Bhagat v Global Custodians Ltd (No 1)

[2001] NSWSC 720

CITATION:	Bhagat v Global Custodians Ltd (No 1) [2001] NSWSC 720
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3406/01
HEARING DATE(S):	17/08/01
JUDGMENT DATE:	17 August 2001
PARTIES :	Hari Bhagat (P) Global Custodians Ltd (D1) John Healey Speight and Jessee Barrie Marr Speight (D2) Archie Greenlees and Norma Patricia Greenlees (D3) David O'Bryen (D4) Michael Wilkins (D5) Robin Margo (D6) Harold Werksman (D7) Holding Redlich (D8) Jeffrey Flick (D9) Anthony Spencer (D10)
JUDGMENT OF:	Young CJ in Eq

COUNSEL :	Plaintiff in person R F Margo SC and A P Spencer (D1-3; 7 & 8) B J Preston SC (D4 & 5)
SOLICITORS:	Plaintiff in person Holding Redlich (D1-3, 7 & 8) Mallesons Stephen Jaques (D4 & 5)
CATCHWORDS:	PROFESSIONS [63]- Lawyers- Right of audience- When Court may restrict right under its inherent power of supervision.
CASES CITED:	Grimwade v Meagher [1995] 1 VR 446 Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 Pacific Air Freighters (Qld) Pty Ltd v Toller (2000) 171 ALR 519 Western Australia v Ward (1997) 76 FCR 492
DECISION:	Application refused.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

YOUNG CJ in Eq

FRIDAY 17 AUGUST 2001

3406/01 - HARI BHAGAT v GLOBAL CUSTODIANS LTD & ORS (NO 1)

JUDGMENT - (On plaintiff’s application to disqualify defendants’ counsel)

1    HIS HONOUR: This is an application by the plaintiff, Mr Hari Bhagat, for the court to disqualify the sixth defendant, and perhaps the tenth defendant as well, from appearing as counsel for the other defendants. The present proceedings are one of about fifteen cases arising in a dispute between the plaintiff and those who have controlled the funds that flowed from the Estate Mortgage collapse. The present suit is one in which, at least according to the proposed amended statement of claim, seeks to set aside one of the judgments given in one of the fifteen cases for fraud and to seek damages from the parties and the lawyers involved for the expense that the plaintiff says that he incurred in those proceedings and in subsequent Federal Court proceedings.

2 Mr Bhagat relies on decisions such as Kooky Garments Limited v Charlton [1994] 1 NZLR 587, 590 and Grimwade v Meagher [1995] 1 VR 446. To this list one should add Western Australia v Ward (1997) 76 FCR 492, 498 and Pacific Air Freighters (QLD) Pty Limited v Toller (2000) 171 ALR 519.

3    There is little doubt that there is a general right in a client to be represented by whatever barrister and solicitor that he or she chooses. However, the court has an overriding inherent jurisdiction to supervise the conduct of litigation and may exercise that power and prohibit counsel from appearing in a particular case where it appears that the conduct of counsel outside the court might have a bearing on the conduct of the case. Western Australia v Ward went even further and the court was able to prohibit a woman appearing as counsel when it was inappropriate to the interests of justice for the woman to appear because she could not have access to sacred men's business in a native title land case.

4    Accordingly, the principle is fairly wide. However, the court gives general force to the fact that people are entitled to be represented by the counsel of their choice, and in the Grimwade case Mandie J referred to "unique, extraordinary and highly exceptional circumstances" of that particular case which made his Honour grant the order.

5    The instant litigation, and by that I mean the fifteen cases, have been complicated by the fact that the plaintiff tends to seek reconsideration of points that are decided by asking that judgments be set aside for fraud or by charging lawyers with attempting to impede the course of justice or suing lawyers for damages or for conspiracy or otherwise. I think that it would be quite contrary to the spirit of the cases that I have referred to that just because a plaintiff adds a count against a lawyer who has been involved in the case that that lawyer would thereby be disqualified from the court by the court from appearing.

6    I fully understand the basis of the rule. I fully understand the rule that barristers and solicitors who have personal involvement in litigation should as a general rule step aside as they do not have the independence. However, in various types of cases, overly strict application of that principle would entitle a plaintiff to disqualify all the lawyers who know anything about the case against him by a simple device, and the court would not extend the principle that far.

7    Accordingly, in my discretion I decline to order that either Mr Margo SC or Mr Spencer stand aside.

**************

Last Modified: 08/23/2001