PRACTICE AND PROCEDURE - Application other than for leave to appeal - Application for interim injunction restraining the respondents' legal representatives - Where primary judge ruled against restraint application below - Significant overlap with matters raised in application for leave to appeal - Respondents entitled to benefit of ruling below until overturned - Balance of convenience found not to favour grant of injunction - Application dismissed.

Miller v Martin [2019] VSCA 86; Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446; Gangemi Pty Ltd v Luppino Pty Ltd [2012] VSC 168; Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, considered.

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 5, applied.

1. The first plaintiff in the proceeding below ('the Father'), the second plaintiff in the proceeding below ('the Mother') and the third plaintiff in the proceeding below ('Student A') have brought a proceeding in the Trial Division against the trustees of Edmund Rice Education Australia trading as Parade College (the first defendant in the proceeding below, hereinafter referred to as 'the College') and the former principal of the College (the second defendant in the proceeding below, hereinafter referred to as 'the Principal'). The plaintiffs allege that Student A was subject to bullying and physically violent behaviour by another college student, and that his enrolment at the College was unlawfully terminated by the Principal.
2. The plaintiffs' claims against the College and the Principal have yet to be tried and remain untested, as do the matters raised in defence. A large number of interlocutory disputes have impeded the progress of the proceeding to trial and have resulted in the vacation of at least one trial date.

1. The Court of Appeal now has before it an application for leave to appeal from the ruling of the trial judge in respect of a series of unsuccessful interlocutory applications brought by the Mother ('the 64A application'). Most relevantly, the 64A application seeks leave to appeal from the decision of the trial judge to refuse the Mother's application for an order or orders restraining the defendants' solicitors, McInnes Wilson Lawyers ('MWL'), and senior counsel previously retained, from continuing to act for them.
2. The Mother has also brought an application other than for leave to appeal ('the 64B application') which she contends must be heard and determined before her application for leave to appeal is heard. A number of the seven substantive orders sought in the 64B application relate to the representation of the defendants by MWL, including an order that this Court restrain MWL from continuing to act for the defendants ('the 64B restraint application').
3. In support of the 64B restraint application, the Mother relies upon the following matters:

(a) Misrepresentation of the Applicant's Claim.

(b) Conflict of Interest; Defence Lawyers as Potential Witnesses in the Proceeding.

(c) Obstruction of Justice through misleading and incompetent pleadings.

(d) Obstruction of Justice through incomplete discovery.

(e) Non-Compliance with statutory certification obligations.

(f) Obstruction of Justice through unauthorised use of pseudonyms.

1. There is a significant (if not a total) overlap between the issues raised by the 64B restraint application and the 64A application fixed for 23 March 2026. That is why the Court first proposed to hear the 64A and the 64B applications on the same day, a proposal to which the Mother vociferously objected.
2. The Mother requested that the Court re-consider whether both applications should be heard together on 23 March. As a result, in early March 2026, the Court proposed to the parties that it hear only the 64B application on 23 March. However, all parties opposed this course.
3. In summary, the College and the Principal objected on the basis that this proposal would result in further delays to the hearing of an application for leave to appeal from what are interlocutory decisions of the trial judge and the determination of this proceeding more generally. They noted that the proceeding was commenced over four years ago and that a trial fixed for 25 November 2025 had to be adjourned because of the 64A application.
4. The Mother has objected to the 64B application being heard and determined at all in advance of a 'directions hearing', on the ground, inter alia, that:

the legal practitioners whose conduct is the subject of the restraint application continue to act and advance the substantive proceedings in matters that directly intersect with the very conduct complained of. This ongoing involvement creates a real and immediate risk of prejudice to the integrity of the proceedings and to the administration of justice. In these circumstances, both the Court and the Applicant are confronted with the situation requiring the Court's immediate attention and appropriate case management to ensure procedural fairness and to safeguard the proper conduct of the litigation.

1. Since opposing the proposal to hear the 64B application on 23 March, the Mother has asserted that the Court ought not accept any document prepared or filed by MWL in relation to the applications before this Court.
2. This has created a practical impasse.
3. There is force to the defendants' submission that the Court should not countenance further delay in this proceeding and that the Mother's application for leave to appeal the judge's interlocutory orders should be heard and determined expeditiously. The judge's interlocutory decision was delivered over a year ago. That decision was principally concerned with a challenge to the defendants' pleadings. The judge held that the amended defence was intelligible, set out the material facts relied on to establish the defence, and defined the issues to be determined at trial.[1] Insofar as the Mother made a related application for summary judgment, she failed to persuade the trial judge that there was no real prospect of the defence to the claim made by the plaintiffs succeeding, based on the matters pleaded in the amended defence. [2] Unless and until these holdings are overturned on appeal, they stand.
4. In these circumstances, it has become necessary for this Court to resolve the impasse without hearing further from the parties by determining the 64B restraint application 'on the papers'. We are able to do so as, in addition to the Mother's lengthy submissions and supporting affidavit on the 64B application, we have also had the benefit of submissions in opposition filed on behalf of the College and Principal and the Mother's reply submissions.

