Witham v Holloway

[1993] HCATrans 213

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl46 of 1992

B e t w e e n -

JOHN ALLAN WITHAM

Applicant

and

JOHN WILLIAM HOLLOWAY

Respondent

Application for order that

solicitor has ceased to act

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Witham(2) 1 9/8/93

AT SYDNEY ON MONDAY, 9 AUGUST 1993, AT 9.15 AM

Copyright in the High Court of Australia

MR A.V. FISHER:  May it please the Court, I appear for the

appellant. (of Watsons)

MR P. EAGLE:  May it please the Court, I appear for the

respondent. (of the State Crown Solicitor's

Office)

HIS HONOUR:	Yes, Mr Fisher.
MR FISHER:	Your Honour, this is an application by my firm

and myself to have leave to withdraw as solicitors

of record for the appellant.

HIS HONOUR:  It is not an application for leave to withdraw,

is it? It is an application for an order that the

solicitor has ceased to act.

MR FISHER: Yes, Your Honour.

HIS HONOUR: There is a difference between the two.

MR FISHER:	I appreciate that, Your Honour; thank you.
HIS HONOUR:	What is the date of the summons?

MR FISHER:  The summons is dated 4 August. The application

for the order is made on the grounds set out

in - - -

HIS HONOUR: There are two affidavits, are there?

MR FISHER: There are three affidavits. There is one by me

dated 2 August 1993 - Andrew Victor Fisher - and

there are two affidavits as to service, the first

dated 5 August 1993 by James Michael Bradley,

solicitor, and the second dated 6 August 1993 by

Phillip Mathew Ryan, legal clerk.

HIS HONOUR: Mr Eagle, what is your attitude to this

application?

MR EAGLE:  We have no objection at all, Your Honour; we do

not oppose it.

HIS HONOUR:  The rule provides, Mr Fisher - this is Order 7

rule 7 - that:

the solicitor may, on notice to be served on

the party personally or by pre-paid post

letter addressed to his last-known place of

address, unless the Court or a Justice
otherwise directs, apply to the Court or a

Justice for an order declaring that the

solicitor has ceased to be the solicitor

acting for the party -

Witham(2) 9/8/93

Have you complied with that rule?

MR FISHER:  We have had difficulty, Your Honour. The answer

is: we were given an address by the appellant on

the telephone, which is deposed to in the affidavit

of Bradley - - -

HIS HONOUR:  But if you direct your attention to the words

of the rule, you have not given notice served on

the party personally, have you?

MR FISHER:	No, not personally, Your Honour.
HIS HONOUR:	Nor have you given notice by prepaid post

letter addressed to his last-known place of

address.

MR FISHER: That is correct, Your Honour.

HIS HONOUR:  How are you entitled to an order now?

MR FISHER: Well, I have not complied with rule

specifically.

HIS HONOUR:  You have not complied with the rule, but have

you a case for asking me for an order otherwise

directing - - -

MR FISHER:  Your Honour, on the basis set out in the

affidavit of James Bradley that the appellant was

told of the existence of the summons and the reason for the summons and he gave an address at which the

documents were to be served, and that was done.

HIS HONOUR: Let us have a close look at this.

MR FISHER: Paragraph 3 of the affidavit of James Bradley

refers to the conversation with the appellant.

HIS HONOUR:  But the question is, it seems to me, under

rule 7(1). What do the words "unless the Court or

a Justice otherwise directs" apply to?

MR FISHER:  I am not sure what that means, Your Honour. It

may mean that the Court must first direct a manner

of service which is then complied with, rather than

a retrospective order.

HIS HONOUR:  Yes, or it may mean that the Court is given

power to make an order qualifying the right to

apply to the Court or a Justice. I am inclined to

think the best thing for you to do is to give
notice by prepaid letter addressed to your client

at the two addresses in question. That will bring

you fairly and squarely within the rule and that

will avoid the necessity of determining what these

qualifying words would mean.

Witham(2)	3	9/8/93
MR FISHER: Yes.

HIS HONOUR:  You have no objection to that, Mr Eagle, do

you?

MR EAGLE:	No, Your Honour, I do not.
HIS HONOUR:	I direct you to do that, Mr Fisher: give

notice of the application by prepaid post letter

addressed to the two addresses that are referred to

in the affidavits in support of the application

and, once that is done, I will make an order -

there is no need for you to attend on the next

occasion, Mr Eagle - and it can be put in the list

at some day convenient to you. If you do it

immediately, the matter can be restored to the list

before me at 9.30 next Tuesday, and I will make the

order then. I will stand the matter over till

then, Mr Fisher.

MR FISHER:  May it please the Court.

AT 9.21 AM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 17 AUGUST 1993

Witham(2) 4 9/8/93