Owen John Turner by his tutor Nicholas John Turner and Others v Wendy Joan O'Bryan Tuner and Others - [2018] NSWSC 1140 - NSWSC 2018 case summary — Zoe

NSWNSWSC

Owen John Turner by his tutor Nicholas John Turner and Others v Wendy Joan O'Bryan Tuner and Others

[2018] NSWSC 1140

Supreme Court of NSW|2018-06-27|Before: Sackar J, Mandie J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-06-27

Before

Sackar J, Mandie J

Catchwords

[2000] NSWCA 199 Barnes v Addy (1874) 9 Ch App 244 Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256
[2006] HCA 27 Black v Taylor [1993] 3 NZLR 403 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
[2011] HCA 2 Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307
[2014] FCA 1065 Ebner v Official Trustee (2000) 205 CLR 337

Source

Original judgment source is linked above.

Catchwords

[2000] NSWCA 199 Barnes v Addy (1874) 9 Ch App 244 Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256[2006] HCA 27 Black v Taylor [1993] 3 NZLR 403 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283[2011] HCA 2 Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307[2014] FCA 1065 Ebner v Official Trustee (2000) 205 CLR 337[2002] HCA 51 Huang v Wong [2018] NSWCA 94 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351[1955] HCA 12 Johnson v Johnson (2000) 201 CLR 488[2000] HCA 48 Kallinicos v Hunt (2005) 64 NSWLR 561[1998] UKHL 52 R v Sussex JusticesEx parte McCarthy [1924] 1 KB 256 Re IPM Group Pty Ltd [2015] NSWSC 240 Rogers v R (1994) 181 CLR 251[1989] HCA 44 Viscariello v Legal Profession Conduct Commissioner [2015] SASC 4 Williams v Spautz (1992) 174 CLR 509

Judgment (31 paragraphs)

[1]

[7]

2010 Transactions

At different times, the First Plaintiff's farming properties were owned by him, his parents, grandparents, great-grandparents and/or their children.
On 18 December 2007 Jowenkenbe Pty Ltd (the directors and shareholders of which were the First Plaintiff's parents, the First Plaintiff himself and his first wife) transferred some of the farming properties to the First Plaintiff for nominal consideration as an intergenerational transfer of property.
On 15 April 2010, Mr Ioannou and Mr Bailey of Cleary Hoare met with the First Plaintiff, the First Plaintiff's father, and the Third Plaintiff. The purpose of the meeting was to discuss asset protection for all the farming properties now owned by the First Plaintiff and protecting these properties for the benefit of his children.
Following this meeting the First Plaintiff and Third Plaintiff retained Cleary Hoare to carry out the following work: 1. Settlement of two "Bloodline Trusts" namely the Turner Bloodline Trust and the Turner Bloodline Trust (No 2); 2. Incorporation of the Second Plaintiff (Allawah Pastoral Pty Ltd) as a trustee company for the Bloodline Trusts; 3. Secured debt processes; 4. Taking mortgages over some of the First Plaintiff's farming properties; and 5. Written legal advice.
On 22 April 2010 Mr Bailey wrote a detailed three page letter addressed to the Third Plaintiff a section which follows (CB 165-167). This letter purported to explain the effect of certain transactions. I note CB 165-167 is not complete however Exhibit PH-1 1-3 of Mr Hargreaves' Affidavit of 14 November 2017 provides a complete version: Estate Planning We refer to the meeting between yourself, your father and grandfather with the writer and John Ioannou of our office in Forbes on 15 April 2010. In relevant terms, your current position is: 1. John Turner holds assets in his own name, the net value of which is in order of $2,060,000.00 2. Following the separation of your father John and your mother, John is in a new relationship from which he has two children. 3. John's assets comprise of assets he had prior to this relationship and assets he has acquired after the relationship. 4. You and your family are concerned that should John separate from his new partner, the pre-relationship assets would be at risk in any family law dispute. In these circumstances, your objectives, broadly, are: 5. In a legitimate way, to protect your assets, or the value of them, from unexpected attack from creditors, whoever those creditors may be. 6. To do so in a way in which you can retain access to, and the benefit of, those assets or value.
Mr Bailey further set out in this letter the recommendations of Cleary Hoare including the creation of two new discretionary trusts (at paragraphs 7-18 inclusive). He also attached a diagram setting out his understanding of the assets of arrangements of the First Plaintiff's properties and trusts.
Mr Bailey sent a further letter to the Third Plaintiff on 13 May 2010 setting out a schedule of steps intended to put into place Cleary Hoare's asset protection recommendations (CB 168).
On 3 June 2010 based on documents provided by Cleary Hoare the First and Second Plaintiffs entered into a series of transactions regarding encumbering some of the First Plaintiff's farming properties. Whilst these transactions did not alter the First Plaintiff's ownership of his farming properties, some of his properties became encumbered for the benefit of the Second Plaintiff as trustee of the Bloodline Trusts. The primary beneficiaries of the Bloodline Trusts were and are: 1. The First Plaintiff; 2. The First Plaintiff's children: the Third Plaintiff, Ms Sara Gorman, the Second Defendant and Third Defendant (variously the children of his two marriages); and 3. The First Plaintiff's siblings and their children.
In April 2014 Mr Ioannou of Cleary Hoare left the firm. Mr Ioannou and Mr Bailey of Cleary Hoare were the solicitors who acted in relation to the 2010 Transactions.

[10]

