Lee v Yap [2025] VSCA 260

[2025] VSCA 260

PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants are barristers whose conduct of the proceeding below is impugned - Procedural fairness requires opportunity to be heard - No objection to intervention - Applications for leave to intervene granted.

Supreme Court (General Civil Procedure) Rules 2025, r 64.10.

PRACTICE AND PROCEDURE - Application to restrain barristers from acting for first to third respondents in application for leave to appeal and any appeal - Barristers stated to Court that they regard themselves as unable to act until application for leave to appeal and any appeal is decided - Order restraining barristers not necessary.

1. In 2016 the first respondent commenced a proceeding in the Trial Division of this Court in relation to a trust that had been established in 1982. As the judge below observed, the proceeding has been characterised by procedural complexity, numerous changes in legal representation and significant developments in the circumstances of key parties. In June 2024 the judge determined various applications, including an application by Yew Han Lee (the first applicant, and the first defendant below, known as 'Flora') to have the plaintiffs' fifth amended statement of claim struck out on the basis of an alleged abuse of process, breaches of 'Harman undertakings'[1] and breaches of the parties' and legal practitioners' overarching obligations. The judge refused the relief sought in that summons.
2. Flora and the third defendant below, Eng Seng Yap (known as 'Vincent') now seek leave to appeal the judge's ruling.
3. In their application for leave to appeal, Flora and Vincent seek non-party costs orders against the barristers who acted for the first to third respondents (who were the plaintiffs below), Mr Ian Martindale KC and Ms Christine Willshire (collectively, 'the barristers'). Flora and Vincent have also filed an application seeking to restrain the barristers from acting in the application for leave to appeal.
4. Mr Martindale and Ms Willshire each sent email correspondence to this Court stating that, in light of the application for costs against them, they are unable to act for the first to third respondents either on the application for leave to appeal or below, until the proceeding in this Court is decided. In light of that, they stated that they did not contest the application to restrain them from acting, but submitted that it is not necessary for the Court to do so and asked that the Court not take that step.
5. Mr Martindale and Ms Willshire have also filed applications for leave to intervene in the application for leave to appeal, pursuant to r 64.10 of the Supreme Court (General Civil Procedure) Rules 2025 (the 'Rules').[2] They initially sought to intervene only in relation to grounds 1 to 3 of the applicants' application for leave to appeal. They now also seek leave to intervene in relation to proposed ground 5, which was added to a proposed amended application for leave to appeal filed by the applicants on 18 August 2025.
6. The respondents do not contest the applications for leave to intervene.
7. The applicants' formal position is that they neither oppose nor consent to leave being granted to Mr Martindale and Ms Willshire to intervene. They accept that the barristers 'must be offered an opportunity to present arguments in their defence'. However, they contend that such an opportunity would also be available at the hearing of their applications for orders restraining the barristers from acting. They urge the Court to make orders that would allow the orderly and fair hearing of the determination of their application for leave to appeal and appeal.

1. A person who is not a party to a proceeding has no entitlement to appear and/or make submissions in relation to that proceeding. However, such a person may seek, and may by granted, leave to intervene in an application before this Court. It is convenient to set out r 64.10, which governs such applications:

(1) A person who was not a party to the proceeding or matter in which the decision sought to be appealed or under appeal was made or a person who does not have an independent right to appear or intervene, may apply to the Court of Appeal for leave to intervene in an application for leave to appeal or an appeal.

(2) An application for leave to intervene is made by filing with the Registrar and serving -

(a) an application in accordance with Form 64B;

(b) an affidavit in support in accordance with any applicable practice note; and

(c) any additional document required by any applicable practice note .

(3) The applicant must satisfy the Court of Appeal -

(a) that the applicant's contribution as an intervener will be useful and different from the contribution of the parties;

(b) that the intervention would not unreasonably interfere with the conduct of the application or appeal; and

(c) of any other matter that the Court of Appeal considers relevant.

