Adfinis Pty Ltd v SRW Contracting & Wilson [2010] QDC 335

1 [2010] QDC 335 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2485 of 2004 ADFINIS PTY LTD Plaintiff and SRW CONTRACTING and SCOTT WILSON First Defendant Second Defendant BRISBANE ..DATE 20/08/2010 ORDER CATCHWORDS Uniform Civil Procedure Rules, r 990, r 991 Application for leave to withdraw by defendants' solicitors - single notice addressed to both defendants at a shared address sufficed - no requirement that solicitors disclose reasons for wanting to withdraw a provision made for new address which plaintiff might use included in order - court acted on copies of the application, supporting application and affidavit of service when such documents accepted to have been filed, but were on or recored on the file available at the hearing -- 1 of 4 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This application by the first and second defendants’ solicitors on the record for leave to withdraw pursuant to rule 991 has proved less straightforward than it might have done. The application is dated 4 August 2010 and has been filed as established by the appearance of the court's stamp on the sealed original which Mr Schefe produced to the court. It is disturbing that document had not made its way to the file or been recorded in the file index by yesterday when the file came to me. Given that there is no reason to doubt Mr Schefe's assurance that it was filed on the 4th of August and even if it came in some days later it should have found its way to the file by now. The affidavit of himself, which Mr Schefe tells the court accompanied the application when it was filed, is missing, too. There is no court sealed copy of that document and the court has acted on a copy provided by Mr Schefe today. The service of the application for leave to withdraw is established by an affidavit of Ms McGill which Mr Schefe says was filed yesterday; unsurprisingly that's not available in court and the court has acted on a copy. Mr Schefe's affidavit is important because it exhibits the letter constituting the notice that a solicitor desirous of getting leave to withdraw is required to give under rule 990. It is unusual in my experience not to have separate letters to the two defendants. The present letter is addressed to Scott Wilson, SFW Contracting Pty Ltd at a post office box address which Mr Schefe assures the court is the most reliable one -- 2 of 4 -- 3 ORDER 1 10 20 30 40 50 60 available to his firm. On reflection it seems to me that the intention of rule 990 is achieved by the single communication that was sent. Another unusual feature of this application in my personal experience is that the court is not given any indication of a reason why leave to withdraw is being sought. That's commonly supplied, although Mr Schefe says he has experience of other like applications in which it hasn't been. He indicates that it is for reasons of delicacy that the firm are being coy about the reason or reasons motivating them. One may speculate it has something to do with failure of the client to give instructions or to honour or meet financial obligations. There is some point in Mr Schefe's statement that it may embarrass or prejudice a client to have on a court file details of the kind I have just described. I took him to be hinting that there may have been some unfortunate experience in the past. The rules contain no indication that reasons for a solicitor's seeking leave to withdraw ought to be disclosed to the court. The last aspect of the application arises because of my personal concern in every such application to ensure that other parties are not prejudiced by the loss of an address for service which they are accustomed to using and, in my view, would have reasonable expectations of being able to continue to use until the proceeding is complete. -- 3 of 4 -- 4 ORDER 1 10 20 30 40 50 60 That's why the order now has added a provision that until the filing of another address for service the plaintiff may serve documents in the proceeding on the first defendant by posting to its registered office and on the second defendant by posting to 3649 Main Beach Parade, Main Beach 4217 with copies in each case to PO Box 1037, Burleigh Heads 4220. That double obligation is something of an imposition on the plaintiffs but in the long run will probably make the way easier for them than if they were obliged to locate Mr Scott. Orders as per initialled draft. ------ -- 4 of 4 --