Leave for plaintiff’s solicitors to withdraw as solicitors on the record

Ali v Allianz Australia Insurance Limited [2016] ACTSC 152 (4 July 2016)

In this matter, the plaintiff’s solicitors brought an application to withdraw as the solicitors on record. The application came before Mossop AsJ as a duty judge on 30 June 2016 and the plaintiff’s case was listed for hearing in the week commencing 11 July 2016.

The judge noted the relevant rules in relation to the withdrawal of a solicitor: rr 2806, 2807 and 2808 of the Court Procedures Rules 2006 (ACT). It was noted that a similar rule was considered in Plenty v Gladwin [1986] HCA 55 where it was noted (at 27) that “... the court has a discretion whether or not to make the order, but unless there are special circumstances which would 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 have been taken to take the solicitor’s name off the record.”

Leave was refused in Investec Bank (Australia) Ltd v Mann [2012] VSC 81. In that case the application for leave to serve a notice of ceasing to act was heard on 7 March 2012 and the trial was to commence on 13 March 2012. The solicitors were ceasing to act because the client could not pay additional fees for anticipated costs, however the request for the funding was only made on 2 March 2012. It was stated at [7] that “Solicitors making such applications must be particularly mindful of their duties to the Court, the administration of justice, to their client (or former client) and to opposing or other litigants and to their legal advisors.” In that case, the judge found there were special circumstances which rendered it expedient to retain the solicitor on the record because of the lateness of the application, the proximity of the trial and the absence of an explanation given for the late insistence for additional funding. The solicitor’s future role was discussed at [9] of Investec.

Mossop AsJ considered other cases where it was appropriate for the Court to grant leave where the retainer was terminated because there was a failure of the client to provide monies to the solicitors, even though the trial was in close proximity.

The submissions made in support of the application were:

1. The notice was served in accordance with the rules so the plaintiff had an opportunity to make alternative arrangements;

2. The evidence before the Court was that the plaintiff wished to be self-represented at the hearing;

3. The solicitors were entitled to cease to act because the plaintiff refused to accept their advice and wished to represent himself; and

4. There was some time between the hearing on 30 June 2016 and the commencement of the hearing.

The judge noted that the evidence was less than complete in relation to whom and pursuant to what power the retainer between the plaintiff and solicitors had been brought to an end and whether any proper advice had been given to the plaintiff in relation to the retainer being terminated from the conversation of 2 June 2016. Other difficulties included the plaintiff’s imperfect grasp of English and that it must have been apparent to the solicitors “... that the plaintiff would be completely unable to effectively prosecute even a well prepared case at a contested hearing.” (at [41]).

The matter was adjourned and on 1 July 2016 there was additional evidence which was of significance to the judge in relation to the conditional costs agreement, an estimate of fees, the ways in which the solicitors could terminate the agreement pursuant to the Conditional Costs Agreement and a letter sent on 7 June 2016 in relation to the termination of the retainer.

Mossop AsJ noted the deficiencies in relation to the alleged termination of the retainer at [50] and noted in relation to the estimate of fees that “[i]t was simply not clear on the evidence whether the quantum of fees chargeable was a significant issue and whether what occurred may have been altered had the plaintiff been provided at an earlier stage with the information belatedly recorded in Ms Boshev’s affidavit.” (at [51])

The judge considered the duties of a lawyer upon termination of his or her retainer. Taking into account all the circumstances, notwithstanding the proximity of the hearing, the judge granted leave to McMcKean to withdraw as the solicitor for the plaintiff.