Sebo v Canberra Rigging Services Pty Ltd [2025] ACTSC 278

1. On 25 June 2025, the applicant filed an application in proceeding seeking an order that the applicant, Mr William McCarthy, be given leave to withdraw from the record as solicitor for the defendant. The basis for the application was stated as follows: The defendant has advised that it does not propose to defend the plaintiff’s claim and is taking steps to be placed in administration.

2. The application is neither consented to nor opposed by the plaintiff. The plaintiff has appeared today, as has Mr Pattenden on behalf of the Workers’ Compensation Default Insurance Fund. Mr Pattenden’s appearance occurred after I gave him leave to appear.

3. The application is supported by an affidavit of Mr McCarthy dated 25 June 2025. Mr McCarthy’s affidavit sets out the history of the proceedings. The originating claim and statement of claim were filed on 14 November 2023. The plaintiff is suing for damages for personal injury. The matter needed to be delayed in 2024 to enable the Industrial Court to determine the plaintiff’s state or territory of connection of his employment.

4. On 22 May 2024, Magistrate Lawton decided that the plaintiff was a worker of the ACT for the purposes of s 36B of Workers Compensation Act 1951 (ACT). A mediation on 5 February 2025 did not resolve the matter. On 6 March 2025, the proceedings were listed for final hearing in the week commencing 21 July 2025. In May and June 2025, discussions were held with the defendant and an accountant concerning the solvency of the defendant. On 18 June 2025, the defendant’s accountant told Mr McCarthy to tell the Default Insurance Fund that the defendant would be undertaking a voluntary insolvency. On 21 June 2025, the proposed administrator of the defendant told Mr McCarthy that his appointment as administrator was imminent.

5. On 23 June 2025, the defendant wrote by email to Mr McCarthy, wondering whether there was any reason “requiring that the default insurance fund be notified urgently”. Mr McCarthy had already notified the fund of the defendant’s solvency difficulties. On the same day, Mr McCarthy “advised the defendant that I could no longer remain on the court record”.

6. There is also an affidavit from the solicitor acting for the plaintiff, Ms Svetlana Todoroski, dated 1 July 2025. Ms Todoroski says that, on 23 June 2025, Mr McCarthy told her that the defendant was about to be placed in administration, with Mr Cormack of RSM Australia to be appointed as the administrator. Ms Todoroski spoke to Mr Cormack on 27 June 2025. He said he had not yet been appointed as the administrator of the defendant. Mr Cormack even raised some doubts about his being appointed.

7. On 30 June 2025, Ms Todoroski wrote to the solicitors for the Default Insurance Fund, asking whether they were going to intervene in the proceedings. An ASIC search on the same day confirmed that the defendant remained registered.

8. The matter is set down for hearing on 21 July, which is just over two weeks away. The plaintiff, obviously, is anxious to go ahead with his case. The defendant has been notified of the application and has not appeared today. This is consistent with what was said to Mr McCarthy about the proceedings not being defended.

9. Mr Pattenden, who appears for the Default Insurance Fund, has also made an oral application to be joined as a party. He has, I think, conceded that there is an element of prematurity about that application because the defendant is not yet in administration.

Consideration

10. It seems to me that Mr McCarthy’s application should succeed. The one matter that has concerned me is the possibility of the defendant appearing on 21 July and asking for an adjournment because it is not in administration and because it does not have legal representation and would like to defend the proceedings. I think the way to tackle that issue is for me to observe that, should that occur, the judge hearing any such application would be aware of today’s hearing and the attitude expressed so far by the defendant. No doubt, the judge hearing the matter would take into account that the defendant had representation but told its representative that it did not wish to defend the application.

11. As far as the Default Insurance Fund is concerned, I agree that the application is premature, and I note the plaintiff’s observation that an application made orally today could not be met in court but could be put on subsequently in a more formal way.

Orders and costs

12. Accordingly, I make the following order: (1) William John Gerard McCarthy has leave to withdraw from the record as solicitor for the defendant in the proceedings. [The parties were heard as to costs, after which orders as to costs were made.] (2) The costs of the application in proceeding are to be costs in the cause. (3) No order is made as to costs in respect of the appearance of the Default Insurance Fund.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim. Associate: Date: