Case: Grimwade v Meagher [1995] 1 VR 446
Outcome: considered
mounting a case based on the inherent powers of the Court to control the conduct of solicitors and counsel, counsel for the Dean interests relied on the principle enunciated by Mandie J in Grimwade v Meagher [1995] 1 VR 446 ( 'Grimwade' ) at 452: '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.' In Grimwade , the restraining order was directed to senior counsel who had previously prosecuted the plaintiff in criminal proceedings and who proposed to act against him in civil proceedings. There was no question of the plaintiff being a client or former client of the senior counsel. In what Mandie J described as unique, extraordinary and highly exceptional circumstances, he made an order restraining senior counsel from acting in the civil proceedings. He did so on the basis that there was a real and sensible risk of a lack of objectivity by the first defendant which not only gave rise to an undue risk of unfairness or disadvantage to the plaintiff but also gave rise to a substantial concern that a fair trial would not be had: at 455. Brereton J concluded his discussion of the authorities by enunciating the following principles (at 582-583 [76]): '... 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. &#8226; 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 ). &#8226; The jurisdiction is to be regarded as exceptional and is to be exercised with caution ( Black v Taylor ; Grimwade v Meagher ; Bowen v Stott ). &#8226; 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 ). &#8226; 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 ) . ' In this Court, there is unambiguous authority that the Federal Court has the inherent power to restrain solicitors or counsel acting in a particular matter for a particular client where such a course is required by the interests of justice. In the Full Court's decision in Western Australia v Ward (1997) 76 FCR 492, Hill and Sundberg JJ said at 498: 'Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information and a real risk of lack of objectivity and of conflict of interest and duty: Grimwade v Meagher . The present case is only another example of situations in which the "integrity of the judicial process", the "interests of justice", and the "need to preserve confidence in the judicial system", to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is "an important value": Black v Taylor at 408.' In Lincoln , Goldberg J referred to this passage with approval and applied the test stated by Mandie J in Grimwade : at [10]. His Honour did not doubt that this Court has inherent jurisdiction in an appropriate case to prevent practitioners appearing for a particular party in order that justice should not only be done but should be seen to be done.