Plenty v Gladwin

[1986] HCA 55

HIGH COURT OF AUSTRALIA

Wilson, Brennan, Deane and Dawson JJ.

SYDNEY GRAHAM PLENTY v. COLIN WAYNE GLADWIN

23 September 1986

Decision

WILSON, BRENNAN, DEANE AND DAWSON JJ.: Mr Plenty is an applicant for special leave to appeal and that application is now pending in this Court. The matter immediately under consideration is an appeal by him from an order of Mason A.C.J., made on 4 September 1985 declaring that Messrs Wallman &Partners, the solicitors who had previously acted for Mr Plenty and whose name appeared on the record, had ceased to act for him. In these reasons we shall refer to Mr Plenty as "the appellant" and to Messrs Wallman &Partners as "the solicitors".

2. Mason A.C.J. made the order in response to an application by the solicitors under Order 7 Rule 7(1) of the High Court Rules which, so far as is material, reads as follows:

" Where a solicitor who has acted for a party in a proceeding has ceased so to act and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, the solicitor may, ... apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the proceeding, and the Court or Justice may make an order accordingly."

3. The relevant facts can be briefly stated. The solicitors received instructions to act on behalf of the appellant in July 1982. At that time the appellant wished to apply to the Full Court of the Supreme Court of South Australia for leave to appeal from a decision of Mr Justice Cox made in December 1979 dismissing an appeal against his conviction for assault. The solicitors also acted for the appellant in a number of other matters. The application for leave to appeal was refused on 10 February 1983 whereupon the appellant indicated that he wished the solicitors to proceed to institute an appeal to this Court. An application for special leave to appeal was accordingly filed on 3 March 1983. Eight days later, in response to a letter from the solicitors seeking instructions in relation to the engaging of counsel for the High Court appeal, the appellant requested from them a written outline of agreed facts and answers to numerous questions concerning the case and its progress to that date. In August 1984, apparently at the appellant's insistence after intervening conversations, the solicitors answered some of these questions, sought further instructions to prepare appeal books and requested payment of $1000 in anticipation of the disbursement with respect to the expense involved in their preparation. The appellant's reply, by letter dated 23 October 1984, gave no specific instructions in that regard but contained a further request for a written statement of the solicitors' understanding of the duties of counsel. The letter went on to allege serious unethical behaviour on the part of the solicitors in relation to a dispute about the solicitors' bill of costs in the Supreme Court of South Australia. On 15 November 1984 the solicitors informed the appellant that they could no longer act for him in this or any other matters. Subsequently they applied to this Court for an order under Order 7 Rule 7(1). It was that application which came before Mason A.C.J. on 4 September 1985 and, as has already been stated, his Honour granted the application.

4. In support of his appeal which he argued in person, Mr Plenty emphasized that Order 7 Rule 7(1) conferred a discretion on the Court or a Justice in determining whether or not to make the order sought and that the discretion must be exercised judicially. He submitted that the Acting Chief Justice ought to have declined to make the order because there had not been any good cause shown for the solicitors ceasing to act. He referred to the decision of the Court of Appeal in Underwood, Son, &Piper v. Lewis (1894) 2 QB 306 as authority for the proposition that as a general rule a solicitor should have good cause for withdrawing his services.

5. The fallacy in the above arguments flows from a misunderstanding by Mr Plenty of the operation of Order 7 Rule 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 p.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 the 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 Rule 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.

6. 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.

7. The appeal must be dismissed.

Orders

Appeal dismissed with costs.