS - OTHER MATTERS
Appeal from decision of a Master ordering that the solicitors had ceased to be solicitors for appellants - whether good cause shown for solicitors ceasing to act.
Held: appeal dismissed - issue of good cause did not arise - even if good cause were a relevant consideration, good cause not established.

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
Appellants sought disqualification of a Judge on basis of bias - whether apprehension of bias established in relation to Judges who decided substantive appeal in Full Court.
Held: no bias or appearance of bias established - fact that members of Full Court upheld findings of trial Judge on demeanour credibility did not disqualify any member of that Court from determining subsequent interlocutory appeal - interchange between Full Court and solicitor would not give rise to reasonable apprehension of bias.
Plenty v Seventh-Day Adventist Church of Port Pirie; Plenty v Dickson [2006] SASC 361; Plenty & Anor v The Seventh Day Adventist Church of Port Pirie [2009] SASC 10; Plenty v Gladwin (1986) 67 ALR 26, considered.

PLENTY & PLENTY v DICKSON & SOUTH AUSTRALIAN CONFERENCE OF THE SEVENTH DAY ADVENTIST CHURCH
[2009] SASC 133
Civil
GRAY J.

This is an appeal from the decision of Master Withers ordering that, subject to compliance with the Rules of Court, Strachan Carr have ceased to be the solicitors for the plaintiffs and appellants in this action.
The order under appeal in the present proceeding, made on 4 February 2009 provided:
Subject to compliance with 87R 11.06(5) Strachan Carr shall have ceased to be the solicitors for the plaintiffs in this action
That the costs of the action be paid by the plaintiffs to the solicitors.
That the order as sealed may be served on the plaintiffs by facsimile transmission.
The within proceedings were instituted in 1980. Sydney Graham Plenty and Deanne Plenty sought damages in defamation against Alex Raymond Dickson and the South Australian Conference of the Seventh Day Adventist Church. The trial Judge entered judgment in favour of Mr and Mrs Plenty.[1] That judgment was the subject of an appeal in which Mr and Mrs Plenty complained that the damages awarded were inadequate, and a cross-appeal, in which complaint was made about the order for costs. Both the appeal and cross-appeal were dismissed. No order was made with respect to the costs of the appeal and cross-appeal.
[1] Plenty v Seventh-Day Adventist Church of Port Pirie; Plenty v Dickson [2006] SASC 361.
The trial of the within proceedings was heard at the same time as the trial in related proceedings. The history of the related proceedings is recorded in the Full Court decision of Plenty & Anor v Seventh Day Adventist Church of Port Pirie.[2]
[2] Plenty & Anor v Seventh Day Adventist Church of Port Pirie [2009] SASC 10.
Master Withers in his reasons for allowing the solicitors’ application noted that Strachan Carr sought declaration subject to their compliance with 87R 11.06(5). That Rule relevantly provides:
Application by a solicitor that he has ceased to act
(1)     Where a solicitor who has acted for a party in an action has in fact ceased to act, and the party has not given notice under either Rule 11.02 or 11.04, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor for the party in the action.
(2)     Any application under this Rule shall be made by an application in the action and be served on the solicitor’s former client and every party to the action.
(3)     The application shall be supported by an affidavit stating the grounds of the application which shall be served with the application on the solicitor’s former client. Unless otherwise ordered the affidavit shall not be served on any other party to the action and may be filed in a sealed envelope or handed to the Judge or Master hearing the application.
(4)     The Court shall consider the application and may in its discretion make a declaration that the solicitor has ceased to be the solicitor for the party in the action.
(5)     If an order is made on the application, the solicitor shall continue to be considered as the solicitor for the party until the solicitor has:
(a)caused the order to be settled and entered and also to serve a copy of it on the former client and every other party except a party who has not filed an address for service; and
(b)filed in the Registry a certificate signed by the solicitor that the requirements of subrule (a) have been complied with.
