Wilson v Reflections Group Pty Ltd

[2011] QDC 146

[2011] QDC 146

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 33 of 2010

SANDRA FAY WILSON	Plaintiff
and
REFLECTIONS GROUP PTY LTD	Defendant

ORDER

BRISBANE

..DATE 11/07/2011

..DAY 1

CATCHWORDS
Uniform Civil Procedure Rules 1999, r 990
Application by plaintiff's solicitors on the record to withdraw - court required further evidence to satisfy itself that, as asserted by the solicitors, this retainer had been terminated by them - privileged parts of relevant exhibit removed

HIS HONOUR:  There will be an order as per initialled draft which grants Shine Lawyers leave to withdraw as solicitors on the record for the plaintiff, and also provides, in paragraph 2, which has been added to the proffered draft, "Until some other address for service is properly notified by the plaintiff, documents may be served on her at, or by posting prepaid to, 270 King Street, Clontarf, Queensland, 4019," accompanied by advice of the effect of this order.

The plaintiff, represented by the applicant lawyers, filed a claim on the 7th of January 2010, that seeks compensation or damages in respect of a fall at Peninsula Fair shopping centre, Kippa Ring, early in December 2008.  The defendant is the contractor responsible for cleaning the shopping centre, and, the Court hears, many others, at relevant times.  It has filed for, and, according to its insurer's letter of 21st of September 2010 to the lawyers, was about to go into liquidation, so that leave to proceed was likely to be necessary, should the matter go further.

The bad news for the plaintiff, contained in the letter, is that the relevant insurance policy had "a deductible of $150,000 for claims with an accident date prior to June 2009".  That communication came from CGU Insurance Limited's lawyers, rather than the insurer itself.

Ms Jenner, arguing the application for leave to withdraw, informs the Court that, contrary to a fairly widespread practice of suing all and sundry, the judgment was made in this case that contractual arrangements, put in place by the shopping centre owner/occupier, were likely to prove effective in protecting them from liability.  Nonetheless, the defendant, represented by in-house counsel, has brought the two companies in as third parties.  For what it is worth, the plaintiff is still in time to seek to join them as defendants.

The Court has pressed Ms Jenner about certain aspects of the application, which, so far as notice to the plaintiff that she needs to make arrangements for other representation is concerned, simply advises in a letter of 19 May 2011, "As you were aware from our previous correspondence, we no longer act on your behalf in relation to this matter.".  The letter goes on to refer to Rule 990, and helpfully provide a Notice of Party Acting in Person for the plaintiff's use.  She's done nothing pursuant to that, nor anything else in response to this application, the making of which was foreshadowed, and which has been served on her.

The Court has a responsibility in circumstances such as the present, in my view, to ensure that a litigant doesn't inappropriately lose legal representation, on the continuance of which she has presumably relied.  Ms Jenner has provided to the Court the relevant part of the "previous correspondence", which is a letter of 1st of March 2011, copies of the pertinent parts of which are Exhibit 1.  The exhibit doesn't include legal advice, which is privileged, and which it might well be mischievous and unfair to the plaintiff to have placed on the Court file.

I think the Court is entitled to be satisfied that the asserted termination of the retainer, mentioned in the later letter, had occurred.  Exhibit 1 supplies that requirement.  It refers to the specific condition of the retainer, which entitled the firm to terminate the agreement.  It gives the relevant notice.  In addition it makes clear to the plaintiff that, should she wish to expand the cast of defendants, she should do so by the 6th of December 2011.

In applications of the present kind, my practice has been to ensure that other parties in a proceeding do not lose the advantage of a useable address for service as the proceeding - if the proceeding is to continue.

In general terms, it's more concerning if a defendant is no longer represented by the lawyers on the record, and has to be located by a plaintiff bent on proceeding.  That's not the present situation.  Nonetheless, I think that it's possible that those with control of the defendant , or the third parties, may wish to serve documents on the plaintiff, and that it's appropriate to make provision against that eventuality in the Court's order, as has been done.

The Court's grateful to Ms Jenner for confirming, from the Bar table, that the plaintiff's address in the correspondence is one which can be used effectively.  Responses, not in writing, have been received from the plaintiff by the firm, which have established that she gets communications sent to that address. 

Order as per initialled draft.  Thank you.

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