Bennett v Pless Nominees Pty Ltd - [2024] VSC 312

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 02776

ANTON MAXIMILIAN PLESS BENNETT	Plaintiff
v
PLESS NOMINEES PTY LTD (ACN 604 872 335) (as Trustee of the ANTON MAXIMILIAN PLESS BENNETT TRUST NO. 2 and as Trustee of the ANTON MAXIMILIAN PLESS BENNETT PROPERTY TRUST) and PETER MAXIMILIAN PLESS (as Trustee of the ANTON MAXIMILIAN PLESS BENNETT TRUST)	Defendants
v
MANUELA SUSAN PLESS BENNETT also known as MANUELA RATHEY	Third Party

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2024
DATE OF RULING:	12 June 2024
CASE MAY BE CITED AS:	Bennett v Pless Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 312

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LEGAL PRACTITIONERS — Application by defendants to restrain solicitor from acting for plaintiff and third party — Whether solicitor giving evidence in the proceeding should cease to act — Whether solicitor had a ‘personal interest in the proceeding’ — Inherent jurisdiction of the Court over its officers and to control its processes — Ensuring due administration of justice — Overarching obligations under the Civil Procedure Act 2010 (Vic) to be considered — Allegations of inconsistent position being pursued a matter for trial — Potential costs consequences — Application refused — Grimwade v Meagher [1995] 1 VR 446 applied — Civil Procedure Act 2010 (Vic) applied.

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APPEARANCES:
For the Plaintiff and Third Party	Mr J Marra, SGM Legal
For the Defendants	P M Pless, on his own behalf

HER HONOUR:

By summons dated 10 April 2024, the first and second defendants sought an order from the Court that the lawyers and barristers acting for the plaintiff and third party be removed from acting due to a conflict of interest under rr 10 and 11 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. At the hearing on 11 June 2024, this request focused on Mr Jules Marra of SGM Legal and I have dealt with the application on this basis.

The test to be applied in the exercise of this jurisdiction was stated in Grimwade v Meagher[1] as follows:

The objective test to be applied … is whether a fair‑minded reasonably informed member of the public would conclude that the proper administration of justice required that [the lawyer] be [...] prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of [lawyer] without good cause.[2]

[1][1995] 1 VR 446 (‘Grimwade’).

[2]Ibid 452.

This test has been applied in a number of other matters in this and other courts but has rarely been utilised to remove or restrain a practitioner.[3] This underlines the rare use of the Court’s power in this respect.
[3]See Premier Capital (China) Ltd the Sandhurst Trustees Ltd [2012] VSC 611 (Pagone J); Dugan v Process Holdings Pty Ltd [2021] VSC 555 (Lyons J); Garde‑Wilson v Corrs Chambers Westgarth (2007) 27 VR 271, 277–8 (Bell…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bennett v Pless Nominees Pty Ltd

Details

AGLC: Bennett v Pless Nominees Pty Ltd [2024] VSC 312
Case: [2024] VSC 312
Decision Date: 12 June 2024

CaseChat Overview and Summary

In Bennett v Pless Nominees Pty Ltd, the dispute arose between the plaintiff, Bennett, and the defendants, Pless Nominees Pty Ltd and others. The case involved an application by the defendants to restrain the plaintiff's solicitor from acting in the proceeding due to alleged conflicts of interest and breaches of professional conduct. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the plaintiff's solicitor should cease to act in the proceeding and whether they had a personal interest in the matter. The defendants argued that the solicitor had a conflict of interest, as they had given evidence in the proceeding and were now acting as a solicitor for the plaintiff. The court had to consider the inherent jurisdiction it possessed over its officers and the administration of justice, as well as the overarching obligations under the Civil Procedure Act 2010 (Vic).

The court held that the allegations of a personal interest and inconsistent positions being pursued were matters to be determined at trial. The court found that the application was premature and that it was not appropriate to make a determination on the basis of allegations alone. The court emphasised the importance of the overarching objectives of the Civil Procedure Act 2010 (Vic) and the need to ensure the due administration of justice. The application was refused, and the court made no orders as to costs. The decision was influenced by the principles set out in Grimwade v Meagher and the application of the Civil Procedure Act 2010 (Vic).

Orders