Pleadings

The Plaintiffs commenced proceedings by way of Statement of Claim on or about 13 March 2017 (CB 2-67).
Although not part of the materials before me on this motion, the Third Plaintiff it appears filed extensive affidavit material sworn 13 March 2017 in support of the Statement of Claim.
The Statement of Claim seeks relief under various statues (for example the Conveyancing Act 1919 (NSW) and Real Property Act 1900 (NSW)) but in substance the purpose of the proceedings is to set aside, inter alia, numerous transactions undertaken by the First Defendant pursuant to a Power of Attorney executed by the First Plaintiff on 10 June 2015 at a time when it is alleged he lacked mental capacity to understand his actions (SOC [18]).
On 31 May 2017 the Defendants filed a Defence (CB 68-82). This Defence consists largely of denials and some admissions. It is clear however on this pleading that the Defendants reject or contest the Plaintiffs' allegations that the transactions are somehow inappropriate or unlawful.
On the same day the First Defendant purporting to be the tutor of the First Plaintiff Owen John Turner brought a Cross-Claim against the Second and Third Plaintiffs (CB 83-96).
This Cross-Claim seeks to have declared as void certain promissory notes and other transactions purported to have been undertaken by the First Plaintiff in 2010 and 2015 (CC [1]-[8]). The basis for the Cross-Claim is said to be, inter alia, undue influence by the Third Plaintiff upon his father the First Plaintiff (CC [9]). This is by reason of the absence of the First Plaintiff obtaining independent legal and/or financial advice prior to entering into the various transactions in 2010 and/or 2015 (CC [42]-[48]).
It is asserted in the Cross-Claim that the factual basis for many of the allegations are to be found in the Third Plaintiff's affidavit of 13 March 2017 and the Third Plaintiff's knowledge that his father had not received independent legal and/or financial advice prior to the various transactions. However it is explicitly asserted that in relation to the June 2010 Transactions the law firm Cleary Hoare (in particular Mr John Ioannou solicitor) was retained by the Third Plaintiff (CC [8(o)].
It is also asserted in the Cross-Claim that the First Plaintiff had not received any independent legal advice from either Cleary Hoare solicitors or Pigot Miller Wilson accountants.
On 13 June 2017 the First Defendant filed an affidavit and was cross-examined on that date although this evidence is not before me on this motion. This is because she is terminally ill and I ordered on 11 April 2017 that her evidence be taken on commission.
On 7 July 2017 the Second and Third Plaintiffs filed a Defence to that Cross-Claim which, inter alia, asserts that Cleary Hoare had been retained by the First and Second Plaintiff, that they had drafted various documents and further had given advice in relation to those documents and the various transactions undertaken (CB 97-114). It is accepted however on the Defence that no independent financial advice was obtained (CB 103).
On 9 September 2017 the Defendants filed a Reply to the Defence to the Cross-Claim (CB 115-121). This Reply alleges that Cleary Hoare were retained and their retainer required the firm to provide all reasonable advice to the First and Third Plaintiffs as to the transaction documents (R [1]-[3]). Further it is alleged that Cleary Hoare owed a fiduciary duty to the First Plaintiff and Third Plaintiff which were not identical (R [4]-[5]). It is further alleged that there was a conflict, that Cleary Hoare had preferred the interests of the Third Plaintiff as to the First Plaintiff, and were in breach of their fiduciary duty in a number of respects owed to the First Plaintiff (R [6]-[78]). Further if any advice had been provided to the First Plaintiff it was not independent and was in breach of Cleary Hoare's fiduciary duty to him.
I note as a preliminary observation no attempt is made either in the Cross-Claim or in the Reply by the Defendants to assert that the Third Plaintiff participated in or was privy to or knew of Cleary Hoare's breach of fiduciary obligations. No attempt has been made to join Cleary Hoare as party to the litigation. The Reply as it stands is untethered to any knowledge or conduct of the First Plaintiff and would appear to be solely an attack on Cleary Hoare.
The pleading of undue influence in the Cross-Claim filed by the Defendants against the Third Plaintiff is vague except implicitly somehow or other that it is suggested that the Third Plaintiff's knowledge of the absence of consideration or independent and/or financial advice or otherwise amounts to undue influence on his behalf. It is not suggested he had actively participated in breach of trust in the sense of Barnes v Addy (1874) 9 Ch App 244.
Notwithstanding these deficiencies and ambiguities no objection has thus far been taken by the Plaintiffs to these pleadings filed by the Defendants.
However these issues concerning the nature of the pleadings are matters to which I will return in more detail.
On 8 September 2017 the Defendants filed a Notice of Motion which seeks first that the Third Plaintiff cease to be the tutor for the First Plaintiff in these proceedings and secondly an injunction restraining Cleary Hoare from acting in these proceedings for the Plaintiffs (CB 122-125). However the first prayer for relief seeking to remove the Third Plaintiff as tutor is not pressed (T68/37-40).
I ordered a mediation which occurred between the parties on November 2017. It was unsuccessful.

[13]

Abuse of process

Secondly allied to notions of contempt is the general doctrine of abuse of process. This is a doctrine of wide import which can be invoked where a party seeks to invoke some foreign or ulterior purpose in litigation as opposed to the relief sort. Here the administration of justice prevents parties using litigation for such a foreign or ulterior purpose: Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34; Rogers v R (1994) 181 CLR 251; [1994] HCA 42.
In Williams v Spautz (1992) 174 CLR 509 at 518; [1992] HCA 34 ("Spautz") Mason CJ, Dawson, Toohey and McHugh JJ recognised that it is well established that Australian courts have inherent jurisdiction to stay proceedings which are an abuse of process.
Their Honours also said (at 520) (citations omitted): In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings … The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.
Their Honours also said (at 529) that the power to prevent an abuse of process requires the foreign, ulterior or improper purpose of a party be the "predominant purpose". Their Honours further said (at 529) that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it, that the onus is a heavy one and the power to grant a permanent stay is one to be exercised only in the "most exceptional circumstances".
Some of the above quotations formulating courts' inherent jurisdiction to prevent abuses of process were cited with approval by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 ("Batistatos") at [6]-[15].
However in Batistatos their Honours also noted that the phrase (at [5]) "'inherent jurisdiction' itself is a slippery one" and abuses of process (at [14]) "cannot be restricted to 'defined and closed categories'" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and take into account the circumstances of each case.

[14]

Apprehension of bias

Thirdly the law of apprehension of bias principles safeguard the interests of justice against situations where there is the realistic possibility that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial or unprejudiced mind to the resolution of the question(s) in dispute: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [37] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
As noted in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7] per Gleeson CJ, McHugh, Gummow and Hayne JJ "[t]he question is one of possibility (real and not remote), not probability".
Apprehension of bias operates with respect to a party to a dispute and is directed to the judge (or judicial officer) deciding upon the resolution of that dispute. It is likewise an objective test.
In Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ noted the test is an objective one. At the same time, their Honours said two things need to be remembered. First the observer is taken to be reasonable. Secondly the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial. When considering the reasonableness of the fictional observer, their Honours also noted (at [13]) the reasonableness of any suggested apprehension of bias is to be considered in "the context of ordinary judicial practice" and is not frozen in time or purely theoretical.
In Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 Gleeson CJ formulated the apprehension of bias principle with reference to (at [16]) "[a] fair-minded member of the public, informed of all the facts set out above". Likewise in this decision Gaudron, Gummow and Hayne JJ referred to (at [47]) "a fair-minded and informed member of the public, who knew what Mr Miasi had done".
In British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 ("BATAS v Laurie") French CJ dissenting said (at [33]) (citations omitted): In determining whether an apprehension of bias has a reasonable basis, the courts are asked to see themselves as others, not judges or lawyers, would see them. As Laws LJ put it in Sengupta v Holmes: "it is not enough to show that those in the know would not apprehend any bias." A standard for apparent bias dependent upon how the matter appeared to judges and lawyers would be difficult to distinguish, in practical effect, from a standard of actual bias.
His Honour also observed in BATAS v Laurie (at [46]-[47]) (citations omitted): Much debate in this appeal turned on the extent of the knowledge attributable to the fair-minded lay observer for the purpose of determining whether that observer would reasonably apprehend bias. That knowledge does not extend to a knowledge of the law that ordinary experience shows not to be the case. The question was discussed in Johnson v Johnson, where the plurality said: "Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx." (Footnote omitted.) Kirby J also discussed the attributes of the fictitious bystander: "Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances." (Footnotes omitted.) And further: "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious." (Footnote omitted.) I agree with the observation of Kirby J that a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment.
In BATAS v Laurie Heydon, Kiefel and Bell JJ said (at [132]-[134]) (citations omitted): The attributes of the hypothetical observer have been considered in a number of decisions of this Court. In Johnson v Johnson the emphasis was on the need to assess any suggested apprehension of bias in the context of ordinary judicial practice. At issue in that case was the expression of views by the trial judge in the course of exchanges with counsel. It was accepted that the lay observer must be taken to have some understanding that modern judges, responding to the need for active case management, are likely to intervene in the conduct of the proceedings and in so doing may well express tentative opinions on matters in issue. The application of the apprehension of bias rule depends upon the particular circumstances of each case. In Laws v Australian Broadcasting Tribunal the hypothetical observer's assumed knowledge extended to understanding that defences filed by the Australian Broadcasting Tribunal did not amount to assertions of belief. The Tribunal is a court of record. It has exclusive jurisdiction to hear claims for damages for breach of duty in respect of dust-related conditions. The Tribunal's power to refuse to allow the re-litigation of general issues (and to receive historical evidence and general medical evidence admitted in other proceedings) says nothing about the requirement in actuality and in appearance that its judges be impartial. It would be wrong to decide the present question by taking into account the novel evidentiary provisions that are available to the Tribunal. This is not because to do so is to attribute excessive knowledge to the lay observer but because the existence of those provisions is unconnected to whether a judge of the Tribunal is reasonably apprehended to have pre-judged an issue that is not to be determined by recourse to them.

