RPS Freightways Pty Ltd v Singh (No. 2) - [2018] NSWDC 284

District Court

New South Wales

Medium Neutral Citation: RPS Freightways Pty Ltd v Singh (No. 2) [2018] NSWDC 284
Hearing dates: 27 September 2018
Date of orders: 02 October 2018
Decision date: 02 October 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) On the application of the defendant, vacate the hearing date of these proceedings (on day 2 of the three day hearing).
(2) List the hearing of the plaintiff’s application for the solicitors for the defendant to pay the plaintiff’s costs occasioned by the vacating of the hearing date.
(3) Pursuant to r 7.29 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the solicitors acting for the defendant until today (by reason of no prior order under UCPR r 7.29) are granted leave to withdraw.
(4) Matter stood over for directions to Monday 22 October 2018 with liberty to apply.
(5) Note Judge Gibson to provide reasons for the orders made by email to the parties (including reasons as to whether Judge Gibson should remain the trial judge in any further fresh or adjourned hearing).
(6) Refer the defendant to the Law Society of NSW for independent legal advice as to his entitlements, including any entitlement to disbursements as a litigant in person.
(7) Pursuant to s 26 Civil Procedure Act 2005 (NSW), direct the parties to attend for mediation before an Assistant Registrar of this court on Tuesday 23 October 2018.

Catchwords: PRACTICE AND PROCEDURE – solicitor ceases to act less than 28 days before the hearing – registry stamps Notice of Ceasing to Act – application by former client (defendant) for adjournment of the hearing – whether leave to withdraw under UCPR r 7.29 required – whether leave for the solicitor to withdraw should be granted – former client no longer has confidence in the solicitor – leave to withdraw granted – costs issues
Legislation Cited: Civil Procedure Act 2005 (NSW), s 26
Legal Profession Uniform Law Australian Australian Solicitors’ Conduct Rules 2015 (NSW), r 13.1.3
Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 20.03
Uniform Civil Procedure Rules 2005 (NSW), r 7.29
Cases Cited: Bendigo and Adelaide Bank Limited v Jaeger (District Court of New South Wales, Letherbarrow SC DCJ, 23 August 2017)
Herald & Weekly Times v Popovic (2003) 9 VR 1
Investec Bank Australia Limited v Mann [2012] VSC 81
Category: Procedural and other rulings
Parties: Plaintiff: RPS Freightways Pty Ltd
Defendant: Amandeep Singh
Representation:
Counsel:
Plaintiff: Mr A Cheema
Defendant: Mr A Singh (in person)
Solicitors:
Plaintiff: Morgan Conley
Defendant: De Marco Lawyers

File Number(s): 2017/262809
Publication restriction: None

Judgment

These proceedings were fixed for hearing for three days, commencing on 26 September 2018. As is noted in my judgment of 26 September 2018, the defendant, Mr Singh, appearing for himself with the assistance of his wife, asked for an adjournment. His first reason for that request was that, although he and his wife said they gave all relevant information to his solicitor and paid $32,000 on account of legal costs…

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.

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Details

Case: [2018] NSWDC 284
Decision Date: 02 October 2018

CaseChat Overview and Summary

RPS Freightways Pty Ltd brought an action against Singh, seeking various remedies in relation to the alleged unlawful termination of a contract. The case came before the Local Court of New South Wales. Singh’s solicitors ceased to act less than 28 days before the hearing, necessitating the lodging of a Notice of Ceasing to Act with the registry. Singh applied for an adjournment of the hearing, citing a lack of confidence in his former solicitors, and seeking to have them withdrawn from the case. The legal issues before the court included whether Singh required leave to withdraw his former solicitors under UCPR rule 7.29, and whether leave should be granted for the solicitors to withdraw. The court examined the circumstances under which solicitors could be withdrawn from a case, and whether Singh’s lack of confidence in his former solicitors warranted the adjournment of the hearing.

The court found that Singh’s lack of confidence in his former solicitors constituted sufficient grounds to warrant their withdrawal from the case. The court noted that the lack of time to find alternative representation, combined with Singh’s expressed lack of confidence, justified the adjournment of the hearing. The court granted leave to the solicitors to withdraw and vacated the hearing date. The court also ordered that the hearing of the plaintiff’s application for costs occasioned by the vacating of the hearing date be listed. The matter was stood over for directions and referred to the Law Society of New South Wales for independent legal advice regarding Singh’s entitlements as a litigant in person. The court directed the parties to attend for mediation before an Assistant Registrar.

