Wang v Jiang
[2022] VSC 333
•16 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS EQUITY AND PROBATE LIST
S ECI 2022 01349
| YUQIN WANG | Plaintiff |
| v | |
| SHUAI JIANG | First Defendant |
| - and - | |
| GUOHUA QIN | Second Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2022 |
DATE OF JUDGMENT: | 16 June 2022 |
CASE MAY BE CITED AS: | Wang v Jiang |
MEDIUM NEUTRAL CITATION: | [2022] VSC 333 |
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PRACTICE AND PROCEDURE — Parties — Legal practitioners — Solicitors acting for both defendants in proceeding – Application by plaintiff for defendant solicitors to cease to act –Conflict of interest – Application dismissed – Kallinicos v Hunt (2005) 64 NSWLR 561 — Miller v Martin [2019] VSCA 86 – Santin v Sfameni [2020] VSC 26.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Love | Australian Legal Advisory Centre |
| For the Defendants | Mr A Verspaandonk | Hall & Wilcox |
HIS HONOUR:
The plaintiff was married to Kai Jiang from 2020 until his death on 29 October 2021. From 1981 until a few weeks before he married the plaintiff, the deceased was married to the second defendant; the first defendant is a child of their marriage.
On 19 April 2022, the plaintiff commenced this proceeding in which she seeks an order restraining the defendants from interfering with, disposing of, or transferring assets said to belong to the estate of the deceased.
On 29 April 2022, the Court made orders including the following (the freezing order):
Until further order of the Court, the first defendant and second defendant are restrained from interfering with, disposing of or transferring any of the following assets:
(a)Basement and Room, 102, No 250, Lane 1509, Shuang Dan Road, Jia Ding District, Shanghai, PR of China;
(b)No 100, Wu Ying Shan Road, Tian Qiao District, Jinan City, Shandong Province, PR of China;
(c)Room 302, Unit 1, No 1, Court 80, Ying Xiong Shang Road, Middle City District, Jinan City, Shandong Province, PR of China;
(d) 84 Roslyn Street, Brighton, Victoria, Australia;
(e) 2009 BMW Sedan motor vehicle, Reg. No. 1OW8DV.
As no further relevant order has been made since 29 April 2022, the restraining order continues to apply to the defendants. Its continued operation is to be determined, together with a related proceeding brought by the plaintiff in relation to the deceased’s remains, at a hearing listed for 17 June 2022.
On 7 June 2022, the plaintiff filed a summons seeking orders pursuant to the Court’s inherent jurisdiction restraining Hall & Wilcox, the solicitors retained by the defendants in this proceeding, from acting or continuing to act on their behalf in this proceeding. The plaintiff also sought an order restraining Hall & Wilcox from acting on behalf of the defendant in the proceeding brought by the plaintiff in relation to the deceased’s remains, and in another proceeding brought by the plaintiff for a grant of letters of administration in respect of the deceased’s estate. The first defendant in this proceeding is the defendant in these two other proceedings.
At the hearing of the plaintiff’s summons on 9 June 2022, I informed counsel for the plaintiff that, because the summons had only been filed in this proceeding, there was no proper basis to grant the relief sought in the other two proceedings. I proceeded to hear the plaintiff’s application for an order restraining Hall & Wilcox from acting or continuing to act for the defendants in this proceeding. After hearing counsel’s submissions, I made orders dismissing the plaintiff’s summons and indicated that I would provide my reasons at a later time. These are my reasons for dismissing the plaintiff’s summons.
It is well established that the Court has an overriding jurisdiction to intervene to protect the due administration of justice where a reasonably informed member of the public would conclude that a solicitor should be prevented from acting. I considered the principles which guide the exercise of this jurisdiction in Santin v Sfameni and summarised them as follows:[1]
[1]Santin v Sfameni [2020] VSC 26 [39]-[41]. See also Miller v Martin [2019] VSCA 86, [17]-[19].
It is well established that the Court’s jurisdiction to restrain a solicitor from acting on the administration of justice ground is exceptional and is to be exercised with caution.[2] As Mandie J stated in Tricontinental Corporation Ltd v Holding Redlich (a firm),[3] ‘[i]t is a serious matter to prevent a party from retaining the legal representative of its choice, particularly upon the application not of a former client but of an adverse party’. In Bahonko v Nurses Board of Victoria (No 3),[4] Middleton J went so far as to state that the ‘Court must be careful not to intervene unless it is absolutely required in the circumstances of the case’ and that the Court ‘should be mindful that sometimes applications for restraining legal practitioners may be misused or quite inappropriately pursued by a party to proceedings’.[5]
As stated by Brereton J in Kallinicos v Hunt,[6] the test to be applied in applying the administration of justice ground:[7]
… 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.
His Honour continued that, in exercising the Court’s jurisdiction:[8]
… consideration is to be given to the prima facie right of a party to be represented by the lawyer of its choice, to the inconvenience, cost and disruption which might be occasioned by requiring a party to change lawyers, and to the “exceptional” nature of the jurisdiction.
[2]Kallinicos v Hunt (2005) 64 NSWLR 561, [76]; ACN 092 675 164 Pty Ltd v Suckling (2018) 56 VR 448, [55].
[3]Tricontinental Corporation Ltd v Holding Redlich (a firm) (Supreme Court of Victoria, Mandie J, 22 December 1994).
[4][2007] FCA 491.
[5]Ibid [3].
[6](2005) 64 NSWLR 561 (‘Kallinicos’).
[7]Ibid 582, [76] (citations omitted).
[8]Ibid 586, [92].
The gravamen of the plaintiff’s case was that there is a fundamental conflict, or divergence of interests, between the two defendants such that the administration of justice calls for the Court exercising its jurisdiction to restrain Hall & Wilcox from acting for both defendants. The claimed conflict was as follows: whereas the first defendant asserts that two properties in China the subject of the freezing order (or at least a portion of them) do not form part of the deceased's estate because they have passed to him under a ‘property transfer agreement’ apparently entered into by the deceased under Chinese law, the second defendant asserts that those properties form part of the estate. As to the latter claim, the plaintiff points to material filed by the second defendant in court proceedings in China which indicates that her position is that those properties were owned by the deceased and that she is entitled to a share of them by reason of their marriage. In substance then, the plaintiff contended that the defendants were in competition over their proprietary rights in respect of the two properties in question.
This analysis is misconceived. Counsel for the defendants informed the Court that, having been spoken to, both defendants were content to be jointly represented. This is not particularly surprising as the evidence before the Court establishes that, just as the second defendant has asserted a 50% interest in the abovementioned properties in China, the first defendant has deposed that those properties are owned 50/50 with the second defendant.[9]
[9]Affidavit of Shuai Jiang dated 21 April 2022, subparagraphs 46(a) & (b).
At the further hearing of the proceeding there may (or may not) be some forensic value in the critique advanced on behalf of the plaintiff about the positions adopted by the first and second defendants about the ownership of the subject properties at different times and in different contexts. However, those matters are matters for the final hearing of the application and they fall away given the position conveyed by counsel for the defendants to which I have referred. The defendants have a common position in relation to their interests in the relevant properties.
Moreover, the relative interests of the defendants in the properties in question are not in issue in this proceeding. The issue is the plaintiff’s entitlement to relief of a kind which would justify restraining the defendants from dealing with the properties the subject of the freezing order. In the circumstances of the case, any issue about the relative interests of the defendants in the properties does not properly bear upon the integrity of the legal process and the proper administration of justice so as to warrant the Court intervening to restrain Hall & Wilcox from acting.
For the above reasons, I do not consider that a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires the Court to take the exceptional step of preventing a practitioner from acting. There is no jeopardy to the integrity of the judicial process and the due administration of justice by Hall & Wilcox continuing to act for both defendants.
However, even if, contrary to my view, there is a degree of conflict between the interests of the two defendants, the circumstances do not properly justify the intervention of the Court as sought by the plaintiff. The jurisdiction to restrain a solicitor from acting is to be exercised with caution. In circumstances where the further hearing as to whether the freezing order should continue is imminent, I do not consider that it is appropriate that the defendants be deprived of retaining the solicitor of their choice. The cost, inconvenience and impracticality of requiring Hall & Wilcox to cease acting in such circumstances are factors which would otherwise led me not to exercise the jurisdiction even if, contrary to my view, there is a material divergence of interest between the defendants.
I will hear the parties on costs.
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