[17]

Restraining lawyers from acting: the detail

In Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 Bergin J formulated the applicable principles for restraining lawyers as follows (at [34] and [40]): I am of the view that as an incident of its inherent jurisdiction, this 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. It has been said that such jurisdiction should be exercised with circumspection: Black v Taylor [1993] 3 NZLR 403 per Cooke P at 406; State of Western Australia v Ward & Ors (1997) 145 ALR 512 per Hill and Sunberg JJ at 518 - 519. … The onus is on the defendant to establish a real and sensible possibility of the misuse of the confidential information which BDW possesses. It is not suggested in this case that there will be a conscious disclosure and the defendant has relied only on an inadvertent disclosure.
In Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 Bergin J cited Black v Taylor [1993] 3 NZLR 403 per Cooke P (at 406): As to those who may be allowed to represent parties to argue cases, the Courts have an inherent jurisdiction … The jurisdiction extends to the propriety of a representative appearing in a particular case: it is not then a question of the right of practice generally, which is governed in New Zealand by statute, but a question concerning what is needed or may be permitted to ensure in a particular case both justice and the appearance of justice. Obviously it is a jurisdiction to be exercised with circumspection.
In PhotoCure ASA v Queen's University at Kingston [2002] FCA 905 ("PhotoCure") Goldberg J at [59] cited with approval D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 at 122-123 per Bryson J (not referred to in Kallinicos). PhotoCure was a case concerning the potential misuse of confidential information (the first ground referred to above). This cited passage affirms that "the court should take a cautious approach to any proposal that it should allow the solicitor to act against that client". This is because (at [59] of PhotoCure) (emphasis added): Cautious conduct by the court is appropriate because the spectacle or the appearance that a lawyer can readily change sides is very subversive of the appearance that justice is being done. The appearance which matters is the appearance presented to a reasonable observer who knows and is prepared to understand the facts. The court should weigh the facts and assess the risks in the eye of reality, theoretical risks should be disregarded and when as here there is no confidential information available and there never was a relationship of solicitor and client with any partner the appearance of the matter is not a basis for the court to assume control over the retainer.
The cited passage in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 was also affirmed by Ipp J in Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 at 373 and Drummond J in Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 311; [1993] FCA 218.
In PhotoCure Goldberg J concluded that as there was (at [78]) "no real risk of disclosure" of any confidential information it was not appropriate to prevent the solicitors from acting.
In Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [113]-[116] Nettle J applied the test of the fair-minded reasonably informed member of the public, although did not elaborate further on the precise characteristics or knowledge to be attributed to this member of the public.
In Holborow v Macdonald Rudder [2002] WASC 265 at [28] Heenan J referred to "the fair and reasonable perception that the practitioner may not exercise the necessary independent judgment".
In Pott v Jones Mitchell [2004] QSC 48 McMurdo J considered an application falling more correctly under the first ground for restraining lawyers identified above concerning the potential for the misuse of confidential information. McMurdo J formulated the test as (at [16]) "the court should intervene unless it is satisfied that there is no risk of disclosure of that information to the new client. Such a risk need not be a substantial one, but it must be real and not merely fanciful or theoretical".
His Honour said (at [22]): But applying these principles, what must be attributed to the fair minded member of the public is a knowledge of the relevant facts so that he or she is "reasonably informed". The member of the public should be assumed to know the true facts of the matter, at least as they are known to the court which is asked to restrain the conduct of its officer. In this case, it requires the court to assess the reaction of this reasonable observer by attributing to him or her knowledge of the relevant circumstances from which Ms Power came to be described as a "consultant", as well a knowledge of the facts and circumstances from which I have concluded that there is no serious possibility that she has received any information confidential to Mr Pott. But now that these facts and circumstances are revealed by the evidence in this case, could a reasonable member of the public lose confidence in the judicial system if Ms Power is permitted to continue to act for her client? In my view that question must be answered in the negative. The reasonable observer would see that Ms Power was described as a consultant to the end of assisting Jones Mitchell to enjoy most of what had been the goodwill of her practice. It did not at all reflect any professional association whereby Jones Mitchell consulted Ms Power, at least for the purpose of obtaining legal assistance or advice from her for the benefit of its clients. The properly informed member of the community would know that Ms Power had been in no fiduciary relationship with Mr Pott. At no time has she been his solicitor, or a member of the firm which were his solicitors.
In Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 at [57] Bergin J referred to the objective test used in these authorities of whether the "fair minded, reasonably informed member of the public would conclude that the proper administration of justice required that a legal practitioner be prevented from so acting, and that in this process, due weight is given to the public interest that litigants should not be deprived of their choice of legal practitioner without good cause".
However her Honour did not precisely formulate the characteristics or knowledge to be attributed to the fair-minded reasonably informed member of the public.
In Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 ("Kallinicos") Brereton J reviewed the authorities as they then stood relating to the inherent jurisdiction of the court to supervise the conduct of counsel and solicitors in court. His Honour said (at [76]): The foregoing authorities establish the following: • During the subsistence of a retainer, where the court's intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court's jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests (Prince Jefri Bolkiah). • Once the retainer is at an end, however, the court's jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure) (Prince Jefri Bolkiah). • After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court's intervention, such duty having come to an end with the retainer (Prince Jefri Bolkiah; Belan v Casey; PhotoCure ASA; British American Tobacco Australia Services Ltd; Asia Pacific Telecommunications Ltd; contra Spincode Pty Ltd; McVeigh; Sent). • However, 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. • 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). • The jurisdiction is to be regarded as exceptional and is to be exercised with caution (Black v Taylor; Grimwade v Meagher; Bowen v Stott). • 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). • 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 Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 ("Geelong School Supplies") Young J considered a case concerning an application for restraining lawyers from acting under the third ground noted above, that is the inherent jurisdiction to restrain a solicitor from acting if it is in the interests of justice. His Honour referred to and made a number of important observations. For example his Honour cited (at [33]) with approval Western Australia v Ward (1997) 76 FCR 492 at 498 per Hill and Sundberg JJ the proposition that the requirements of natural justice do not involve an "absolute right" to the legal advisor of a party's choice. Young J formulated the relevant test under this third ground as (at [35]) "whether on the evidence before me a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires" the solicitors from acting.
In Geelong School Supplies Young J also noted (at [51]) the inherent jurisdiction of the court is exceptional and discretionary and therefore takes into account cost, inconvenience and impracticability of requiring lawyers to cease to act.
