Owens v Barnett

[2012] VCC 344

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No.  CI-11-04751

SUE OWENS	Plaintiff
v
LEONIE BARNETT	Defendant

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JUDGE:	His Honour Judge Misso
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2012
DATE OF RULING:	20 February 2012
CASE MAY BE CITED AS:	Owens v Barnett
MEDIUM NEUTRAL CITATION:	[2012] VCC 344

REASONS FOR RULING

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SUBJECT: LEGAL PRACTITIONERS

CATCHWORDS: application to restrain a solicitor from acting for the defendant - alleged conflict of interest - inherent power of the court to control legal practitioners

LEGISLATION CITED: None

CASES CITED: Kallinicos v Hunt [2005] NSWLR 561 and Grimwade v Meagher [1995] 1 VR 446

RULING: plaintiff’s summons dismissed with costs

SUBJECT: PRACTICE AND PROCEDURE

CATCHWORDS: statement of claim not pleaded in compliance with Rule 13.02 of the County Court Civil Procedure Rules 2008 - orders striking out the statement of claim - leave to read plead the statement of claim

LEGISLATION CITED: Rule 13.02 of the County Court Civil Procedure Rules 2008

RULING: statement of claim struck out with leave to read plead the statement of claim and other consequential orders

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr B Ryan	Brett R E Ryan, Solicitor

HIS HONOUR:

Introduction

1. The plaintiff is a litigant in person. She drafted a statement of claim which she endorsed on a writ which was filed in this Court on 4 October 2011.The statement of claim does not conform to what is required by Rule 13.02 nor does the defence filed by the defendant on 18 January 2012. I will return to the difficulties posed by the pleadings later in these reasons.

2.    By a summons filed 16 January 2012 the plaintiff seeks to have the Court order that Mr Ryan, the solicitor for the defendant, restrained from acting for the defendant in this case.  The plaintiff appeared on her own behalf.  Mr Ryan appeared on his own behalf.

3.    The summons first came on before me on 20 January 2012 in a directions hearing list.  The summons was adjourned in order to allow Mr Ryan and the defendant to file and serve any affidavits in reply to the affidavit relied upon by the plaintiff.

4.    The evidence put before me on the return of the summons on 6 February 2012 comprised an affidavit sworn by the plaintiff on 16 January 2012 , and an affidavit in reply sworn by Mr Ryan on 27 January 2012.

The Legal Principles

5.    The applicable principals were succinctly stated by Brereton J in Kallinicos v Hunt.[1]  There, he was dealing with an application to prevent a solicitor from acting who was a potential witness in the proceeding and who had an interest in its outcome.  His Honour summarised the substance of a large number of authorities he reviewed as follows.

[1][2005] NSWLR 561

" The foregoing authorities establish the following:

·During the subsistence of a retainer, where the court's intervention

to restrain a solicitor from acting for another is sought by an existing

client of the solicitor, the foundation of the court's jurisdiction is the

fiduciary obligation of a solicitor, and the inescapable conflict of

duty which is inherent in the situation of acting for clients with

competing interests (Prince Jefri Bolkiah).

·Once the retainer is at an end, however, the court's jurisdiction is

not based on any conflict of duty or interest, but on the protection of

the confidences of the former client (unless there is no real risk of

disclosure) (Prince Jefri Bolkiah).

·After termination of the retainer, there is no continuing (equitable or

contractual) duty of loyalty to provide a basis for the court's

intervention, such duty having come to an end with the retainer

(Prince Jefri Bolkiah; Belan v Casey; PhotoCure ASA; British
American Tobacco Australia Services Ltd; Asia Pacific Telecom­
munications Ltd; contra Spincode Pty Ltd; McVeigh; Sent).

·However, the 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 (Everingham v Ontario; Black v
Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v
Pattern Holdings; Spincode Pty Ltd; Holborow; Williamson v Nilant;

Bowen v Stott; Law Society v Holt).  Prince Jefri Bolkiah does not

address this jurisdiction at all.  Belan v Casey and British American
Tobacco Australia Services Ltd are not to be read as supposing that

Prince Jefri Bolkiah excludes it.  Asia Pacific Telecommunications
Ltd appears to acknowledge its continued existence.

·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

(Everingham v Ontario; Black v Taylor; Grimwade v Meagher;

Holborow; Bowen v Stott; Asia Pacific Telecommunications Ltd).

·The jurisdiction is to be regarded as exceptional and is to be

exercised with caution (Black v Taylor; Grimwade v Meagher;

Bowen v Stott).

·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

(Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen
v Stott).

