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Court restrains solicitor over past business links

In the recent Victorian Supreme Court case of Lee v MK Trading Co Aust Pty Ltd [2021] VSC 343, the court considered whether a solicitor and his firm, despite not being parties to the proceedings, should be restrained from acting or providing legal advice to the plaintiffs.

Background

The defendants sought to restrain the plaintiffs, their former solicitor, Cliffords Lawyers & Migration Agents (Cliffords), and the principal of Cliffords, Mr Qwah, “from acting for, working for, aiding or otherwise assisting any of the plaintiffs in relation to, or otherwise in connection with, this proceeding”.1

The application was based solely on the court’s inherent jurisdiction to “control the conduct of officers of the court, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice”.2

Issues

The defendants alleged that they had known Mr Qwah as one of the plaintiff’s business partners since 20113 and that he had provided funding for the plaintiff’s businesses.4

As such, the defendants submitted that Mr Qwah should be restrained from acting or assisting because:

  1. He was likely to be called as a witness in the proceeding.5
  2. He had asserted a personal financial interest in the business with the plaintiffs which was the subject of the proceedings6
  3. He had made verbal threats of harm against the defendants.7

The plaintiffs submitted that there were no cases that would support what the defendants were seeking, especially where the solicitor had gone off the record8 and rejected the notion that Mr Qwah’s involvement would impact the way the defendants would run their case. The plaintiffs submitted that what was being sought was an injunction to restrain private conduct and it had never been suggested that a witness could not provide such assistance. 9

Issues considered

The court recognised that the conduct concerned was by Mr Qwah in his personal capacity as a business partner of the plaintiffs and took place several years before his firm was engaged to act as the solicitor for the plaintiffs in the proceedings.10

The court further noted that the defendants continued to press for restraint despite both Mr Qwah and Cliffords no longer being on the record.11

To determine its orders, the court turned to the objective test set out in Grimwade v Meagher12 – “whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be prevented from acting…”13

The court did not need to consider any possible inconvenience, cost or disruption should there be a change of solicitor as the plaintiffs had already engaged Fumens Lawyers as their replacement.14

Despite the change of solicitor, the court formed the view that, unless restrained from doing so, Mr Qwah would continue to provide legal advice and/or advise the plaintiffs on legal strategy, and in doing so, there was a real risk that the integrity of the judicial process would be undermined.15

The court further found that Mr Qwah did not possess the objectivity and independence which would be required of him as a solicitor and as an officer of the court. As such, there was enough basis to grant the injunctive relief which the defendants sought.16

The court ordered that Mr Qwah and Cliffords be restrained from acting as solicitor for any of the plaintiffs and giving legal advice or advice on legal strategy to them in relation to this proceeding.17 No restraint was ordered against Mr Qwah to participate in the proceedings as a witness.18

Janelle Linato is a Law Student in the QLS Ethics and Practice Centre. This article is approved by  Grace van Baarle, Manager and Ethics Solicitor, QLS Ethics and Practice Centre.

Footnotes
1 Lee v MK Trading Co Aust Pty Ltd [2021] VSC 343, 1 (Lee).
2 Ibid 3.
3 Ibid 13-14.
4 Ibid 15.
5 Ibid 37.
6 Ibid 38.
7 Ibid 39.
8 Ibid 44.
9 Ibid 50.
10 Ibid 52.
11 Ibid 55.
12 Grimwade v Meagher [1995] 1 VR 446, 452.
13 Lee (n1) 57.
14 Ibid 61.
15 Ibid 63.
16 Ibid.
17 Ibid.
18 Ibid 66.

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