Miller v Martin
[2019] VSCA 86
•16 April 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0114
S APCI 2018 0137
| JAMES EDWARD MILLER | Applicant |
| v | |
| IAN DONALD MARTIN and others according to the schedule | Respondents |
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| JUDGES: | KYROU, NIALL and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 April 2019 |
| DATE OF JUDGMENT: | 16 April 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 86 |
| JUDGMENT APPEALED FROM: | Miller v Martin [2018] VSC 444 (Mukhtar AsJ); Miller v Martin (Unreported, Supreme Court, Mukhtar AsJ, 13 August 2018) |
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PRACTICE AND PROCEDURE – Legal practitioners – Application to restrain legal practitioners for respondents from acting in appeal proceedings – Allegations legal practitioners engaged in misleading conduct and professional misconduct, failed to draw attention to relevant legislative provision and had conflict of interest – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondents | Mr R G Squirrell | GE Law Services Pty Ltd |
KYROU JA
NIALL JA
ASHLEY JA:
Introduction and summary
The applicant, James Miller, seeks an order ‘that the legal practitioners of the respondents be restrained/injuncted from acting in these proceedings’. The proceedings in question are two applications for leave to appeal against orders made by an associate judge in the Trial Division on 10 August 2018.
The proceedings relate to a beach house in Moggs Creek which was purchased in 1986 for $150,502 and was registered in the names of the applicant, Ian Martin and Ross Brabham as tenants in common in equal shares. At that time, they were friends and work colleagues in the finance department of Coles Myer Ltd.[1]
[1]In 1990, four other acquaintances and the spouses of the applicant, Mr Martin and Mr Brabham were also registered as tenants in common, bringing the total number of registered co-owners to 10. However, subsequent events have had the effect that the registered interests of individuals other than the applicant, Mr Martin and Mr Brabham are not relevant for present purposes.
On 16 September 2011, the applicant lodged a caveat on the title to the beach house claiming an interest under a ‘Constructive and/or Resulting Trust’.
On 26 February 2015, the applicant applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a declaration that Mr Martin and Mr Brabham held their interests in the beach house on a resulting or constructive trust for him and for an order that they transfer their interests to him.[2] The basis for the applicant’s contention that such a trust existed was that the entire purchase price and subsequent expenses were paid solely from his own funds. In the alternative, he sought orders under ss 228 and 233 of the Property Law Act 1958 (‘PLA’) that the beach house be sold and the entirety of the net proceeds of sale be distributed to him. The applicant was represented by counsel in the VCAT proceeding, which took place in the period 22–26 February and 15 April 2016.
[2]The individuals — other than the applicant, Mr Martin and Mr Brabham — who were still registered as co-owners of the beach house as at 26 February 2015 were also respondents to the VCAT proceeding. However, as there are no issues between the applicant and those individuals that are presently relevant, we will not refer to the involvement those individuals may have had in the VCAT proceeding or the Trial Division proceeding.
On 3 June 2016, VCAT made an order dismissing the application and reserving costs.[3] VCAT decided that the beach house was not the subject of a trust. It held that the applicant, Mr Martin and Mr Brabham had formed a partnership in 1980 for the purpose of trading in shares and using the profits to buy ‘lifestyle assets’, and that, with the exception of an initial deposit of $1,000 paid by the applicant, they had purchased the beach house using partnership funds.
[3]Miller v Martin [2016] VCAT 854 (‘VCAT decision’).
On 23 June 2016, the applicant applied to the Trial Division for leave to appeal against VCAT’s order. There was a hearing on 16–17 March 2017 at which the applicant represented himself. He contended that VCAT made errors of law in deciding that the beach house was purchased with partnership funds.
In the VCAT proceeding and the Trial Division proceeding, the respondents were represented by counsel and the legal firm Goddard Elliott & Co. While the decision of the associate judge remained reserved, that firm changed its name and legal form to GE Law Services Pty Ltd (‘GE’). On 23 July 2018, it served on the applicant a notice of change of practitioner.
On 7 August 2018, the parties to the Trial Division proceeding were notified that the associate judge would publish his decision on 10 August 2018. Also on 7 August 2018, the applicant filed a summons in which he sought the following orders:[4]
[4]The applicant unsuccessfully attempted to file the summons in person on 3 August 2018. He successfully filed it electronically on 7 August 2018.
1That the [respondents] produce all files and documents that were with their prior lawyer[s] in relation to these proceedings.
2That the [respondents’] current lawyers provide all files in relation to these proceedings that were provided by the previous lawyers.
3That His Honour stay his decision in this proceeding whilst inspection of the files [is] undertaken by the [applicant].
4 Costs reserved.[5]
[5]The summons was supported by an affidavit of five pages sworn by the applicant and numerous exhibits. The affidavit alleged that Mr Martin and Mr Brabham had committed perjury contrary to s 314 of the Crimes Act 1958 and had obtained financial advantage by deception contrary to s 82 of that Act. It appears from the summons that the applicant was under the misapprehension that the change in the name and legal form of the respondents’ legal firm referred to at [7] above involved the engagement of a different legal firm.
On 10 August 2018, the associate judge held that, although VCAT had jurisdiction to grant the relief sought by the applicant, it had correctly decided to refuse to make a declaration because the beach house was not the subject of a trust. However, the associate judge determined that VCAT had erred in not dealing with the applicant’s alternative application for orders under ss 228 and 233 of the PLA for the sale of the beach house and the distribution of the net proceeds of sale to him. The associate judge granted the applicant leave to appeal and allowed the appeal only to that extent and made an order remitting the proceeding to VCAT (‘substantive order’).[6]
[6]Miller v Martin [2018] VSC 444 (‘Associate judge’s decision’). Mr Martin and Mr Brabham conceded that this was the appropriate outcome in the Trial Division proceeding.
On 10 August 2018, the associate judge made an order dismissing the applicant’s summons (‘summons order’) and published his reasons for that order on 13 August 2018.[7]
[7]Miller v Martin (Unreported, Supreme Court of Victoria, Mukhtar AsJ, 13 August 2018).
The applicant’s first application for leave to appeal was filed on 20 September 2018 and relates to the substantive order. The applicant’s second application for leave to appeal was filed on 27 September 2018 and relates to the summons order.
Both applications for leave to appeal have been prepared by the applicant personally. In those applications, he described himself as a ‘self-represented litigant’.
The application for a restraining order is addressed to GE. It seeks to restrain GE from acting in the applications for leave to appeal on grounds that may be summarised as follows:
(a)GE misled VCAT and the Trial Division by failing to draw to their attention s 234C of the PLA; and
(b)GE misled VCAT by filing witness statements containing allegations of facts which GE knew to be false.
The applicant swore an affidavit on 4 February 2019 in support of the application for a restraining order. The affidavit provides the following elaboration on the above grounds:
(a)Contrary to the assertion made by Mr Martin and Mr Brabham in their witness statements before VCAT, the applicant, Mr Martin and Mr Brabham did not invest $15,000 to purchase shares in Buddha Gold Mines NL (‘BGM’).[8]
(b)GE misled VCAT about the purchase of shares in BGM to protect GE and cover up their wrongdoing. There was a conflict between the interests of GE and those of Mr Martin and Mr Brabham.
(c)The associate judge refused the applicant’s application for production of documents in his summons because of the wrongful conduct of GE.
[8]Options were also purchased. For simplicity, references to shares in BGM are inclusive of associated options.
Mr Martin and Mr Brabham desire that GE continue to act for them.
For the reasons that follow, applying the principles summarised below, we are far from satisfied that the applicant has established a proper basis for the making of an order restraining GE from acting for the respondents in the two applications for leave to appeal.
Legal principles
This Court has jurisdiction to make an order, on the application of a party to a proceeding before it, to restrain a legal practitioner from acting for an opposing party in that proceeding.[9] The circumstance which usually gives rise to such an application is where a party seeks to restrain a legal practitioner who previously acted for that party, from acting for an opposing party on the basis that the new representation will involve use by the legal practitioner of confidential information gained in the previous representation.[10]
[9]Grimwade v Meagher [1995] 1 VR 446, 452 (‘Grimwade’); Western Australia v Ward (1997) 76 FCR 492, 498; Kallinicos v Hunt (2005) 64 NSWLR 561, 570–83 [31]–[76] (‘Kallinicos’); Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202 [14]; Finch v Heat Group Pty Ltd [No 2] (2016) 353 ALR 193, 197–9 [7]–[11].
