Salia Property Pty Ltd v Commissioner for Highways

[2013] HCATrans 161

[2013] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A13 of 2012

B e t w e e n -

SALIA PROPERTY PTY LTD (ACN 120 108 581)

Applicant

and

COMMISSIONER FOR HIGHWAYS

Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 26 JULY 2013, AT 12.30 PM

Copyright in the High Court of Australia

MR B.R.M. JAMES:   May it please the Court, I appear for the applicant.  (instructed by Hunt & Hunt Solicitors)

HIS HONOUR:   Mr James, I apologise for having delayed you longer than I had anticipated.  It came about in circumstances that it is not profitable to explore, but I apologise.

MR JAMES:   That is quite all right, sir.

HIS HONOUR:   Now, Mr James, I have read the summons of 15 July, the affidavit of Mr Williams sworn on 28 May 2013 and I have looked generally at the file.  Could I ask you, though, two questions:  one, why should I seal up the affidavit in support and, second, why should I make any order for costs against the client?  Why should that question of costs not simply fall according to whatever the relationship formed by the retainer would permit or not permit?

MR JAMES:   In relation to the first, your Honour, I do not push for that.  I think it was perhaps an abundance of caution that there may be material in the affidavit that, if accessible to the other side, the defendant in the appeal, may not be information that our client would wish to be known, but quite frankly, looking at the affidavit I cannot see that there would be anything in there that would cause concern, either to our client or that the Commissioner of Highways would feel that they wish to know, frankly.  So I do not push the first at all.

HIS HONOUR:   Yes.

MR JAMES:   In some respects I do not push the second other than as an abundance of caution to ensure that there is no uncertainty by our client, but I agree with your Honour that ordinarily an application of this sort would fall within the ordinary contract between the solicitor and client in terms of the extent to which fees could be rendered and recovered.

HIS HONOUR:   Given that I neither know, nor should know, the terms of the retainer with the client it seemed to me, at least at first blush, that I should not make any order for costs.

MR JAMES:   Yes.  I would not seek to run any further argument if your Honour were minded along those lines.

HIS HONOUR:   Yes.  Well, you may take your order about withdrawal – I should perhaps, lest there be any doubt about it, record how it is that I get there, but if you would be good enough to sit down.

MR JAMES:   Thank you, sir.

HIS HONOUR:   By its solicitors Hunt & Hunt, the applicant, Salia Property Pty Ltd, instituted on 15 May 2012 an application for special leave to appeal to this Court from the whole of the judgment of the Full Court of the Supreme Court of South Australia given on 17 April 2012. 

On 7 September 2012, this Court dismissed the application for special leave.  Hunt & Hunt, having first given notice in writing to the applicant of its intention to apply for leave to withdraw as solicitor, now seeks, and should be granted, that leave.  Under rule 6.02.5(c) withdrawal will be complete upon Hunt & Hunt serving a copy of the order granting leave to withdraw on the opposite party. 

By its summons, Hunt & Hunt ask that the affidavit filed in support of the application be sealed and not be available for search.  That matter not having been pressed in argument and there being no sufficient reason apparent for the making of such an order, I will not do so.  As indicated in the course of argument, I do not think it appropriate to make any order for costs against the client.  That, in my opinion, is a matter to be resolved between lawyer and client according to the terms of the retainer that was given to the lawyer.

You may have, however, the leave which you seek and there will be an order in those terms.

Adjourn the Court.

AT 12.35 PM THE MATTER WAS CONCLUDED