Re Falgat Constructions Pty Ltd - [1996] HCA 16

HIGH COURT OF AUSTRALIA

KIRBY J

IN RE FALGAT CONSTRUCTIONS PTY LIMITED

22 May 1996

High Court—Practice and procedure—Company applies for special leave to appeal—Notifies its solicitor of giving instructions to another solicitor—Application by first solicitor for declaration that he has ceased to be the solicitor acting for the applicant in the proceedings—O 7 r 7, High Court Rules—Purpose of rule—Order made. High Court Rules, O 7 r 7.

Headnote

Hearing

SYDNEY
#DATE 22:5:1996, SYDNEY

Counsel for the Applicant S. R. Bainey

Solicitors for the Applicant Kemp Strang and Chippindall

Orders

The applicant shall cease to be the solicitor acting for the party in the proceeding.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Decision

KIRBY J. There is presently before the Court an application for special leave to appeal by Falgat Constructions Pty Limited ("Falgat") from a judgment of the Court of Appeal of the Supreme Court of New South Wales given on 25 November 1994. By that judgment, that court dismissed an appeal by Falgat from orders of the Common Law Division of the Supreme Court of New South Wales (Staff AJ). The solicitor for Falgat, as applicant, now seeks relief under O 7 r 7 of the High Court Rules. So far as is material, that rule reads:
"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."
Read before me this morning were three affidavits. The first was an affidavit of Mr James Graham, solicitor, sworn 7 May 1996. This deposes to the fact that he is the solicitor presently on the record acting on behalf of Falgat. On 21 June 1995 he was informed by a Mr Gattellaro, who is a director of Falgat, that it had instructed another firm of solicitors to advise in relation to the matter. He states that he had not received any further instructions from the applicant since that time. By letter dated 26 June 1995, posted to Falgat on or about that date, he advised Mr Gattellaro for Falgat that he was not, in the circumstances, able to continue to act on behalf of Falgat in the proceedings and that he would take steps to cease to act. That letter constitutes a notice to Falgat of the solicitor's intention.

2. An affidavit of Mr Les Flanagan, licensed commercial sub-agent, of 17 May 1996 deposes to delivery of later notice of his application to Falgat on 16 May 1996. Finally, an affidavit of 21 May 1996, also sworn by Mr Graham,…

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 Re Falgat Constructions Pty Ltd

Details

AGLC: Re Falgat Constructions Pty Ltd [1996] HCA 16
Case: [1996] HCA 16
Decision Date: 22 May 1996

CaseChat Overview and Summary

The applicant, Falgat Constructions Pty Ltd, sought special leave to appeal to the High Court. The first solicitor on the record for Falgat Constructions applied to the Court for a declaration that he had ceased to be the solicitor acting for the company in the proceedings, pursuant to Order 7 Rule 7 of the High Court Rules. This application arose after Falgat Constructions had notified its first solicitor of its intention to instruct a second solicitor.

The central legal issue before the Court was the interpretation and application of Order 7 Rule 7 of the High Court Rules, which governs the circumstances under which a solicitor may cease to act for a party in proceedings before the High Court. Specifically, the Court had to determine whether the actions taken by Falgat Constructions constituted sufficient notification to allow the first solicitor to be discharged from acting on its behalf.

Kirby J considered the purpose of Order 7 Rule 7, which is to provide a mechanism for a solicitor to formally withdraw from acting for a party while ensuring that the party continues to be represented or is otherwise aware of the need for representation. His Honour found that the notification given by Falgat Constructions to its first solicitor, coupled with the instruction of a new solicitor, satisfied the requirements of the rule. The rule's intention is to prevent a situation where a party is left unrepresented without notice, and the circumstances here demonstrated a clear change of representation.

Consequently, the Court made an order declaring that the first solicitor had ceased to be the solicitor acting for Falgat Constructions Pty Ltd in the proceedings.

Orders