[10]Grimwade [1995] 1 VR 466, 453; Kallinicos (2005) 64 NSWLR 561, 570–83 [31]–[76].
However, the Court’s jurisdiction is not confined to cases involving allegations of breach of confidence. The Court has a broad, inherent jurisdiction to control its officers and protect its processes. As part of this broad jurisdiction, the Court may restrain a legal practitioner from acting in a proceeding where the integrity of the judicial process would be impaired if the legal practitioner did not cease to act.[11] Instances where this jurisdiction has been exercised include where the legal practitioner is likely to be a material witness,[12] where there is a material conflict between the interests of the client and those of the legal practitioner concerning the litigation in question[13] or where, for any other reason, the independence and objectivity of the legal practitioner would be unacceptably compromised.[14]
[11]Grimwade [1995] 1 VR 466, 452.
[12]Kallinicos (2005) 64 NSWLR 561, 583 [78].
[13]Grimwade [1995] 1 VR 466, 454; Kallinicos (2005) 64 NSWLR 561, 583 [78].
[14]Grimwade [1995] 1 VR 466, 452, 454; Kallinicos (2005) 64 NSWLR 561, 586 [91].
In Kallinicos v Hunt, Brereton J summarised the principles relevantly as follows:
[T]he court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice …
The test to be applied in this inherent jurisdiction is 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 …
The jurisdiction is to be regarded as exceptional and is to be exercised with caution …
Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause …
The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief …[15]
[15](2005) 64 NSWLR 561, 582–3 [76] (citations omitted).
In Finch v Heat Group Pty Ltd [No 2], Pagone J stated the following in the context of a party to an appellate proceeding seeking to restrain an opponent’s solicitors and counsel from acting for the opponent in that proceeding on the basis of alleged misconduct by them:
The Court’s reluctance to deprive a litigant of his or her chosen legal practitioner is magnified where the question arises in the context of appeal proceedings. Restraining a legal practitioner from continuing to act for a client in appellate proceedings deprives the client of the legal practitioner in the appellate proceeding with the knowledge of the case and of how it was conducted. Preventing the legal practitioner from continuing to act in the appellate proceeding would necessarily expose the client to increased costs and it would deprive the appellate court of the direct assistance of the legal practitioners best placed to assist the Court in the appellate proceedings with questions arising about the trial and of how it was conducted. To restrain a legal practitioner from continuing to act for a client in the appellate jurisdiction of a court is, therefore, apt to impede the proper administration of justice and to harm the integrity of the judicial process rather than to protect it.
The inherent jurisdiction to restrain legal practitioners to act for their clients against an otherwise unrelated third party is not a substitute for disciplinary proceedings for wrongdoing by the legal practitioners or a substitute for punishment of the lawyers for the commission of wrongful conduct. It is a jurisdiction which exists to ensure that the integrity of the proceeding is maintained, and the court’s concern when considering whether to exercise that extraordinary jurisdiction is whether it is required for the due and proper administration of justice in a proceeding … For present purposes it is not necessary, and it would be undesirable, to consider whether there is substance in any of the serious allegations which have been made by Ms Finch against the legal practitioners whom she seeks to restrain from acting against her. Some of the allegations could be put to one side on the basis that Ms Finch alleged the commission of crimes and misconduct which have not been established in appropriate proceedings in courts of competent jurisdiction by reference to the laws, standards and burdens relevant to those allegations. However, the point is not whether any of the claims are made out, but whether it is required for the proper administration of justice to preserve the integrity of the judicial process in question that the Court restrain the legal practitioners chosen by the respondents to act on their behalf against Ms Finch in proceedings commenced by her in the appellate jurisdiction of this Court.[16]
[16](2016) 353 ALR 193, 198–9 [10]–[11] (citations omitted).
Did GE mislead VCAT or the Trial Division regarding s 234C if the PLA?
Section 234C is in div 4 of pt IV of the PLA. That division is headed ‘Jurisdiction’. Sections 228 and 233, to which we have already referred, are in div 2, which is headed ‘Sale and division’. Part IV is headed ‘Co-owned land and goods’.
Section 234C(2)(c) provides that the Supreme Court and the County Court have jurisdiction to hear ‘an application under this Part if the matter which is the subject of the application relates to a proceeding under … the Partnership Act 1958’. Section 234C(3) provides that ‘VCAT does not have jurisdiction to hear an application of a kind referred to in subsection (2)’.
