Plaintiff v Defendant

2 Briefly, the background to the application is as follows.

3 The plaintiff brought proceedings against the defendant in February 2013. The plaintiff alleges she is the domestic partner of Luke Mathew Robert Jarvis, the deceased, who died on 8 November 2011. The deceased died intestate. Letters of administration were granted to the defendant, the deceased's mother, on 8 August 2012.

4 In this proceeding, the plaintiff alleges the defendant failed to declare that at the time of the deceased's death he left a domestic partner, being the plaintiff, living with him as a couple on a genuine domestic basis. The plaintiff, by her proceeding, seeks an order that the estate of the deceased be distributed to the plaintiff or alternatively, an order for provision of her proper maintenance and support.

5 The materials do not disclose the exact value of the deceased's estate. The estate is not large, what evidence there is suggests a valuation of between $300,000 and $350,000.

6 Ms Mimmo, the plaintiff's solicitor, is the plaintiff's mother. Mr Pagent is Ms Mimmo's domestic partner. Ms Mimmo has acted for the plaintiff since the commencement of these proceedings.

7 Over the course of the Supreme Court proceedings there have been numerous court appearances, at least eight and a failed mediation conducted by Wood AsJ in May of 2013.

8 The Supreme Court proceeding was effectively stayed in June 2013 as a consequence of applications before the Superannuation Complaints Tribunal. I understand both the plaintiff and the defendant sought to review the decision of the trustees that the deceased's superannuation benefit be paid into the deceased's estate. In December 2014, the Superannuation Complaints Tribunal determined that these benefits should be paid into the deceased's estate.

9 On 9 December 2014, a directions hearing was held in this matter before Zammit AsJ, as she then was, and the directions hearing was adjourned until 23 June 2015.

10 On 17 March 2015, on application of the plaintiff pursuant to liberty to apply, orders were made by Lansdowne AsJ which included an order that the defendant file and serve a memorandum detailing what it is she intends to rely upon by way of evidence in opposition to the plaintiff's claim and the estimated costs of making affidavits and adducing evidence, and a further order that the defendant file and serve an affidavit setting forth the financial position of the estate, so far as it is known, and which details the costs which have been paid and retained by the defendant from the estate and also which have been billed but not paid.

11 The affidavit in support of the March 2015 application was sworn by Ms Mimmo. She alleged the estate was small, below $300,000, but could not be quantified because of a lack of information as to the costs that had been deducted from the estate for representation and legal expenses. Ms Mimmo deposed that once the plaintiff had been provided with the information, the plaintiff would be in a position to decide whether or not to seek an order capping costs.

12 On 14 April 2015, this application was issued by the defendant. The affidavit of Ms Maria Nemeth for the defendant referred to correspondence between the parties commencing on 19 February 2015, when she wrote a letter to Ms Mimmo that referred to the high likelihood of Ms Mimmo being a witness in the proceedings and referring to what Ms Nemeth stated was her - that is Ms Mimmo's - 'ethical obligation' not to act in the proceeding.

13 Ms Mimmo did not withdraw from acting for the plaintiff, thus the defendant made this application seeking to restrain Ms Mimmo and Mr Pagent acting for the plaintiff.

14 Mr Mah, who appeared on behalf of the defendant, submitted that Ms Mimmo as mother of the plaintiff and Mr Pagent as her domestic partner, are conflicted between obligations to their client and an overarching responsibility to the court and to the administration of justice. As a consequence, it was submitted I should make the order restraining both from acting for the plaintiff.

15 Mr Mah referred to the affidavit of Ms Mimmo which indicated she would provide an affidavit in support of the plaintiff in the substantive proceedings. Mr Mah contended Ms Mimmo may be tempted to tailor her evidence in support of her client, that the relationship calls into question the ability of Ms Mimmo to give independent and objective advice to the plaintiff and that Ms Mimmo, as the plaintiff's solicitor, may have a financial interest in the outcome of this proceeding. The financial position of the plaintiff is such, so it was contended, that the ability of the firm Plaza Legal to recover costs is dependent upon the plaintiff having a successful outcome in these proceedings.

