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:

1. 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.

1. 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.

1. 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 J); Bufalo Corporation Pty Ltd(recs and mgrs apptd) (in liq) v Lendlease Primelife Corp Ltd [2010] VSC 264 (‘Bufalo Corporation’); see also Kallinicos v Hunt (2005) 64 NSWLR 561, 582 (Brereton J); Clay v Karlson (1997) 17 WAR 493, 497 (Templeman J).

1. An application to restrain a solicitor from continuing to act for a party in a particular case is exceptional and must be exercised with caution.[4]  The jurisdiction to restrain a practitioner from acting for a client in judicial proceedings is an incident of the Court’s inherent jurisdiction over its officers to control its processes in aid of the administration of justice.

   [4]Grimwade (n 1), 450 (Mandie J). 

1. In an application by an opposing party for the removal of their opponent’s lawyers, it is necessary to show that removal is necessary for the proper administration of justice.  By the Court exercising its power against the wishes of an opponent in adversarial proceedings, and in the context where a successful application may cause inconvenience to the opponent and a forensic advantage to the moving party, care must be taken to ensure that the proper administration of justice is the goal. 

1. The facts and circumstances of each case will of course be critical to how the issue is determined.  A real risk of lack of objectivity on the part of the lawyer or conflict of interest and duty needs to be demonstrated.  The particular personal or conflict of interest of the lawyer in the litigation needs to be more than an interest by the lawyer in receipt of payment for his or her work.

1. It is generally not sufficient to restrain a solicitor from acting in a proceeding on the basis that the solicitor may be a witness.  It is the particular and specific nature of the solicitor’s position and the evidence to be given which is fundamental to this consideration, potentially tipping it into the realm of being an unacceptable personal interest in the outcome of the action.[5]  

   [5]See, for example, Clay v Karlson (1997) 17 WAR 493 which was not a case which decided that a solicitor giving evidence in a proceeding on behalf of a client should always be removed from the record. What was critical in that case was the particular personal interest of the solicitor in the outcome of the proceeding. See also Bufalo Corporation (n 3) [3]–[5]; Commissioner for Corporate Affairs v Harvey [1980] VR 669, 718.

1. What amounts to ‘an interest in the outcome’ of the proceeding may be satisfied where the propriety of the professional conduct is a matter of the dispute.  This is because the interest can be considered personal to them in the sense of the allegation in the proceeding is that the lawyer has acted improperly and contrary to their duty. 

1. There may be factors such as the public interest in the timeliness of having a trial proceed to conclusion without interruption or further delay should a party’s lawyers need to be replaced which would be a contrary consideration.  Whilst this is a consideration here, it is not overwhelmingly so given the trial is unlikely to be scheduled before early 2025.

1. In this matter, the key allegation of a conflict of interest raised against Mr Marra is that he acted for the third party in earlier proceedings in which the allegations now made on behalf of the third party and the plaintiff would be at odds with the position taken in those earlier proceedings. There is an allegation (contested by Mr Marra) that his conduct is inconsistent with s 42 of the Civil Procedure Act 2010 (Vic) in that he has allowed matters to be pleaded inconsistently with what he knows to be untrue.

1. Further, there is a claim that the efficient and timely resolution of the matter is being driven by the actions of and at the direction given by the third party, the mother of the plaintiff.[6]

   [6]These allegations are potentially inconsistent with the overarching obligations of a lawyer and a party under the Civil Procedure Act 2010.

1. This proceeding is one of a mounting number of proceedings which have embroiled the main parties in litigation.  In this regard, I have some sympathy for the position argued by the second defendant that significant resources were being expended in litigation with apparent little prospect of settlement.  The history of litigation between the second defendant and the third party, a list of which formed part of the second defendant’s affidavit in support of the application, is unedifying to say the least.

1. As I observed during the course of the hearing, this particular proceeding has been on foot for a period of time beyond which would be expected.  The conduct of the plaintiff in seeking to amend the statement of claim several times, not proceeding expeditiously, (including seeking an adjournment of this hearing knowing full well from the date of the directions before JR McCann that the matter was listed for 11 June 2024), the lack of instructions received in a timely way and the missing of deadlines, does not imbue me with a sense that this litigation is being pursued with the vigour expected generally or specifically in accordance with the expectations of the Civil Procedure Act 2010. 

1. I expressed the view during the hearing that I had concerns that Mr Marra had been placed in a difficult position.  He lacked  instructions from the plaintiff and from the third party but was required by his duty to the Court to appear at the hearing to deal with the matters raised in the defendants’ summons bearing in mind the application to restrain his continued involvement in the proceedings are directed to him personally. 

1. I have considered the specific matters raised by the second defendant, in particular the calling of Mr Marra as a witness, the previous matters in which Mr Marra acted for the third party, and the claim that there was an inconsistent position being argued which would be potentially embarrassing to Mr Marra. 

1. Mr Marra advised me that the potential for conflict between acting for the plaintiff and the third party was explicitly raised with his clients and that they recognise that it is possible he may be put in a position of conflict, in which eventuality he would be unable to act for either party but that was recognised and accepted by his clients.

1. Whilst I do have a sense of unease that Mr Marra may have an uncomfortable time in cross‑examination and that another solicitor in his position may choose a different course in terms of continuing to act for those clients, I am not convinced that the conflict alleged is such that the Court should exercise this extreme and unusual power in this case.

1. That the position taken by the third party appears to be on its face inconsistent with the position taken in earlier litigation, is a matter for trial and the plaintiff and third party (and potentially their solicitor) will face the consequences if the defendants make good these allegations.  I am not currently satisfied that these circumstances are such that the Court should intervene as requested.

1. I have some concern that the continued involvement of Mr Marra for both the plaintiff and third party are not conducive to resolving this litigation other than by a decision of the Court at trial.  However, despite this and the concern of the defendants that this litigation is wasteful and protracted, in my view the best way forward is to set pre-trial directions to bring the matter to a conclusion sooner.  This should include the opportunity for a further mediation.  As noted during the hearing, if the defendants allegations as to inconsistency of position, lack of proper basis or impermissible conflict of interest are made out the remedy may sound in a costs award in reliance on the Civil Procedure Act 2010. 

1. As noted above, whilst I have some misgivings, I am not satisfied that the objective test set out in paragraph 2 above is satisfied, although this case is one where it closely approaches that mark.  In view of the foregoing, I am not prepared to exercise the Court’s power as sought by the defendants.

1. I would remind Mr Marra of his obligations under the Civil Procedure Act 2010 and also note that, of course, it is open to the defendants to raise their concerns, if they are ongoing in terms of professional conduct, with the Legal Services Commissioner. 

1. The application is refused. 

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