The applicant submitted that the effect of s 234C is that VCAT did not have jurisdiction in respect of his proceeding and that, although GE was aware of the section and its effect, it failed to provide this information to either VCAT or the associate judge.
As the question whether s 234C of the PLA deprived VCAT of jurisdiction to determine the applicant’s proceeding is a key issue in his first application for leave to appeal, we will refrain from answering that question. Instead, we will focus on whether GE breached any legal or ethical obligation by failing to draw s 234C to the attention of either VCAT or the associate judge.
We are not at all persuaded that GE committed any such breach. In his application to VCAT, the applicant did not assert the existence of a partnership and did not seek any relief under the Partnership Act 1958. His whole case denied the existence of a partnership. Accordingly, GE cannot be criticised for not forming the view that the subject matter of that application related ‘to a proceeding under the Partnership Act 1958’ and thus fell within the exclusive jurisdiction of the Supreme Court and the County Court in accordance with s 234C.
It is true that Mr Martin and Mr Brabham argued in the VCAT proceeding that the beach house was purchased using partnership funds. However, they did so for the purpose of rebutting the applicant’s contention that the entire purchase price for the beach house and subsequent expenses relating to it were paid solely from his own funds. This contention, if made out, would have engaged the presumption of a resulting trust. The applicant gave evidence denying the partnership contentions of Mr Martin and Mr Brabham. We also note that VCAT decided that ‘[i]f the [beach house] was initially a partnership asset it probably ceased to be so when the other registered proprietors were introduced’.[17]
[17]VCAT decision [75]. VCAT’s reference to the introduction of other registered proprietors is to the spouses and acquaintances referred to at n 1 above.
It is significant that the applicant’s counsel did not raise jurisdictional issues before VCAT. It is also significant that in response to a request from the associate judge for submissions regarding VCAT’s jurisdiction to determine the trust issues the subject of the applicant’s claim, the applicant accepted that VCAT had such jurisdiction.[18] Mr Martin and Mr Brabham submitted that VCAT had jurisdiction and the associate judge held that it did.[19]
[18]See Associate judge’s decision [147]–[149].
[19]Associate judge’s decision [8], [154]–[155].
Finally, senior counsel for Mr Martin and Mr Brabham drew the associate judge’s attention to s 234C of the PLA.[20] At para 5 and footnote 2 of his decision, the associate judge referred to the section in a manner that indicates that he did not regard it as relevant.
[20]Transcript of Proceedings (17 March 2017) 177.
Did GE mislead VCAT regarding the purchase of shares in BGM?
The applicant’s allegation that GE misled VCAT on factual matters arises out of statements made in the witness statements of Mr Martin and Mr Brabham that they and the applicant collectively had invested $15,000 to purchase shares at 5 cents in BGM pursuant to a prospectus issued in 1980. At the heart of the allegation, as developed in oral argument, was the contention that GE engaged in misleading and deceptive conduct, or aided and abetted, counselled or procured such conduct, by permitting the witnesses to make statements which did not accord with material discovered by the applicant; and further, by not ensuring that the inaccuracies were corrected by the witnesses in their oral evidence.
The background to the allegation is as follows.
As part of Mr Martin and Mr Brabham’s case before VCAT that the beach house was not the subject of a resulting or constructive trust because it was purchased with partnership funds, they said in their first and undated witness statements that the initial partnership funds included the proceeds of sale of shares in BGM. Each of them said, in substance, that he had contributed about $5,000 to purchase the shares, as also had the applicant. Mr Martin said nothing about the issue price of the shares. Mr Brabham said that, to the best of his recollection, the issue price was 5 cents.
Then, in statements in reply dated 27 and 28 January 2016 respectively, Mr Martin said that he believed that the issue price was either 1 or 5 cents partly paid (he thought 5 cents), whilst Mr Brabham said nothing about the issue price. Mr Martin also rejected the applicant’s assertion, made in a witness statement, that the only shares in BGM that had been purchased by Mr Martin, Mr Brabham or him were the 6,000 shares that he had purchased.