In Mitchell v Burrell [2008] NSWSC 772 Brereton J likewise considered the third ground of the inherent jurisdiction to restrain solicitors from acting. In this case there was a degree of speculation as to what kind of evidence the relevant solicitor would give before the court, as his Honour stated (at [19]) (emphasis added) "I am quite satisfied that Mr Morey may be a witness on a material matter, and that his evidence may be controversial". His Honour also noted that he did not accept that (at [20]) "the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor". This case however was one in which the evidence of the solicitor was not well-advanced and required a degree of speculation as to what the solicitor would assert, which I note is unlike the circumstances of this case where Mr Bailey has already committed himself to a version of events (form to one side).
In Allison v Tuna Tasmania Pty Ltd [2011] TASSC 52 Holt AsJ did not elaborate on the characteristics of the fair-minded reasonably informed member of the public other than stating in conclusion (at [37]): I am satisfied that a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Murphy 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.
In Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252; [2014] FCA 1065 ("Dealer Support") Beach J likewise formulated the test under the third ground as (at [94]) "whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a solicitor be prevented from acting". His Honour noted (at [101]) that in Dealer Support there were entirely different personnel now acting with no risk of any misuse of confidential information.
In Viscariello v Legal Profession Conduct Commissioner [2015] SASC 4 Parker J said (at [22]-[28]) (citations omitted): The test of what a "fair-minded, reasonably informed member of the public" might conclude is also applied when a court determines if there was a reasonable apprehension of bias so as to disqualify a judge or other decision-maker on the ground of apprehended bias. Thus, cases dealing with that issue are of assistance in this matter. A crucial issue is the level of knowledge that is to be attributed to the fair-minded, reasonably informed member of the public. The relevant principles have been discussed by Aronson and Groves in Judicial Review of Administrative Action (5th ed, 2013) at [9.90] in the context of the disqualification of judges based on past work as a barrister. The learned authors stated: The observer is, however, credited with an understanding of barristers' working conditions in general, at least those relating to the cab-rank principle, their general independence and distance from their clients, their readiness to disagree with those who might be their closest professional and personal friends, to agree with arguments from colleagues for whom they have little respect and to make strong statements on the instructions of others. The level of knowledge to be attributed to the hypothetical observer was considered by the New South Wales Court of Appeal in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd. The issue before the court was whether a judge should be disqualified because he had previously often appeared as counsel for the defendant, Caltex. Priestly and Clarke JJA held (with Kirby P dissenting) that the hypothetical bystander could not be regarded as reasonable if they had not informed themself as to the way in which barristers work. The hypothetical independent observer must be taken to understand the ethical principles under which a barrister, such as Mr Harris, must operate and the high importance attached to those principles by members of the legal profession and the courts. The observer must know that a barrister is required always to act in the best interests of his client whilst also acting in accordance with strict ethical obligations and the law. The observer must also be taken to understand that the "cab rank principle" requires a barrister, such as Mr Harris, who is available and not disqualified by a conflict or on other grounds to take a brief in relation to a matter that is within his or her professional competence and where the fees are acceptable. Upon taking the brief, the barrister must act in accordance with the principles that I have referred to in the preceding paragraph. The observer must also know that Minter Ellison understand that Mr Harris is required by the cab rank principle to accept the brief from Mr Bourne as delegate of the Commissioner unless one of the exceptions to that principle applies. The hypothetical observer must also be aware that Mr Harris has acted for clients of Minter Ellison rather than the firm itself. They must also know that clients who may have considerable experience with litigation, particularly in specialised fields such as defamation and medical negligence (ie publishers and professional indemnity insurers), may express a firm view as to their preferred counsel based on prior satisfactory experience. Thus, the views of the solicitors may not necessarily determine the choice of counsel.
Furthermore in this area Black J in Re IPM Group Pty Ltd [2015] NSWSC 240 at [51]-[55] provides a useful summary of the relevant case law that has developed from the principles elucidated by Brereton J above in Kallinicos v Hunt.
In Sanna v Wyse and Young International Pty Ltd (No 1) [2015] NSWSC 580 Darke J said (at [19]-[20]): I also do not think that this is an appropriate case to exercise the Court's inherent jurisdiction to restrain a legal practitioner from acting. I do not think that a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Allen should not appear for the plaintiff in this case. Such a person can be taken to be aware that a friendly personal relationship, as well as a professional working relationship, existed until fairly recent times between Mr Allen and Mr Dimitriou, who is closely associated with the defendants. The person can also be taken to be aware that whilst Mr Allen may be in possession of some information personal to Mr Dimitriou, and details of some serious allegations made against Mr Dimitriou in earlier litigation, he is not in possession of information that is or may be relevant to the issues in the present case. The person should also be taken to be aware that counsel such as Mr Allen are independent advocates, obliged to operate in accordance with the Barrister's Rules, which provide, inter alia, for the cab-rank principle, an overriding duty to the Court to act with independence in the interests of the administration of justice, and an obligation to promote the best interests of the client without regard to any consequences to the barrister or to any other person. Finally, the person should be taken to be aware that whilst Mr Allen's precedent may have been relied upon by the first defendant for the charging clause that supports its caveat, the question whether Mr Allen's precedent was good or bad is not of itself an issue in the case.
In Finch v The Heat Group Pty Ltd (No 2)) [2016] FCA 791 Pagone J said (at [13]): But it is not necessary to ensure the proper administration of justice, to protect the integrity of the judicial process in question, to restrain the legal practitioners from acting for the respondents who continue to retain them to act for them in her proceedings in the appellate jurisdiction of the Court. A fairminded [sic] reasonably informed member of the public would objectively take into account the nature of the proceedings to be heard, as being in the appellate jurisdiction of the Court, in respect of which Ms Finch seeks to restrain the legal practitioners acting for the respondents. Such an observer would objectively take into consideration that the Court's inherent jurisdiction to restrain practitioners at the suit of an opposing party is not a substitute for disciplinary, criminal or other proceedings against the legal practitioners but is to protect the integrity of the judicial process which, for present purposes, involves proceedings by Ms Finch in the appellate jurisdiction in relation to orders made by Jessup J. A fair-minded reasonably informed observer would take into account that restraining the legal practitioners from acting for their clients would deny the respondents the right to have their chosen and trusted legal practitioners acting for them and might fundamentally jeopardise the proper conduct of their case against Ms Finch, that it would deprive the Court from having the direct assistance in its appellate jurisdiction of the legal practitioners who are best placed and best informed to assist the Court on behalf of the respondents about the facts and conduct of the proceedings sought to be appealed from, and, potentially, that the restraint sought might confer upon Ms Finch a forensic advantage to which she is not entitled.
I note Kallinicos has been cited recently with approval, for example, in Young v Roads and Maritime Services (No 2) [2018] NSWCA 91 at [10]-[12] per Beazley P and unanimously in Huang v Wong [2018] NSWCA 94 at [30] per Beazley P, Meagher JA and Simpson AJA. See generally also earlier Law Society of New South Wales v Holt [2003] NSWSC 629 per Grove J.