The application was supported by an affidavit filed on behalf of the solicitor in which reliance was placed on an affidavit and submissions made in the related declaration proceedings. An order that Strachan Carr cease to be the solicitors for Mr and Mrs Plenty had been made in the related proceedings by Master Lunn. The order of Master Lunn has been the subject of an appeal.[3] The appeals against the decisions of Masters Withers and Lunn were heard at the same time. By agreement, the evidence in one appeal was admissible in the other.
[3] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie [2009] SASC 134.
An application was made that I disqualify myself from hearing both appeals. I declined to do so. My reasons are set out in the reasons for judgment in the related proceedings.[4] Those reasons are incorporated by way of reference and form part of the within reasons.
[4] Plenty & Plenty v Seventh Day Adventist Church of Port Pirie [2009] SASC 134.
Master Withers, in the present proceeding, set out the factual background:
In this matter the solicitors did not rely on a written retainer but rather a common law retainer. The basis upon which the solicitors had ceased to act and sought an order conferring same was a failure by the plaintiffs to pay for photocopying charges despite a request made of them on 17 December 2007, a failure of the plaintiffs to pay senior counsel’s fees in respect of the appeal in an amount of $25,877.50 despite a request made of them on 26 May 2008, and a failure to pay outstanding solicitors’ fees in the amount of approximately $105,000.00. The solicitor attested to a discussion between the plaintiffs and himself on 24 November 2008 being one of a number of discussions in relation to fees when it was agreed that he would defer until the handing down of the appeal decision the question of the payment of senior counsel’s fees and the solicitor’s account.
The decision of the Full Court in both actions was handed down on 19 January 2009. The plaintiffs were unsuccessful. The solicitor wrote on that day by facsimile transmission to the plaintiffs providing some advice and referring to the outstanding accounts. He set out terms upon which the solicitors would be prepared to continue to act. The solicitors required an acceptance of those terms by 22 January 2009 and that certain payments be received by 30 January 2009. The plaintiffs did not accept the terms nor make any payments. They were concerned and upset that the solicitor’s correspondence amounted to a threat without warning and in response questioned whether it was open to them to seek a variation of these terms.
Having dealt with several preliminary matters, Master Withers identified the submissions advanced by Mr and Mrs Plenty:
Three arguments were put forward by the plaintiffs in opposition to the application:
The solicitor had abused the process of the court by presenting to the court “good cause” for ceasing to act which was not required or permitted by the Rules.
In any event there was no good cause.
If he sought to cease to act then the solicitor would be in breach of an undertaking he gave to the Full Court.
Master Withers rejected each of the submissions:
A separate submission was attached to the plaintiffs’ affidavit – FDN 98 – as Exhibit “SG&DP2”. I have carefully considered that and the authority of Plenty v Gladwin (1986) 67 ALR 26 to which references are therein made. In my view the application is not defective or irregular. It complies with the 1987 Rules. The solicitor by his affidavit has sought to explain why he has ceased to act. It is appropriate that that information be put before the court to assist the court in determining whether or not there are any special circumstances why the application should be refused. It is often the case that on an application of this nature the clients will not be represented or otherwise before the court. I therefore reject the first submission made by the plaintiffs.
The second argument advanced by the plaintiffs related to the earlier communications between the solicitors and the plaintiffs in relation to costs and to an agreement reached to defer that issue until the decisions by the Full Court on appeals in both actions were delivered. They expressed concern that the copying fees had not been appropriately incurred by the solicitor in light of there being a cross-appeal which meant the respondents should pay some of these costs. They referred to discussions of 10 July 2008 and 24 November 2008 in relation to the outstanding accounts and certain concerns that they had about them. They asserted that the steps taken by the solicitor immediately on the delivery of the Full Court decision breached those understandings. In those circumstances the solicitors should not be permitted to cease to act.
I reject the plaintiffs’ submissions. It is clear there were discussions. When the Full Court decision was handed down the solicitors adopted a certain position which was immediately put to the plaintiffs. If there was an initial shortness of time in which they could respond to the solicitors’ letter of 19 January 2009 six weeks have since passed. The plaintiffs could have retained the services of the solicitors by paying the outstanding fees. No payment has been made by the plaintiffs. The solicitors appear to have adopted a firm stance in relation to costs following the Full Court decisions. In my view they are entitled so to do.
As to the third submission the plaintiffs argue that the Full Court hearings are not complete as there are still outstanding issues in relation to costs. In this matter on the record the Full Court decision is complete. It has already made a decision as to costs. The applicant solicitors have indicated by their correspondence that they are not prepared to continue to act in light of the unpaid fees. They are left in a position of being owed substantial amounts of money by the plaintiffs.
Like his Honour Judge Lunn in his decision in Action No 1632 of 1982, I am not satisfied that the solicitors have given any undertaking to the Full Court upon which the plaintiffs can rely. I perused the transcript annexed to the plaintiffs’ affidavit – FDN 98 – and in my view the solicitors’ response to the Full Court questions do not preclude those solicitors from applying for an order that they have ceased to act in the event that outstanding fees are not met.
Finally, Master Withers dealt with an issue arising on a further affidavit, which he identified and dealt with as follows:
The plaintiffs filed a further affidavit – FDN 99 – exhibiting various accounts and raising the issue that the solicitors ceasing to act will prejudice them in recovery of costs in the event that they succeed at a later stage in this action. In my view that prejudice will not occur. The records will be available to the plaintiffs and to any solicitor that they might choose to instruct to assist them in that endeavour should the circumstances arise.
The High Court in Plenty v Gladwin[5] addressed an appeal by Sydney Graham Plenty against an order of Mason ACJ declaring that solicitors who had previously acted for Mr Plenty and whose name appeared on the record, had ceased to act for him. The High Court rule was to the same effect and in almost identical terms to the rule of this Court under which Master Withers acted. In Gladwin, Mr Plenty emphasised that the relevant High Court order conferred a discretion on the Court to determine whether or not to make the order sought. Mr Plenty submitted that Mason ACJ ought to have declined to make the order because there had not been any good cause shown for the solicitors ceasing to act. The High Court rejected this submission:[6]
The fallacy in the above arguments flows from a misunderstanding by Mr Plenty of the operation of O 7, r 7(1). That misunderstanding would seem to have been caused by the citation of Underwood’s case in the notes to the identical rule in England: see The Supreme Court Practice 1985 ed, vol 1, note 67/6/2 at 1025. In fact, although cited in the context of the relevant English rule, Underwood’s case has nothing to do with the operation of the rule itself. It is concerned with discussing some of the incidents that generally pertain to the relationship of solicitor and client. The purpose of the rule is quite different. Its concern is with the record of the court and with the service of documents. It comes into play when, rightly or wrongly, a solicitor has ceased to act and the party has not given notice of change of solicitor or notice of intention to act in person. The solicitor may then take steps to have his name removed from the record. The first step is by applying to the court or a justice for an order declaring that the solicitor has ceased to be the solicitor acting for he party in the proceeding. As we have noted the court has a discretion whether or not to make the order, but unless there are special circumstances which render it expedient to retain the solicitor on the record the order will generally be made as a matter of course upon proof that the solicitor has in fact ceased to act for the party and that no steps have been taken to take the solicitor’s name off the record. Order 7, r 7(4) makes it plain that an order made under the rule does not affect the rights or liabilities of a solicitor and a party as between themselves.
In the present case it is clear from the correspondence that the solicitors had ceased to act, and no circumstances were shown to render the making of the declaration inexpedient. The appellant has not succeeded in showing any error on the part of the Acting Chief Justice.
[5] Plenty v Gladwin (1986) 67 ALR 26.
[6] Plenty v Gladwin (1986) 67 ALR 26.
The solicitors in the present proceeding have ceased to act. Rule 87, r 11.06(5) is primarily concerned with the record of Court and the service of documents. Special circumstances have not been established to render it expedient to retain the solicitors on the record. The issue of good cause advanced by Mr and Mrs Plenty does not arise. Even if good cause were to be a relevant consideration, in my view, good cause has not been established. This appeal should be dismissed.
Master Withers was correct in making the orders under appeal.