Thundelarra Ltd v Richmond

[2013] WASC 370

THUNDELARRA LTD -v- RICHMOND [2013] WASC 370

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 370
Case No:	CIV:2515/2012	Heard:	9 OCTOBER 2013
Coram:	EDELMAN J	Delivered:	9/10/13
No of pages:	6	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
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Parties:	THUNDELARRA LTD WILLIAM ROBERT RICHMOND KALLENIA MINES PTY LTD
Catchwords:	Application by solicitors for order that they have ceased to act Order will generally be made unless special circumstances Order should be made
Legislation:	Federal Court Rules 2011 (Cth), r 4.05 High Court Rules 1952 (Cth), O 7 r 7(1) Rules of the Supreme Court 1971 (WA), O 8 r 7 Uniform Procedure Rules 1999 (Qld), r 990, r 991
Case References:	Commonwealth Bank of Australia v Davies [2002] 1 Qd R 363 Jiangyin Yinying Goods and Materials Trade Co Ltd v Australia Victoria Capital Pty Ltd [2012] FCA 274 Plenty v Gladwin [1986] HCA 55; (1986) 67 ALR 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THUNDELARRA LTD -v- RICHMOND [2013] WASC 370 CORAM : EDELMAN J HEARD : 9 OCTOBER 2013 DELIVERED : 9 OCTOBER 2013 FILE NO/S : CIV 2515 of 2012 BETWEEN : THUNDELARRA LTD

First Plaintiff

AND

WILLIAM ROBERT RICHMOND
First Defendant

KALLENIA MINES PTY LTD
Second Defendant

Catchwords:

Application by solicitors for order that they have ceased to act - Order will generally be made unless special circumstances - Order should be made

Legislation:

Federal Court Rules 2011 (Cth), r 4.05

High Court Rules 1952 (Cth), O 7 r 7(1)
Rules of the Supreme Court 1971 (WA), O 8 r 7
Uniform Procedure Rules 1999 (Qld), r 990, r 991

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff : No appearance
First Defendant : In person
Second Defendant : No appearance

G E Taylor & Associates : Mr N Dillon

Solicitors:

First Plaintiff : No appearance
First Defendant : In person
Second Defendant : No appearance

G E Taylor & Associates : G E Taylor & Associates

Case(s) referred to in judgment(s):

Commonwealth Bank of Australia v Davies [2002] 1 Qd R 363
Jiangyin Yinying Goods and Materials Trade Co Ltd v Australia Victoria Capital Pty Ltd [2012] FCA 274
Plenty v Gladwin [1986] HCA 55; (1986) 67 ALR 26

EDELMAN J:

Introduction

1 These are the reasons given orally at the conclusion of the hearing of an application by the solicitors for the defendants this morning for orders that they have ceased to act. The reasons which follow this introduction have been edited only for infelicities of expression.

2 At a directions hearing subsequent to the hearing of this application I said that these reasons would be published due to the potential for issues to arise from the content of the affidavit filed in this application, which I ordered should not be inspected by any person other than the defendants or their solicitors. No issue has arisen, no party objects to me hearing the case, and the trial will proceed on Monday.

3 In matters in the Commercial and Managed Cases List, it may be preferable in future for applications of this nature to be made to listings with a request that the matter be heard before a judge, rather than being made directly to the associate of the judge who is case managing the matter. This will avoid the possibility of any issue of conflict arising if an affidavit contains any possibly privileged material.

The application

4 This is an application by G E Taylor & Associates, the solicitors for the defendants in the proceedings. There are two defendants. The aspect of the dispute directly concerning the second defendant has been resolved.

5 In this application, the solicitors for the defendants seek a declaration under O 8 r 7 Rules of the Supreme Court 1971 (WA) that they have ceased to act for the defendants.

