Powell v In De Braekt
[2007] WASC 4
•10 JANUARY 2007
POWELL -v- IN DE BRAEKT [2007] WASC 4
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 4 | |
| Case No: | CIV:1661/2004 | 21 NOVEMBER 2006 | |
| Coram: | SIMMONDS J | 9/01/07 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's application dismissed Defendant's application granted in part | ||
| B | |||
| PDF Version |
| Parties: | MIA MARY POWELL ANNA MARIA HUBERTINA IN DE BRAEKT |
Catchwords: | Practice and procedure Injunction to restrain solicitor from acting for defendant Whether "likely" solicitor will be called as witness Family relationships with defendant and plaintiff Possible beneficiary of defendant's Will Previous interactions between solicitors and plaintiff Whether personal interest in the outcome of the matter Turns on own facts Practice and procedure Application to strike out parts of affidavit Turns on own facts |
Legislation: | Inheritance (Family and Dependents Provision) Act 1972 (WA), s 7 |
Case References: | Busch v Busch [2001] WASC 351 Chapman v Rogers; Ex parte Chapman [1984] 1 Qd R 542 Clay v Karlson (1997) 17 WAR 493 Holborow v Macdonald Rudder [2002] WASC 265 Newman v Phillips Fox (a firm) (1999) 21 WAR 309 Powell v In de Braekt [2006] WASC 264 Quigley (a practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228 Afkos Industries Pty Ltd v Pullinger Stewart (a firm) [2001] WASCA 372 Bagshaw v Scott [2005] FCA 104 Bowen v Stott [2004] WASC 94 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner for Corporate Affairs v P W Harvey [1980] VR 669 Corporate Systems Publishing Pty Ltd v Lingard [2004] WASC 24 D'Allesandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 Frankland River Olive Company v Charters Securities Pty Ltd [2004] WASC 88 Grimwade v Meagher [1995] 1 VP 446 Kallinicos v Hunt [2005] NSWSC 1181 Law Society of South Australia v Jordan [1998] SASC 6809 Legal Practitioners Complaints Committee and Clark [2006] WASAT 119 Legal Practitioners Complaints Committee and Giles [2006] WASAT 188 Medical Board of South Australia v JPRN [2006] SASC 19 Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255 Olympic Holdings Pty Ltd v Lochel [2004] WASC 61 Power v Hamond [2006] VSCA 25 Rajski v Tectran Corp Pty Ltd [2003] NSWSC 478 Rondel v Worsley [1969] 1 AC 191 Scallan v Scallan [2001] NSWSC 1078 Westgold Resources NL v St Barbara Mines Ltd [2003] WASC 29 Zito v Town of Cottesloe [2005] WASC 80 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANNA MARIA HUBERTINA IN DE BRAEKT
Defendant
Catchwords:
Practice and procedure - Injunction to restrain solicitor from acting for defendant - Whether "likely" solicitor will be called as witness - Family relationships with defendant and plaintiff - Possible beneficiary of defendant's Will - Previous interactions between solicitors and plaintiff - Whether personal interest in the outcome of the matter - Turns on own facts
Practice and procedure - Application to strike out parts of affidavit - Turns on own facts
Legislation:
Inheritance (Family and Dependents Provision) Act 1972 (WA), s 7
(Page 2)
Result:
Plaintiff's application dismissed
Defendant's application granted in part
Category: B
Representation:
Counsel:
Plaintiff : Mr J G Hanly
Defendant : Ms M in de Braekt
Solicitors:
Plaintiff : Hotchkin Hanly
Defendant : Megan in de Braekt
Case(s) referred to in judgment(s):
Busch v Busch [2001] WASC 351
Chapman v Rogers; Ex parte Chapman [1984] 1 Qd R 542
Clay v Karlson (1997) 17 WAR 493
Holborow v Macdonald Rudder [2002] WASC 265
Newman v Phillips Fox (a firm) (1999) 21 WAR 309
Powell v In de Braekt [2006] WASC 264
Quigley (a practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228
Case(s) also cited:
Afkos Industries Pty Ltd v Pullinger Stewart (a firm) [2001] WASCA 372
Bagshaw v Scott [2005] FCA 104
Bowen v Stott [2004] WASC 94
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Corporate Affairs v P W Harvey [1980] VR 669
Corporate Systems Publishing Pty Ltd v Lingard [2004] WASC 24
D'Allesandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
(Page 3)
Frankland River Olive Company v Charters Securities Pty Ltd [2004] WASC 88
Grimwade v Meagher [1995] 1 VP 446
Kallinicos v Hunt [2005] NSWSC 1181
Law Society of South Australia v Jordan [1998] SASC 6809
Legal Practitioners Complaints Committee and Clark [2006] WASAT 119
Legal Practitioners Complaints Committee and Giles [2006] WASAT 188
Medical Board of South Australia v JPRN [2006] SASC 19
Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255
Olympic Holdings Pty Ltd v Lochel [2004] WASC 61
Power v Hamond [2006] VSCA 25
Rajski v Tectran Corp Pty Ltd [2003] NSWSC 478
Rondel v Worsley [1969] 1 AC 191
Scallan v Scallan [2001] NSWSC 1078
Westgold Resources NL v St Barbara Mines Ltd [2003] WASC 29
Zito v Town of Cottesloe [2005] WASC 80
(Page 4)
- SIMMONDS J:
Introduction
1 This is the hearing of three interlocutory applications. One is by chamber summons by the plaintiff in the principal action, to restrain the solicitor for the defendant from representing the defendant, and for consequential relief. The other two interlocutory applications are by the defendant, one to strike out certain contents of the affidavit of the plaintiff sworn 4 October 2006 and the other to strike out certain contents of the affidavit of the plaintiff sworn 16 October 2006, both affidavits having been sworn in support of the first interlocutory application.
2 At the hearing the parties consented to an order for the uplifting and removal of the plaintiff's affidavit sworn 16 October 2006. That application should be dealt with accordingly, which would leave for determination the matter of the costs of that application.
3 There was no oral argument with respect to the defendant's application as to the other affidavit of the plaintiff, that of 4 October 2006, for which I had no written submissions from the defendant. I gave liberty to the parties to file and serve written submissions on that application within seven days of the date of the hearing before me. In effect, I indicated I would deal with the application on the papers before me at the expiry of that period. In the event, I received written submissions from both parties, including from the solicitor for the defendant, after an extension by one day of the seven day period allowed for the purpose. I note that the submissions for the defendant are labelled "unfinished". I have considered the submissions for both parties in my deliberations.
