Total Trading SRL (Formerly known as Triulzi Engineering SRL) v Luigi Nastri and Nastri Nominees Pty Ltd

[2008] HCATrans 94

[2008] HCATrans 094

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M134 of 2007

B e t w e e n -

TOTAL TRADING SRL (FORMERLY KNOWN AS TRIULZI ENGINEERING SRL)

Applicant

and

LUIGI NASTRI AND NASTRI NOMINEES PTY LTD

First Respondent

Application by solicitor on the record for leave to withdraw

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 FEBRUARY 2008, AT 9.46 AM

Copyright in the High Court of Australia

MR F.M. PRICKETT:   Your Honour, I appear on behalf of the solicitors for the applicant.  (instructed by Clayton Utz)

HER HONOUR:   Yes.  Were you expecting any other appearance?

MR PRICKETT:   No, your Honour.

HER HONOUR:   Yes, very well.

MR PRICKETT:   Your Honour, this is an application for leave to withdraw as solicitors under rule 6.02.5(c) of the Rules of the Court.  The application is made by way of summons, your Honour, a summons dated 15 February 2008.

HER HONOUR:   Yes, I have read that.

MR PRICKETT:   It is supported by two affidavits.

HER HONOUR:   Yes, I have read those.

MR PRICKETT:   Your Honour, we have set out in the affidavits to a degree, and also in the submissions, the background facts to this application but, it is submitted they are of little moment to the issues that need to be determined.  They are disclosed out of an abundance of caution and so that this Court is fully apprised of the connections which this proceeding has with other proceedings but, at the end of the day, your Honour, it, we would submit, is of little relevance.

HER HONOUR:   You have given the relevant notice as required?

MR PRICKETT:   Yes, your Honour.  Your Honour, that brings us to a threshold issue as to whether notice ought have been given to the respondent in this proceeding.  The respondent has not been given notice of this application and we submit to this Court that the proper course is that it not be given notice.

HER HONOUR:    The rule requires notice to the party.

MR PRICKETT:   Yes, that is right, your Honour, and we rely on a decision of the Court of Appeal in England.  That decision, which I can take your Honour through and I should say, your Honour, that I have a ‑ ‑ ‑

HER HONOUR:   Perhaps tell me what proposition that stands for.

MR PRICKETT:   Essentially the proposition, your Honour, is that because the application is not truly an inter partes application but is an application concerning the relationship between the solicitor and the client, the application is not relevant to the other party to the proceeding and, to the contrary, there are good reasons why the other party to the proceeding ought not be present.

HER HONOUR:   Would you like to give me the citation?

MR PRICKETT:   Yes, your Honour.  Re Creehouse Ltd [1982] 3 All ER 659. I have a copy of that decision.

HER HONOUR:   Yes, very well.

MR PRICKETT:   It may be convenient, your Honour, if I hand that up in a book of authorities which contains a number of other things which I may not need to refer to.

HER HONOUR:   Thank you. 

MR PRICKETT:   At this point may I inquire, your Honour, as to whether you have received our summary of argument?

HER HONOUR:   Yes, I have.

MR PRICKETT:   I have the original of that if your Honour would like that filed in Court today?

HER HONOUR:   Yes, very well.

MR PRICKETT:   Your Honour, Re Creehouse Ltd is under tab 3 of the ‑ ‑ ‑

HER HONOUR:   Yes, I see that, and is there a particular page you would like me to look at?

MR PRICKETT:   Yes, your Honour.  If I can take you first to page 660 you will see the first judgment is that of Lord Justice Lawton with whom the other two Lord Justices agreed.  You will see, your Honour, that in the third paragraph he notes that “Counsel for the applicants” – and in this case the applicants were effectively the other party appealing a decision of a registrar to grant leave to withdraw.  They had not, as best I can tell, been present at the hearing before the registrar.  “Counsel for the applicants” noted at the outset:

that in modern times at least it has not been the practice for solicitors applying to the court under Ord 67, r 6 to give notice to the other parties to the litigation.

Now, I should say, your Honour, there he is speaking of the modern practice in 1982 in England.  I do not know if that is still the practice in England and I cannot say what the practice in this country or in this Court is, your Honour.  It is an unusual application, particularly in this Court. 

On the next page, page 661, at the paragraph beginning under line f his Honour notes that “By a telex . . . the Swiss company withdrew” the solicitor’s “retainer”.  So this was a case, your Honour, where the client terminated the retainer and it was a case set against the backdrop of the English rule which, for all material purposes, was in the same form as the former rule in this Court.  I will take your Honour to that rule because there are two decisions of this Court which deal with the former rule.  There are no decisions, your Honour, on the current rule.

HER HONOUR:   What is the difference between the current rule and the former rule?

