Plaintiff v Defendants

1 Lawyers are well familiar with the aphorism that 'A man who is his own lawyer has a fool for his client.' Its enduring appeal follows from the refusal of the law to deny to a litigant the option of self-representation by requiring that the litigant retain independent solicitors. The complexity of the law and court procedure, combined with the benefits of impartial, informed advice in dispute resolution, suggest that any litigant will be sensibly assisted by independent lawyers. This proposition cannot be doubted. But the aphorism is no more than a pithy observation which expresses a general truth. It is not a rule or principle of law. On this application, the defendants effectively contend that it should be so recognised and that the court should deny the plaintiff, who is a solicitor, the right to represent himself.

2 The plaintiff sues for damages for defamation. He alleges that the defendants published a notice in the Korean language that defamed him. The notice was physically delivered in March 2013 to certain members of the Korean Society and later published in the 'Melbourne Journal'. Subsequently, it was available to be downloaded from web pages at an internet website. The alleged defamatory imputations are:

(a) the plaintiff had lied on Facebook and the internet about an incident concerning the Korean Society;

(b) the plaintiff had acted unethically as a lawyer in disclosing confidential client information;

(c) the plaintiff was not trustworthy as a lawyer because he releases his confidential information on the internet; and

3 The plaintiff is an Australian legal practitioner, a solicitor. Until January 2013, the plaintiff was a legal adviser to the Korean Society when an employee solicitor. He now practises as a sole practitioner. He is the principal of the legal firm Spencer Reyner Law Office Pty Ltd. The plaintiff is represented in this proceeding by his law firm as the solicitors on the record.

4 The defendants deny that the written notice bore any of the meanings alleged by the plaintiff. Further and alternatively, if it did, those imputations were substantially true and justified, both at common law and pursuant to s 25 of the Defamation Act 2006 (Vic). Further, the defendants plead contextual truth pursuant to s 26 of that Act, qualified privilege pursuant to s 30 of the Act, and the defence of honest opinion pursuant to s 31 of the Act.

5 By their counterclaim, the defendants allege that each of them was defamed when an article the plaintiff published on Facebook was downloaded and read. The Korean Society alleges the following imputations:

(a) The Korean Society was a party to sexual assaults at a function at the Hilton Hotel on 15 December 2012.

(b) By refusing to apologise to the victims of the alleged sexual assaults, the Korean Society condoned sexual assault.

(c) The Korean Society is disreputable and dishonourable.

(e) The Korean Society conducts itself in an appalling way that requires the public disclosure of the conduct by the Korean Society's previous legal adviser.

(g) The Korean Society harbours and protects perpetrators of sexual assault.

Some broadly similar imputations, that I need not set out for the purposes of this judgment, are made against the plaintiff by the second and third defendants by counterclaim, who were senior representatives of the Korean Society.

6 Further, the Korean Society alleges that, as its legal adviser, the plaintiff owed it duties arising from that relationship. The Korean Society alleges that the plaintiff provided legal advice to it in respect of an alleged sexual assault by the then vice president of the Korean Society that had occurred at the 2012 end of year function at the Hilton Hotel. Confidential lawyer/client communications are also alleged. By what is described in the pleadings as the 'memorandum disclosure', the Korean Society alleges that the plaintiff published on Facebook lawyer/client communications including the content and subject matter of legal advice that he had given to the Society. The defendants, by counterclaim, seek damages for defamation and for breach of fiduciary duty.

7 The present application is unusual, and I have neither had cited to me, nor found, a direct precedent. The defendants seek orders restraining Spencer Reyner Law Office Pty Ltd and the plaintiff himself from acting as the plaintiff's solicitor. The defendants' objective is to require the plaintiff to engage independent representation.

8 The court's jurisdiction to restrain a solicitor from acting is not in doubt. During a subsisting retainer when an existing client of the solicitor seeks to restrain his solicitor from acting for another, it is founded on the solicitor's fiduciary obligation. That is not this case, as there is no subsisting retainer between the defendants and Spencer Reyner Law Office. When the retainer is at an end, the equitable or contractual duty of loyalty, having ended with the termination of the retainer, no longer provides a basis for a court's intervention, but a court may act to protect the confidences that a former client imparted to his solicitor. However, in this case, the defendants place no reliance upon this alternative ground.

9 The jurisdiction may be exercised on a third basis. Solicitors are officers of the court, subject to its inherent jurisdiction over its officers and its control of its processes to facilitate the just, efficient, timely, and cost effective resolution of civil disputes. The court has an inherent jurisdiction to restrain solicitors from acting in a particular case if that course is in the interests of the administration of justice.