4 I note, however, that the submissions for the defendant prepared by her solicitor were indicated to be "unfinished", and otherwise not always in a form that would meet the standards for such a document in this Court. While I understood there were difficulties under which the solicitor was labouring prior to the hearing, and made allowances for them, both at the hearing, including in the allowance for written submissions subsequently to them, and in considering the submissions received subsequently, I find it appropriate to commend to the solicitor the need to consider whether or not, if those difficulties turn out to be of other than the temporary nature she described, her client might be better served by a change of solicitor, regardless of the outcome of the present application by the plaintiff. This is a matter I return to below.
(Page 5)
5 The three applications form part of a history of hard fought litigation between the plaintiff and the defendant, her mother, over the home in which the defendant is living. The defendant is a widow. The plaintiff is the defendant's sole surviving daughter. The solicitor sought to be restrained is the plaintiff's only child, her daughter, and the defendant's only grandchild.
6 These applications raise issues of the application of the principles on which legal representatives should be restrained from acting for clients in litigation, and of the materials that may be considered in relation to such applications.
The principal litigation and other proceedings in respect of it to date
7 The plaintiff's action against the defendant was commenced by writ issued on 17 May 2004.
8 The amended statement of claim in the action is dated 13 September 2004 and claims as principal relief:
• A declaration that the defendant holds a property ("the Victoria Park Property") on trust for the plaintiff, subject to a life interest in favour of the defendant;
• An order that the defendant transfer the Victoria Park Property to the plaintiff subject to that life interest; and
• Alternatively, an order that the defendant pay the plaintiff equitable compensation.
9 The amended statement of claim pleads that the defendant is the sole registered proprietor of the Victoria Park Property, and that the plaintiff was the sole registered proprietor of a property in Lathlain Park ("the Lathlain Park Property"). In or about mid 1984 the defendant was living at the Victoria Park Property with her husband, the plaintiff's father. At that time he requested the plaintiff to sell the Lathlain Park Property and come to live with her parents at the Victoria Park Property, which she did. The defendant told the plaintiff the Victoria Park Property would be hers one day, and repeatedly affirmed the promise in a number of ways. It is further pleaded the plaintiff relied upon the promise in a number of ways, including paying her parents for child minding services they provided. Various forms of detriment arising out of the plaintiff's reliance on the promise are pleaded.
(Page 6)
10 The defendant by chamber summons dated 5 October 2004 made an application for summary judgment resting upon arguments of a limitation of actions and unreasonable delay kind. The application was dismissed by Master Chapman by a decision given on 18 February 2006. The defendant on 21 September 2006 filed an application for leave to appeal this determination, and that application was heard, I was informed, on 27 October 2006, when, as I was further informed, his Honour Justice Buss reserved his decision.
11 A defence, set-off and counterclaim was filed on 27 July 2005. There are denials of the principal allegations pleaded in the amended statement of claim, as well as pleas of abandonment, lack of writing for the alleged express trust, defences of a limitations character, inequity in the plaintiff's assertions, and estoppel on a number of bases, including the plaintiff's failure to mention her alleged beneficial interest in the Victoria Park Property when the plaintiff had the defendant consent to guarantee mortgages on the property in connection with the purchase by the plaintiff of first one, and then another, lottery kiosk. There is a set-off claimed, including for amounts for board received from the plaintiff's daughter, the solicitor against whom the order applied for is sought, that would not otherwise have been received. There is a counterclaim, including for amounts in respect of lottery winnings by the defendant deposited into a bank account of the plaintiff's, and for gains made by the plaintiff from the guarantee mortgages.
12 A reply and defence to the set-off and the counterclaim was filed on 28 March 2006.
13 The defendant filed an application for further and better discovery, which was heard on 31 October 2006 by Master Sanderson, when the application was dismissed. The defendant has applied for leave to appeal this decision. As at the date of the hearing before me, that application had not been heard.
14 On 30 August 2006 a notice of change of solicitors was filed to substitute the defendant's current solicitor for the defendant's previous solicitors.
15 On 12 September 2006 the defendant filed an application by chamber summons for the plaintiff to show cause why a caveat lodged on 24 February 2004 on the Victoria Park Property should not be removed. The statutory declaration filed in support of that caveat indicates the caveator's interest is based on the promise the subject of the amended
(Page 7)
- statement of claim. The application was heard on 20 October 2006 by his Honour Justice Blaxell, and judgment was reserved. At the same hearing, Blaxell J also heard and reserved judgment upon the defendant's application by chamber summons filed 17 October 2006 to strike out portions of the plaintiff's affidavit dated 28 September 2006 sworn in opposition to the defendant's application in respect of the caveat. His Honour's decision was delivered on 23 November 2006. At a further hearing on 29 November 2006 his Honour heard submissions for the variation of his orders in certain respects.
16 In his decision delivered on 23 November 2006, Powell v In de Braekt [2006] WASC 264, his Honour concluded that the caveat should be removed, but that an injunction should issue restraining the defendant from dealing with the Victoria Park Property in a manner generally inconsistent with the plaintiff's claim. However, he added (at [46]:
"That injunction should not prevent the defendant raising funds by way of reverse mortgage to cover her medical and legal expenses as well as a further modest amount to be used in whatever manner she thinks fit. In my judgment, it is appropriate that the defendant be permitted to raise a total maximum sum of $200,000 in this way."
17 The subsequent variations of his orders with respect to which his Honour heard submissions do not reach this aspect of his decision in any way material to my deliberations. However, I note from the transcript of the hearing before his Honour on 29 November 2006 that concerns were expressed to him by the solicitor for the defendant that the possibility of a later caveat, or his injunction, would as a commercial matter prevent a financial institution providing finance on the security of a reverse mortgage as his Honour had envisaged. As I understood the transcript, his Honour left open the possibility of a further application being made to him, on supporting evidence, should it appear that the granting of a reverse mortgage would be prevented for that reason. I am not aware of any such further application having been made.
18 It seems to me that this aspect of Blaxell J’s decision in Powell (supra) for the time being removes the basis for the argument made for the defendant that, were she to be denied the services of the solicitor presently acting for her, she would be denied legal representation.
(Page 8)
19 For the reasons given in Powell Blaxell J concluded he would dismiss the defendant's application to strike out portions of the plaintiff's affidavit of 28 September 2006.
20 On the basis of the imminence of the judgment in Powell, and on the basis of arguments previously made before but not accepted by Master Sanderson at the hearing before him previously referred to, the solicitor for the defendant applied for an adjournment of the hearing before me. That application was strongly opposed by the plaintiff's solicitor.