MR PRICKETT:   Essentially, your Honour, the former rule provides that where a solicitor has ceased to act, they may then apply to the Court for an order to remove themselves from the record.

HER HONOUR:   Did it have a notice requirement in relation to the client?

MR PRICKETT:   Yes, and in order to be removed from the record, in order to get an order from the Court, it is necessary to give notice to the client.  This is assuming, your Honour, that the client has not had a notice of change of solicitor filed or a notice of intention to act in person.

HER HONOUR:   Yes.

MR PRICKETT:   Under the current rule, your Honour, it is cast in quite different terms and it says a solicitor must continue as solicitor – in fact, your Honour, I should refer to ‑ ‑ ‑

HER HONOUR:   I have the rule:

A solicitor for a party may cease to be solicitor for that party only . . . 

(c)if,the solicitor having first given notice in writing to the party of intention to apply for leave to withdraw as solicitor, the Court or a Justice grants the solicitor leave to withdraw and the solicitor serves a copy of that order on every other party.

You have provided a minute of order which provides for the satisfaction of that final condition.

MR PRICKETT:   Yes, your Honour.  I would say, going back to your previous question, what is the difference between the new rule and the old rule, and this may be splitting hairs, your Honour, but it may be said that under the old rule you can cease acting but you then have to apply to the Court to be removed from the record.

HER HONOUR:   Removed from the record.  Yes, I understood that from what you previously said. 

MR PRICKETT:   Yes.  In our submission, your Honour, the better view of the new rule is that, provided the solicitor has given notice to its client of its intention to apply for leave to withdraw as solicitor and there are no other circumstances that would compel the Court to otherwise order, then this order is satisfied and the Court may then grant leave for the solicitor to withdraw.

HER HONOUR:   If I am minded to grant the leave to withdraw, then that will mean, will it not, that the applicant is unrepresented?

MR PRICKETT:   That is correct, your Honour.

HER HONOUR:   And the matter will fall to be determined under rule 41.10.

MR PRICKETT:   Yes, which then raises an issue under rule 41.10.4, your Honour, which we have pointed out to the client, namely, that if you become unrepresented by operation of that rule, your application for special leave will be deemed to be abandoned unless the Court otherwise directs.

HER HONOUR:   Well, that suggests incorporating in the order an extension of time to allow the applicant to file its written case.  I think it is probably prudent also to provide for service a copy of the order on the applicant and the respondent by you.  That follows the terms of the rule.

MR PRICKETT:   Yes, your Honour.  Your Honour, we do not want in any way to tempt fate.  We have prepared a draft minute of order.

HER HONOUR:   Would you like to hand that up?

MR PRICKETT:   Yes, please.

HER HONOUR:   Thank you.

MR PRICKETT:   There are two versions which I am handing up, your Honour, the only difference being the date.  This does not contain the order about service that your Honour suggested.

HER HONOUR:   Yes.  As I foreshadowed, although it is implicit in the rule, perhaps I should add paragraph 3, “The solicitor for the applicant serve a copy of these orders on the applicant and the respondent” and otherwise make the order in the terms of your minute.

MR PRICKETT:   Your Honour, I mentioned that I handed up two drafts, the only difference being the difference in the dates in paragraph 2 of the order.

HER HONOUR:   Yes.  Perhaps a date like 21 March might be appropriate, somewhere in between the two.

MR PRICKETT:   Yes.  The thinking behind those two dates, your Honour, is that 4 March is the deadline which the Registrar had set for the filing of the summary of argument in accordance with the rules.  Might I say, that is the third and final deadline which the Registrar has set.  The 21 May is the date by which the proceeding or the application for special leave would be deemed to be abandoned by operation of the rules, your Honour.

HER HONOUR:   Yes.

MR PRICKETT:   I must confess, your Honour, that we are unsure about what ordinarily would happen in the event that a party failed to comply with the Registrar’s deadline but then attempted to file a summary of argument before the six month deadline prescribed by the rules.

HER HONOUR:   Perhaps the safest course is to make the date 21 May 2008 because it allows plenty of time for the applicant to be on notice in relation to the requirements which will flow from any leave to withdraw.  Perhaps I should ask you, in terms of an order that you serve a copy of this order on the applicant and the respondent, should I make that within a period of days?

MR PRICKETT:   Yes, your Honour.

HER HONOUR:   Within three working days?

MR PRICKETT:   Yes, your Honour.

HER HONOUR:   Seven days, if that is suitable.  It just allows time for engrossing and so forth.  That probably also makes it more desirable to opt for 21 May in relation to the second order.

MR PRICKETT:   Yes, your Honour.

HER HONOUR:   Yes, very well.  I will make those orders.  Anything further?

MR PRICKETT:   No, your Honour.

HER HONOUR:   Thank you. 

Adjourn the Court.

AT 10.02 AM THE MATTER WAS CONCLUDED