(4) When giving leave to intervene, the Court of Appeal may specify -

(a) the form of assistance to be given by the intervener;

(b) the manner of participation of the intervener;

(c) the matters that the intervener may address;

(d) whether the intervener's submissions are to be oral, in writing, or both; and

(e) whether any undertaking as to costs should be given, and if so, in what form.

1. In Bauer v Wilson (No 2), this Court summarised the principles relevant to whether to grant leave to intervene as follows:

(1) A non-party whose interests would be affected directly by a decision in a proceeding is entitled to intervene to protect the interest liable to be affected.

(2) Where the legal interests of a person may be affected by the operation of precedent or by the doctrine of stare decisis, a court may grant leave to intervene if the interest is sufficiently substantial.

(3) Where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene.

(4) A grant of leave may be limited, and subject to such conditions as to costs or otherwise as will do justice as between the parties.

(5) A non-party must satisfy the Court that its contribution, as an intervener, will be useful and different from the contribution of the parties, and that the intervention will not unreasonably interfere with the conduct of the proceeding.[3]

1. In British American Tobacco Services Ltd v Cowell, this Court granted leave to intervene to a solicitor whose conduct had been criticised by the judge at first instance.[4]

1. By reason of r 64.10(3), a person who seeks leave to intervene in a proceeding must satisfy the Court that:

(a) their contribution as an intervener will be useful and different from the contribution of the parties; and

(b) their intervention would not unreasonably interfere with the conduct of the application or appeal.

1. In the present case we are satisfied of both propositions in relation to the barristers' applications for leave to intervene.
2. Furthermore, the application for leave to appeal makes various allegations concerning the barristers' conduct, including that they deceived the court below, breached the implied obligation, breached s 101 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 and breached a duty owed to the Court by failing to give a full and frank explanation by way of sworn evidence. These are very serious allegations and it is plain that the barristers must be given an opportunity to respond, as a basic application of the principles of natural justice. Permitting intervention in the application for leave to appeal is the most efficient manner in which that can occur. Such intervention should, in our view, occur by way of both written and oral submissions.
3. The applicants' written submissions suggested that an alternative forum in which the barristers could be given the opportunity to respond would be at the hearing of the application to restrain them from acting. We do not consider that would be an efficient manner in which to provide the barristers with the opportunity that basic fairness requires. Not only would it require two hearings instead of a single hearing, the content of the two hearings would overlap. Furthermore, it may later transpire (at the second hearing) that not all of the issues concerning the barristers' conduct were fully ventilated at the first hearing, which would then either involve a breach of natural justice or require a further opportunity for the barristers to be heard, which might delay the conduct of the second hearing. It is plainly preferable that there be a single hearing, at which the barristers are given the opportunity to respond to the allegations against them.

1. Given that there was no objection to the barristers' intervention, and given that their conduct is impugned and that natural justice requires them to be given an opportunity to be heard on the issues raised in the application for leave to appeal, we will grant their application to intervene. Their intervention will be limited to making written and oral submissions in relation to grounds 1 to 3 of the applicants' application for leave to appeal, and proposed ground 5 of the proposed amended application for leave to appeal.
2. We do not consider it necessary to make an order restraining the barristers from acting for the first to third respondents on the application for leave to appeal, given the terms of the emails that they have sent to the Court.

• YAP BROTHERS HOLDINGS PTY LTD (ACN 006 004 324)

[1] The phrase 'Harman undertaking' is a reference to the implied legal obligation that prevents parties from using documents obtained through compulsory court processes for any collateral or ulterior purpose: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. The phrase comes from the case Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[2] The Supreme Court (General Civil Procedure) Rules 2025 were remade effective 8 September 2025. Rule 1.05(1) provides that these Rules apply to every civil proceeding commenced in the Court whether before, on or after the commencement date. Rule 64.10 is in relevantly the same form in each version.

[3] [2018] VSCA 68, [7] (citations omitted).

[4] (2002) 7 VR 524; [2002] VSCA 197.