10 The principles governing the exercise of the third basis for this jurisdiction may not be settled. In this State, in Spincode Pty Ltd v Look Software Pty Ltd & Ors,[1] the Court of Appeal upheld the decision of a judge to restrain solicitors from acting because there was demonstrated a real and sensible possibility of misuse of confidential information. As Ormiston and Chernov JJA noted, it was unnecessary for the court to consider the broader question of the proper limits of the third basis for this jurisdiction but Brooking JA took the opportunity presented. The test postulated by Brooking JA is: can it be said that the solicitor has acted improperly, in a manner so offensive to common notions of fairness and justice that restraint is warranted, having regard to the solicitor's conduct in its entirety.

If I thought that the solicitors in this case were subject neither to a negative equitable nor to a negative contractual obligation, I would say that what has been done by them - and I would have regard to the whole of their conduct here - is so offensive to common notions of fairness and justice that they should, as officers of the Court, be brought to heel notwithstanding that they have not (on this hypothesis) infringed any legal or equitable right. The authorities supporting this approach need not be mentioned again. It may be that one should refer to this head, rather than that of misuse of confidential information, the advantage that McPherson & Kelly would have by reason of their knowledge of such things as the personalities and reactions of the participants and what changes may have taken place in the past as regards what Kirton in his diary note called "allegiance"[2]. I am not deterred by the suggestion that, once infringement of legal or equitable rights ceases to mark off what may be proscribed, solicitors and their would-be clients will be subject to a great and unfair uncertainty, being unable to say in advance what view the Court will take. No experienced solicitor of sound judgment would have done what has been done in this case. And in my view the nature and objectives of the jurisdiction which the Court exercises over its officers, and the breadth of the discretion, permit regard to be had, not only to the nature of the dispute before litigation ensued, and the former retainer, and the new one, but also to the conduct of the solicitors at all stages. This includes the partisan approach of Kirton when he acted for the company and his undisclosed attempts to serve Moore's interests, the peremptory and unseemly way in which the solicitors changed sides, their denials that it was the company which had been their client and the uncandid affidavit of Kirton in which he tried to give the impression that the company had not been the client. It would, as they used to say, be pessimi exempli if McPherson + Kelly were not called to account.[3]

12 In Kallinicos & Anor v Hunt & Ors[4] Brereton J extensively reviewed the authorities touching the broader scope of the court's inherent jurisdiction to preserve the proper administration of justice by restraining a legal practitioner from acting in a particular case. His Honour concluded that Brooking JA's approach had not won favour outside of Victoria and he considered that relevant propositions established by the authorities included the following:

(a) 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.

(b) 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.

(c) The jurisdiction is to be regarded as exceptional and is to be exercised with caution.

(d) 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.

(e) 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.[5]

13 In Mitchell v Burell,[6] Brereton J added:

The line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice - which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests - require the lawyer to be restrained from continuing to act. [7]

14 Judges of the trial division of this court have restated the principles identified by Brereton J as governing the 'administration of justice ground' with approval.[8] I will add that s 10 of the Civil Procedure Act 2010 (Vic) provides that the overarching obligations under that Act apply to any person who is a party to a civil proceeding and to any legal practitioner or other representative acting for or on behalf of a party. The Act spells out the paramount duty and the overarching obligations that apply to Mr Lee equally as a litigant and as a legal practitioner. Section 29 of the Act empowers the court to make any order it considers appropriate in the interests of justice when satisfied on the balance of probabilities that a person has contravened any overarching obligation. In an appropriate circumstance, a court might restrain a solicitor from acting for a litigant or require a litigant to instruct an independent solicitor acting under the power conferred by s 29.

15 I will make two observations. First, any party to a proceeding may seek, or the court on its own motion may make, an order under s 29 if it appears appropriate to do so. This statutory power complements the court's inherent jurisdiction over its officers. However, the bare circumstance of a solicitor-litigant do not invoke the statutory jurisdiction. The paramount duty and the overarching obligations are not infringed by the fact that a litigant is self-representing or the fact that a litigant is a solicitor. Secondly, the defendants do not suggest that Mr Lee has contravened an overarching obligation or that the court's power to make any order it considers appropriate in the interests of justice has been enlivened to provide a basis for restraining Spencer Reyner Law Office from acting for the plaintiff. It is not necessary that I consider the scope of the jurisdiction under s 29 to restrain a solicitor from acting.

16 Counsel for the defendants submitted that courts are entitled to receive the assistance of solicitors who are observably independent. He submitted that, in this instance, the plaintiff is wearing too many hats. He submitted that although the plaintiff would be perfectly entitled to conduct his case in person, he has chosen to use his firm to advance the interests of his client. The defendants submitted that the firm could not disentangle itself from the plaintiff such that the court could be confident that the plaintiff had the benefit of objective independent advice. Further, the plaintiff will be a material witness in the proceeding. As the plaintiff had acted as a legal adviser to the first defendant, when employed at another firm of solicitors, the professional reputation of the plaintiff as a solicitor will very likely be in issue in the proceeding.

