Plaintiff v First Defendant

1. The Court's inherent jurisdiction to restrain solicitors from acting in a proceeding is exceptional and is to be exercised with caution.[1] The novel circumstances of this proceeding in which allegations of a quasi-criminal character are raised warrant the exercise of the jurisdiction so as to protect the integrity of the judicial process and the administration of justice, both as a matter of substance and appearance.
2. The relevant legal principles were stated by the Court of Appeal in Miller v Martin.[2] The Court observed that the circumstance which usually gives rise to an application to restrain a legal practitioner from acting for an opposing party in the proceeding is where the legal practitioner previously acted for the moving party, on the basis that their representation of the opposing party will involve the use by them of confidential information gained from their previous representation.[3] The Court's jurisdiction is not, however, confined to cases involving allegations of breach of confidence:[4]

... The Court has a broad, inherent jurisdiction to control its officers and protect its processes. As part of this broad jurisdiction, the Court may restrain a legal practitioner from acting in a proceeding where the integrity of the judicial process would be impaired if the legal practitioner did not cease to act. Instances where this jurisdiction has been exercised include where the legal practitioner is likely to be a material witness, where there is a material conflict between the interests of the client and those of the legal practitioner concerning the litigation in question or where, for any other reason, the independence and objectivity of the legal practitioner would be unacceptably compromised.

1. The Court adopted the following summary of the applicable principles stated by Brereton J in Kallinicos v Hunt:[5]

[T]he 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 ...

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 ...

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

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 ...

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 ...

1. The plaintiff in this proceeding is the former domestic partner of the second defendant. They have two children, daughters born in 2009 and 2010 (the children). The first defendant is the daughter of the second defendant, born of a previous relationship in 2001.
2. For most of this proceeding which was commenced by writ filed on 19 December 2024, the defendants have been represented by the same firm of solicitors, Scott Legal.[6] On 9 October 2025, the plaintiff filed a summons seeking various heads of relief including an order restraining Scott Legal from acting for both defendants (or, in the alternative, permitting the firm to act for one of the defendants).[7]
3. The foundational fact upon which this proceeding turns is that on 24 January 2018, when she was 16 years of age, the first defendant made an allegation to Victoria Police that the plaintiff raped and inappropriately touched her when she was eight years old (the accusation).[8] The plaintiff alleges that the accusation was, to the first defendant's knowledge, false and fraudulent.[9]
4. The other material facts alleged by the plaintiff which frame the causes of action on which he relies may be summarised as follows:

(a) On 20 August 2015, in a proceeding between the plaintiff and the second defendant (the family law proceeding), the then Federal Circuit Court of Australia made consent orders in relation to the plaintiff's access to the children (the 2015 orders).

(b) Although the second defendant consented to the access arrangements provided for by the 2015 orders, she was unhappy with those arrangements and wanted to remove the plaintiff's access to the children.

(c) As a consequence of the falsity of the accusation, and as a result of actions by the second defendant, the plaintiff's access to the children provided for by the 2015 orders was compulsorily removed.

(d) On 10 September 2018, the plaintiff was informed by Victoria Police that the investigation in relation to the accusation (which was made on 24 January 2018) would be closed and he would not be charged.

(a) A claim of negligence against the first defendant which rests upon the existence of a novel duty of care that she owed the plaintiff 'a duty of care to take reasonable care in relation to the truth of the [a]ccusation made to Victoria Police concerning allegations of rape as against [the plaintiff]'.[10]

(b) A claim of conspiracy by unlawful means between the defendants. It is alleged that:

(i) the false rape accusation was made pursuant to an agreement between the defendants to make an unfounded accusation of a serious nature which would adversely affect the plaintiff in terms of his access to the children;

(ii) the agreement was made with an intention by the defendants to injure the plaintiff; and

(iii) the agreement was executed by the reporting of the accusation to Victoria Police and its use by the second defendant in the family law proceeding to advance her interests, including the prolonged suspension of the 2015 orders by which the plaintiff was given access to the children.

