Ji v Bluestars Real Estate Pty Ltd
[2018] VSC 11
•31 JANUARY 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2017 00215
| KUIFU (JEFFREY) JI | Plaintiff |
| v | |
| BLUESTARS REAL ESTATE PTY LTD (ACN 141 183 548) AND OTHERS | Defendants |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15, 20 DECEMBER 2017, 16 JANUARY 2018 |
DATE OF RULING: | 31 JANUARY 2018 |
CASE MAY BE CITED AS: | JI v BLUESTARS REAL ESTATE PTY LTD |
MEDIUM NEUTRAL CITATION: | [2018] VSC 11 |
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LEGAL PRACTITIONERS — Solicitors — Conflict — Application to restrain solicitor from acting — Administration of justice and appearance of justice — Actual conflict — Need for informed independent advice — Proportionality of costs — Civil Procedure Act 2010 (Vic), s 24(a) and (b) — Legal Profession Uniform Law Application Act 2014 (Vic), sch 1, ss 419, 423(2)(c) — Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 11.3, Legal Profession Uniform Conduct (Barristers) Rules 2015, r 119.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Garratt QC with Mr S Freire | Wisewould Mahony |
| For the First, Second and Fourth Defendants | Mr L Glick QC (15 December 2017) with Mr J Love | Australian Legal Advisory Centre |
| For the Third Defendant | Mr A Felkel | Sabelberg Morcos |
HIS HONOUR:
A. Introduction
By summons, the plaintiff, Kuifu (Jeffrey) Ji (“Ji”), seeks an order restraining a solicitor presently on the record from continuing to act for multiple defendants in the proceeding. Min Juan Dai (“Dai”), of the law firm Australian Legal Advisory Centre, presently acts for the first defendant, Bluestars Real Estate Pty Ltd (“Bluestars”), the second defendant, Fangming (Bob) Dai (“Fangming”) and the fourth defendant, MXXD Investment Pty Ltd (“MXXD Investment”) (collectively, “the 3 Defendants”).[1] The third defendant, Ying Li (“Li”), is separately represented.
[1]Dai and Fangming are not related.
Fangming has a connection with Bluestars and MXXD Investment. He is a director of both of those companies and holds a 25 percent shareholding (though not beneficially) in each of them. A further 25 percent in each company is held by Xu Sync Investment Pty Ltd, a company controlled by Fangming’s aunt. As to the remaining 50 percent, the shareholdings of Bluestars and MXXD Investment do not align.
B. Background
Ji is a citizen of China, who, according to the amended statement of claim filed 30 October 2017, has “no significant command” of English. It is alleged that, in 2014, he retained Bluestars to advise him about real estate purchases in Melbourne, and to act for him with respect to any such purchases and related financing.
B.1 The Bentleigh East Property
Very broadly, Ji alleges that in about February 2015, Bluestars advised him to consider purchasing a property in Bentleigh East (“the Bentleigh East Property”). Ji was asked to pay a deposit of approximately $10,000 in exchange for Bluestars agreeing to act for him at the auction of this property. The money was duly paid by Ji, accompanied by an instruction for Bluestars not to spend more than approximately $1 million.
It is alleged that Bluestars, on behalf of Ji, successfully purchased the Bentleigh East Property on about 28 February 2015; and that, as a result, Fangming entered into a contract of sale at a price of $860,000.
Ji alleges that Li told him that the Bentleigh East Property had been purchased on his behalf for $1,050,000. Ji alleges that this representation was repeated by Fangming in March 2015. Various other allegations are made to the effect that Bluestars, Fangming and Li were all complicit in the misrepresentation as to the inflated purchase price, amongst other things.
It is alleged that, in May 2015, Ji signed a form in Shanghai, China, as part of the completion of the contract of sale, by which Fangming nominated Ji as the purchaser of the Bentleigh East Property. Further, it is alleged that, under the direction of Bluestars “in the persons of Li and [a third party,] Lu Wang”, Ji transferred a further $180,000 to Lu Wang’s bank account.
It is further alleged that, after discovering the actual purchase price of the Bentleigh East Property was $860,000, Ji demanded, unsuccessfully, that Fangming provide a partial refund of $180,000. It is alleged both Fangming and Li made representations as to why the refund was unnecessary or unwarranted.