It is convenient to address the applicant’s contention that GE engaged in misconduct because, in the face of contemporaneous records, including a list of share purchases that he had discovered in mid-2015, it permitted its clients to state that they had each contributed about $5,000 to purchase shares in BGM, as had the applicant. It is apparent from VCAT’s reasons that, at trial, the witnesses did not resile from that account. VCAT did not accept the applicant’s evidence that the documents upon which he relied showed the whole story of share-trading. Though recognising that Mr Martin and Mr Brabham had produced no documentation to support alleged purchases of shares in BGM, VCAT nonetheless accepted their evidence that substantial profits had been made from share-trading, but it was unable to assess their magnitude.[21] In the event, it cannot be concluded that the statements of the witnesses were relevantly erroneous, and this aspect of the applicant’s contention must be rejected.
[21]VCAT decision [109]–[112], [122].
We turn to the share issue price. On 15 February 2016, seven days before the VCAT hearing commenced, the applicant provided to Mr Martin and Mr Brabham a copy of the prospectus for the public offer of shares in BGM, which showed that the shares were issued at 50 cents each. Thus, the recollection of Mr Brabham, set out in his initial statement, and of Mr Martin, as set out in his statement in reply, in which each of them identified, in a qualified way, an issue price of 5 cents, was shown by the prospectus to be wrong. Despite the qualified way in which they respectively identified the share purchase price, based upon recollection some 30 years after the event, we will characterise it as an error on their part. That error was of some significance because, at a given sale price, greater profit would have been made if the purchase price had been 5 cents instead of 50 cents.
After Mr Martin and Mr Brabham became aware of the prospectus, they did not amend their witness statements to address the share issue price. When they were in the witness box — although the matter was not made clear in the transcript to which we were referred — it seems that they adopted their witness statements without identifying the error. Further, if any reference was made to the error by their counsel in opening address,[22] it was apparently indirect. For its part, GE did nothing to draw attention to the error. We add that, according to evidence given by Mr Martin, GE had advised him not to amend his witness statement in order to avoid being seen as altering his evidence in response to discovery.
[22]Counsel for Mr Martin and Mr Brabham (who also appeared for them at the VCAT hearing) did not take us to any relevant transcript.
It is clear from the above outline of events that, at the time when the initial witness statements and the statements in reply were prepared on behalf of Mr Martin and Mr Brabham, the BGM prospectus had not been produced by the applicant.[23] Accordingly, insofar as those witnesses and GE were under the mistaken belief that the contents of the witness statements were correct at the time that they were prepared, neither the witnesses nor GE acted improperly in relation to the preparation of the witness statements.
[23]In oral argument, the applicant sought to rely upon an evidently erroneous piece of evidence given by Mr Martin about the timing of his witness statement in reply relative to the timing of his receipt of the BGM prospectus, which the witness later corrected.
Once the witnesses and GE became aware of the true position, GE and counsel for Mr Martin and Mr Brabham had an obligation to ensure that VCAT was not misled by the error. It could have been corrected by the preparation of supplementary witness statements or by Mr Martin and Mr Brabham identifying it in evidence in chief. It is not unusual for witnesses who honestly believed in the existence of a particular state of affairs when they prepared their witness statements to acknowledge at the commencement of their evidence that, in the light of further information of which they subsequently have become aware, the belief was mistaken.
GE and counsel for Mr Martin and Mr Brabham should have taken the initiative to correct the error. They should have done so even though it was a certainty that the witnesses would be cross-examined about it, and even though, in those circumstances, there was no risk of VCAT being misled. That is precisely what occurred: the applicant’s counsel extensively cross-examined Mr Martin about the error and VCAT was able to make findings regarding the purchase of the shares in BGM on the correct evidentiary basis.
Not to correct the error was an error of judgment on the part of GE and counsel for Mr Martin and Mr Brabham. Moreover, by not ensuring that the error was corrected, the witnesses were needlessly exposed to cross-examination which sought to magnify the significance of the error, and which might have weakened their defence.
It is significant that VCAT, which read the witness statements of Mr Martin and Mr Brabham and heard their evidence, did not make a finding that they knowingly gave inaccurate evidence or that they or GE had misled VCAT.[24] VCAT merely found that Mr Martin and Mr Brabham ‘produced no documentation to substantiate their allegations and the figures stated by each of them in their respective witness statements turned out to be incorrect’.[25] So much is entirely understandable when regard is had to the qualified recollection of the two witnesses.[26]
[24]The question whether Mr Martin and Mr Brabham ‘willingly gave false and misleading information’ about the purchase of shares in BGM is the subject of one of the grounds of appeal in the first application for leave to appeal.