21 I dismissed the application for an adjournment, on the basis that a sufficient reason to do so had not, in view of the previous history of these proceedings, been shown to me. In particular, the likelihood of a decision and orders of Blaxell J on the plaintiff's application for removal of a caveat, while it might well lead to a prompt change of legal representation for the defendant, also might not do so, particularly in view of the possibility of an appeal against any such orders. Such a possibility could not be ignored in view of the history of the proceedings in this action thus far.
22 Accordingly, the hearing before me proceeded. The defendant's solicitor indicated to me she was able to proceed, notwithstanding she did not have a written outline of submissions for me, on the basis of what I understood to be her working draft of submissions. In the event I gave her liberty to file a written outline of her submissions within seven days of today's date, and invited her to describe the difficulties she indicated to me at the hearing had prevented her from filing the outline before the hearing. In the event, she included an outline with her other submissions filed after the hearing to which I previously referred. I gave the plaintiff liberty to file supplementary submissions in reply. However, as her counsel indicated at the hearing, no such submissions were filed.
The plaintiff's application to restrain a solicitor from representing the defendant
23 This application is brought invoking the inherent jurisdiction of the Court to restrain solicitors from acting for a party in litigation on two of the bases referred to in the principal authority in that regard in this jurisdiction, Newman v Phillips Fox (a firm) (1999) 21 WAR 309, per Steytler J (as he then was), at 315. Those two bases are "cases of conflict of interest between solicitor and client"; and cases (including those of conflicts of interest) where it is appropriate for the court to exercise its:
(Page 9)
- " … inherent power to control and deal with member of the legal profession and to ensure that the administration of justice is not brought into disrepute by the conduct of those members."
24 See also Seaman, P Civil Procedure in Western Australia, at [34.0.5], from which I note the following:
"The question is whether a fair-minded and reasonably informed member of the public would conclude that the proper administration of justice required that the practitioner be prevented from acting, giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause: Grimwade v Meagher [1995] 1 VR 446 at 452. There can be no closed list of circumstances which will justify the exercise of what, on any view, must be regarded as an exceptional jurisdiction and power. Ordinarily, litigants are entitled to solicitors and counsel of their choice and it is only in a clear case that the court would make an order which would interfere with that right. The inherent jurisdiction of the court must encompass those cases where the representation of a litigant by solicitor and/or counsel may be seen objectively to involve a real risk of actual or apparent conflict of interest – the risk of conflict between a duty owed to the client of the solicitor or counsel and a duty owed to some other interest to be served in the litigation. … The matter will be viewed from the perspective of a fair-minded, reasonably well-informed, disinterested bystander: Tottle Christensen v Westgold Resources NL [2003] WASCA 224; BC200305574 at [4], [6]. The court will restrain legal representatives from continuing to act for a client when the circumstances reveal a real danger that the court would lose the assurance of the independence and objectivity of their representation of their client: Afkos Industries Pty Ltd v Pullinger Stewart (a firm) [2001] WASCA 372; BC200107403 at [32], [36], [37]. Hence a practitioner should not act in a case in which he or she has a personal interest in the outcome and the court may direct that he or she cease to act: Clay v Karlson (1997) 17 WAR 493 at 495, 498."
25 The plaintiff puts as the bases for her application the following:
• The solicitor is likely to be called – indeed was almost certain to be called – as a witness in this case, as
- indicated by matter contained in an affidavit she swore in relation to Local Court proceedings under the Residential Tenancies Act 1987 (WA) concerning the Victoria Park Property;
- • The solicitor has a personal interest in the Victoria Park Property, as the only child of the defendant's only child, the plaintiff, and thus, it is said, in the plaintiff's written outline of submissions, the solicitor is an "obvious candidate to be the sole beneficiary of the Defendant's Will";
• Certain forms of allegedly dishonest or unethical conduct in relation to the conduct of the proceedings;
• The solicitor allegedly having taken certain unnecessary steps in the proceedings which had increased costs;
• Alleged lack of independence, resting on a complaint made against the plaintiff by the solicitor for theft, and proceedings the solicitor had personally taken in the Local Court against the plaintiff in respect of a pleaded trust of certain monies provided for the solicitor by her grandparents; and
• There are no exceptional circumstances to prevent the granting of the application, and in particular the effect of the order would not be to deny the defendant, who was as at the date of the hearing before meotherwise unable to meet urgent medical costs and legal fees, the opportunity to enter into a reverse mortgage on the Victoria Park Property to generate the necessary funds for those purposes: this is because the plaintiff had provided an undertaking to the Court (see the letter dated 30 October 2006) to remove her caveat for this purpose.
26 This last point has now, in my view, largely been overtaken by events, in the form of the orders following the decision of Blaxell J in Powell (supra). However, I consider the matter of whether there are other exceptional circumstances that might justify what the Court might otherwise be minded not to allow, after I have considered each of the preceding matters in the list.
(Page 11)
27 The plaintiff makes extensive reference to the Professional Conduct Rules of the Law Society of Western Australia. I have taken those references as being intended to be to the current, December 2005, edition for the purposes of her counsel's submissions. Although references were made to other rules also, particular reference was made, as I understood the submissions of counsel for the plaintiff, to the current forms of the following Rules:
"5.8 A practitioner must not take unnecessary steps or do the work in such a manner as to increase the proper costs to the client.
…
7.1 Subject at all times to the duty of a practitioner to the court, a practitioner must give undivided faithfulness to the client's interest, unaffected by the interest of any other person, including the practitioner’s own interest, or by the practitioner’s perception of the public interest.
…
10.1 A practitioner must not act as counsel if by reason of the practitioner's connection with the client it would be difficult for the practitioner to maintain professional independence (examples are contained in Schedule 1) or if by reason of the practitioner's connection with the court or a member of the court the impartial administration of justice might be prejudiced or appear to be prejudiced (examples are contained in Schedule 2).
…
14.3 Counsel must not accept instructions in a case if counsel has reason to believe that counsel is likely to be a witness in that case."
28 The earlier forms of these rules to which reference was made by the counsel for the plaintiff do not in my view differ materially from these forms.
29 The proper approach to a consideration of these rules for the purposes of a matter such as the plaintiff's application is stated for this jurisdiction in Quigley (a practitioner) v The Legal Practitioners
(Page 12)
- Complaints Committee [2003] WASCA 228, per Parker J, Malcolm CJ and Anderson J agreeing, at par 17:
"The Professional Conduct Rules are not in the nature of a legislative prescription or standard of conduct. By their own expressed intention they are to be regarded as a guide to what is considered by the legal profession in Western Australia to be proper behaviour. Their role and value as a guide to the type of conduct to be expected or practitioners has been recognised by this Court: see, for example, D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198, at 214, per Ipp J, Pidgeon and Franklyn JJ concurring at 201. The Tribunal and its statutory predecessor, The Barristers' Board, have consistently treated the Professional Conduct Rules in this way."