1. In the Mother's submissions in support of the 64B application, under the heading 'Part B restraint application' she states:

The Applicant urgently seeks an injunction restraining MWL from acting for the First and Second Defendants in the leave to appeal application.[3]

1. The 64B restraint application is, in effect, an application for an interim injunction to prevent MWL from acting until the Mother's 64A application is heard and determined. We observe that, given that the application for leave to appeal the trial judge's refusal to restrain MWL and counsel raises the same issues, anything other than an application for interim relief would constitute an abuse of process.
2. In order to succeed in her application for an interim injunction, the Mother must persuade the Court that there is a good arguable case that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that MWL be prevented from acting, in the interests of the protection of the integrity of the judicial process and appearance of justice[4] and that the balance of convenience favours the injunction.[5]
3. Other than to observe that the trial judge has ruled on the restraint application below[6] and that the Mother must identify an error in that ruling, we consider that it is not desirable to express any view on the merits of the 64B restraint application, given clear overlap between the issues raised in that application and the 64A application fixed for 23 March. However, we would not grant the interim injunction sought because the balance of convenience does not favour the grant of an injunction when the application for leave to appeal is fixed for 23 March 2026.
4. As we have stated, we see no justification for any further delay in the hearing and determination of the Mother's application for leave to appeal the judge's interlocutory orders. An appeal is not an occasion to adduce further evidence and endeavour to re-run the original application(s) on that basis. Moreover, as a matter of principle, the judge's holding that the defendants' lawyers are not restrained from acting on the basis of the matters alleged by the Mother stands unless and until overturned on appeal. The defendants are prima facie entitled to the benefit of that ruling.[7] To enjoin MWL from acting for the defendants at this stage would be to deprive them of their legal representation shortly before the hearing. Those representatives are familiar with the issues and the materials in this case, and to require new representation to be engaged at short notice would give rise to unnecessary costs and most likely result in further delay.
5. Again, as a matter of legal principle, the Court's inherent jurisdiction to restrain a solicitor from acting is discretionary. In exercising that discretion, the Court must take into account the prima facie right of a party to be represented by the lawyer of his or her choice, the inconvenience, cost and disruption which might be caused in requiring a party to change lawyers, and the exceptional nature of the Court's jurisdiction.[8]
6. We have therefore determined that the 64B restraint application must be dismissed.
7. The remainder of the 64B application and the application for leave to appeal will be heard on 23 March 2026.

[1] The Father (a pseudonym) v Trustees of Edmund Rice Education Australia t/a Parade College [2025] VSC 17, [27] ('Reasons').

[4] Miller v Martin [2019] VSCA 86, [17]-[19] (Kyrou, Niall and Ashley JJA); Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452 (Mandie J); Gangemi Pty Ltd v Luppino Pty Ltd [2012] VSC 168, [5] and [8] (Sifris J) quoting Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 582-3 [76] (Brereton J); [2005] NSWSC 1181 ('Kallinicos') and Garde-Wilson v Corrs Chambers Westgarth [2007] VSC 235; (2007) 27 VAR 271, 277-8 [35]-[43] (Bell J); [2007] VSC 235.

[5] See, eg, Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 68 [19] (Gleeson CJ and Crennan J); [2006] HCA 46.

[7] See Maher v Commonwealth Bank of Australia [2008] VSCA 122, [20] (Dodds-Streeton JA, Redlich JA agreeing at [1]), where this Court stated that 'Prima facie, a successful party is entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified'. That authority has been cited with approval in a number of subsequent cases, see, eg V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2022] VSCA 77, [36] (Sifris and Macaulay JJA); Asea 1 Pty Ltd v Rudyard Pty Ltd [2020] VSCA 122, [12] (Kaye and McLeish JJA).

[8] Kallinicos [2005] NSWSC 1181; (2005) 64 NSWLR 561, 582-3 [76] (Brereton J); [2005] NSWSC 1181.