The court issued several orders to manage the proceedings. It vacated the hearing date, listed the plaintiff’s application for costs, and granted leave for the defendant’s solicitors to withdraw. The matter was stood over for directions and referred to the Law Society of New South Wales for independent legal advice. The court also directed the parties to attend mediation and noted that Judge Gibson would provide reasons for the orders via email. This decision highlights the importance of timely notice of ceasing to act and the court’s consideration of client confidence in solicitors when granting leave to withdraw.

Orders

Orders of the court

(1) On the application of the defendant, vacate the hearing date of these proceedings (on day 2 of the three day hearing).

(2) List the hearing of the plaintiff’s application for the solicitors for the defendant to pay the plaintiff’s costs occasioned by the vacating of the hearing date.

(3) Pursuant to r 7.29 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the solicitors acting for the defendant until today (by reason of no prior order under UCPR r 7.29) are granted leave to withdraw.

(4) Matter stood over for directions to Monday 22 October 2018 with liberty to apply.

(5) Note Judge Gibson to provide reasons for the orders made by email to the parties (including reasons as to whether Judge Gibson should remain the trial judge in any further fresh or adjourned hearing).

(6) Refer the defendant to the Law Society of NSW for independent legal advice as to his entitlements, including any entitlement to disbursements as a litigant in person.

(7) Pursuant to s 26 Civil Procedure Act 2005 (NSW), direct the parties to attend for mediation before an Assistant Registrar of this court on Tuesday 23 October 2018.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	RPS Freightways Pty Ltd v Singh (No. 2) [2018] NSWDC 284
Hearing dates:	27 September 2018
Date of orders:	02 October 2018
Decision date:	02 October 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) On the application of the defendant, vacate the hearing date of these proceedings (on day 2 of the three day hearing). (2) List the hearing of the plaintiff’s application for the solicitors for the defendant to pay the plaintiff’s costs occasioned by the vacating of the hearing date. (3) Pursuant to r 7.29 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the solicitors acting for the defendant until today (by reason of no prior order under UCPR r 7.29) are granted leave to withdraw. (4) Matter stood over for directions to Monday 22 October 2018 with liberty to apply. (5) Note Judge Gibson to provide reasons for the orders made by email to the parties (including reasons as to whether Judge Gibson should remain the trial judge in any further fresh or adjourned hearing). (6) Refer the defendant to the Law Society of NSW for independent legal advice as to his entitlements, including any entitlement to disbursements as a litigant in person. (7) Pursuant to s 26 Civil Procedure Act 2005 (NSW), direct the parties to attend for mediation before an Assistant Registrar of this court on Tuesday 23 October 2018.
Catchwords:	PRACTICE AND PROCEDURE – solicitor ceases to act less than 28 days before the hearing – registry stamps Notice of Ceasing to Act – application by former client (defendant) for adjournment of the hearing – whether leave to withdraw under UCPR r 7.29 required – whether leave for the solicitor to withdraw should be granted – former client no longer has confidence in the solicitor – leave to withdraw granted – costs issues
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 26 Legal Profession Uniform Law Australian Australian Solicitors’ Conduct Rules 2015 (NSW), r 13.1.3 Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 20.03 Uniform Civil Procedure Rules 2005 (NSW), r 7.29
Cases Cited:	Bendigo and Adelaide Bank Limited v Jaeger (District Court of New South Wales, Letherbarrow SC DCJ, 23 August 2017) Herald & Weekly Times v Popovic (2003) 9 VR 1 Investec Bank Australia Limited v Mann [2012] VSC 81
Category:	Procedural and other rulings
Parties:	Plaintiff: RPS Freightways Pty Ltd Defendant: Amandeep Singh
Representation:	Counsel: Plaintiff: Mr A Cheema Defendant: Mr A Singh (in person) Solicitors: Plaintiff: Morgan Conley Defendant: De Marco Lawyers
File Number(s):	2017/262809
Publication restriction:	None