It is further alleged that, on 26 May 2015, Ji executed a construction contract (in English) for development work on the Bentleigh East Property. On or about 1 June 2015, Ji transferred a further $218,000 to Fangming’s personal bank account for the purpose of the development work. It is further alleged that, in March 2016, Ji discovered that Rade Investment Pty Ltd (“Rade”) was the builder for the development work, rather than Bluestars. In any event, Ji alleges (and Fangming admits) that Rade performed the development work between November 2015 and May 2017, and was progressively paid in full by Ji.
In essence, Ji claims:
(1)Bluestars, Fangming and Li knowingly or recklessly made false representations as to the purchase price of the Bentleigh East Property.
(2)Bluestars, Fangming and Li knowingly or recklessly made false representations that Bluestars was a domestic house builder and that it was prepared to undertake the development work at the Bentleigh East Property.
(3)Acting in reliance upon these representations, Ji made certain payments which gave rise to a loss of approximately $400,000, plus interest.
(4)Each of Bluestars, Fangming and Li owed fiduciary duties to Ji, which were breached and gave rise to similar losses.
(5)Alternatively, $408,000 was paid by Ji to Bluestars for a consideration that has wholly failed.
B.2 The Black Rock Property
Further claims are made by Ji with respect to the purchase of a property in Black Rock (“the Black Rock Property”), on 25 June 2015, for the sum of $1.6 million. It is alleged Fangming made certain representations before the contract of sale was executed, either “on his own behalf or further or alternatively on behalf of either or both of Bluestars and MXXD [Investment]” with respect to the possible sale of the Black Rock Property. It is further alleged that Li made certain pre-contractual representations on behalf of Bluestars. The contract of sale as executed required a deposit of $160,000 be paid on execution, with the balance payable 14 days after notice of the registration of the relevant plan of subdivision, or after the issue of an occupancy permit.
Ji claims that, pursuant to this contract, he made the following payments:
(1) Approximately $20,000 to Li’s bank account in October 2015.
(2) $70,000 to Li’s bank account in December 2015.
(3)$160,000 to MXXD Investment’s solicitor’s trust account in December 2015.
(4)$300,000 to Li’s bank account in May 2016.
(5)$330,000 to Li’s bank account in July 2016.
With respect to the payments made as referred to in subparagraphs (1), (2), (4) and (5) above, Ji alleged he was given “a Bluestars sales receipt”.
It is alleged Ji signed 2 further documents relevant to the purchase of the Black Rock Property. In December 2015, in Bluestar’s Shanghai office and at the request of Li, Ji claims he signed an undated document purporting to agree to pay a further $700,000 and that he did so in reliance on the pre-contractual representation alleged to have been made by Fangming, and in order to receive a copy of the contract of sale relating to the Black Rock Property.
In May 2016, in Bluestars’ Melbourne office and at the request of Fangming, Ji claims he signed another undated document to similar effect as the document signed in December 2015, again in reliance upon the same representation but also, it is alleged, “as a consequence of duress exercised by MXXD [Investment] in the person of [Fangming]”.
It is alleged that, in July 2017, MXXD Investment informed Ji that the plan of subdivision had been registered and that settlement was due to occur on 28 July 2017.
It is further alleged that on 26 July 2017, MXXD Investment’s solicitor advised Ji that its mortgagee would not effect settlement until 31 July 2017, and, on the following day, that MXXD Investment proposed to vary the contract price to $2.3 million. Ji refused to pay the additional amount and claims that MXXD Investment did not complete the contract of sale. Ji alleges that he has been ready, willing and able to complete the purchase of the Black Rock Property as originally agreed. Ji also seeks relief which, by various means, would render the documents he signed in December 2015 and May 2016 of no legal effect.
For the purposes of this application, it is not necessary to refer to each of the matters raised in the various defences. As noted above, Li is separately represented and his defence need not be discussed at all.
As to the defences filed by the 3 Defendants,[2] each denied the substantive allegations made against them. However, as a further or alternate plea, each of them also alleged that if it or he is liable then:
[E]ach of the [other] Defendants is a person or entity whose acts or omissions caused, independently of each other or jointly, the loss and damage that is the subject of the Plaintiff’s claims and, accordingly, each is a concurrent wrongdoer in relation to the Plaintiff’s claims for the purposes of Part IVAA of the [Wrongs Act 1958 (Vic)] and subdivision GA of the [Australian Securities and Investments Commission Act 2001 (Cth)].
[2]Amended defences were filed by each of the 3 Defendants on 27 November 2017.