The general approach to applications to restrain a solicitor from acting
31 I note from the passage from Seaman (supra), at [34.0.5] the exceptional character of the jurisdiction in cases such as these, and the reason for so approaching the exercise of that jurisdiction, that a party should have their choice of counsel or solicitor. Counsel for the defendant put to me that it is only in clear cases that the Court should override such a choice in the manner the granting of the application before me would involve. I did not understand counsel for the plaintiff to disagree, but to be contending that this was such a case.
32 A fuller statement of the approach to be followed, indicating the need to consider whether or not a clear case has been established, and elaborating on the reason for that need in terms of giving the client their choice of practitioner for the conduct of the litigation, while also reminding me of the need to bear in mind that I am concerned to see whether or not the applicant has been able to demonstrate the risk of conduct to prevent which the orders sought, or something similar, would operate, is contained in the following passages from Holborow v
(Page 13)
- Macdonald Rudder [2002] WASC 265, per E M Heenan J, at [27] and [29], [30]. In view of their utility in my deliberations, I quote those passages in full:
"It is well established that the relationship between a legal practitioner and the client is a fiduciary one, although it may also take on conditional dimensions – Maguire v Makaronis (1997) 188 CLR 449. Concurrently with the obligations to the client will be the practitioner's obligations to the court which have been described as 'an overriding duty' – per Mason J in Giannarelli v Wraith (1988) 165 CLR 543 at 555, where the Chief Justice cited a passage from the judgment of Pollock CB in Swinfen v Lord Chelmsford (1860) 5 H & M 890 at 921; 157 ER 1436 at 1449. Mason CJ went on to expound the nature of counsel's obligation to the court in a manner which is germane in the present case, not only because it identifies the duties owed by a legal practitioner conducting litigation but because it also emphasises how the forensic conduct of litigation must necessarily be left to the discretion of the legal practitioners representing them largely, if not completely, free of simultaneous supervision by the court itself. Mason CJ said, at 556:
'The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client's case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground of appeal.
It is not that a barrister's duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister's duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient
- administration of justice. In selecting and limiting the number of witnesses to be called, and deciding what question will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party's case rests with counsel. The Judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the Judge. This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.'
- …
From the wider viewpoint, including the perspective of the legal practitioner's duty to the court, it can readily be perceived that this situation justifies intervention by the court because of an actual or sufficiently material threatened conflict of interest by the practitioner, as an officer bearing fiduciary obligations, between his obligations to the court, and his obligations to the client or to some other interest. So it has long been accepted that a legal practitioner, who is likely to be a witness in a case should not act as counsel, or continue to act as counsel if a situation arises where he is unexpectedly required to give evidence. The reason being is that the personal integrity of the practitioner may be put in issue if his credibility is at stake as a witness, and that this will, or may, constitute a personal interest inconsistent with the practitioner's duty to the court or to the client. Other similar conflicts of interest can arise if, for example, the counsel or solicitor had a substantial personal stake in the litigation such as, for example, if he or she were to
(Page 15)
- be a partner in a firm which was a party to the litigation, or a substantial shareholder in a corporation which was a party.
A feature which emerges from the decision of this Court in Afkos Industries Pty Ltd v Pullinger Stewart [[2001] WASCA 372], is that while a properly informed and advised client, not under any disability, may waive or ratify any breach of duty due to it by the legal practitioner, the practitioner's duty to the court cannot be waived, so that if the particular disqualifying feature involves a conflict between the interests of the practitioner and his duty to the court which could give rise to a situation where the independent administration of justice may be put in jeopardy, the court will restrain the practitioner notwithstanding the wishes or interests of the client. However, it by no means follows that every conflict of interest between the legal practitioner and a client will give rise to a concurrent conflict of interest between the legal practitioner and his duty to the court, or, even where it does, that there is a risk that the practitioner will disregard his overriding duty to the court in favour of his client's interest. It seems to me that if it can be demonstrated that there is a risk that a practitioner will disregard his overriding duty to the court that this will usually, if not always, require action by the court to avoid such a risk by preventing the practitioner from acting even if the relief is sought by an opposing party in the litigation. But these principles do not render counsel or solicitors generally examinable at the suit of their client's opponents. The duty of the legal practitioner is not to his client's opponent and he is not answerable to his client's opponent. His duty is to the court and he is certainly answerable to the court and to his or her professional and disciplinary bodies."
33 With the assistance of those passages, I now turn to consider the submissions of the parties.
Solicitor likely to be called as a witness
34 The relevance of this matter to an application like the plaintiff's is well established, and the authority often cited is Clay v Karlson (1997) 17 WAR 493, per Templeman J. In that case the statement of claim contained allegations to the effect that the solicitors sought to be restrained from continuing to act for the second defendant, an executor of a Will, had prepared a codicil to the Will acting for the second defendant
(Page 16)
- without contact with the testator prior to the codicil's execution, and in circumstances in which the solicitors were not the usual solicitors of the second defendant and had not acted for him previously. The second defendant was a residuary beneficiary who stood to benefit from the changes made by the codicil. It was further alleged that the testator, when he executed the Will, was not of sound mind, memory or understanding, no medical practitioner was present, and he had received no independent legal advice in relation to the codicil or to the nature of the benefits the second defendant would receive under it. All of these allegations had been traversed in the defence.
35 His Honour, having set out these matters, stated (at 494):
"In these circumstances, it is likely that employees or partners or former employees and partners of [the firm of solicitors] will give evidence at the trial."
36 His Honour ultimately made the orders sought, although he referred to an additional reason for making them, to which I return.
37 The basis for the courts' concerns in such cases is indicated in the quotation from Holborow (supra) above. However, I note that the concern is not a peremptory one, as indicated in the authority, referred to both by Seaman (supra), at [34.0.5], and in Clay (supra) by Templeman J, at 494 – 495, as to the undesirability of a practitioner continuing to represent a client in proceedings in which as the practitioner is aware she or he is likely to be called as a witness, Chapman v Rogers; Ex parte Chapman [1984] 1 Qd R 542.
38 In Chapman, Campbell CJ for the Full Court said this (at 545, emphasis supplied), as quoted in Clay:
"For the reason that it is desirable to avoid any suggestion of real or apparent conflict between the duty to the court and the obligation to the client, I consider that it is generally unwise for a solicitor who is not himself appearing as advocate or instructing solicitor in court, but who is aware that it is likely that he will be called as a material witness (other than in relation to formal or non-contentious issues) to continue either personally or through his firm to represent the client if this can be reasonably avoided. It may be unavoidable in some cases, such as those involving complex commercial issues."