17 The defendants submitted that this is not simply an appropriate case for the court to exercise jurisdiction to restrain the solicitor from acting, but is a quintessential case. The proper administration of justice is jeopardised because the unity of interests between the plaintiff as solicitor and the plaintiff as client to succeed in the claim and successfully defend the counterclaim deprives the solicitor of the capacity to exercise independent and impartial judgment. This, it was submitted, will lead to conflict between the solicitor's duty to the court and the solicitor's duty to his client. It was not to the point, the defendants submitted, that the plaintiff as litigant is deprived of the benefit of independent and impartial representation. The point is that the court is deprived of it.

19 None of the cases in which this principle has been analysed was concerned with self-represented lawyers. The cases demonstrate a wide variety of circumstances in which the court's supervisory jurisdiction is invoked to preserve the administration of justice, but in each case, the relationship between the solicitor to be restrained and the litigants was not that they were one and the same.

20 As I stated at the outset, the general truth reflected in the aphorism has never been seen, of itself, as proper reason to require a self-represented litigant to engage a solicitor. The requirement that a solicitor represent a corporation is based on different considerations. The refusal of the law to restrict access to justice to litigants who are independently represented by competent solicitors is also based on different considerations. It is not necessary that I identify and discuss the justification for either policy or principle in order to resolve this application.

21 As the plaintiff's counsel submitted, it is common for lawyers to represent themselves in actions against former clients even where professional misconduct and negligence is alleged against the lawyer.[9] Further, it is well established that solicitors may recover professional costs in representing themselves as if he or she had employed a solicitor.[10] McMahon v John Fairfax Publications Pty Ltd (No 7)[11] is a recent example of the self-represented solicitor recovering fees where the solicitor brought defamation proceedings against a newspaper and two journalists. The primary proceeding involved serious allegations of wrongdoing by the solicitor. In none of these cases is there a hint that the proper administration of justice, including the appearance of it, is threatened or undermined by a solicitor-litigant.

22 The defendants do not identify any conduct by Mr Lee as solicitor for the plaintiff that might be characterised as improper conduct by Mr Lee as a solicitor or any circumstances that they contended would not have been undertaken by an experienced solicitor of sound judgment. I invited counsel for the defendants on several occasions to point to any evidence of such circumstances but there is none.

23 To use the language of Brooking JA in Spincode that I prefer in the circumstances of this case, I am not persuaded, when looking at the whole of the conduct of the plaintiff's case by Mr Lee/ Spencer Reyner Law Office thus far, of any conduct that is improper and so offensive to common notions of fairness and justice that Mr Lee should, as an officer of the court, be brought to heel. There is no evidence of any improper conduct that might be thought by experienced, right thinking, legal practitioners to be improper and to warrant censure. I remain unpersuaded that any aspect or feature of Mr Lee's conduct as a solicitor in this proceeding to date could be characterised as improper, or inappropriate and offensive to common notions of fairness and justice. It is likely that conduct that satisfied this description would constitute breach of an overarching obligation or the paramount duty under the Civil Procedure Act. As I have noted, the defendants do not contend for such a breach.

24 The test preferred in the authorities, whether, on the evidence before the court, a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be restrained from acting for its client in the proceeding, does not, on its terms, readily admit of application in the present circumstances. That is so because this test was not developed for or intended to regulate the conduct of a solicitor-litigant or a litigant in person. This jurisdiction has been invoked in circumstances where the implications of the litigation for the solicitor differ from the implications in the litigation for the represented party. That may be because the conduct of the solicitor is likely to be evaluated, the practitioner's credibility is at stake as a potential witness, or because the solicitor has some financial or reputational stake in the outcome of the proceeding. Unique, extraordinary, or highly exceptional circumstances can arise in which the due administration of justice or the integrity of the judicial process cannot be ensured unless a lawyer is restrained from acting. Grimwade v Meagher & Ors[12] is an example of a sufficient real and sensible risk of a lack of objectivity by counsel (who was not a party to the proceeding) supporting the conclusion that a fair minded, reasonably informed member of the public would be sufficiently concerned about the due administration of justice to not permit counsel to continue to act.

25 In my view none of the authorities permit that test to be reframed in the present circumstances so as to identify whether a fair minded, reasonably informed member of the public would consider that the proper administration of justice required that a solicitor-litigant must instruct independent solicitors to act on his behalf in order to preserve the due administration of justice and the integrity of the judicial process.

26 Assuming, contrary to my view, that the applicable test could be restated in this way, the defendants do not demonstrate any circumstances in the conduct of this proceeding that lead to the conclusion that a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Lee be prevented from acting for himself in the interests of protecting the integrity of the judicial process, including the appearance of justice.