16 It was contended on behalf of the defendant that a fair-minded and reasonably informed observer would conclude the interests of the proper administration of justice and the integrity of judicial proceedings require Ms Mimmo and Mr Pagent, her domestic partner, to be prevented from acting.

17 The Court has 'the 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 and of the administration of justice'.[1] The test to be applied '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 due administration of justice, including the appearance of justice'.[2] In determining such an application, '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' and the timing of such an application 'may be relevant in that the cost, inconvenience and impracticability of requiring lawyers to cease to act, may provide a reason for refusing to grant relief'.[3]

18 Ms Mimmo in her affidavit in reply dated 28 April 2015, as stated above, indicated she would provide evidence 'on the basis of instructions from Olivia [the plaintiff] I intend to make an affidavit to be filed in this proceeding'. Mr Mah pointed to three matters raised in the proceedings before the Superannuation Complaints Tribunal that would likely be the subject of evidence by Ms Mimmo:

(a) that the deceased and the plaintiff had lived in a property owned by Ms Mimmo and paid no rent;

(b) that in 2011 an email from Ms Mimmo to the plaintiff stated she, Ms Mimmo, had installed a boarder in the property at rent of $180 per week; and

(c) the likelihood of Ms Mimmo deposing as to the nature of the relationship between the plaintiff and the deceased, which he contended was a central issue in the proceeding.

19 As I understand this particular submission, it is said by Mr Mah, this evidence could relate to times the deceased and the plaintiff lived with each other, whether they lived in a domestic partnership and an issue raised by the affidavit of Ms Nemeth, whether Ms Mimmo and Mr Pagent provide financial support to the plaintiff.

20 Mr Seelig, of counsel for the plaintiff, during the course of submissions stated there was no evidence to demonstrate what the content of the affidavit of Ms Mimmo would contain. During discussion with the court, he conceded the likelihood that any affidavit of Ms Mimmo would concern the timing of the deceased and the plaintiff residing in the house owned by Ms Mimmo, a boarder at some stage being arranged for the house by Ms Mimmo, that the plaintiff and the deceased were recognised by family and friends as a de facto couple and also evidence of the plaintiff's now physical and mental health.

21 As to the potential evidence of Ms Mimmo, Mr Seelig submitted that the evidence on this application really came down to nothing more than Ms Mimmo would be corroborating the evidence of others as to the nature of the relationship between the plaintiff and the deceased and to the plaintiff's physical and mental health.

22 Mr Seelig submitted that the delay in the defendant making this application, a period of over two years, was highly relevant to the exercise of this court's inherent jurisdiction to restrain Ms Mimmo and Mr Pagent from acting for the plaintiff.

23 Whether it is appropriate for a solicitor to continue to act where the solicitor is to be a witness in a proceeding will depend upon the circumstances of each case. I accept for the purpose of this ruling that the nature and extent of the relationship between the plaintiff and the deceased is a material issue in this trial. However, the extent to which it is in issue or in dispute is not possible to discern until the defendant has filed and served affidavit evidence.

24 Further, it is put by the plaintiff in submissions that other evidence apart from that of Ms Mimmo will be called going to this issue, thus reducing the significance of her evidence. Matters going to ownership of a house used by the plaintiff and the deceased, arrangements for a boarder in that house and the plaintiff's current state of health on the materials before me are of less significance and potential controversy.

25 I accept for the purpose of the ruling that there will be a number of persons, family and friends, who will provide evidence concerning the nature of the relationship between the plaintiff and the deceased. Ms Mimmo will not be the only witness concerning this issue. The current state of the health of the plaintiff is also likely to be the subject of other evidence.