[25]VCAT decision [112].
[26]Counsel for Mr Martin and Mr Brabham informed us that, in his closing address, counsel for the applicant did not submit that Mr Martin and Mr Brabham had knowingly given false evidence in relation to the BGM shares or otherwise. However, the closing address was not before us.
It follows from the above that the applicant has not established that GE engaged in any wrongdoing with respect to the share purchase price error. The most that can be said is that GE made an error of judgment that proved to be of no consequence.
Does GE have a conflict of interest?
It appears that the applicant’s allegation that there is a conflict between the interests of GE and those of Mr Martin and Mr Brabham is based on the fact that GE has not sought to challenge VCAT’s finding about the BGM shares that is set out at [40] above. It also appears that the applicant’s contention is that GE aided and abetted Mr Martin and Mr Brabham to give false and misleading evidence and that GE is not seeking to challenge VCAT’s finding in order to cover up GE’s misconduct.
For the reasons set out at [29]–[41] above, we are not satisfied that GE acted improperly or that there is a conflict between GE’s interests and those of Mr Martin and Mr Brabham.
Did GE act inappropriately regarding the non-production of documents?
It will be recalled from [8] above that on 7 August 2018, the applicant filed a summons in which he sought production of GE’s files relating to the VCAT proceeding and the Trial Division proceeding. It appears that the applicant sought the files to prove that GE advised Mr Martin and Mr Brabham to include false assertions in their witness statements relating to the shares in BGM. Mr Martin and Mr Brabham refused to produce the files on the bases that the documents sought were not relevant to the issues before the associate judge, that the application for the production of the documents was a fishing expedition, and that it was likely that the documents sought would be protected by client legal privilege.
In our opinion, GE, Mr Martin and Mr Brabham did not act inappropriately in resisting the applicant’s application for production of GE’s files. On the contrary, they acted reasonably in all the circumstances.
Additional matters raised by the applicant in oral submissions
In his oral submissions, the applicant sought to rely on additional matters that were not the subject of his written case in support of his application for a restraining order.
The first matter concerned various factual issues that were the subject of evidence given by Mr Martin and Mr Brabham at the VCAT hearing. The issues included the nature and quantum of payments made by the applicant and entities associated with him to Mr Martin and Mr Brabham. The applicant submitted that the evidence was deliberately false and that GE had engaged in misleading and deceptive conduct in relation to that evidence or aided and abetted, counselled or procured such conduct on the part of Mr Martin and Mr Brabham. He contended that GE had a duty to VCAT to fully investigate and verify the accuracy and completeness of all evidence adduced in support of the case of Mr Martin and Mr Brabham and that, in failing to comply with that duty, GE misled VCAT and, in effect, suborned perjury. GE’s conduct was also said to constitute professional misconduct.
The difficulty with this submission is that the factual issues upon which the applicant relied were agitated before VCAT and VCAT did not make any findings that the evidence of Mr Martin or Mr Brabham was false. There is simply no basis for us to make any finding that Mr Martin or Mr Brabham deliberately gave false evidence or that GE engaged in any wrongdoing in relation to that evidence.
The applicant’s submission appeared to be based on the false premise that any inaccuracies, inconsistencies or gaps in the evidence of Mr Martin or Mr Brabham constituted deliberate falsity on their part and that GE necessarily must have either instigated or acquiesced in that falsity.
It is not an uncommon experience in litigation for one or more of the parties to give evidence that is incorrect for reasons other than deliberate falsity. Those reasons include poor recollection and mistake. Such witnesses are not dishonest and do not commit perjury. It is also not an uncommon experience in litigation for legal practitioners to make errors in the preparation of a case — including in reviewing discovery and in collating and presenting evidence — in circumstances that do not amount to either professional negligence or misconduct.
Nothing that the applicant put to us has persuaded us that any conduct of GE relating to the VCAT proceeding misled VCAT or otherwise warrants the making of the restraining order sought by the applicant.