(Page 17)
39 I return to the emphasised qualification below, under the heading of Exceptional Circumstances.
40 The probability of the solicitor being called as a witness in this case was said to be established by an affidavit of the solicitor referred to in the affidavit of the plaintiff sworn 4 October 2006 as sworn "in" proceedings in the Local Court, No 7359 of 2004 and annexed to that affidavit as "MMP2". Those proceedings were by the defendant against the plaintiff for the recovery of amounts by way of rent and other amounts following the plaintiff's vacation of the upstairs part of the Victoria Park Property. I understood the solicitor had sought permission to represent the applicant in those proceedings, the defendant in these proceedings. The affidavit deposes to the circumstances of the plaintiff's move into the premises and her continuing there in terms of a tenancy sought by the plaintiff. Those circumstances would not easily be reconciled with the promise relied upon by the plaintiff in these proceedings. This material, it was put to me, indicates that it is nearly certain the solicitor would be called to give testimony to a similar effect at the trial in these proceedings. Although the defendant in her affidavit for this application sworn 18 November 2006 has indicated the solicitor would not be called as a witness in these proceedings (par 148), it was put to me that the client's best interests would be compromised by the solicitor not being called.
41 I understood the submission to be in terms that the prior preparation of the affidavit of the solicitor indicated the forensic conclusion then that there was significant evidence the solicitor could give. The solicitor for the defendant before me indicated to me that that affidavit had not been lodged in the Local Court proceedings. It had been provided to the plaintiff in these proceedings, the respondent in the Local Court proceedings, as a "courtesy" only. However, I consider that the provision of the affidavit was an indication of the evidence that was available to be called in those proceedings, and my preliminary view is that that evidence, if led and not weakened in these proceedings, would also have considerable significance in them.
42 However, in view of the affidavit from the defendant, I do not consider I am in a position readily to assess the possibility that the solicitor would be called as a witness to be at the level of "likely", let alone nearly certain. I note that in Clay there appears to have been no denial that one or more persons from the firm of solicitors were likely to be called as a witness. I note also the need for the court to avoid being seen simply to be supervising the conduct of the case of a party to the litigation, referred to in Holborow (supra). It is the case that the matter is
(Page 18)
- to be tested, it seems to me, from the standpoint of a fair minded and reasonably informed observer considering whether or not there was a likelihood of the solicitor being called as a witness. However, such an observer would note the position of the defendant in this case.
43 It is also important I recognise that there may be circumstances in which even a likelihood of the practitioner being called as a witness will not be sufficient, on its own at least, to call for the exercise of that discretion. I return to this matter below. To the extent the Professional Conduct Rules 14.13 suggest otherwise, it is important to bear in mind their role before me as guides to, not determinants of, that exercise. I return to this below also.
Conflict of interest
44 I understood the plaintiff’s submissions to address conflicts of interest of two sorts, as indicated by Holborow (supra). One was a conflict between the duty of the solicitor to act in the best interests of her client and her personal interest in the outcome of the litigation. The other was a conflict between that personal interest and her duty to the Court.
45 The personal interest relied upon in this case is, in the words of the written outline of submissions for the plaintiff, that it is:
" … fair for the Court to assume that in the circumstances where the Plaintiff is the only child of the Defendant and the practitioner is the only child of the Plaintiff, that the practitioner is the obvious candidate to be the sole beneficiary of the Defendant's will."
46 As Holborow (supra), per E M Heenan J at [29], above, indicates, a "substantial personal stake" in the outcome of the litigation may constitute a "personal interest inconsistent with the practitioner's duty to the court or to the client", and warrant an order of the kind sought here.
47 In oral submissions, counsel for the plaintiff qualified somewhat the statement of the personal interest I have quoted from his written submissions, by referring to the solicitor as likely to be at least a significant beneficiary of the Will. However, I consider that this does not substantially detract from the point advanced.
48 There is in the affidavit material before me evidence that the solicitor has been "estranged" from her mother, the plaintiff, since about the beginning of 2002. At the same time she has "always" had a "very close
(Page 19)
- relationship" with her grandmother, the defendant (annexure "MMP2" to the affidavit of the plaintiff of 4 October 2006, par 6 and par 7). There is also evidence that the defendant has not "had a conversation" with the plaintiff for "over 3 years" (affidavit of the defendant of 18 November 2006, p 24, par 68). This might be taken to indicate that there is indeed the prospect of the defendant's serious consideration of the solicitor as a beneficiary under any Will of the defendant, to the exclusion of, or at least in addition to, the plaintiff. This is also evidence of a strong alignment of the solicitor's personal sympathies with the interests of her grandmother. There is evidence to the same effect in the affidavit of the solicitor sworn 19 May 2004 in relation to the proceedings under the Residential Tenancies Act in the Local Court to which I have previously referred. See par 49 of that affidavit.
49 There was also no contest in the hearing before me that the Victoria Park Property is the defendant's only or only substantial asset, and that it was as at that hearing unencumbered. While the defendant could always (subject to the outcome of the present proceedings) deal with the property in a way that would result in no value from it being left for her estate, this does not affect the property's position at present.
50 However, I do not consider matters under the current head can be put higher than that. There is some (albeit limited) evidence that the defendant may have other relations, in the Netherlands at least, the country from which the defendant comes. The defendant does not depose as to the contents of any will she has, and of course any such will would be liable to amendment or revocation in the usual way. I note in passing that the solicitor would appear to have no standing under the Inheritance (Family and Dependants Provision) Act 1972 (WA), s 7, to make an application in respect of any failure to provide for her.
51 Thus, the interest of the solicitor here relied upon by the plaintiff at its highest could be described as a potential personal interest of a pecuniary kind in the outcome of the proceedings. That interest would not, it seems to me, of itself clearly represent an interest which would necessarily give rise to a conflict with her duty to serve her client: see Busch v Busch [2001] WASC 351, per Pullin J, at [17] and [18].
52 There is a contrast, it seems to me, between the nature of the interest the plaintiff relies upon here, and the natures of the interests to which Holborow refers. I also note the interest of the firm of solicitors in Clay (supra) referred to as showing the case for an order there was "even stronger" (at 495). That interest was "because their professional conduct
(Page 20)
- in the preparation and execution of the codicil is the subject of serious criticism" (at 496).
53 At the same time, I do not consider the authorities require the interest to be exclusively or even at least partly a pecuniary one. Nor do I consider that the fact the solicitor's personal interest is strongly aligned with the interest of the client, as it was submitted was the case here, removes any case for orders to be made, whether under the present heading or otherwise: see Clay (supra), per Templeman J at 496. I am of those views because of the reason for such orders that on Holborow (supra) at [30] above would emerge where a fair minded and reasonably informed observer would conclude there was a risk the solicitor would disregard her overriding duty to the court. At the same time, I note as there indicated that at most "this will usually", not invariably, cause the court to make the orders.
54 I have anxiously considered whether or not it has been shown the solicitor has a personal interest, being a combination of her potential personal interest of a pecuniary kind and her other personal interests in the position of the defendant in relation to the outcome of this litigation which would produce the conclusion of the fair-minded and reasonable observer I have referred to. I note that, apart from the evidence as to the alignment of the solicitor with and against the respective members of her immediate family to which I have referred, and her potential personal interest in the Victoria Park Property, there is also evidence she has commenced proceedings in her own name against the plaintiff, in the Local Court, for recovery of an amount which in the statement of claim (annexure "MMP7" to the plaintiff's affidavit of 4 October 2006) is pleaded to have been deposited by the solicitor's grandparents into an account of the plaintiff's for her to hold on trust for her daughter.
55 The plaintiff deposes in her affidavit that this is "an unsubstantiated and unsustainable claim" (par 28). I also note that in the same paragraph the plaintiff deposes that the solicitor "maliciously" reported her to the police for an alleged theft. I return below to these characterisations, where I indicate they are inadmissible. For present purposes, however, I accept them as statements of the opinion of the plaintiff in the respects indicated.
56 However, I have concluded that even if those statements of opinion are admitted they and the other evidence referred to fall short of establishing an interest in the outcome of the present litigation which would lead the fair-minded and reasonably informed observer to conclude
(Page 21)
- there was a risk that the solicitor would disregard her overriding duty to the court. I note also in respect of the report of the theft the affidavit of the defendant in which she deposes that it was she, not the solicitor, who made the complaints to the police. I know nothing more of the Local Court proceedings or the other matter than I have indicated. I cannot make a determination as to the bases for their subject-matter or the solicitor’s motives in acting as she did simply on the basis of the assertions in the plaintiff's affidavit, par 28.
57 I note from Holborow (supra) that "animosity" between opposing legal representatives is not of itself sufficient to animate the court to make the kind of orders sought here. I appreciate that such animosity is of a different character than that which seems to exist in this family. However, I draw from the example the need for caution in coming to the conclusion that personal likes and dislikes should be taken to establish the risk a solicitor will disregard her overriding duty to the court.
58 At the same time, I note later in these reasons the difficult position in which these matters might, in combination with other circumstances not before me, place the solicitor in continuing to act for the defendant.
Honest and ethical action
59 The solicitor for the plaintiff relied in the hearing before me on the material in the affidavit of the plaintiff of 4 October 2006 concerning information provided by the solicitor to the solicitors for the plaintiff as to an upcoming hearing in these proceedings. That information was said to be wilfully false.
60 The provision of such information would go towards showing the risk the solicitor would disregard her overriding duty to the court. However, it would not necessarily on its own be sufficient, on Holborow (supra). The nature of the information went to the hearing being a substantive one, for which the communication impliedly invited the solicitors for the plaintiff to consider arranging for affidavit material and submissions and a list of authorities for the hearing. I am not convinced that this is a form of misconduct, if it had been shown to be such, that would be sufficient.
61 In any event, I do not consider the matter to have been made out to have had the character contended for. The solicitor for the defendant referred me to annexure 9 to the affidavit of the defendant of 18 November 2006 in which the solicitor provided, in a letter to the Legal Practitioners Complaints Committee to which the matter had apparently
(Page 22)
- been referred, an explanation for the provision of the information. This explanation indicated she had no reason to believe the information was untrue at the time it was provided. No issue was taken with this explanation.
62 I conclude that this argument in support of the orders sought has not been made good.
Increasing costs
63 Counsel for the plaintiff referred me to steps taken by the defendant in these proceedings since the solicitor became her solicitor of record, as well as the volume of correspondence between the solicitors over that period and the dramatically increased average monthly legal costs of the plaintiff since her solicitors were notified of the change of solicitors. I was referred to the plaintiff's affidavit, pars 23 to 27. I was invited to infer from this material that the solicitor was taking unnecessary steps in this litigation, in breach of Professional Conduct Rule 5.8, above.
64 I note that a breach of the Rule would not necessarily in my view make the case that orders of the kind sought here should be made, on Holborow (supra), per E M Heenan J, at [31].
65 However, I am unable to infer from this material that there has been a breach of the Rule. While I do not doubt that the material tends to show the solicitor is pursuing her task with particular vigour, I cannot infer from evidence of such vigour that the resultant costs are unnecessary.
66 I also note the following, from Holborow (supra), per E M Heenan J, at [19]:
"This is a situation not uncommonly found in contested litigation as, for example, in cases where there are allegations of fraud, malicious conduct, wilful breach of trust or similar serious misconduct. Of course, were such a serious allegation to be made and maintained by a legal practitioner for a party to proceedings, in circumstances where there was no justification for that to be done, that may involve the individual practitioner in professional misconduct and expose him to professional discipline, the consequences of which might be very severe. However, the question of the evaluation of the professional conduct of a legal practitioner in the course of litigation is usually, but perhaps not invariably, left for examination after the principal proceedings have been concluded. There are very
(Page 23)
- good reasons for this cautionary practice. As already indicated, it is usually neither possible nor desirable to make a determination of the rights of the parties, whether provisional or otherwise, when they are still joined in issue on the very matters that the court will eventually have to decide. Associated with this consideration is the expectation that it will usually prove very difficult, if not impossible, to undertake a dispassionate and objective consideration of the conduct of the parties while they continue to be embroiled in the very litigation which has generated their mutual hostility. Finally, and by no means the least significant consideration, is the need to ensure that one or both of the opposing parties to the litigation cannot gain some forensic advantage against the other by making attacks against the solicitors acting on the other side which may produce the effect, directly or indirectly, of handicapping the clients by depriving them of access to, or to representation by, a legal practitioner of their choice. Equally unacceptable would be a result which may inhibit or be likely to inhibit, the manner in which the practitioner may properly discharge his professional duties to his clients."
67 I do not consider this reason for making the kind of orders sought to have been made good.
Exceptional circumstances
68 I have already noted the authority, in relation to a legal representative who finds it likely she or he will be called as a material witness, that it is generally undesirable that person or her or his firm continue to represent the client in the proceedings, for which there is the saving that in some circumstances this continuation may be "unavoidable": Chapman (supra), per Campbell CJ, at 545. The circumstances instanced were of a commercial case "involving complex issues".
