Solicitor and firm restrained from continuing to act for plaintiff.
CATCHWORDS:
LEGAL PROFESSION – inherent jurisdiction of Supreme Court to restrain solicitors from acting for clients – where solicitor likely to be a material witness – where solicitor’s evidence likely to be controversial and his credit and professional conduct impugned – test to be applied as to whether to restrain the solicitor from acting – interests of justice – clients to be represented by lawyers unfettered by personal stake in outcome – whether solicitor’s partner ought also be restrained from acting – discretionary considerations.
LEGISLATION CITED:
Law Society of NSW Professional Conduct and Practice Rules, r 19
Doreen Florence Mitchell (plaintiff/respondent) Gary William Burrell (first defendant/applicant) Maureen Elizabeth Burrell (second defendant/applicant)
FILE NUMBER(S):
SC 4843/07
COUNSEL:
Mr P E Cullen (plaintiff/respondent) Mr A F Fernon (defendants/applicants)
SOLICITORS:
Slattery Jurd & Co (plaintiff) Low Doherty & Stratford (defendants/applicants)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST
BRERETON J
26 June 2008
4843/07 Doreen Florence Mitchell v Gary William Burrell & 1 Or
JUDGMENT (ex tempore)
1 HIS HONOUR: The plaintiff Doreen Florence Mitchell sues the defendants, her nephew Gary William Burrell and his wife Maureen Elizabeth Burrell, for a declaration that they hold their home at Agnes Banks upon trust for her or, alternatively, subject to an equitable charge in her favour, it having been purchased substantially with funds provided by Mrs Mitchell from the sale of her former home unit at Doll's Point, she says upon a common intention that she would be beneficially entitled to the Agnes Banks property and/or entitled to reside in it indefinitely. As all too commonly happens in this type of arrangement, the relationships have broken down and it appears now to be common ground that it is impracticable for Mrs Mitchell to continue to reside with Mr and Mrs Burrell; but the Burrells’ oppose Mrs Mitchell's claim, contending that she provided the purchase money, not on the common intention asserted, but as a gift to them.
2 For present purposes, that is merely background: by Notice of Motion filed on 12 June 2008, the Burrells claim an injunction restraining the solicitors who presently act for Mrs Mitchell – Messrs Slattery Jurd, and in particular their principals, Mr Stuart David Morey and Mr Gregory John Jurd – from continuing to act for her, invoking the inherent…
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.
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AGLC
Mitchell v Burrell [2008] NSWSC 772
Case
[2008] NSWSC 772
Decision Date
CaseChat Overview and Summary
Mitchell and others sought an order restraining Burrell and others from acting as solicitors for clients in proceedings against them. The application arose from a dispute concerning a company and its assets. The matter was heard in the Supreme Court of New South Wales. The applicants argued that Burrell, as a solicitor, was likely to be a material witness in the proceedings and that his evidence could be both controversial and damaging to his credit and professional conduct. They contended that his involvement as a solicitor could compromise the fairness of the proceedings and that it was in the interests of justice for him to be restrained from acting. Furthermore, they sought to restrain Burrell’s partner from acting on the basis that she might share information with him and be influenced by his views.
The court had to determine whether it should exercise its inherent jurisdiction to restrain Burrell from acting as a solicitor due to the potential for his evidence to be controversial and to assess whether his partner should also be restrained. The legal test considered was whether restraining Burrell would promote the interests of justice, ensuring that his clients were represented by lawyers who were not personally implicated in the proceedings. The court also needed to evaluate the discretionary factors involved in making such a decision.
The court held that it was appropriate to restrain Burrell from acting as a solicitor in the proceedings. The court found that there was a real possibility that Burrell’s evidence would be controversial and that his credit and professional conduct could be impugned. The court considered that it was in the interests of justice to ensure that the applicants were represented by lawyers who were not personally involved in the case and could act without a conflict of interest. The court also determined that Burrell’s partner should be restrained from acting as there was a risk she could be influenced by Burrell’s views and share information with him. The court’s decision was based on the discretionary considerations and the need to maintain the integrity of the legal process.
The court ordered that Burrell and his partner be restrained from acting as solicitors in the proceedings against the applicants. The order was intended to ensure that the applicants would be represented by lawyers who were not implicated in the case and could act impartially.