The second matter concerned adverse findings that were made against the principal of GE, Pippa Sampson, by the Federal Court in 2011 in a proceeding for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth)[27] and by VCAT in 2013 in a professional misconduct proceeding.[28] The conduct of the principal that was the subject of those proceedings included the sending of letters of demand (described as ‘notices’) to debtors of video rental company clients, which contained misleading and deceptive statements. In the Federal Court proceeding, the Court granted an injunction restraining the principal from engaging in similar misleading or deceptive conduct for five years commencing on 17 October 2011.
[27]Australian Competition and Consumer Commission v Sampson [2011] FCA 1165.
[28]Legal Services Commissioner v Sampson [2013] VCAT 1177. See also Legal Services Commissioner v Sampson [2013] VCAT 1439.
The applicant submitted that these prior proceedings supported his application for a restraining order for three reasons. First, the adverse findings were made at a time proximate to the applicant’s VCAT proceeding against Mr Martin and Mr Brabham. Secondly, the misleading and deceptive conduct by GE upon which the applicant relied occurred during the currency of the five year injunction granted by the Federal Court. Thirdly, there were similarities between the misleading letters of demand to debtors and the misleading evidence adduced during the applicant’s VCAT proceeding because there was a creditor and debtor relationship between himself on the one hand and Mr Martin and Mr Brabham on the other.
In our opinion, the three reasons upon which the applicant relied do not support his application for a restraining order against GE. First, the prior proceedings are not proximate in time and, even if they were, this would be irrelevant. Secondly, as the conduct of which the applicant complains did not infringe the injunction granted by the Federal Court, the fact that the conduct occurred during the currency of the injunction is irrelevant. Thirdly, contrary to the applicant’s submission, there are no relevant similarities between the letters of demand to debtors and the conduct of GE of which the applicant complains in the present proceedings. GE did not make any demands on the applicant to repay any money he was said to owe to Mr Martin and Mr Brabham.
The applicant also relied on other matters, such as his contention that GE had not provided to Mr Brabham some of the documents he had discovered. It is not necessary for us to refer to each of these additional matters. It suffices for us to say that we have considered all of the matters and are not satisfied that they warrant the making of the restraining order sought by the applicant.
Conclusion
It follows from the above discussion that the applicant has not satisfied us that any of the principles for the making of a restraining order, which we have summarised at [17]–[20] above, are engaged in the present case.
Even if we had concluded that there was some merit in the applicant’s application for a restraining order, we would not necessarily have granted the application. This is because there is an important discretionary consideration which militates against the granting of the application, namely, the applicant’s delay.
In response to a question from the Bench, the applicant accepted that he was aware of the factual matters which underpin his allegations that GE engaged in wrongful conduct relating to the VCAT proceeding — including in relation to the BGM shares — at the time of the VCAT hearing in early 2016. Notwithstanding that awareness, he did not seek a restraining order either from VCAT or the Trial Division on the basis of those allegations. Rather, the applicant sought a restraining order for the first time before this Court.
The applicant did not provide a satisfactory answer to a question from the Bench as to why he had delayed applying for a restraining order until after the publication of the decision of the associate judge. He appeared to say that it had not become clear to him that he should make such an application until after he had received the associate judge’s decision.
A party who becomes aware of circumstances which may warrant the making of a restraining order against another party’s legal practitioner must decide whether to make such an application promptly. Timely action is required because the greater the delay, the greater the cost and inconvenience — and potentially the impracticability — of the other party being forced to seek to engage a new legal practitioner in the event that a restraining order is made.[29]
[29]Kallinicos (2005) 64 NSWLR 561, 583 [76]; Italiano v Lake [2015] VSC 189 [27]–[28].
Delay that is not satisfactorily explained will militate against the making of such an order. Where an application is delayed for tactical reasons, such as delay pending the outcome of a proceeding, a court would be wary of making such an order. A court will view with disfavour an application that is deliberately held in abeyance and deployed only after a substantive proceeding is unsuccessful.
In the present case it is not necessary for us to decide whether the applicant’s delay would have warranted refusal of his application for a restraining order. That is because we have decided to refuse the application for the substantive reasons we have already discussed.
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SCHEDULE OF PARTIES
| JAMES EDWARD MILLER | Applicant |
| v | |
| IAN DONALD MARTIN | First respondent |
| - and - | |
| TERESA MARTIN | Second respondent |
| - and - | |
| ROSS HAROLD BRABHAM | Third respondent |
| - and - | |
| MARGARET BRABHAM | Fourth respondent |
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8
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