(a) the accusation was false;

(b) the defendants conspired to make the accusation pursuant to an agreement between them to make an unfounded accusation of a serious nature which would adversely affect the plaintiff's interests in terms of his access to the children, which agreement was made with an intention to injure him; and

(c) the defendants breached s 53 of the Summary Offences Act 1966.[11]

1. The plaintiff also seeks damages, including exemplary damages. He asserts both pecuniary and non-pecuniary loss. As to the former, he pleads reliance upon legal fees of $433,000 he incurred in responding to the alleged false rape accusation and seeking to again gain access to the children in the family law proceeding. As to non-pecuniary loss, he pleads a lack of access to his children for 639 days between January 2018 and October 2019; psychological, emotional and reputational damage; and ongoing lack of access to his children, who, on the basis of the alleged false rape accusation, have been unwilling to have an ongoing relationship with him.
2. The preceding summary of the plaintiff's claim is drawn from the contents of an amended statement of claim dated 6 February 2026 (the ASOC) which the Court granted leave to be filed and served.[12] As compared to the plaintiff's original pleading, for reasons which it is unnecessary to rehearse, the ASOC contains extensive particulars of the material facts alleged by the plaintiff in support of the above causes of action and claimed relief. To a significant extent, the particulars are drawn from documents obtained in the related proceedings referred to below and from subpoenas issued by the plaintiff. Some of these documents were exhibited to the affidavits relied upon by the plaintiff in support of his application.

1. In support of his application, the plaintiff relied upon two affidavits made by his solicitor, Stephen Schembri. Mr Schembri is an experienced legal practitioner, having practised since 1998, and is a former police prosecutor and police officer. He was the supervising principal solicitor in relation to ten related proceedings involving the plaintiff and the second defendant, all of which he described as having been 'heavily contested' (the related proceedings).
2. One of the related proceedings was an eight-day contested hearing in the family law proceeding in which both the defendants in this proceeding were extensively cross-examined and in which the central issue was, in substance, the alleged false rape accusation and its consequences for the plaintiff's access to his children. Mr Schembri deposes that, after the defendants were cross-examined, the second defendant effectively capitulated and consented to the restoration of an access regime that had existed prior to the making of the alleged false rape accusation. Although the proceeding was resolved on terms that allowed the plaintiff to have access to his children, Mr Schembri deposes that, as a result of the alleged false rape accusation, the children no longer wish to have any dealings with the plaintiff, a matter about which the plaintiff is significantly aggrieved.
3. Mr Schembri expresses the view that, consistently with what occurred in the above hearing in the family law proceeding, it is likely that both defendants in this proceeding will be cross-examined on the basis of, amongst other things, the circumstances in which they prepared their affidavit material in the family law proceeding and corresponded with each other in relation to the same; their communications with each other during the course of that hearing; and statements that they made to various experts. I agree with this assessment in light of the specific claims made in the ASOC outlined below.
4. The defendants did not tender any evidence in opposition to the application.

1. As I have noted, the particulars to the ASOC are extensive. Counsel for the defendants made various criticisms of some of the particulars and the documents upon which they were drawn. To a significant extent these criticisms were misdirected. It is no part of the Court's function in determining the present application to make assessments about the sufficiency of the evidence the plaintiff may seek to rely upon at trial. In determining whether a fair-minded observer would consider that the representation of the defendants by the same solicitors would impair the administration of justice, the focus is properly directed at identifying the controversies likely to arise at trial as revealed by the pleadings. The following allegations and particulars in the ASOC provide insight into the nature of the evidentiary issues which are likely to arise at trial.
2. The plaintiff alleges that, prior to the making of the accusation, the first defendant was aware of the terms of the 2015 orders, or that there was a legal process that resulted in the plaintiff having access rights to his children.[13] It is alleged that the first defendant's awareness is to be inferred from various matters including:

(a) Statements said to have been made by the first defendant to a Victoria Police detective whose written report includes the following:

The [the first defendant] has been quite uncooperative with the investigators, both she and her mother, [the second defendant] have stated that they are happy for the investigation to be dragged on for as long as possible as why [sic] the investigation is ongoing the accused is prohibited from seeing his two biological daughters...[14]

(b) The contents of a report prepared by a clinical psychologist in the context of the family law proceeding in which she states that:

[The first defendant] presented as a 'parentified' child who has been excessively involved in the parental dispute. For example, [the first defendant] reflected that "mum talks to me about most things" and that she reads [the plaintiff's] text messages. When this was explored further it transpired that [the second defendant] has given [the first defendant] her telephone, without informing [the plaintiff], and the number remained unchanged. When this issue was raised with [the second defendant], she shrugged off the situation ... Further, it would appear that [the second defendant] has also involved [the first defendant] inappropriately in adult issues by talking to her about them and allowing her to read messages between herself and [the plaintiff] ....'[15]

1. In relation to the allegations that the first defendant knew the accusation to be false and fraudulent,[16] and that she knew the false rape accusation to be false such as to be fraudulent conduct,[17] the lengthy particulars relied upon by the plaintiff include the following:
   1. the fact that during the trial in October 2019 in the 2013 proceeding [...] (which was centred on the False Rape Allegation), each of [the first defendant] and [the second defendant] were revealed to have given false and unreliable evidence, such falsity and unreliability being itself evident by way of:

1. communications between [the first defendant] and [the second defendant] whilst under cross-examination via text message and telephone call(s); 2. text messages exchanged between [the first defendant] and [the second defendant] in relation to the preparation of affidavit material in circumstances in which [the second defendant's] solicitors prepared affidavit material on behalf of [the first defendant] (and witnessed the execution of same); and 3. each of [the first defendant] and [the second defendant] giving improbable and/or false evidence which was exposed during cross-examination;

1. the fact that expert reports produced during the trial in October 2019 in the 2013 proceeding [...] were inconsistent with the evidence of both [the first defendant] and [the second defendant] as to the truth of the False Rape Accusation (and also evidenced conspiracy and agreement) [...]; and

1. having had their ([the first defendant] and [the second defendant's]) credibility severely undermined as part of the trial and particularly by way of cross-examination, [the second defendant] agreed to an access regime for Ruby and Grace, providing access to the children that was significantly more than the 2015 Orders. This would not have been agreed to had [the second defendant] believed the False Rape Accusation to be true, having regard to the maternal relationship as between [the second defendant] and Ruby and Grace.
2. In support of the allegation that the false rape accusation was made pursuant to an agreement between the defendants to make an unfounded accusation of a serious nature which would adversely affect the plaintiff in terms of his access to his children,[18] the plaintiff pleads that the said agreement may be inferred from various matters, including the following:
   1. the making of the Accusation prompted a pattern of conduct whereby accusations were made and, when ultimately dismissed by relevant authorities, new allegations of a similar nature were made to then have the same practical effect. In this regard, when Victoria Police dismissed the False Rape Accusation involving [the first defendant] and [the plaintiff][...][the second defendant] almost immediately made a supplementary affidavit in the 2013 proceedings raising allegations against [the plaintiff's] step-son, having allegedly been put on notice of the alleged disclosures by Ruby months prior. That accusation, which was never substantiated or found to be true, indirectly affected [the plaintiff's] access to his children; and
   2. the fact that the False Rape Accusation followed the period where Ruby and Grace were on holiday with [the plaintiff] in January 2018 and [the second defendant] had set up, by way of a secret communication channel with Ruby and Grace a means to communicate with them, and conspired with Ruby and Grace not to disclose that communication channel to [the plaintiff], the message service being known as Monster Message and hidden within a game. [The second defendant] had installed the Monster Message application on the iPads of Ruby and Grace which had been purchased by [the plaintiff] for Christmas prior to the holiday. [The first defendant] had access to Monster Message;
   3. over and above an ordinary maternal relationship, the relationship as between [the first defendant and second defendant] was strong and involved influence being exerted by [the second defendant] over [the first defendant]. By the time of the False Rape Accusation, an unusual relationship had developed in which there was a common enemy, being [the plaintiff] and those aligned with him.

For example, a report of Monash Health of August 2017 noted, amongst other things, that [the first defendant] had displayed physical violence towards [the plaintiff] (which [the second defendant] praised rather than intervened) and that [the first defendant] was displaying the same behaviour as her mother.

The unusual nature of the relationship was the subject of expert evidence in the family court proceeding:

See Single Expert Report of Clinical Psychologist Ilana Katz dated 22 November 2013 in the context of the 2013 Proceeding.

See Single Expert Report of Clinical Psychologist Dr Jennifer Neoh dated 3 October 2019.

Text messages obtained directly from [the first and second defendants'] mobile telephones and evidence given during the course of cross-examination during the a trial in October 2019 in the 2013 proceeding, demonstrated collusion in relation to the giving of their evidence, the trial principally being directed at the False Rape Allegation.

Documentation identifies that [the first defendant] and/or [the second defendant] have reported to have been at various times "pleased" to make the False Rape Accusation due to the resulting consequences to [the plaintiff]...

...

