Italiano v Lake - [2015] VSC 189

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

COMMON LAW DIVISION

S CI 2013 00495

OLIVIA LEIGH ITALIANO	Plaintiff
v
DEBBIE MARIE LAKE (who is sued as the administratrix of the Estate of Matthew Robert Jarvis, deceased)	Defendant

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2015
DATE OF JUDGMENT:	5 May 2015
CASE MAY BE CITED AS:	Italiano v Lake
MEDIUM NEUTRAL CITATION:	[2015] VSC 189

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LEGAL PRACTITIONERS – Permanent injunction application – Plaintiff has retained mother as solicitor to act in proceedings – The proceedings involve administration of the estate of plaintiff’s deceased alleged domestic partner – Defendant seeks a permanent injunction restraining mother and mother’s domestic partner from acting on the plaintiff’s behalf – Whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and due administration of justice, including the appearance of justice – Issues as to the nature of the evidence that will be adduced by mother – Other factors including inconvenience, cost and delay considered – Application dismissed – Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181 – TJ Board & Sons Pty Ltd v Castello [2008] VSC 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Seelig	Plaza Legal
For the Defendant	Mr T. Mah	Hunt and Hunt

HIS HONOUR:

This is an application made by the defendant, Debbie Marie Lake, seeking a permanent injunction to restrain the plaintiff, Olivia Leigh Italiano, from retaining Rosa Mimmo or Anthony Pagent of Rosa Mimmo Holdings Pty Ltd (trading as Plaza Legal) acting on her behalf in this proceeding.

Briefly, the background to the application is as follows.

The plaintiff brought proceedings against the defendant in February 2013. The plaintiff alleges she is the domestic partner of Luke Mathew Robert Jarvis, the deceased, who died on 8 November 2011. The deceased died intestate. Letters of administration were granted to the defendant, the deceased's mother, on 8 August 2012.

In this proceeding, the plaintiff alleges the defendant failed to declare that at the time of the deceased's death he left a domestic partner, being the plaintiff, living with him as a couple on a genuine domestic basis. The plaintiff, by her proceeding, seeks an order that the estate of the deceased be distributed to the plaintiff or alternatively, an order for provision of her proper maintenance and support.

The materials do not disclose the exact value of the deceased’s estate. The estate is not large, what evidence there is suggests a valuation of between $300,000 and $350,000.

Ms Mimmo, the plaintiff’s solicitor, is the plaintiff’s mother. Mr Pagent is Ms Mimmo’s domestic partner. Ms Mimmo has acted for the plaintiff since the commencement of these proceedings.

Over the course of the Supreme Court proceedings there have been numerous court appearances, at least eight and…

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 Italiano v Lake

Details

AGLC: Italiano v Lake [2015] VSC 189
Case: [2015] VSC 189
Decision Date: 5 May 2015

CaseChat Overview and Summary

Italiano v Lake involved a permanent injunction application where the plaintiff had retained her mother as a solicitor to act in proceedings regarding the administration of the estate of the plaintiff's deceased alleged domestic partner. The defendant sought a permanent injunction to prevent the mother and her domestic partner from acting on behalf of the plaintiff, claiming that their involvement would undermine the integrity of the judicial process and the due administration of justice. The matter was heard in the Supreme Court of Victoria.

The court needed to determine whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required preventing a legal practitioner from acting in this context. This involved assessing the nature of the evidence the mother might present, as well as other factors such as inconvenience, cost, and delay. The court also considered the broader implications for the integrity of the judicial process and the appearance of justice.

After reviewing the relevant legal principles and the specific circumstances of the case, the court found that the application for a permanent injunction was not warranted. The court concluded that the involvement of the plaintiff's mother as a solicitor did not sufficiently threaten the integrity of the judicial process or the due administration of justice to justify such an injunction. The application was accordingly dismissed, with the court relying on precedents such as Kallinicos & Anor v Hunt & Ors and TJ Board & Sons Pty Ltd v Castello.

The court's final orders dismissed the defendant's application for a permanent injunction, allowing the plaintiff's mother to continue acting as her solicitor in the proceedings concerning the estate of the deceased alleged domestic partner.

Orders