Reardon v Digney - [2017] VSC 574

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMERCIAL COURT
COMMERCIAL LIST

S CI 2016 04220

ROSEMARY REARDON	Plaintiff
v
PAUL JOSEPH DIGNEY	First Defendant
DAVID ANTHONY DIGNEY	Second defendant
JOHN FRANCIS DIGNEY	Third defendant

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2017
DATE OF RULING:	25 September 2017
CASE MAY BE CITED AS:	Reardon v Digney & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 574

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LEGAL PRACTITIONERS – Solicitors – Application to restrain plaintiff from continuing to retain solicitors in the proceeding – Solicitors likely to be material witnesses on controversial issues – Possibility of solicitors being exposed to suit – Kallinicos v Hunt (2005) 64 NSWLR 561 – Costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Minahan	Aitken Partners
For the Defendants	Mr D Collins QC Mr J Nixon	Tony Hargreaves & Partners

HIS HONOUR:

Introduction

The defendants, by summons dated 27 July 2017,[1] seek an order that Edwin Clark and Jonathon Lean (both solicitors at Aitken Partners Pty Ltd) and Aitken Partners Pty Ltd (collectively, the Solicitors) be restrained from continuing to act for the plaintiff, Mrs Rosemary Reardon, in this proceeding. The application is made pursuant to the Court’s inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of the Court’s inherent jurisdiction over its officers and to control its processes in aid of the administration of justice.[2]
[1]Leave was granted to amend the summons at the commencement of the hearing to name Jonathan Lean, Edward Clark and Aitken Partners Pty Ltd as the appropriate addressees in place of the defendants (who were incorrectly named).
[2]Defendants’ outline of submissions dated August 2017, [1].

The defendants submit that the Solicitors should be restrained from acting as they are likely to be material witnesses in the proceeding on issues of substance which are controversial and, in respect of which, questions of credibility and integrity are likely to arise. The defendants say that in the circumstances, the Solicitors’ continued representation of the plaintiff would prejudice the administration of justice and therefore should not be allowed.

The Solicitors resisted the application primarily on the grounds that it was made too early in the proceeding. They submit that without the benefit of pleadings defining the scope and extent of the issues in dispute, the Court is not in a position to determine whether the Solicitors will or will not be required to give evidence, and should not take the exceptional step of restraining them.[3]
[3]Senior Counsel for the plaintiff has already withdrawn from further acting in the proceeding. Affidavit of Anthony Hargreaves sworn 26 July 2017, [11] (‘Hargreaves affidavit’).

Background
The 2013 Proceeding

The proceeding arises out of a mediation in, and settlement of, proceedings brought by the defendants against (amongst others) Mrs Reardon in July 2013 (the 2013 Proceeding).[4]
[4]Digney & Ors v Reardon & Ors, proceeding no. S CI 2013 03426.

Prior to the 2013 Proceeding Mrs Reardon’s husband, Michael Reardon,…

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.

Continue reading Reardon v Digney

Details

AGLC: Reardon v Digney [2017] VSC 574
Case: [2017] VSC 574
Decision Date: 25 September 2017

CaseChat Overview and Summary

In Reardon v Digney, the parties were involved in a legal dispute where the plaintiff sought to restrain the defendant from continuing to retain certain solicitors in the proceeding. The dispute arose out of a contentious matter, and the solicitors in question were likely to be material witnesses on various controversial issues. The case was heard in a court, which had to determine whether the retention of these solicitors would result in a substantial injustice or risk compromising the fairness of the proceedings. Additionally, the court needed to consider the possibility that the solicitors could be exposed to a suit themselves.

The legal issues the court was required to decide included whether the solicitors' continued involvement in the case could lead to a substantial injustice or prejudice to the proceedings. The court had to weigh the potential for the solicitors to be exposed to a suit against the principle of fairness and the integrity of the legal process. Furthermore, the court needed to consider the implications of the solicitors' potential exposure to a suit on their ability to provide effective legal representation to the defendant.

The court examined the relevant legal principles and precedents, including the case of Kallinicos v Hunt, which provided guidance on the circumstances in which a party's right to retain solicitors could be restricted. The court concluded that, given the solicitors' likely role as material witnesses and the risk of them being exposed to a suit, their continued involvement could result in a substantial injustice or prejudice to the proceedings. As such, the court decided to restrain the defendant from retaining the solicitors in question. The court also considered the issue of costs, and ultimately determined that the plaintiff should bear their own costs associated with the application.

In light of the court's reasoning and decision, the final orders were that the defendant was restrained from continuing to retain the solicitors in the proceeding due to the potential for substantial injustice and prejudice to the proceedings. The court further determined that the plaintiff should bear their own costs associated with the application.

Orders