[18]

The timing of the application

As noted by Black J in Re IPM Group Pty Ltd [2015] NSWSC 240 at [63]-[66]: The case law has emphasised the significance of delay as a matter which tends against an order restraining a solicitor form [sic] continuing to act. In South Blackwater Coal Ltd v McCullough Robertson (a firm) (Supreme Court (Qld), Muir J, 8 May 1997, unrep), to which Rolfe J referred in Colonial Portfolio Services Ltd v Nissen [2000] NSWSC 1047; (2000) 35 ACSR 673 at [164]ff, Muir J held that, although a solicitor had placed himself in a position where there was a significant possibility of conflict of duty and interest, and that position extended to the firm in which he was a partner, that solicitor should not be restrained from acting, where the plaintiff had communicated its decision not to object to the solicitor acting for the other party. I accept that that decision is readily distinguishable, as a case of acquiescence, by contrast with this case where Balzan Group had repeatedly objected to Rockliffs acting. In Colonial Portfolio Services Ltd v Nissen above, to which I drew Counsels' attention in submissions, and as to which the parties had an opportunity to make supplementary submissions, Rolfe J emphasised the significance of principles of acquiescence (which is not relevant here), delay, waiver and election in any application to restrain a solicitor from acting. Both Muir J in South Blackwater Coal and Rolfe J in Colonial Portfolio Services Ltd v Nissen (at [171]) accepted, as common sense would suggest, that, although much of the cost of work done by a former solicitor would not be thrown away if a party had to engage new solicitors, it was inevitable that a substantial amount would be, and that there would be delay in prosecution of the action and loss of a party's time taken up in briefing new solicitors as to matters within its knowledge. The judgment of Rolfe J in Colonial Portfolio Services Ltd v Nissen was in turn cited, with approval, by Beach J in Dealer Support Services Pty Ltd v Motor Traders Association of Australia Ltd above at [65]. I also referred above to Kallinicos, where Brereton J noted that the timing of the application to retain a solicitor from acting 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. In Mitchell v Burell above at [3], Brereton J again noted that the timing of an application to restrain a solicitor from acting may be relevant, in that the cost, inconvenience or impracticability of requiring lawyers to cease to act when proceedings are well advanced may provide strong reason for refusing to grant relief. In Buick v Boesten [2013] FamCA 208, the Family Court of Australia declined to restrain a solicitor from acting, by reason of delay, emphasising the adverse impact upon the solicitor's client and the disadvantage to that client, both in relation to costs and her general right to choose her own lawyer, from such a restraint.

[19]

Defendants (applicants on the motion)

The Defendants submit that the test formulated by Brereton J in Kallinicos for restraining legal practitioners in the interests of the protection of the integrity of the judicial process and the due administration of justice has been met in this case and Cleary Hoare should be restrained from acting for any party in the proceedings (Submissions [1]-[6]).
The Defendants outline preliminary background facts, including criticisms of Cleary Hoare's role in failing adequately to assess the First Plaintiff's capacity or recommend him to obtain independent legal and/or financial advice in conflict and breach of their fiduciary obligations to the First Plaintiff (Submissions [7]-[33]). The precise conflict identified was the conflict between the interests of the First Plaintiff and the interests of the Third Plaintiff (T5/13-18). Importantly, the Defendants allege that the Third Plaintiff somehow knew of this and thereby acted unconscionably in allowing his father to enter into the transaction with the assistance of Cleary Hoare (T5/26-32). With reference to these facts, the Defendants submit solicitors from Cleary Hoare are material witnesses in this proceeding as their evidence will go to issues of substance which are controversial and concern issues of credit and integrity (Submissions [39]).
The Defendants allege further that Cleary Hoare's former client is suing Cleary Hoare's present clients (in this litigation) and that members and former members of the firm will be material witnesses of substance concerning both the unconscionability of the 2010 and 2015 transactions and the Third Plaintiff's alleged undue influence of his father. Whilst the inherent jurisdiction of the courts recognised in Kallinicos is exceptional and to be exercised with caution, the Defendants submit this jurisdiction should be exercised to restrain Cleary Hoare (Submissions [40]-[44]).
The Defendants further submit that issues such as Cleary Hoare's denial it acted for all parties in the 2010 Transactions, and the mediation between the parties in November 2017, caused delay in the proceedings. Regardless the Defendants suggest they have brought this motion expeditiously in all of the circumstances (Submissions [45]-[51]).
The Defendants further submit that the Court would not accept the evidence of the Plaintiffs that they would not be able to afford the costs of instructing new solicitors to replace Cleary Hoare (T100/35-38).
They submit that once a solicitor is a material witness whose conduct will be under scrutiny, subject to other discretionary considerations, it is sufficient to warrant a court making orders restraining the solicitor(s) from acting (T105/18-26). This is particularly because of the personal or reputational interest or embarrassment at stake for the firm Cleary Hoare (T16/26-35; T20/22-34).
Moreover the Defendants submit there is a "tension" between the evidence of Mr Bailey, including between the contents of his contemporaneous letter of 22 April 2010 and his evidence concerning the capacity of the First Plaintiff (T14/38-41; T55/22-35).
The Defendants further submit that whilst Mr Bailey has already provided evidence and been cross-examined, there is further evidence that will be filed by solicitors for Cleary Hoare and further cross-examination that is relevant for the Court's consideration and concern for the administration of justice (T106/24-34; T110/7-34).

