Case: Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561
Outcome: applied
Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 ( 'Kallinicos' ), Brereton J undertook a comprehensive examination of the authorities concerning the court's supervisory jurisdiction over solicitors. His Honour concluded that there are many authorities which maintain the same view of the court's supervisory jurisdiction as that which had been expressed in the cases prior to Bolkiah : see eg McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394, Oceanic Life Ltd v HIH Casualty &amp; General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Bowen v Stott [2004] WASC 94 (Hasluck J) ( 'Bowen v Stott' ); see also Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264. In these circumstances, the question arises whether I should assume that the proceedings will be extended to include allegations that the meeting and resolution were invalid, as foreshadowed by counsel for the Deans. In Bowen v Stott , Hasluck J confronted a similar situation. In that case, the proposed amendment raised issues concerning the alleged settlement of earlier proceedings. Hasluck J said that if the pleadings were amended as proposed and the matter proceeded to trial, there would be an evidentiary issue as to whether a settlement was effected, and on that issue it was likely that evidence would be required from the solicitor and counsel involved in the negotiations. In his Honour's view, it would be almost inevitable that they would be challenged about the relevant events. In these circumstances, Hasluck J proceeded on the basis that the pleadings would be amended as proposed, and granted an injunction restraining the relevant counsel and solicitors from acting in the matter. The position in Kallinicos was not dissimilar. The application for an injunction was made at an early stage of the proceedings before a defence had been filed. The evidence before Brereton J indicated, nonetheless, that the solicitor was likely to be a material witness on issues of substance which appeared to be controversial: at 584 [84]. Brereton J took these matters into account in granting the injunction. The inherent jurisdiction of this Court is discretionary. Appropriate weight must be given to the exceptional nature of the jurisdiction and to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. I have also taken into account Brereton J's reminder in Kallinicos that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief. Here, the consideration that I must bear in mind is that if WVL is restrained from acting for GSS, it may not be able to obtain replacement lawyers because of its deadlocked and insolvent position. That circumstance may, of course, hasten an application for the winding up of GSS. Bearing these factors in mind, I have nonetheless concluded that this is an exceptional case that warrants intervention. On the whole, I am satisfied that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that WVL be restrained from acting for GSS. In view of Vogrig and WVL's past conduct and their retainer to act for Landmark and the Porchs, there is a fundamental difficulty in WVL continuing to act for GSS against the Dean interests, when GSS represents the beneficial interests of both Landmark and the Dean interests. These matters warrant the grant of injunctive relief even if no account is taken of WVL's position in relation to the meeting and resolution of 16 June 2006. Accordingly, the order of the Court will be that WVL be restrained from acting as solicitor for the first applicant in these proceedings. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 31 October 2006 Counsel for the Applicants: M Rivette Solicitor for the Applicants: Wakefield &amp; Vogrig Lawyers Counsel for the First to Fourth Respondents: P Clarke Solicitor for the First to Fourth Respondents: Harwood Andrews Lawyers Counsel for the Fifth to Seventh Respondents: D Nelson Solicitor for the Fifth to Seventh Respondents: David Nelson Lawyers Date of Hearing: 24 October 2006 Date of Judgment: 31 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1404.html