Each defence then alleged that the liability of the defendant in question in relation to Ji’s claims “is limited to an amount reflecting that proportion of the total loss and damage claimed that the Court considers just having regard to the extent of the [defendant in question]’s responsibility for the loss and damage”.
It follows that, on the pleadings as they presently stand, on the issue of proportionality alone, the interests of the 3 Defendants are in a position of actual direct conflict. To elaborate, each of the 3 Defendants presently pleads a case that, if liable, their liability ought to be reduced because of the wrongful conduct of each and every other defendant.
Further, as pointed out in Ji’s submissions, by reason that Fangming was at all relevant times a director of both Bluestars and MXXD Investment, there may be other claims that each of Bluestars and MXXD Investment could make if the alleged wrongful conduct of Fangming has exposed each company to liability to Ji.
C. Evidence in opposition to, and the hearing of, the application
C.1 Evidence for, and the hearing on, 15 December 2017
In her initial response to the application, Dai swore an affidavit on 13 December 2017. In that affidavit she acknowledged she had advised Fangming that there was a “conceivable” conflict of interest between the 3 Defendants. However, her affidavit suggested she could continue to act because:
[Fangming] assured me that he is authorized to act for Bluestars and MXXD [Investment] in [this proceeding], as he is a current director of both companies and I am informed his fellow directors have consented to his being the person to give instructions for the defences of [Bluestars] and [MXXD Investment]. I have accepted those assurances.
Further, at no stage has any other party connected with Bluestars and/or MXXD [Investment] raised concerns about a potential or actual conflict of interest with me, though I have reason to believe they are familiar with the proceedings.
Dai also referred to the additional expenses and “hardship” that would arise if her clients were required to obtain separate representation.
Conspicuously, there was no reference to Dai having spoken directly with anyone other than Fangming. Further, the basis upon which Dai stated that she had reason to believe such persons were familiar with this proceeding was not identified. More substantively, Dai’s response completely failed to address the fundamental difficulty confronting both her and her clients; namely, that an actual conflict existed between at least some of the 3 Defendants she represented. In these circumstances, assurances from Fangming, or even all of the 3 Defendants, could not alleviate the problem of a single practitioner being unable to properly advance the case of each of her clients.
Further, Dai appeared to have no proper appreciation of the actual conflict squarely confronting her and the 3 Defendants. In her affidavit she asserted that “[u]nless and until there is an actual conflict of interest” there were no reasonable grounds to restrain her from continuing to act for the 3 Defendants. She also asserted that Ji had failed to show any actual conflict existed. For the reasons stated previously,[3] a clear and actual direct conflict of interest was already manifest.
[3]See par 20 above.
At 5.40 pm on 14 December 2017, the court received an email attaching a letter from Australian Legal Advisory Centre. That letter, addressed to Ji’s solicitors, confirmed that Australian Legal Advisory Centre acted for Bluestars, Fangming and MXXD Investment. The letter stated that each of its clients had decided to withdraw their defences with respect to proportionate liability.[4] The letter also stated that it was trusted this approach met Ji’s concerns with respect to this application. In concluding, the letter stated that, if the amendments did not allay Ji’s concerns, Australian Legal Advisory Centre would defend “our right” to continue to represent each of its clients.
[4]Proposed further amended defences were provided to the court on 15 December 2017.
The letter also stated that an affidavit would be filed by Fangming confirming he has been duly authorised to act on behalf of Bluestars and MXXD Investment, and to give instructions to Australian Legal Advisory Centre.
Also on 14 December 2017, 2 further affidavits were sworn in opposition to the application. Fangming swore that he had been duly authorised to act for Bluestars and MXXD Investment. Without giving any details, Fangming attested that there had been unanimous agreement of directors of these companies for him to so act. Fangming identified his fellow directors for Bluestars as Yui Fang (“Fang”)[5] and Ling Xu (“Xu”). He also stated the Xu was the only co-director of MXXD Investment.
[5]In subsequent affidavits filed in this proceeding and in the records of Australian Securities and Investment Commission tendered on this application, Fang’s first name is recorded as “Yuhui”.
The second additional affidavit was sworn by Xu, who recorded that he was Fangming’s cousin. He swore that he was a director of Bluestars and MXXD Investment. He stated that both he and Fang were fully aware of the nature of the allegations against both Bluestars and MXXD Investment. Essentially, he corroborated the position put forward by Fangming as to Fangming’s authority to act.
