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, deposes to a telephone conversation which took place yesterday. The conversation took place pursuant to a direction which I gave to the Registrar to indicate that I would feel more comfortable to make the order sought this day, in the absence of the applicant, if the applicant were notified orally that the matter was before the Court today. The affidavit by Mr Graham indicates that such notification was given.


3. According to the last mentioned affidavit, Mr Graham telephoned Mr Gattellaro on a mobile telephone. A conversation then took place which clearly indicates that Mr Gattellaro is on notice that the matter is before this Court today. Mr Gattellaro indicated that he was involved in another court case. He said that he had not had time to think about the matter. He was in conference at the time of the telephone call. He did not know whether he would attend court today. The matter has been called before me. No person has appeared for Falgat. Mr Gattellaro has not appeared. It therefore seems safe to assume that he has elected not to appear before the Court today.


4. In Plenty v Gladwin (1), this Court constituted by Wilson, Brennan, Deane and Dawson JJ explained the purposes of the subject rule. Their Honours stated:
"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 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."


5. Having regard to this explanation of the purpose of the rule, to the clear notification that has been given by the solicitor both in writing and orally to the applicant through its officer, and to the fact that no notice of change of solicitor has been filed by Falgat, it is appropriate that the order sought should now be made. I therefore make an order in accordance with O 7 r 7(1) declaring that the solicitor presently on the record for the applicant has ceased to be the solicitor acting for the applicant in the proceedings.


6. As to the costs of the proceedings before the Court today, because they were not specifically raised with Falgat and because that company is not present, I will reserve the costs. However, I record that the steps which the solicitor took were proper steps to have himself removed from the record. It would seem appropriate that Falgat should pay the costs occasioned by this application and the same would probably be within the ambit of the original retainer. However, I will not make any order in that regard but I will reserve liberty to the solicitor to apply if there is any difficulty, giving notice of the claim for such costs to Falgat.


7. The order is made in accordance with the application. Costs are reserved.
1 (1986) 60 ALJR 665 at 666; 67 ALR 26 at 27.