6 Order 8 r 7 provides as follows:

7. Withdrawal of a solicitor who has ceased to act for a party

(1) Where a solicitor who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with the provisions of this Order, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the cause or matter and the Court may make an order accordingly; but unless and until the solicitor -

(a) serves on every party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order, and

(b) files in the Central Office a certificate signed by him that the order has been duly served as aforesaid,


he shall, subject to rules 1 to 6, be considered the solicitor of the party until the final conclusion of the cause or matter including any appeal therein.
(2) An application for an order under this rule must be made by summons, which unless the Court otherwise directs, must be served on the party for whom the solicitor acted, and must be supported by an affidavit stating the grounds of the application.

(3) The Court may dispense with the necessity of serving a party to a cause or matter with an order of the kind mentioned in subrule (1).

7 In Plenty v Gladwin1 four judges of the High Court heard an appeal concerning a similar provision in the High Court Rules.2 The appeal was from an order made by Mason ACJ, as he was then, that the solicitors in that case no longer acted for their client. The argument on appeal was 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. The appeal was dismissed.

8 The High Court explained the purpose of the rule as follows:3

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.

9 The High Court also explained that although the Court has a discretion whether or not to make the order, 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 had been taken to take the solicitor's name off the record.4

10 Mr Taylor has sworn an affidavit deposing in substantial detail to the irretrievable breakdown of the relationship between himself as instructing solicitor and the first defendant. In oral submissions, the first defendant indicated further matters which cause him concern.

11 It is not necessary for me to detail all of the matters contained in Mr Taylor's 90-paragraph affidavit. It is possible that a number of the matters to which Mr Taylor deposes are matters over which the first defendant may wish to maintain privilege. It suffices to say that in the last week, since 3 October 2013, Mr Taylor has been placed in a position, which has caused him to view his position in relation to his client as irretrievable, including for reasons that he considers relate to his ethical obligations to the Court.

Conclusion

12 There is an obvious concern with making the declaration sought. That concern is that the trial of this matter is scheduled to take place in only three working days' time.

13 It is not necessary, in this case, to decide whether, and if so when, the proximity to trial could be a relevant consideration which could enable the Court to refuse to make a declaration under O 8 r 7. The approach taken by the High Court in Plenty emphasised the concern of the order as being with the record of the Court rather than, for example, to compel the maintenance of a relationship which has ended. There may be doubt whether, absent any breach of ethical duty by a solicitor, the proximity to trial could ever be a sufficient reason to refuse to make the order as a means to attempt to compel a solicitor to act at trial despite the irretrievable breakdown in a relationship.

14 In this respect, the terms of O 8 r 7 are materially different from those of the equivalent rule in Queensland,5 where a period of notice to the client is required before withdrawal and where a pending trial date has been held to be a material concern.6 Similarly, the regime in the Federal Court, although slightly different from that in Queensland, requires that a lawyer who terminates a retainer must serve a notice of intention of ceasing to act at least seven days before filing a notice of ceasing to act.7 There is no provision in the Federal Court Rules 2011 (Cth)requiring leave for a practitioner to cease to act.8

15 It is not necessary to consider the relevance of proximity to trial in this case. But even taking the proximity to trial into account as a relevant factor, I am satisfied that in light of the matters deposed to by Mr Taylor, and the lack of opposition to the order sought, the order should be made.

______________________________________

1Plenty v Gladwin [1986] HCA 55; (1986) 67 ALR 26 (Wilson, Brennan, Deane & Dawson JJ).
2High Court Rules 1952 (Cth) O 7 r 7(1).
3Plenty v Gladwin [1986] HCA 55; (1986) 67 ALR 26, 27.
4Plenty v Gladwin [1986] HCA 55; (1986) 67 ALR 26, 27.
5Uniform Procedure Rules 1999 (Qld) r 990, r 991.
6Commonwealth Bank of Australia v Davies [2002] 1 Qd R 363 (Wilson J).
7Federal Court Rules 2011 (Cth)r 4.05.
8Jiangyin Yinying Goods and Materials Trade Co Ltd v Australia Victoria Capital Pty Ltd [2012] FCA 274[8] (Gray J).