There was no suggestion in either of these affidavits that either Fang or Xu had obtained, or even sought, independent legal advice on behalf of Bluestars or MXXD Investment.
The application first came on for hearing on 15 December 2017. On that occasion, the 3 Defendants were represented by senior and junior counsel. Senior counsel informed the court that he had given advice to the 3 Defendants and that, as a result of that advice, the claims for proportionate liability were being withdrawn. However, he further stated that it was intended that, if all the defendants were ultimately held liable, then at that point in time the 3 Defendants would seek to agitate claims for proportionate liability between them. The court was also informed that as against the third defendant, Li, all proportionate liability claims would be maintained.
Importantly, contrary to the position adopted by Dai in her affidavit in opposition, senior counsel acknowledged that as the pleadings then stood he had an “apparent problem” and would be “in a pickle” with respect to the conflict issues. He said he hoped that, by withdrawing the claims for proportionate liability, those issues had had been cleaned up.
The court observed that there was no indication that any of the 3 Defendants had received independent legal advice with respect to their representation.[6] In response, senior counsel stated that he was instructed that affidavit evidence could be filed “forthwith” to demonstrate that independent advice had been received.[7] Senior counsel provided the names of 2 lawyers who had apparently already given such advice. Further, senior counsel accepted that the court would need to be satisfied that independent advice had been obtained given that the court had “been confronted with an explicit conflict in the conduct of the litigation”.
[6]Cf Trade Practices Commission v CC (New South Wales) Pty Ltd (1994) 125 ALR 94, 105.2 (Hill J).
[7]Dai was present in court and provided the instructions to senior counsel.
In light of the matters put by the 3 Defendants, and the recognition that further evidence was necessary if they were to have any prospect of successfully opposing the application, the hearing of the application was adjourned to the following Wednesday, 20 December 2017. The 3 Defendants were ordered to file and serve any further affidavit in opposition by 4.00 pm on 18 December 2017.
C.2 A further adjournment of the application
Despite the assurances with respect to previous independent advice and the ability to file affidavits “forthwith” attesting to such advice, the 3 Defendants did not file any further substantive affidavits in opposition. On the contrary, affidavits sworn by Dai and Xu, filed on 19 December 2017, indicated that independent advice had not been previously obtained. One of the lawyers identified at the hearing on 15 December 2017 subsequently informed Xu, on 18 December 2017, that she could not give independent advice because she had a possible conflict, having been “involved” with Ji previously. With respect to the other lawyer previously identified, Dai gave evidence that she had advised Fangming and Xu that that lawyer was not independent and therefore would not be suitable for providing the advice sought.
On 20 December 2017, the 3 Defendants sought an adjournment of the application. Evidence was given of the difficulty in obtaining independent advice at that time of the year, especially given the strong preference of Fangming to obtain advice from a lawyer who spoke both English and Mandarin. Although the adjournment was opposed, additional time was given.[8] Accordingly the hearing of the application was listed for hearing on 16 January 2018. Further, the 3 Defendants were ordered to file and serve any further affidavits in opposition by 4.00 pm on 10 January 2018.
[8]The adjournment was sought until the end of January 2018. Ji expressed concern about the ongoing delay the issue of the 3 Defendants’ representation was causing. Accordingly, it was ordered that the further hearing of the application would be heard during the legal vacation so as to minimise any further delay.
C.3 Further evidence and the hearing of the application
On 8 January 2018, 4 further affidavits were filed in opposition: 2 by Xu (1 as a director of Bluestars and 1 as a director of MXXD Investment), 1 by Dai and 1 by Fangming.
In Xu’s affidavits he deposed that he had sought independent advice “as to whether it is in the bests interest[s] of [each of Bluestars and MXXD Investment] … to continue to be represented by Australian Legal Advisory Centre”. He also asserted, without stating any detail whatsoever, that each company accepted “the implications of the proposed Further Amended Defence that abandons proportionate liability claims”. Further, he stated that he was “fully aware of the implications for [each of Bluestars and MXXD Investment] of [each company] retaining ALAC [that is, the Australian Legal Advisory Centre] at the same time as ALAC is retained by [the other defendants for whom it acts] and hereby consent to ALAC continuing to act for [each company]”. Finally, with respect to Bluestars, Xu said that he had consulted with Fang (the details of which were not given) and that she had consented to Xu’s course of action in this matter. Each affidavit concluded with the following:
The written advice given by the independent legal advisor is confidential and privileged and will be made available only to the Court on request in a sealed envelope.
Dai’s affidavit dealt with an issue raised by Ji as to whether the 3 Defendants were capable of receiving properly informed independent legal advice when the discovered documents had not been inspected by them. She suggested that Ji’s solicitors had not given her the opportunity to inspect the documents despite her request, in early December 2017, to do so. The evidence does not support this assertion. In any event, there is no dispute that certain discovered documents relevant to the proceeding were not provided to the lawyers who gave the independent advice.
Finally, Fangming gave evidence that he had also sought independent legal advice. He too stated he understood and accepted the implications of continuing to retain Australian Legal Advisory Centre, without stating what those implications were. He similarly offered to allow the court, alone, to view the written legal advice he had received on the basis that privilege was maintained.
On 16 January 2017, the matter came on for hearing again. During the course of this hearing, junior counsel for the 3 Defendants confirmed that any rights to make proportionate liability claims between the 3 Defendants were withdrawn “for all time”, and that the independent legal advice had been provided on that basis.[9]
[9]Cf par 30 above.
Counsel for the 3 Defendants sought to provide the court with sealed copies of the independent legal advices referred to in the affidavits of 8 January 2018 (“the Advices”) on the basis that they would remain confidential and privileged. At the court’s suggestion, redacted copies of the Advices were provided to Ji’s legal representatives, so that the details of the legal practitioners providing each advice, the instructions given and the documents forming the basis of the Advices were openly disclosed.
At the court’s request, a letter dated 20 December 2017 from Australian Legal Advisory Centre to the 3 Defendants (“the Letter”), which was referred to in 2 of the Advices as providing relevant context, was also provided to the court. The Letter was the subject of a claim for legal privilege, and has not been seen by Ji’s representatives.
Ji’s senior counsel objected to the court receiving the Advices and the Letter on the basis that to do so would be to proceed on an “unorthodox and unnecessary” manner. In light of that objection, the Advices and the Letter were not read by me during the course of the hearing. I indicated that I would consider the position of whether it was appropriate to read these documents as part of my deliberations in determining the outcome of the application.
I subsequently formed the view I could not satisfactorily resolve the present dispute without considering the contents of the Advices and the Letter. Naturally, it is not ideal for an application to be determined on evidence that is not open to scrutiny by the moving party. However, the outcome is concerned with the due administration of justice, which is ultimately a matter for the court.[10] In an application such as this, the court must have regard to the wider objects of the administration of justice.[11] If the due administration of justice is furthered by the court reviewing privileged advice, then a proper review of the advice should occur.
[10]See also Civil Procedure Act 2010 (Vic), s 8.
[11]Cf Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303, 323 [56]-[57] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
Although not ideal, this is not an entirely unorthodox approach to take. By way of example, documents that are the subject of a claim for privilege may be produced to the court so that the court may determine whether such documents are immune from inspection.[12] It has been noted in this context that the “court has power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such a power”.[13] The court may also receive confidential and privileged documents in the course of approving a class action settlement. In deciding whether a particular settlement is fair and reasonable, the court may have regard to the terms of any privileged advice received from counsel or any independent legal expert in relation to the issues which arise in the proceeding.[14]
[12]State of New South Wales v Jackson [2007] NSWCA 279, [23] (Giles JA, with whom Mason P and Beazley JA agreed); Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, 70 [52] (Gleeson CJ and Gaudron and Gummow JJ); Grant v Downs (1976) 135 CLR 674, 677.7 (Barwick CJ, dissenting), 689.3 (Stephen, Mason and Murphy JJ); Evidence Act 2008 (Vic), s 133.
[13]Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49, 70 [52]; see also State of New South Wales v Jackson [2007] NSWCA 279, [23]; cf Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529, 542A (Giles J).
[14]See, for example, Lee v Westpac Banking Corporation [2017] FCA 1553, [6], [18] (Derrington J), citing Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322, 332–333 (Jessup J). See also Supreme Court of Victoria, Practice Note SC Gen 10 – Conduct of Group Proceedings (Class Actions), 30 January 2017, 13.3(j).
This approach is consistent with the overarching purpose of the Civil Procedure Act 2010 (Vic) to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.[15]
[15]Civil Procedure Act, s 7(1). See also fn 11 above.