·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 (Black v Taylor;

Bowen v Stott).[2]

[2]At 582-583

6.    The relevant principles were also succinctly stated by Mandie J in Grimwade v Meagher [3] after His Honour had reviewed a number of relevant authorities on the subject:

"I would respectfully adopt all of the above quoted statements of principle.  In my view it cannot be doubted that this court likewise has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done.  The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause."[4]

[3][1995] 1 VR 446

[4]at 452

7.    My research uncovered a number of instances where applications have been made to prevent a legal practitioner from acting for a party to a proceeding.  The authorities I have cited are sufficient to demonstrate a strong line of authority that Courts can entertain applications to restrain a legal practitioner from acting for a party in a proceeding. 

8.    Neither the plaintiff nor Mr Ryan sought to argue that a judge in the County Court does not likewise exercise an inherent jurisdiction of the kind referred to in each of the foregoing authorities.  In any event even in a setting where the County Court is a creature of statute it cannot be the case that a judge of this Court does not exercise that inherent jurisdiction to ensure the administration of justice and to protect the integrity of the judicial process.

The Plaintiff's Case

9.    The plaintiff relied on her affidavit which she submitted demonstrated a basis upon which I should restrain Mr Ryan from acting for the defendant.  In summary she deposed to the following:

·      Mr Ryan has acted for the plaintiff's former husband, Dr McDougall, in proceedings before VCAT in which it was alleged that Dr McDougall was unfit to practice as a medical practitioner.

·     The defendant was alleged to have influenced Dr McDougall by feeding him information which was untrue, and in particular, allegations about the plaintiff being a drug dealer; an associate of Tony Mokbel; the owner of a brothel; having children who were prostitutes; that the children of their marriage were not biologically those of Dr McDougall, and that Dr McDougall believed the information which undermined his mental and physical health.

·     The defendant engaged in conduct to the detriment of the plaintiff by removing documents from the plaintiff’s rubbish bins; stalking the plaintiff, and making untrue statements to Dr McDougall and his patients about the plaintiff.

·     Mr Ryan was appointed attorney under a power-of-attorney for Dr McDougall, and became a beneficiary under the will of Dr McDougall to the detriment of Dr McDougall's own children.  There were proceedings at VCAT in which Georgia McDougall (the daughter of the plaintiff and Dr McDougall) became an applicant.  The substance of the allegations seems against Mr Ryan are that he exercised influence over Dr McDougall to the detriment of Dr McDougall's relationship with his own children.

·     The defendant was charged with a number of offences arising out of an allegation that she stalked the plaintiff.  Mr Ryan appeared for the plaintiff as instructing solicitor.  He briefed Mr D Galbally QC to appear for the defendant.  The Magistrate before whom the defendant appeared was satisfied that a charge was found proven.  The defendant appealed.  The appeal was heard by Judge Hampel.  The defendant abandoned her appeal.

·     Judge Hampel allegedly made an observation that Mr Ryan was in some degree of conflict of interest in appearing for the defendant.  The plaintiff relied heavily on observations made in that regard by Judge Hampel in support of the application to have Mr Ryan restrained in further acting for the defendant.

10. Mr Ryan swore a lengthy affidavit in which he answered each of the allegations made by the plaintiff.  In summary he deposed to the following:

·     He was emphatic in stating that he had never acted for the plaintiff or represented her interests in any fashion; that he possessed no information confidential to the plaintiff or her interests nor any information which might be potentially embarrassing to the plaintiff in this proceeding or be capable of creating unfairness.

·     He first encountered the plaintiff professionally in 2005.  Subsequently, he acted for a number of persons, to whom he made reference in paragraph 13 and 14 of his affidavit, setting out some of the background to put his retainer by those persons in context.  Those persons had various levels of dealing with the plaintiff in the past.

·     He said that the plaintiff and Dr McDougall had separated on grand final day in 1994 and were divorced in 1997.  That was not contested by the plaintiff.  He acted for Dr McDougall in the VCAT proceeding.

·     On 25 November 2010 he was appointed one of two enduring financial attorneys for Dr McDougall and one of two enduring guardians for him for health care matters by an order of VCAT.

11. There are three common features which emerge from the affidavits between the plaintiff and the defendant. 

·     The first is that Mr Ryan was retained by both Dr McDougall and the defendant in the VCAT proceeding which dealt with the allegations regarding the fitness of Dr McDougall to practice as a medical practitioner; secondly, that Mr Ryan was involved in the second proceeding at VCAT which resulted in his appointment in connection with the affairs of Dr McDougall, and thirdly, that he acted for the defendant in the Magistrates’ court and in the County Court in connection with the allegation that the defendant had stalked the plaintiff, and has also been retained by her to act for her in this proceeding.

12. The fact that Mr Ryan has acted for Dr McDougall and the defendant cannot of itself give foundation to an application to restrain him from further acting for the defendant.  Nor the fact that he has been a party to VCAT proceedings which resulted in his appointment in connection with the affairs of Dr McDougall given that the matrimonial relationship between Dr McDougall and the plaintiff ended on grand final day in 1994 followed by the granting of a divorce in 1997.  My first impression when reading the affidavit of the plaintiff was that there was an extant relationship between Dr McDougall and herself which was of immediate concern to me, but I have no such residual concern now that the true facts have been disclosed that they have had no matrimonial or other connection since the mid-1990s.

13. The plaintiff expanded the factual basis upon which she submitted that Mr Ryan should be so restrained.  She referred to the documents removed by the defendant from her rubbish bins, which she believes have been given to Mr Ryan, which contain confidential information which the defendant is not entitled to have, and which Mr Ryan should not have seen.  It was an allegation not referred to in her affidavit, and was one which was steadfastly denied by Mr Ryan.  It was at that point during the plaintiff’s submissions that I informed both the plaintiff and Mr Ryan that I would only take into account the admissible evidence contained in the affidavits and not any oral expansion which was not deposed to in affidavits and served in the ordinary way.

14. I am not satisfied that the plaintiff has discharged the legal and evidentiary onus which she bears to satisfy me that Mr Ryan should be restrained from further acting for the defendant.  Furthermore, the mere fact that Mr Ryan has had a close connection with Dr McDougall and his affairs, and those of the defendant in the VCAT proceedings cannot give foundation to the imposition of such restraint.

15. What appears to me to be reasonably clear is that in each instance where Mr Ryan has been retained in the circumstances relied upon by the plaintiff it has been in connection with open public proceedings.  The plaintiff does not point to any particular material or discoverable documents which she believes are in the possession of Mr Ryan which are in some way confidential and result in detriment to her if he continues to act for the defendant in this proceeding.

16. The plaintiff also submitted that she wishes to cross-examine Mr Ryan in this proceeding, and if he is to be a witness in the proceeding then he cannot continue to act for the defendant.  I cannot see how the so-called causes of action pleaded by the plaintiff will necessitate Mr Ryan giving evidence.  The only allegation made by the plaintiff against Mr Ryan is that he has been provided with documents unlawfully obtained by the defendant, and may have inherited clients who were formerly clients of the plaintiff through some intervention by the defendant.

17. The foregoing allegations were made orally.  None were referred to in the plaintiff's affidavit.  I am not prepared to act on those submissions.  I accept the submissions made by Mr Ryan that he is not in a position where he intends to give evidence for the defendant or could give any relevant evidence in any event. 

18. For the foregoing reasons the plaintiff’s summons must be dismissed with costs.  I cannot see any basis upon which it can be validly submitted that a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Ryan be restrained from acting for the defendant or any valid reason why the defendant should be deprived of her choice of Solicitor without good cause.

The Pleadings

19. The statement of claim drawn by the plaintiff does not comply with Rule 13.02. Paragraph 1 is a rolled up pleading of potentially five causes of action. The Rule requires that a statement of claim must contain in a summary form a statement of all the material facts upon which a party relies. It does not do that.

20. For example, the plaintiff pleads that she was harassed by the plaintiff for which she is entitled to damages.  It is incumbent upon her to plead in a summary form a statement of the material facts upon which she says she was harassed, and then the relief or remedy which results from a breach of the common law.

21. Furthermore, and subjoined to paragraph 1 is a subheading "Particulars", however, rather than following the conventional approach of enumerating particulars by letters of the alphabet the plaintiff continued the numbering of the paragraphs sequentially which makes it difficult to determine where the particulars cease and where the pleading recommences.

22. It is not my intention to go through each and every defect in the plaintiff statement of claim save to say that if an application were made to strike it out I would have no hesitation in doing so.  I indicated the foregoing to the plaintiff who acknowledged the defects in the statement of claim.  I also indicated that I intended of my own motion to strike it out and to give her time within which to file and serve an amended statement of claim.

Further Procedural Orders

23. Neither the plaintiff nor the defendant have made any effort to comply with the relevant practice note by either preparing procedural orders or securing a date for a directions hearing for the purpose of those orders being made.

24. I indicated to the plaintiff and to Mr Ryan I propose to draft orders which I will make available to both the plaintiff and defendant to peruse.  In the absence of agreement regarding those orders I will invite the parties to obtain a date for a further directions hearing from my Associate and I will then hear submissions from the plaintiff and the defendant. 

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