[20]

Plaintiffs (respondents on the motion)

The Plaintiffs briefly summarise the factual matrix surrounding this motion (Submissions [1]-[11]; [36]-[52]). They also clarify that it has never been in dispute that Cleary Hoare has acted for both the First and Third Plaintiffs in relation to the 2010 Transactions, and any suggestion to the contrary appears to be based on a misunderstanding of certain statements in correspondence with Cleary Hoare (Submissions [12]-[16]).
The solicitors from Cleary Hoare who have worked on this proceeding are Mr Trost, Mr Pasquale, Mr Byrne and Mr Paratore (Submissions [17]). Mr Ioannou and Mr Bailey from Cleary Hoare who acted in relation to the previous transactions have never acted for the Plaintiffs on this proceeding (Submissions [18]-[22]).
The Plaintiffs submit since the commencement of proceedings, the Plaintiffs have incurred legal costs of over $300,000 and the costs of obtaining new representation would cost up to $45,000 with a large volume of material already collated. If Cleary Hoare ceases to act it is unlikely the Plaintiffs will be able to afford to continue proceedings (Submissions [23]-[28]).
The Plaintiffs further suggest that the conduct of the Defendants in transferring the Turner farming properties to themselves does not relate to the conduct of Cleary Hoare. Neither do the allegations of undue influence on the part of the Third Plaintiff relate to whether or not Cleary Hoare advised the parties to obtain independent financial and/or legal advice (Submissions [33]-[35]).
The Plaintiffs submit the interests of the administration of justice in these circumstances are not served by restraining Cleary Hoare (Submissions [53]) (T65/21-34): 1. Whether the 2010 Transactions are effective is a question of law; 2. The Plaintiffs have already incurred extensive legal costs and at this stage of the proceedings are unlikely able to afford retaining new solicitors; 3. The allegations of undue influence against the Third Plaintiff are improper and in any event unrelated to the conduct of Cleary Hoare (as they will primarily come from cross-examination of the Third Plaintiff); 4. The solicitors of Cleary Hoare currently acting in these proceedings are different from those solicitors who acted in relation to the 2010 and 2015 Transactions; 5. There is no issue that the First Plaintiff was not advised to obtain independent legal and/or financial advice; and 6. There is no risk of misuse of confidential information obtained by Cleary Hoare.
The Plaintiffs criticise the timing of this motion as inappropriate after evidence has been filed, substantial legal costs have been incurred and the parties have attended a mediation. The Plaintiffs submit none of the above steps warrant a change in current position or the need to restrain Cleary Hoare from acting (Submissions [29]-[30]).
In these circumstances the Plaintiffs submit the exceptional jurisdiction of a court to restrain a solicitor from acting should not be exercised and the motion dismissed (Submissions [54]).
The Plaintiffs submit the costs of obtaining further solicitors, and the Third Plaintiff's financial position including his move away from steady employment and the drought affecting his properties, warrant against the exercise of the jurisdiction (T114/19-27). The costs of obtaining further solicitors, it is submitted, would be a tipping point for the Plaintiffs.
The Plaintiffs emphasise that the case before this Court is one which is unique in that it is in a very late stage of proceedings (T114/29-33).

[22]

Mr Hargreaves

Mr Paul Richard Hargreaves swore two affidavits on 14 November 2017 and 30 November 2017 as read in this motion.
In his first affidavit Mr Hargreaves states he is the solicitor for the Defendants and attaches by way of annexure a bundle of documents. He asserts there are no letters, emails or documents produced by the Third Plaintiff which include (or refer to) direct communications between Cleary Hoare and the First Plaintiff.
Mr Hargreaves also sets out his account of what the First Defendant informed him was her relationship with the First Plaintiff. This includes assertions that: 1. The First Defendant commenced living with the First Plaintiff in about 1998. 2. The First Defendant would open any mail they received whilst living together and would use the First Plaintiff's email address to send and receive emails on his behalf. 3. After 2007 the First Defendant would do all the accounting and business administration tasks on behalf of the First Plaintiff. She was unaware of the existence of the Second Plaintiff, nor the 2010 Transactions, until 10 February 2017. 4. No correspondence or other documents were received in the post or by email concerning the 2010 Transactions, or from Cleary Hoare, until 10 February 2017.
In his second affidavit Mr Hargreaves states the substantive proceedings before this Court concern the financial affairs of the First Plaintiff who is under an intellectual disability as consequence of alcohol related dementia.
Mr Hargreaves also rehearses the various legal contentions held respectively by the Plaintiffs and Defendants, including the assertion that Cleary Hoare failed to recognise its clients' competing interests and failed to advise the First Plaintiff to seek independent and/or financial advice.
Mr Hargreaves also states the facts suggesting that Cleary Hoare had acted for all parties in relation to the 2010 Transactions.
He also sets out the various subpoenas for production filed by the Defendants for production of Cleary Hoare's office records. He believes the production of the documents recording and incidental to the 2010 Transactions were essential to the motion to restrain Cleary Hoare from acting.
Mr Hargreaves was not required for cross-examination.

[23]

