23 In that lies the heart of the problem. Mr Morey may be called as a witness in the plaintiff's case, to corroborate her version of the September 2005 arrangements and/or to corroborate her allegation that she had not received legal advice. At first sight, though I appreciate that further evidence may change this, that would be prima facie inconsistent with what has been said in some of his correspondence, and would leave more than a little room for the suggestion that such evidence was at least "tailored", out of loyalty to his client. In other words, he would be subject to robust cross-examination. It is unlikely that he would be called in Mrs Mitchell's case if he were going to contradict her version; but if he were not called, there would undoubtedly be a strong submission made that an adverse Jones v Dunkel inference should be drawn from the failure to call him. It is also possible that, based on what is known from the correspondence so far available, he might be called by the Burrells in their case, in the expectation that he might contradict Mrs Mitchell's version and case. If so, and he did not give evidence consistent with what is in the 22 June 2006 letter, the defendants might well be granted leave to cross-examine him as adverse. In any event, if he were called in the defendant's case and gave evidence adverse to Mrs Mitchell, he would then be liable to be cross-examined by counsel for the plaintiff, on the instructions of himself or Mr Jurd.
24 In my view, in those circumstances, a fair minded, reasonably informed member of the public would entertain serious reservation as to whether decisions about the conduct of the plaintiff's case would be made exclusively in the interests of the plaintiff, or to a greater or lesser extent having regard to the interests of Mr Morey. In particular, there would be reservations as to whether decisions to call him or not to call him in the plaintiff's case were influenced by his own interests as well as or in place of Mrs Mitchell's, and there would be concerns if he were called in the defendants' case as to whether the vigour of any cross-examination of him was influenced by concern for his interests as distinct from those of Mrs Mitchell. The point is perhaps highlighted by asking the rhetorical question that was raised in the course of argument: if Mr Morey's evidence of what he was told by Mrs Mitchell about the September 2005 conversations did not coincide with Mrs Mitchell's own evidence, who would Mr Morey instruct counsel to submit should be believed - himself or his client? It seems to me that there is a substantial risk that a situation of embarrassment could arise and a reasonably informed lay observer would think it contrary to the interests of justice that Mr Morey act in those circumstances.
25 As to Mr Jurd, there is no suggestion that he would himself be a witness. The case against him is put on the basis that he is Mr Morey's partner. There are suggestions in some of the cases that where one solicitor in a firm is disqualified from acting, it need not invariably follow that the others are also disqualified. In Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491, Middleton J restrained an employed solicitor from continuing to act in a matter, but held that the firm by which she was employed was still at liberty to act. In Scallan, the solicitor who was a potential witness was a consultant to the firm (although he had been before then the firm's longstanding senior partner), but that does not advance the matter very far, because no injunction was granted in any event. It is notable that, in both of those cases, it was an employed solicitor whose conduct was in question, albeit in Scallan one who had been recently a senior partner. Against that, most cases point to the view that, in this respect, the law treats a firm of solicitors as a single entity, so that if one partner is disqualified, the firm should not act [Chapman v Rogers; ex parte Chapman, 545; Bowen v Stott [2004] WASC 94, [66] (firm restrained from acting where one partner was likely to be a material witness); Kooky Garments Ltd v Charlton, 590 (cited with approval in Afkos Industries Pty Ltd v Pullinger Stewart (a firm) [2001] WASC 69, [15])]. In principle, given the incidents of the relationship of partnership (involving utmost good faith and loyalty between the partners), and those of solicitor and client (requiring any partner in a firm to do all in his or her power and use all knowledge and information available to them, including to their partners, to assist the cause of the client), it is difficult to see how, where one partner is disqualified, it could be acceptable for another partner in the same firm to continue to act.
26 In any event, on the facts of this case I am satisfied that the replacement of Mr Morey by Mr Jurd does not alleviate the concerns which the reasonable lay observer would entertain, and that such observer would remain concerned that decisions whether or not to call Mr Morey, and if he were called by the defendants as to how to cross-examine him, might be influenced by Mr Jurd's obligations to his partner, as well as or in preference to his obligations to his client. Once again, the problem can be highlighted in this way: if the versions of Mr Morey and Mrs Mitchell did not coincide, who would Mr Jurd instruct counsel to submit should be believed, his client or his partner? Accordingly, the reasonable lay observer would continue to entertain reservations that decisions might not be made exclusively in Mrs Mitchell's interests but might be influenced by the interests of the firm and Mr Morey. An independent solicitor would remove the concern that interests other than Mrs Mitchell's might influence important decisions in the conduct of her case.
27 Relief in this jurisdiction is discretionary. Relevant discretionary considerations here include that the proceedings are still at a relatively early stage, that the objection was notified and agitated at the earliest reasonably possible time, and that as a result additional costs and the loss involved in having to instruct new solicitors will, although not negligible, be relatively slight.
28 Submissions were advanced that Mrs Mitchell's financial position was such that she would have great difficulty in obtaining other solicitors to act for her. I do not consider that I can act on those submissions in the absence of the slightest evidence to support them, bearing in mind that allegations in a Statement of Claim - which, in any event, do not go so far as making good that submission - even if verified, are not admissible evidence of the matters they assert.
29 I have considered carefully whether the circumstance that the only person who would apparently be prejudiced by Slattery Jurd continuing to act would be Mrs Mitchell. However, it is not correct that only she would be prejudiced. The Court would suffer the disadvantage of itself having to entertain the reservations that I have mentioned the reasonable lay observer would entertain. And those reservations would impact adversely on the appearance of justice. Moreover, there is not the slightest evidence that Mrs Mitchell has been apprised of all these matters and of the risks to which I have adverted, yet wishes the solicitors to continue to act for her, and I cannot even draw the comfort that might otherwise be available had she been in Court, because she was not present during the hearing of the application. In those circumstances - even if, which I doubt, it were otherwise appropriate for the Court to conclude that the only potential prejudice was to Mrs Mitchell, and that if she wanted to take her chances in that respect, she could - the basis for such a conclusion in this case has not been established.
30 Accordingly, my conclusions are: