Toth v Cladingboel & Hine

[2005] QDC 205

[2005] QDC 205

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3104 of 2004

CARLENE TOTH

Plaintiff

and

MICHAEL WILLIAM CLADINGBOEL

and

LYNETTE MAY HINE

First Defendant

Second Defendant

BRISBANE

..DATE 15/06/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 469, r 990, r 992 - where defendant's solicitors on the record signs and got leave to withdraw, their office remained the address for service of the client - it had been given as the defendant's
"residential or business address" in the Notice of Intention to Defend - no reason shown to seal up the solicitors' affidavit in support of the application under r 990

HIS HONOUR:  The principal application is the plaintiff's for an order that under rule 469(4) the signature of the first defendant on the request for trial date be dispensed with and other relief, including that the matter be placed on the callover list and costs.  The second defendant has signed the request for trial date.

The application prompted one by Quinn and Scattini, the first defendant's lawyers, which they filed on 14 June 2005 seeking leave to withdraw as the first defendant's solicitors under rule 990.  The application is misleading in that it commences, "Take notice that the first defendant is applying to the Court" when he, of course, is the respondent to the application. 

The solicitors have lost contact with their client.  None of their communications to him are being delivered.  The requisite letter described in rule 990 has been sent without response.  The solicitors are entitled to the order they seek for leave to withdraw and I suppose the further order that their client pay the costs of and incidental to the application. 
In deference to considerations of legal professional privilege, the application seeks that the material relevant to it, which is Mr Araki's affidavit, be placed in a sealed envelope not to be opened save with leave of the Court.  There is nothing remarkable about the letter exhibited to the affidavit.  So far as I am aware there is no practice of sealing up material where there is no apparent potential for the client to be embarrassed in the litigation and also, in general principle, I think it is better not to have sealed items on Court files.

The orders on Quinn and Scattini's application will be paragraph 1 in terms of the application and paragraph 2 in the following terms which are identical with those of a provision added to the draft order handed up by Ms Wheatley for the plaintiff applicant and I set it out:  "Notwithstanding the leave granted to the first defendant's solicitors, Quinn and Scattini today to withdraw, the address of that firm continues to be the first defendant's address for service until some other notice of address for service is filed by him."  That may be thought to replicate or, more correctly, be a substitute for rule 992 which provides that if a solicitor withdraws from the record the client's residential or business address becomes the address for service until a new solicitor is appointed or the client notify another address for service in compliance with the rules. 

The plaintiff stands to be seriously embarrassed by having nowhere to serve the first defendant unless the solicitors' office is used.  The affidavit of service on the Court file shows that on 1 September 2004 the first defendant was served at 27 Moringview Drive, Caboolture.  However, in the notice of intention to defend the solicitors chose to give the first defendant's "residential or business address" as "care of Quinn and Scattini Lawyers, Level 28 Central Plaza 1, 345 Queen Street, Brisbane, Queensland, 4000".  Mr Araki has stated from the Bar table that that arrangement occurred because the first defendant was an itinerant person moving around a lot. 

There is no reason whatever to suppose that Mr Cladingboel is still at the Caboolture address.  Indeed, his last known address which had been used by the firm to communicate with him is care of the post office shop, Heeney Street, Chinchilla.  The plaintiff ought not to be embarrassed at this stage of the proceeding by suddenly being bereft of any address for service of documents upon the first defendant in these circumstances.

In each application there will be an order in terms of the initialled draft.  I would add that, invited to suggest any reason why the matter might not be ready for trial so far as the first defendant is concerned, Mr Araki had no difficulties to raise.

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