69 The issues in this case are indicated by the pleadings to which I referred at the outset. I am prepared to accept that the solicitor has a detailed knowledge of them, based on her closeness to many of the facts in this case. That closeness emerges from the matter to which she deposed in her affidavit to which I previously referred. However, I do not consider the issues have the kind of complexity to which the saving in Chapman was addressed. It seems to me that the saving refers to involvement as a legal representative in relation to such issues which
(Page 24)
- would make a change of legal representative highly prejudicial to the effective conduct of the proceedings for the client.
70 The solicitor put to me, however, that she had a particular legal expertise in relation to the matters in issue in the present proceedings that would make a change of legal representative highly prejudicial. The difficulty for that submission lies in the relatively recent change in legal representation of the defendant, brought on, it seems, on what I was told by the solicitor, by the financial position in which the defendant found herself. That financial position is, of course, liable to change as a consequence of the orders made following the decision of Blaxell J in Powell (supra).
71 I accept that any change of legal representation the result not of client choice but external forces is undesirable. However, the authorities in this area indicate that, where such a change is ordered by a court exercising the caution those authorities indicated is called for, the interests of justice must be taken to have prevailed.
72 I further note that the legal and other expertise of the solicitor would not necessarily be denied to her grandmother were the solicitor to be disqualified from acting as her legal representative in this case. The solicitor has an enduring power of attorney for her grandmother as I have indicated. It is not clear that the solicitor would be disqualified by the factors I have referred to from acting under that power, and of course there are other proceedings than these in which any application to disqualify the solicitor from so acting could be determined: see Busch (supra), Pullin J, at [17] and [18].
73 I note that the orders sought by the plaintiff in this case include an order the solicitor not be in any way involved in the litigation. At the hearing counsel for the plaintiff provided an amended form of the orders sought to allow for a handover from the solicitor to her successors, for witness statements from the solicitor and instructions from her to her successors under the power of attorney during any period in which the defendant was herself incapable of providing such instructions. I have a concern as to whether I have the authority to make an order even in such modified terms, given the basis for the authority of the Court in the position of the solicitor as the solicitor of record: see Holborow (supra), per E M Heenan J, at [2]. Of course, as his Honour there indicates, the solicitor might be joined as a party to the litigation, as occurred in that case, which would meet that concern.
(Page 25)
74 However, in my view I do not need to consider that possibility further. That is because, in any event, I do not consider any such order, modified as indicated, would be appropriate, even if I were minded to make the order to prevent the solicitor from acting as the defendant’s legal representative, which, as I have indicated, I am not. Any suggestion (which, however, it may be that the modifications indicate was not made by the plaintiff) that the solicitor might act on behalf of her grandmother under the enduring power of attorney in breach of duty to the donor of the power in giving instructions to new solicitors for the grandmother would, in my view, be more appropriately dealt with as I indicated in the previous paragraph. This is in view of the duties to their client of the new solicitors for the grandmother. Any suggestion (which the modifications do not entirely reach) that any advice the solicitor gave to the grandmother, including any legal advice, might be inimical to the proper conduct of the litigation is also met by the duties of the new solicitors, both to their client and to the court: see Holborow (supra), per E M Heenan J, at [33].
Overall conclusion and order
75 I have concluded that the plaintiff has not made out a case that would persuade me to make orders of the kind sought.
76 I should not conclude this portion of my judgment without noting the explanation at the hearing by the solicitor for the defendant of the circumstances under which she came to be the solicitor of record in this matter, in terms of the financial circumstances in which the defendant then found herself. I have previously referred to that explanation. It indicated to me the solicitor appreciates the risks she is running in continuing to represent her grandmother in these proceedings in all of the circumstances of this case. Those risks it seems to me are that, as the matter unfolds, it will become evident in the circumstances to a fair-minded and reasonably informed observer there is a risk she will disregard her overriding duty to the court. One such set of circumstances are those making it necessary to call her as a witness. It would not be in the best interests of her client at a late stage in the proceedings to change her legal representative. However, that might not prevent such a change being required.
77 I also note again the difficulties under which the solicitor for the defendant informed me at the hearing she laboured and which had prevented her providing written submissions for that hearing. I understood those difficulties had operated to prevent her meeting the original time for filing written submissions after the hearing. I repeat
(Page 26)
- what I said earlier about the solicitor considering whether or not those difficulties, should they appear likely to continue, might prevent her best serving the interests of her client.
78 In those circumstances, I would commend to the solicitor for the defendant she consider advising her client to change solicitors in the circumstances in which, as a result of the orders of Blaxell J, the grandmother now finds herself.
79 I turn now to the defendant's application.
The defendant's application to strike out portions of the plaintiff's affidavit dated 4 October 2006
80 This application is brought largely pursuant to the jurisdiction of the Court under O 37 r 7.
81 Order 37 r 7 provides:
"The Court may order to be struck out from an affidavit any matter which is scandalous, irrelevant or otherwise oppressive, or may order that the affidavit containing such matter be taken off the file."
82 This provision is not concerned with questions of admissibility. Rather, it is concerned with "the continuing state of the court record": Seaman (supra), at [37.7.3].
83 The "scandalous" limb of the Rule is explained in Seaman (supra) as follows (at [37.7.1]):
"Scandal consists in the allegation of anything which is unbecoming to the dignity of the court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause; to which may be added that any unnecessary (not relevant to the subject) allegation bearing cruelly upon the moral character of an individual is also scandalous: Legal Practice Board v Said (1994, Lib No 940003, unreported). Relevant material will not be struck out as scandalous … "
84 The "irrelevant or otherwise oppressive" limb of the rule is explained in Seaman as follows (at [37.7.2]):
(Page 27)
- "This rule gives the court wide power, which it also has in its inherent jurisdiction, to control affidavits drawn without a proper consideration of the matters referred to in [37.0.1] , and to deal with oppression in all its forms including over-elaboration, prolixity and vagueness."
85 The defendant variously invokes all of these bases in respect of almost all of the contents of the plaintiff's affidavit of 4 October 2006.
86 The defendant also calls for the affidavit's references to her as the plaintiff's daughter and the defendant's granddaughter to be stricken. I do not consider that I should give effect to this aspect of the application. The family relationships in this case are, as I have indicated, of the essence of the plaintiff's case for her application, and are not denied. I do not see a sufficient basis for their removal.