Mr Bailey

Absent form issues which I will place to one side, Mr Adrian Mason Bailey swore one affidavit on 19 April 2018.
He states he is a solicitor and currently a principal of Cleary Hoare in Sydney. Cleary Hoare operates routinely in areas of testamentary instruments and family trusts, with the "Bloodline Trust" an example of the firm's specialist products in this area. As a result of routinely drafting these kinds of documents Mr Bailey asserts he is accustomed to turning his mind to client capacity and conflict issues when receiving instructions.
Mr Bailey recounts how at various times he met with the First Plaintiff, his father, and the Third Plaintiff. He alleges the purpose of these meetings was to discuss the future management and eventual ownership of various pastoral properties owned by each of them.
Mr Bailey states during this period he was not placed in a conflict as regards to their respective interests ([9]-[11]): During the periods when I received instructions from John and Nick, whether or not in the presence of Ken, there was no instance when I was placed in a conflict as regards their respective interests. As far as I was concerned, the core instructions were given by John albeit agreed to by effect as instructions received from Nick and it was evident to me that they agreed on any proposed course of action before committing to it. In that sense, it was my belief that the parties had the same interests and wanted to achieve the same results. Moreover, there was no instance when instructions were given by John or Nick which gave me reason to question the capacity of either of them to give those instructions.
Mr Bailey recounts his understanding of the family relations of the Turner family and the instructions he received. From these instructions he states it was clear to him that the First Plaintiff's primary concerns were that he did not want the properties passing to the First Defendant. He alleges the First Plaintiff's father and the Third Plaintiff were of the same mind.
Mr Bailey also provides a recount of his meeting (along with Mr Ioannou) with the First Plaintiff, his father, and the Third Plaintiff on 15 April 2010. This includes a recount of the First Plaintiff explaining his wishes that he wanted to protect the farm as a family asset for all his children.
Mr Bailey outlines how he remembered the First Plaintiff requesting Cleary Hoare to send all documents to the Third Plaintiff only as he did not want the First Defendant to know of the arrangements with Cleary Hoare.
Mr Bailey recounts how on 22 April 2010 Cleary Hoare sent a letter by post to the Third Plaintiff as per the First Plaintiff's instructions and on 10 May 2010 sent the Third Plaintiff a letter and costs agreement. The firm again sent letters on 13 May 2010 and 29 September 2010.
On 2 February 2015 Mr Bailey states the Third Plaintiff requested a meeting with Mr Bailey. At that meeting Mr Bailey recalls the Third Plaintiff was concerned with his father's declining mental capacity and that at a later date he might lose capacity. Mr Bailey recalls he recommended that whilst the First Plaintiff still had capacity, he sign a power of attorney for his son. On 20 February 2015 as a result of the meeting Cleary Hoare prepared documents to give effect to the meeting and sent to the Third Plaintiff. This included deeds of resignation as trust principal, resignation of director and a power of Attorney form. Due to an office oversight the Power of Attorney form was sent blank and a completed version was later emailed to the Third Plaintiff.
On 29 May 2015 Cleary Hoare received copies of the documents signed by the Third Plaintiff except for the Power of Attorney. Mr Bailey states the effect of the signed documents was that the Third Plaintiff resigned as director of the Second Plaintiff and as principal for the Turner Family Bloodline Trusts.
Around the same time Mr Bailey asserts he received formal letters from Ms Sara Gorman advising of her resignation from the Turner Family Bloodline Trusts.
Since 2015 Mr Bailey asserts he has had little further involvement in the matter which is handled now by the Brisbane litigation team of Cleary Hoare. Mr Bailey is aware however of an affidavit filed ostensibly in support of an application by the Defendants to have Cleary Hoare removed from the proceedings.
In cross-examination Mr Bailey was questioned whether there were any handwritten or electronic file notes or contemporaneous notes recording conversations between himself and the Plaintiffs. Mr Bailey said he could not find any such notes (T53/30-33).
At the meeting in 15 April 2010 no one else was present other than the First Plaintiff, his father, the Third Plaintiff, Mr Bailey and Mr Ioannou (T53/35-37).
Mr Bailey said the meeting took approximately one hour (T53/48-49). He denied he had any other meetings with the First Plaintiff concerning the 2010 Transactions other than as referred to in his affidavit (T54/1-3).
Mr Bailey accepted he was supervised by a principal of Cleary Hoare in April 2010 (T54/5-6).
He admitted he had never spoken to the First Plaintiff about the documents signed by him where he resigned as principal and director from the Turner Family Bloodline Trusts and Second Plaintiff. He said that was in accordance with previous instructions to correspond to the Third Plaintiff (T54/13-19).
Mr Bailey denied he had a principal supervising him in February 2015 (T54/21-22).

[24]

Third Plaintiff

Mr Nicholas John Turner (the Third Plaintiff) swore one affidavit in evidence on this motion on 20 June 2018.
He recalls the first time he met with solicitors of Cleary Hoare was in 2009. Between the first meeting and until around November 2015, he only recalls dealing with the Sydney-based solicitors of Cleary Hoare, Mr Ioannou and Mr Bailey.
In November 2015 the Third Plaintiff requested Mr Bailey's assistance with a dispute that had been escalating between himself and the First Defendant. Mr Bailey referred him to Mr Ben Trost solicitor at Cleary Hoare's Brisbane office. He had not spoken to Mr Trost prior to November 2015. Since that time he says he has not requested Mr Bailey to carry out legal work in relation to this proceeding.
The Third Plaintiff says that most of his dealings with Cleary Hoare in relation to this proceeding up until July 2017 were with Mr Trost. Between July 2017 and October 2017 Mr Byrne from Cleary Hoare dealt with the proceedings. From October 2017 Mr Paratore from Cleary Hoare had carriage of the proceedings and liaised with the Third Plaintiff. Mr Bailey had not spoken to Mr Paratore prior to October 2017.
From around January 2017 to the present the Third Plaintiff had spoken to Mr Collie of Cleary Hoare on occasion.
The Third Plaintiff recalls Mr Trost had advised him in January 2017 legal costs might be between $200,000 and $250,000. Since this proceeding commenced the Plaintiffs' costs have substantially exceeded the upper range of the original quote from Cleary Hoare.
He states he has informed Mr Paratore that if the motion is successful he will be unable to pay for new solicitors. Despite the legal costs the Third Plaintiff says it is his preference to continue to retain Cleary Hoare.
In cross-examination the Third Plaintiff said he had worked at Rabobank as a bank manager and resigned in September 2017 (T72/27-29). He had also started earning income as an agricultural consultant from the beginning of 2017 (T72/38-42).
He said he lived in a very modest house in Forbes and had paid $410,000 in 2014. There was a mortgage on the house (T73/31-41).
He said the Second Plaintiff owns one title of land but he owned other farming land being an adjoining title of 80 hectares (T74/1-8). The real estate in Lucindale was bought for $200,000 and this was also mortgaged (T74/14-22).
The Third Plaintiff said he was also a joint trustee with Ms Alison Thomson of the "T and T Trust" which had been used to purchase a thousand mega litres of Lachlan Valley River Water for $600,000. The beneficiaries of this trust were their families (T74/39-46).
He said he had two loan accounts one with a limit of $700,000 fully drawn and another account with a limit of $485,000 of which approximately $340,000 was drawn (T75/5-13).
He did not know what his gross income was for the period 1 July 2017 to date (T76/6-8). He did not know his deductible expenses for this period (T76/10-12).
He accepted, assuming the approximate figures, that his net equity would be around $800,000 (T76/26-31).
He accepted he owned 3,115 BHP shares but did not own shares in any other company (T76/46-50).
He accepted to date he has incurred legal expenses with Cleary Hoare of approximately $301,000 (T77/9-13).
He accepted when presented with his tax return for the financial year of 2016 that he had received fees in the form of $12,000 director fees, bank manager's income, and $6,300 director fees (T78/1-50). He accepted he owned jointly with others three water licenses (T79/31-33).
He accepted other various items highlighted were income although noted other amounts included amounts received for the sale of an asset (T80/22-28). For example $1,600 sale of a push bike (T81/16-18) and sale of a tractor to purchase another one (T81/5-8).
He denied the amounts he had received that were not classified as income would amount to approximately $311,000 (T83/15-27). When put to him that his income for the period was approximately $600,000 he said that those numbers had been calculated by counsel for the Defendants and that for the 12 month period it was simple to observe that his bank balance had moved only $20,000 from $340,000 to $360,000 (T84/9-14).
The Third Plaintiff affirmed his partnership with his wife earned consultancy and farming income (T84/29-33).
He reiterated his loan facility of $485,000 would be drawn down by the end of the month to $350,000 and indicated his concern with the significant drought affecting the Eastern seaboard that his business would need to manage cash flow effects of the drought into the following year (T85/35-42).
The Third Plaintiff denied that if he desired his financial position would allow him to afford between $30-45,000 for new solicitors without obtaining a new loan. He reiterated his concern that he would need to manage cash flow following the significant drought and his concern for providing for his young family during this period (T86/9-22).
In re-examination the Third Plaintiff said he owed Cleary Hoare between $20,000 and $50,000 (T86/30-34).
He affirmed that as a result of having ceased work at Rabobank he no longer has a steady monthly income (T87/1-8).