The redacted sections of the Advices and the Letter have not, for obvious reasons, been reproduced or otherwise referred to in this judgment in a manner that would reveal the advice given.
Each of the Advices is directed to the following matters:
(1) Whether Australian Legal Advisory Centre should continue to represent the 3 Defendants in this proceeding.
(2) Whether a proposed further amended defence, abandoning the possibility of raising a proportionate liability defence, should be filed by each of the 3 Defendants.
In its redacted form, each of the Advices sets out the documentation provided to the independent legal advisers in each instance. The following documentation was provided to each of the 3 advisers:
(1) Amended statement of claim dated 30 October 2017.[16]
[16]The amendments are tracked, so that the statement of claim in its original form is readily apparent.
(2) Further amended defences of each of the 3 Defendants filed on 27 November 2017.
(3) Ji’s summons filed 6 December 2017.
The advices provided to Xu, in his capacity as director of Bluestars and MXXD Investment respectively, are based on a significantly greater number of documents, including affidavits of Dai and Xu, company historical extracts, correspondence between Australian Legal Advisory Centre and the 3 Defendants, and additional court documents, including the counterclaim of MXXD Investment and my previous orders of 15 and 20 December 2017.
D. Principles
The court has an inherent jurisdiction to control the conduct of barristers and solicitors as officers of the court.[17] This control exists to ensure the court’s processes accord with the administration of justice.
[17]See, for example, Kallinicos v Hunt (2005) 64 NSWLR 561, 582 [76] (Brereton J), cited with approval on numerous occasions in this court, including Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582, [16]-[17] (Ferguson JA).
In considering whether to exercise this jurisdiction, which is exceptional and to be exercised with caution,[18] the court must ask 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 the due administration of justice, including the appearance of justice.[19]
[18]See, for example, Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491, [3] (Middleton J).
[19]Kallinicos v Hunt (2005) 64 NSWLR 561, 582 [76].
For completeness, in the context of practitioners acting for multiple clients whose interests may or do conflict, there are specific duties imposed on such practitioners. The first concerns the statutory duties that barristers and solicitors owe to their clients and to the court by virtue of the legal profession conduct rules.[20] In particular, the rules binding on solicitors provide that, where any potential or actual conflict exists between 2 or more clients in the same or related matters, a solicitor may continue to act only if each client has given their “informed consent”.[21]
[20]See Legal Profession Uniform Law Application Act 2014 (Vic), Schedule 1, ss 419, 423(2)(c); Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015; Legal Profession Uniform Conduct (Barristers) Rules 2015.
[21]Legal Profession Uniform Law Australian Solicitors’ Conduct Rules, r 11.3; see also rr 11.4 and 11.5. As to barristers, see Legal Profession Uniform Conduct (Barristers) Rules, r 119.
Further, legal practitioners owe fiduciary duties to their clients, which, in the event of a conflict between either the practitioner’s own interests and those of the client, or between the interests of 2 or more clients, require the client’s “fully informed consent”.[22] In this context, in Boyce v Mouat,[23] the Privy Council explained:[24]
Informed consent means consent given in the knowledge that there is a conflict between the parties and that as a result the solicitor may be disabled from disclosing to each party the full knowledge which he possesses … or may be disabled from giving advice to one party which conflicts with the interests of the other.
[22]Maguire v Makaronis (1997) 188 CLR 449, 466.8 (Brennan CJ, Gaudron, McHugh and Gummow JJ), 495.9 (Kirby J).
[23][1994] 1 AC 428.
[24]At 435G.
Only once the client fully understands the nature of the rights in question is she or he in a position to surrender them.[25] The circumstances of the case may require that independent legal advice be obtained.[26] As senior counsel for the 3 Defendants correctly conceded, this is such a case.[27]
[25]Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606, 636.3 (Upjohn LJ).
[26]Maguire v Makaronis (1997) 188 CLR 449, 466.8.
[27]See par 29 above; albeit this concession was made only in respect of the exercise of the court’s inherent jurisdiction.
E. Ruling
The actual conflict, that would have required a determination by the court, and that arose as a result of the amended defences claiming proportionate liability between the 3 Defendants, was resolved by the withdrawal of those claims.[28] The court’s concern, however, remained. By reason of the ability to make proportionate liability, and other,[29] claims, the conflict of interest still existed. The absence of independent legal advice and the fact that Fangming was the sole defendant providing instructions to Dai resulted in a situation where, at the very least, the appearance of the due administration of justice was left wanting.