87 In addition, the defendant submits that portions of the affidavit should be disregarded or struck out as inadmissible. The jurisdiction of the Court to do so is distinct from O 37 r 7, as the passage from Seaman (supra) above indicates. The exercise of this jurisdiction would not, as I understand the law, involve the removal of all or a portion of an affidavit with such material, but rather the Court ignoring that material, with whatever consequences for costs the Court considered to be appropriate.
88 The affidavit of the plaintiff is organised under various headings:
• for her daughter as a witness in the case;
• conflict of interest;
• acting honestly and ethically;
• increasing costs;
• independence; and
• mediation.
89 The matter deposed to under these headings relates, for the most part, to matter raised before me in argument for the plaintiff in her application. It will be seen there is a close correspondence between the headings in the affidavit and headings used in the previous part of my reasons.
90 For those parts of the affidavit, it seems to me that an objection on relevance grounds must fail. This would also apply to the annexures to
(Page 28)
- the affidavit to which those parts refer. Nor it seems to me are the depositions and annexures in question oppressive in the terms quoted from Seaman (supra). I recognise, as I indicate below, that at the hearing certain paragraphs and related material in those parts of the affidavit were not relied upon by counsel for the plaintiff. However, I did not take that as a forensic concession that such parts could be struck out. I note in passing that in the submissions for the plaintiff in relation to the striking out application lodged subsequently to the hearing, there is a submission that the part of the affidavit under the heading "Increasing costs" (pars 23 – 27) were "not pressed in argument" in the hearing before me. That is not my understanding of the hearing, nor my reading of the relevant pages of the transcript (TS 116 – TS 118).
91 I would not strike those parts of the affidavit under the Rule. I return to questions of its admissibility, in whole or in part, separately, below.
92 However, before me counsel for the plaintiff indicated he did not intend to rely upon a particular paragraph of the affidavit, and on the material under the heading "Mediation". It seems to me these materials require separate consideration.
93 The plaintiff in the paragraph referred to deposed that "I question the veracity" of certain statements made by the solicitor in certain communications "as claims are made without substantiation in relation to medical, house maintenance and renovation, transport and legal expenses" (par 22). There is no other detail provided, except possibly as may be gleaned from annexure "MMP9", to which I return, and to which no reference is made in this context.
94 I consider that, while this paragraph may make an assertion relevant to the plaintiff's application, it is too vague to offer any meaningful support. I consider that it would be appropriate to strike out the paragraph as oppressive.
95 The material under the heading Mediation goes to the difficulty the plaintiff deposes had been experienced in arranging the mediation pursuant to the mediation order made by Master Sanderson 25 July 2006. It seems to me this material is both relevant to the case sought to be made by the plaintiff with respect to the risk the solicitor will disregard her overriding duty to the court, and not oppressive in the sense I have identified. I would not strike it from the affidavit under the Rule. I return to the matter of the admissibility of this material below.
(Page 29)
96 Finally, I note the paragraph of the plaintiff's affidavit (par 33) in which she deposes that there is annexed a bundle of correspondence received by her solicitors and her from the defendant and from "my daughter", "since the commencement of these proceedings", and including also an affidavit sworn by the latter in the proceedings, which appears to be the affidavit of discovery for the defendant, sworn pursuant to the enduring power of attorney to which I have referred. This material is annexure "MMP9", and comprises pp 47 to 159 of the affidavit, which with its annexures is 159 pages long. Annexure "MMP9" is therefore the bulk of the affidavit.
97 The relevance of the material in "MMP9" to the plaintiff's application before me was not made apparent to me in the hearing. No reference was made to any page or pages in "MMP9". Accordingly, I have concluded that par 33 and annexure "MMP9" should be struck out from the affidavit, as oppressive.
98 Accordingly, in making my determinations I have ignored the material which I have indicated I would strike out.
99 This brings me to the matter of the admissibility of the remaining material in the affidavit. I am thus concerned here with material that I have found is relevant to the matters the subject of the plaintiff's application.
100 Order 37 r 6 permits affidavits used in interlocutory proceedings to contain statements of information and belief, provided that the sources or grounds of that information or belief are set out.
101 The defendant in the outline of submissions filed following the hearing put to me that it was not appropriate to apply this principle in an interlocutory application in relation to a matter of a client's choice of solicitor. I disagree. No supporting authority was cited to me. While the seriousness of the order to be made should be borne in mind, as I have indicated, in the caution to be applied in approaching applications of this sort, nothing in the authorities suggests to me that the evidentiary approach in O 37 r 6 is not to be followed.
102 The material in the plaintiff's affidavit with which I am presently concerned appears to me to meet that requirement, except for the material (par 28) under the heading "Independence". There the plaintiff deposes to the fact of her daughter having "maliciously" reported the plaintiff to the police, as I have previously indicated. The plaintiff also deposes to her daughter having commenced proceedings against her in the Local Court,
(Page 30)
- to which I have also previously made reference, for what the deponent describes as "an unsubstantiated and unsustainable claim". In my view, while the facts of the report having been made, and the proceedings having been commenced, raise no admissibility concerns, the quoted characterisations are not sourced or grounded as the O 37 r 6(2a) requires. I consider the paragraph in the affidavit in those two respects to be inadmissible. I have accordingly ignored the quoted matter in making my determinations, except as I indicated earlier.
Conclusions and orders
103 For the reasons I have set out, I conclude the plaintiff's application should be dismissed, the defendant's application to strike out certain material in the plaintiff's affidavit of 4 October 2006 should be granted in part, and the defendant's application to strike out the plaintiff's affidavit of 16 October 2006 should dismissed by consent, on the basis of orders by consent to uplift and remove the affidavit from the file.
104 I will hear from the parties as to the appropriate orders to be made to give effect to these conclusions, including orders as to costs.
105 I should add that at the hearing I indicated the appropriate orders in respect of the affidavit of the plaintiff of 16 November 2006 were that it be uplifted from the file, and the costs in respect of the application of the defendant to strike it out be costs in the cause.
106 I note, however, that in her written submissions filed after the hearing, the solicitor for the defendant makes a number of submissions that the plaintiff's application must be viewed as brought for an improper purpose, with consequences for its dismissal, and, by implication, for any order as to costs on such a dismissal.
107 Those submissions are not altogether clear, however. I understand them to be that, because the plaintiff's solicitors are being paid by the plaintiff to pursue her best interests, but are invoking the Court's jurisdiction to make an order or orders in the interests of the administration of justice, those solicitors must simply seeking to use the latter jurisdiction to obtain an advantage for the plaintiff to the disadvantage of the defendant. So understood those submissions, in my view, indicate a misunderstanding of the position of an applicant for an order like that sought by the plaintiff.
30
1