Case: Bowen v Stott [2004] WASC 94
Outcome: considered
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 the course of his examination of the authorities, Brereton J referred to the observations of Bergin J in Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 ( 'Mitchell' ), Heenan J in Holborow v MacDonald Rudder [2002] WASC 265 ( 'Holborow' ) and Hasluck J in Bowen v Stott . In Mitchell , Bergin J stated that, as an incident of its inherent jurisdiction, the court may decide upon the propriety of a legal practitioner representing a party in a particular case to ensure justice and the appearance of justice: at [34]. In Holborow , Heenan J said that this power had been invoked in cases where there was a potential that the legal practitioner might be a witness; where the subject matter of the litigation was likely to involve an evaluation of the conduct of the solicitor; and where the efficacy of documents prepared by the solicitor was likely to be in issue: at [23]. In Bowen v Stott , Hasluck J said that it may be appropriate to invoke the inherent power in cases where the solicitor had some direct pecuniary interest in the outcome of the case, where the solicitor might feel impelled to justify or defend his conduct in representing a client, or where the practitioner's credibility is at stake as a potential witness: at [47], [53] and [55]. 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 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.