27 The prospect of conflict between the solicitor's duty to the court and the solicitor's duty to his client as a basis for the defendant's objection is misconceived. The Civil Procedure Act regulates the interrelation of such duties.[13]

28 It follows from what I have said that the circumstances in this proceeding do not absolutely require the court's intervention. The jurisdiction is exceptional, to be exercised with caution. That is a further basis to refuse the application, the jurisdiction I am exercising is discretionary. The defendants did not move to restrain the plaintiff at the first opportunity and it may be, although there is no direct evidence of it, that the plaintiff would now be put to expense and inconvenience. Of greater significance is the position of the defendants, which is entirely unaffected by the outcome of the proceeding whatever it be, and I am mindful of the possibility that this application may have been pursued for tactical advantage.[14]

29 By a summons dated 14 February 2014, the plaintiff sought an order that the defendants' defence and counterclaim of 22 January 2014 be struck out. The plaintiff also sought an order that the costs of and incidental to that application be paid by the defendants' solicitor personally. The application was heard by Zammit AsJ who gave the defendants leave to provide the plaintiff with an amended defence and amended counterclaim by 11 April 2014, reserving the costs of the day. The plaintiff's summons of 14 February 2014 next returned before me at a major torts directions hearing on 9 May 2014. By that time, the defendants had provided an amended pleading. The plaintiff took no objection to the counterclaim but complained that the defence failed to define the issues in dispute in the proceeding with most paragraphs of the defence asserting that the plaintiff's statement of claim should be struck out. The defendants had not sought that relief by summons.

30 It appeared that the real issue that troubled the defendants was whether the published material had been correctly translated from the Korean language and this issue lay behind the defendants' claim that paragraphs of the statement of claim should be struck out. The plaintiff agreed to amend its statement of claim by including an allegation that the English translation of the notice was a true translation and by providing further particulars of the relevant parts of the notice in the Korean language that were defamatory of the plaintiff. The defendants agreed to amend their defence to remove all objections that the statement of claim should be struck out and to plead their substantive defences. Orders were made granting leave for these further pleadings to be filed and served. The parties have been unable to agree about appropriate costs orders to dispose of the summons filed 14 February 2014 and seek my ruling.

31 The plaintiff submits that he ought to receive the costs of and incidental to that summons as well as the costs thrown away due to the defendants' amendments. The defendants submit that the application was unnecessary and premature, and was unsuccessful.

32 Although the associate judge did not order that the defence and counterclaim be struck out, it is plain from the order that she did make that the defendants were permitted to replead and the plaintiff was permitted the opportunity to consider whether the amended pleading resolved the issues raised on the application. I am satisfied that the plaintiff substantially succeeded on his application to strike out the defendants' pleading.

33 The application that the defendants' solicitor personally pays the costs of the application was not pressed before me and will be dismissed.

34 I will order that the defendants pay the plaintiff's costs of his summons filed 14 February 2014, including reserved costs up to and including the hearing before the associate judge and any costs thrown away due to the order of the associate judge. All other costs of and in connection with the plaintiff's summons, including the costs of the day before me on 9 May 2014, are the parties' costs in the proceeding.

35 Subject to any further submission from counsel, I propose to order that the defendants pay the plaintiff's costs of the defendants' summons filed 26 May 2014, including any reserved costs. I direct that the costs of the day on 13 June 2014 be costs incurred in connection with that summons.

[1] [2001] VSCA 248; (2001) 4 VR 501.

[2] This has been considered more than once in the cases. See, in particular, Black v. Taylor [1993] 3 NZLR 403, 406 (Cooke P) 407-8 and 412 (Richardson J).

[4] [2005] NSWSC 1181.

[6] [2008] NSWSC 772.

[8] R & P Gangema Pty Ltd v D & G Luppino Pty Ltd & Anor [2012] VSC 168; Garde-Wilson v Corrs Chambers Westgarth [2007] VSC 235; see also Grimwade v Meagher & Ors [1995] VicRp 28; (1995) 1 VR 446; Yunghanns v Elfic Ltd (Supreme Court of Victoria, 3 July 1998, unreported, Gillard J); McVeigh & Anor v Linen House Pty Ltd & Ors [1999] VSCA 138; (1999) 3 VR 394.

[9] Burrell Solicitors Pty Ltd v Reavill Farm Pty Ltd [2011] NSWSC 1602; Shaw v Rigby Cooke Lawyers [2011] VSC 214; Attard v James Legal Pty Ltd [2009] NSWSC 811.

[10] Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47.

[11] [2013] NSWSC 933.

[12] [1995] VicRp 28; (1995) 1 VR 446.

[13] See Part 2.2 of the Civil Procedure Act, 2010 (Vic).

[14] Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491, [3] and [19].