1. In my view, there are five principal features of this proceeding which, collectively, would lead a reasonably informed member of the public to conclude that Scott Legal should be prevented from acting for both defendants because their continued engagement as the legal representative of both defendants would pose a real and immediate risk to the integrity of the judicial process and the administration of justice, both as a matter of substance and appearance.
2. First, fundamentally, it is necessary to recall that, in substance, the determination of the claim of conspiracy by unlawful means will necessarily require an assessment as to whether the defendants have engaged in a fraudulent common enterprise. The elements of the cause of action are that:[19]

(a) each of the alleged co-conspirators were party to an agreement or combination with the other co-conspirators;

(b) the purpose of that agreement or combination was to injure the plaintiff by unlawful means;

(c) the agreement or combination was carried into effect by the commission of agreed unlawful acts; and

(d) those unlawful acts caused damage to the plaintiff.

1. In relation to the first of these elements, the High Court has observed that:[20]

Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence.

1. It is clear from the above survey of the particulars relied upon by the plaintiff in relation to the conspiracy claim that the trial of the proceeding will inevitably involve, amongst other things, a close examination of the defendants' relationship and various communications and dealings between them.
2. Secondly, the specific context in which those communications and dealings between the defendants will fall to be examined is a mother-daughter relationship. This is not a case where co-defendants are related by commercial, employment or other non-familial relationships. It is trite to observe that in the ordinary course of human experience, the relationship of mother and daughter gives rise to attachments, affections and obligations of a wholly different order and intensity.
3. Thirdly, as I have explained, the ASOC squarely raises an allegation that, beyond an 'ordinary' maternal relationship, the relationship between the defendants involved influence being exerted by the second defendant over the first defendant. It is alleged that, by the time of the making of the alleged false rape accusation, an 'unusual relationship' had developed between them, in which the plaintiff was a 'common enemy'. [21] Where, as here, there is an allegation that one party has had an overbearing influence on the conduct of another resulting in conduct of a fraudulent character, there is a real risk that the integrity of the judicial process - and its appearance - is likely to be compromised if the parties are jointly represented. Contrary to the submissions made on behalf of the defendants, these concerns are not resolved or mitigated by the fact that the first defendant is now an adult.
4. Fourthly, the Court's concern to protect the administration of justice and the integrity of its processes falls to be considered in a proceeding which is quasi-criminal in nature. The plaintiff makes serious allegations of fraud against the defendants, including that their conduct was in breach of s 53 of the Summary Offences Act 1966. The Court of Appeal of Queensland has recognised that, in a criminal context, the representation by a firm of solicitors of two or more clients in the same or related matters is a practice which is:[22]

... apt to undermine public confidence in the legal profession and should be discouraged. Unless there is no possibility of a conflict existing or emerging, and such cases will be rare, co-defendants should have separate legal representation.

1. The Court explained this conclusion by reference to a range of potential conflicts which practitioners may face in representing co-defendants, including the following which has a particular resonance in the circumstances of this case:[23]

... By having the same legal practitioner acting for all, more dominant co‑defendants may manipulate those less dominant to give instructions to their detriment and to the advantage of the dominant co-defendants.

1. This observation highlights the risks to the integrity of evidence which can arise in some circumstances where co-defendants are jointly represented. In my view, having regard to the nature of the allegations in the ASOC, those risks are real in the present matter. They are illustrated by the need for each defendant to answer lengthy interrogatories which have been served by the plaintiff (with the leave of the Court). Given the nature of the allegations in the ASOC, it appears to me that the defendants' solicitors are in a fundamental position of conflict in advising each of their clients in relation to the interrogatories and preparing responses to them. Contrary to the submissions made on behalf of the defendants, recourse to the professional and ethical obligations of their legal representatives is unlikely to provide a practical and satisfactory means of managing these profound conflicts. Analogous issues will also inevitably arise in relation to the preparation of evidence for trial.
2. The fifth consideration which weighs in my mind is the absence of any evidence that either or both of the defendants have obtained independent legal advice about whether they should continue to jointly instruct Scott Legal. The obtaining of such advice can be of particular significance in considering applications to restrain solicitors from acting for co-defendants.[24] In this case, there is no evidence that the first defendant, the party who it is alleged has been the subject of influence by her mother the second defendant, has had the benefit of any independent legal advice in relation to her legal representation. As a consequence, given the nature of the allegations raised in the proceeding concerning the influence said to have been wielded by the second defendant over the first defendant and the risks referred to in the previous paragraph, the fact that the defendants have filed a single Defence is not, contrary to the submissions made on their behalf, a sufficient basis for the Court to deal with the present application on the basis that no conflict between them appears from the pleading.
3. Although the above considerations strongly weigh in favour of the Court granting the relief sought by the plaintiff, I maintained serious reservations in granting that relief given the apparent delay in the bringing of the application: although the Defence was filed on 24 February 2025, the summons seeking to restrain the Scott Legal from acting was not filed until 9 October 2025. However, after careful consideration,[25] I was satisfied that the delay did not disentitle the plaintiff from the relief that the proper administration of justice required. Although the plaintiff's application to restrain Scott Legal from acting was not brought with the level of expedition with which such applications should ordinarily be commenced, the delay was not inordinate and without reasonable explanation.
4. For the foregoing reasons, while mindful of the public interest in a litigant not being deprived of their lawyer of choice, the Court was satisfied that the novel and quasi-criminal character of this proceeding required the exercise of the Court's jurisdiction to restrain solicitors from acting to ensure the due and proper administration of justice. The Court ordered as follows:

If it is retained to act in this proceeding, Scott Legal be restrained from acting for both defendants.

[1] Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 [76],[92].

[2] [2019] VSCA 86.

[5] Ibid [19] citing Kallinicos v Hunt (n 1) [76].

[6] A Notice of Solicitor Acting was filed by Scott Legal for the first and second defendants on 24 February 2025. A Defence was filed on behalf of both defendants on the same date.

[7] The summons was originally listed to be heard on 12 December 2025, but was unable to be heard on that day.

[8] The first defendant admits that she made an allegation to Victoria Police that she was sexually abused by the plaintiff when she was or about 9 years of age.

[9] Defined in the plaintiff's pleading as 'the false rape accusation'.

[10] The defendants abandoned an application to strike out this claim.

[11] Section 53(1) relevantly provides: 'Any person who falsely and with knowledge of the falsity of the report voluntarily reports or causes to be reported to any police officer or to a protective services officer that an act has been done or an event has occurred, which act or event as so reported is such as calls for an investigation by a police officer or a protective services officer shall be guilty of an offence.'

[12] Leave was not opposed by the defendants.

[14] This particular is also relied upon to support four further allegations: (1) the allegation in [4A] of the ASOC that notwithstanding the second defendant's consent to the access arrangements for the children under the 2015 orders, she was nonetheless unhappy with them and was desirous of having the plaintiff's access to his children removed; (2) the allegation in [7] of the ASOC that the first defendant owed the plaintiff a duty to take reasonable care in relation to the truth of the accusation of rape made to Victoria Police; (3) the allegation in [9] of the ASOC that the first defendant knew that the accusation was false and fraudulent; and (4) the allegation in [17] of the ASOC that the first defendant had knowledge that the accusation was false such as to be fraudulent conduct.

[15] This particular is also relied upon to support two further allegations: (1) the allegation in [7] of the ASOC that the first defendant owed the plaintiff a duty to take reasonable care in relation to the truth of the accusation of rape made to Victoria Police; and (2) the allegation in [18] of the ASOC that the making of the accusation was made pursuant to an agreement between the first and second defendants to make an unfounded accusation of a serious nature which would adversely affect the plaintiff's access to his children.

[18] ASOC [18]. The particulars in paragraph G above are also relied upon in support of the allegation in [19] of the ASOC that the above agreement was made with the intention of the first and/or second defendants to injure the plaintiff.

[19] Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34, [421].

[20] Ahern v R [1988] HCA 39; (1988) 165 CLR 87, 93.

[22] R v Pham [2017] QCA 43, [60].

[24] See, for example, Davey v Silverstein & Ors [2019] VSC 302 [16], [20], [22].

[25] After the Defence was filed on 24 February 2025, Mr Schembri raised with Scott Legal in a timely way (on 2 April 2025) his view that there was an inherent conflict of interest in the position of the defendants which Scott Legal should consider in relation to their capacity to continue to act for them. These concerns were rebuffed. Mr Schembri deposed that his concerns in relation to conflict increased in the course of preparing interrogatories and, on 30 July 2025, he sent Scott Legal a comprehensive letter which detailed at length why he considered that Scott Legal should cease acting for both defendants and which foreshadowed the present application if they continued to act. Scott Legal responded to this correspondence about six weeks later on 11 September 2025; they denied that acting for both defendants gave rise to a conflict of interest. It was about a month before the present summons was then filed, in part because of periods of leave taken by Mr Schembri and the plaintiff's counsel.