LEICESTER v WALTON [1995] NSWCA 258

LEICESTER v WALTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and COLE JJA 7 November 1995, 22 November 1995

[1995] NSWCA 258

APPEAL against severity of orders of Medical Tribunal — Notice of motion for adjournment — solicitor ceasing to act Pt66 R7 Supreme Court Rules — notice of motion to adduce fresh evidence — costs

(1) When this appeal by Dr Leicester, against the severity of orders made by the Medical Tribunal on 17 May 1995, came on for hearing, Mr Grinter, who appeared amicus curiae, applied by notice of motion for an adjournment. The notice of motion originally came before Sheller JA on 6 November 1995 and was stood over for hearing by the Full Court. The adjournment was brought about by the late withdrawal of the services of Dr Leicester's solicitor and counsel and his inability in the time available before the hearing to retain other representation. In an affidavit, Dr Leicester's former solicitor, Mr Edson Pike, explained the circumstances under which he purported to have ceased to act and his lack of awareness of the requirements under Pt66 R7 of the Supreme Court Rules. Pt66 R7 prevents solicitors without leave of the Court from ceasing to act for a client within less than seven days of notice in writing to the client. On 7 November the Court made an order for adjournment of the appeal. The. respondent asked for costs of the application for adjournment before Sheller JA and of the day wasted as a result of the adjournment.

It would be grossly unfair for Dr Leicester personally to be required to pay those costs or for the respondent to pay its own costs. Although a fair solution would be for the Medical Defence Union to pay the costs, it is not a party to the proceedings and is therefore not amenable to such an order; Pt52A r4 of the Supreme Court Rules.