26 This is not a situation where the conduct of the solicitor Ms Mimmo or Mr Pagent is the subject of complaint, there is no allegation put by the defendant that the involvement or conduct of Ms Mimmo in the litigation for the past two years has been anything but professional. In that sense, there is no 'additional factor' concerning the conduct of Ms Mimmo or Mr Pagent, as described by Hollingworth J in TJ Board & Sons Pty Ltd v Castello,[4] that would support an order requiring the plaintiff not to retain Ms Mimmo or her domestic partner.

27 In my opinion the effluxion of time is also a highly important reason not to accede to the defendant's application. I consider the cost, inconvenience and impracticability associated with the plaintiff being forced to retain a new firm of solicitors is an important reason to refuse the application of the defendant. This is a small estate; the parties appear to be set on a course that may see much of the value of the estate eradicated by legal costs. That of course will depend on the findings of the trial judge as to the validity of the claim or the defence.

28 I consider the issues raised in this proceeding are relatively straightforward. To remove the plaintiff's solicitor two years after proceedings were commenced, I am satisfied would be the cause of enormous hardship to the plaintiff and carries with it a real component of prejudice. Ms Mimmo, in her affidavit of 27 April 2015, deposed as follows:

There will be increased costs and substantial inconvenience to Olivia if Olivia's lawyers cease to act. Olivia is now in receipt of a Disability Pension and instructs me that she suffers from severe depression and is generally hysterical as a result of a period of domestic violence on the part of the deceased during their relationship and his death as a result of his suicide. She has spoken to me about the matters, the subject of the proceedings. Based upon my knowledge of her and her state of mind, I believe that a change in lawyer at this late stage has the propensity to cause her significant stress and a deterioration in her state of mental health. The plaintiff has no personal means to pay for another law firm and the defendant is well aware of her financial circumstances.[5]

29 I am not persuaded in the current circumstances of this particular case that the defendant's submissions concerning Plaza Legal having a financial interest in the successful outcome of this proceeding is a factor of significant weight. Further, on the material in this case, particularly the conduct of the plaintiff's solicitors until this stage of the proceedings, I do not accept there is any risk of Ms Mimmo and Mr Pagent being tempted to tailor evidence to support their client.

30 In my opinion, a fair-minded, reasonably informed member of the public would not conclude that the proper administration of justice in the circumstances of this particular case requires Ms Mimmo or Mr Pagent to be prevented from acting for the plaintiff. Indeed, it is my opinion that such a fair-minded, reasonably informed member of the public, having regard to the particular circumstances of the case including:

(a) the nature of any evidence that could be given by Ms Mimmo;

(b) the extreme inconvenience and potential prejudice to the plaintiff on having to engage new solicitors;

(d) the delay in the defendant making this application;

(e) the mental and physical state of the plaintiff as deposed to by Ms Mimmo;

would consider on balance that Ms Mimmo should continue to act as the plaintiff's solicitor and that there is little or no danger to the administration of justice, including the appearance of the administration of justice in her continuing to do so.

31 In the course of these reasons, I stated that at this stage of the proceeding it is not possible to say whether any evidence given by Ms Mimmo concerning the nature/extent of the relationship between the plaintiff and the deceased will be a matter of real controversy. The defendant has not provided, as stated, any affidavit material going to the issue. Ms Mimmo has not filed her affidavit. It may be that some issues involving Ms Mimmo become ones of genuine controversy, calling for a reconsideration of this ruling. That is not a situation that exists at present and mere speculation does not provide a basis for depriving a litigant of his or her choice of solicitor, an order that is recognised by legal authority as exceptional. It may be that if such a situation does arise that Ms Mimmo and Mr Pagent should consider ensuring the conduct of the matter is handled by a different solicitor within their firm. In the circumstances of this particular case, I would as presently advised see such a course as protecting the interests of justice. I make clear I do not believe those circumstances exist at the moment. The application of the defendant is therefore dismissed.

[1] Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181 at [76] (Brereton J).

[3] Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181 at [76] (Brereton J).

[4] [2008] VSC 91 at [9].