[28]Orders giving effect to this ruling will provide for the proposed further amended defences of the 3 Defendants to be filed promptly.
[29]See par 21 above.
As conceded,[30] the court could not allow that position with respect to representation to continue unless it were satisfied that each of the 3 Defendants had received independent and informed legal advice. In the absence of such advice, a fair minded and reasonably informed member of the public would conclude that the proper administration of justice required that Dai be prevented from acting.
[30]See pars 32, 54 above.
The position now pertaining is fundamentally different. The 3 Defendants have, albeit belatedly, received independent and informed legal advice concerning their respective rights and liabilities. Having reviewed the Advices, I am satisfied that the legal practitioners in question are independent. Further, the Advices are based on sufficient documentation to be considered informed in the requisite sense. The advisers were provided with court documents that are adequate to convey a clear picture of the factual and legal matters at issue in the present litigation.
Further, although the position initially adopted by Dai was of some concern because she failed to appreciate the issues involved,[31] she has now had the benefit of advice from senior counsel as to the approach that must be taken.
[31]See pars 22-26 above.
That said, there is 1 further matter that needs to be addressed. Although, once further amended defences are filed, there will be no issue in dispute on the pleadings between the 3 Defendants that will need to be determined by the court, and each of the 3 Defendants has consented to continued joint representation based on independent legal advice they have now received, the state of the evidence is such that I cannot be completely satisfied that all relevant persons with an interest in the litigation have been appropriately informed.
In these circumstances, further conditions on permitting the joint representation of the 3 Defendants to continue are warranted. Subject to any submissions on the form of these conditions, in substance, the conditions will be as follows:
(1) If it has not occurred already, a copy of the relevant independent advice be provided forthwith to each of the directors of Bluestars and MXXD Investment.[32]
[32]On the evidence before the court, it is not clear whether Fang has been provided with the advice given to Bluestars or that Fangming has seen the advice to each of Bluestars and MXXD Investment.
(2) A meeting of the directors of Bluestars be convened, at which the independent advice received by Xu, in his capacity as director of Bluestars, referred to above and this ruling are tabled and a resolution is passed to the effect that the directors unanimously consent to continued joint representation.
(3) A meeting of the directors of MXXD Investment be convened, at which the independent advice received by Xu, in his capacity as director of MXXD Investment, referred to above and this ruling are tabled and a resolution is passed to the effect that the directors unanimously consent to continued joint representation.
(4) Within 48 hours of each meeting referred to in subparagraphs (2) and (3) above having been completed, Bluestars and MXXD Investment respectively are to notify[33] each member of the relevant company as to the resolution or resolutions passed at the relevant meeting.
[33]The appropriate form of notification, including whether the notification will be in English or Mandarin or both, will be specified after hearing further from the parties.
Undertakings will be sought from each of the 3 Defendants to give effect to these conditions as soon as practicable, but in any event within 14 days of this ruling.
In my view, these conditions are sufficient to allay any concerns that may arise in the mind of a reasonably informed observer in relation to continued joint representation. Once these conditions have been complied with, and assuming no member of Bluestars or MXXD Investment takes exception to the proposed course,[34] if the 3 Defendants wish to continue with joint representation, having received independent and informed legal advice, and without taking any further steps as against each other in this proceeding to limit their respective liability, the due administration of justice does not require the court to intervene.
[34]The orders of the court will include an order that there is liberty to apply.
This outcome is consistent with the overarching obligation to ensure that costs are reasonable and proportionate when considering relevant factors, including the complexity of the issues and the amount in dispute.[35] The amount claimed by Ji against Bluestars and Fangming is up to $408,000 (plus interest), and, primarily, an order for specific performance is sought as against MXXD Investment. The possibility of costs of 3 independent legal teams advising and representing each of the 3 Defendants would be likely to greatly exceed what would be reasonably considered as proportionate to the scale of the issues in dispute.[36] At all times, the court must do its utmost, consistent with the due administration of justice, to ensure that costs of litigation are proportionate.
[35]Civil Procedure Act, s 24(a) and (b).
[36]Ji made submissions as to why it was unlikely that 3 teams of lawyers would be required if the position as stated by Fangming were correct. It is unnecessary to discuss this issue further, beyond stating that substantive separate representation would have remained a possibility if the 3 Defendants had not adopted the course that they did.
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