[29]

What would the hypothetical observer think?

The question is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that Cleary Hoare should be prevented from acting further in the matter.
Whilst in the area of apprehension of bias the characteristics of the hypothetical observer or construct is often discussed, the construct has not been analysed quite as often in this type of case.
Often the test is identified and an opinion given without any attempt on the part of the judge to examine the various characteristics of the hypothetical member of the public and his or her fair-minded reaction to the particular facts. It is worth observing that fairness is a constantly evolving concept not frozen in time and should accommodate the circumstances of each case.
In my view in the circumstances of this case the fair-minded reasonably informed member of the public would at least have the following characteristics and understanding. He or she would first appreciate the importance of justice being not only done but being seen to be done as an important part of the maintenance of the rule of law. However he or she would further be fair-minded in that they would not be overly suspicious of lawyers and fair in their attitude to both sides of the litigation. The fair-minded reasonably informed member of the public would understand lawyers are aware by training and practice of their obligations to give truthful evidence before a court and that their paramount duty is to the court. He or she would also be aware that in giving evidence a lawyer would have these duties and considerations in mind. He or she would appreciate that for present purposes the pleadings are concluded. Otherwise he or she would understand the matter is at a relatively advanced stage of preparation however neither party presently seeks a hearing date (T114/1-7).
I observe in passing Mr Curtin of Senior Counsel when certain difficulties were debated on the pleadings (see [39]-[41] of this judgment) foreshadowed that an application to amend would be made (T96/32-37). The question of amendment arose or so it seems for the first time in the course of debate. Since I have reserved judgment on this motion it has come to my attention the Defendants have filed a Notice of Motion on 20 July 2018 seeking leave to file an Amended Statement of Cross-Claim. That will be dealt with in due course.
The relevant member would appreciate the Third Plaintiff has also sworn to a version of events in his affidavit of 13 March 2017 and the First Defendant has concluded her evidence, which was taken in June 2017 because of her terminal illness.
The relevant member of the public would also be aware that Mr Bailey, Mr Ioannou and Ms Ho acted for the Plaintiffs in respect of the 2010 and 2015 Transactions. However he or she would also understand that Mr Bailey has not taken any part in the current proceeding. Nor has Mr Ioannou who no longer works for Cleary Hoare, and neither has Ms Ho who no longer works for Cleary Hoare and whose role in any event would appear to have been restricted to work conducted between March and June 2015 as a junior lawyer (T6/44).
The member would understand that Mr Paratore now has daily carriage of this proceeding and that none of the solicitors who have worked on this proceeding for the Plaintiffs were involved in the 2010 and 2015 Transactions. He or she would also understand that there is no suggestion either Mr Bailey or Mr Ioannou have any interest in the outcome of the litigation, other than Mr Bailey's presumed general interest in the success of his erstwhile client. He or she would however appreciate the allegations of breach of fiduciary duty at least raise serious questions as to Mr Bailey and Mr Ioannou's competence and arguably their professional reputation. The member of the public would also understand that during any trial such matters will be exposed and examined.
The relevant member of the public would understand that Mr Bailey has already in his affidavit of 19 April 2018 committed himself to a version of events of what happened in 2010 and 2015 in his dealings with the Plaintiffs and has already been cross-examined albeit briefly on the extent of his records. He or she would accept and understand that his conduct and competence along with that of Mr Ioannou will be examined by a trial judge and subjected to cross-examination, all in open court. The member would appreciate that there is already available to the Defendants a good deal of documentation, including a drafted letter of advice plus a diagram of 22 April 2010 written by Mr Bailey a short time after an important meeting. Mr Ioannou will apparently need to be subpoenaed and a précis only of his evidence will likely be available prior to the trial (T4/35-37).
I should add the 22 April 2010 letter is clearly written by Mr Bailey as his reference "A.BAILEY:TUR770/1" appears at the top of the letter.
I acknowledge in passing Mr Svehla counsel for the Plaintiffs has indicated that both the Third Plaintiff and Mr Bailey may put on some supplementary material (see for example T39/21-22). If that occurs and a material change or tailoring of evidence becomes apparent the fair-minded observer would appreciate that will be exposed by the cross-examiner before the trial judge with likely forensic consequences.
The relevant member would appreciate that the practical reality is that in light of the First Plaintiff's mental state he will give no evidence of what occurred at the meetings.
The relevant member of the public would also understand that the applicants on the motion have made no application to restrain Mr Svehla of counsel for the Plaintiffs. Importantly he or she would also understand that the applicants on this motion are not former clients of Cleary Hoare and there is no suggestion the firm holds any confidential information obtained from them.
There is here additional cost, delay and expense to be considered. The cost and inconvenience of requiring lawyers to cease to act when proceedings are well advanced will usually provide strong reason for refusing to grant relief, not the least of which is the adverse impact on the solicitor's client and disadvantage to the party: Re IPM Group Pty Ltd [2015] NSWSC 240 at [63]-[66] per Black J. Litigation by reason of its labour intensive nature is expensive. Courts and practitioners alike have an obligation to ensure precious resources are not wasted by the incurring of unnecessary costs.
The Third Plaintiff's financial position was the subject of some detailed examination. As I have indicated earlier I accept his evidence and I accept the briefing of another law firm would involve further cost and likely delay. I also accept the evidence of Mr Paratore in terms of his assessment of how much would be required to brief a new law firm. The full extent of the hardship occasioned to the Third Plaintiff is not capable of precise qualification. However as a farmer and now self-employed consultant the current drought is and will have significant consequences on him and his family such that additional costs in fairness and the exercise of my discretion are not necessary in all the circumstances, and he should be entitled to continue to use his chosen lawyers. A fair-minded reasonably informed person would in my view not regard the additional costs as necessary in the circumstances, rather the source of an unfair burden.

Owen John Turner by his tutor Nicholas John Turner and Others v Wendy Joan O'Bryan Tuner and Others

At a glance

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Cases Cited (48)

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