In Maclean v Brylewski1, the Federal Court ordered that the matter be remitted for rehearing due to a conflict of interest undermining the procedural fairness of the case.
Inseparable from the circumstances at hand, the conflict of interest stemmed from the appellant’s legal representative being the largest creditor in the very bankruptcy she was seeking to annul.
In the original application, the appellant sought an annulment of her bankruptcy, claiming she was able to pay off her debts2. The largest part of her debt ($391,000) comprised of fees owed to her solicitor3.
The court concluded that it was ‘objectively apparent’ that in these circumstances, the practitioner’s continued representation amounted to a conflict of interest.4
The appellant submitted that the lower court had failed to ensure the proper administration of justice by refraining from exercising their inherent power to restrain the practitioner.
The appellant court had to consider whether:
a reasonably informed member of the public would have concluded that the proper administration of justice required that [the practitioner] be prevented from acting for [the appellant] on her annulment application.5
Given that the success of the appellant’s annulment application centred around the immense debt owed to the solicitor appearing on her behalf, the court considered that it was ‘impossible’ for the solicitor to continue with his representation.6 The centrality of the debt ‘changed the complexion’ of the case, leaving the applicant without access to procedural fairness or the opportunity to discern the validity of the debt concerned.7
The court rejected a narrow application of the court’s power to restrain, emphasising its importance for upholding broader principles of justice. 8
In the New Zealand case of Black v Taylor9, Richardson J stated that the power to restrain is enlivened simply ‘where it is satisfied that the interests of justice so require’10, corroborating the wider application in the present case.
Upholding principles of both public interest and public confidence in the administration of justice, the court emphasised the ‘need for a trial that is fair, but also seen to be fair’11.
In a similar vein, it was noted that the power of restraint in circumstances of conflict may be necessary even if a client has ‘consented to the conflict’, furthering the public interest in the administration of justice and not just the private interest of the parties12. In certain cases the court may even exercise the power of its own motion.13
In the present case, it is important to note that the mere existence of debts payable to a solicitor – even in bankruptcy claims – does not automatically represent a conflict, though this is still a possibility and should be considered.14 For a conflict to emerge, and for the power of restraint to be enlivened, the circumstances taken in their entirety must stand in opposition to the proper administration of justice as well as the actual and perceived fairness of the trial itself. The court considered15 Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ in Nobarani16:
Each of these matters, by itself, may not have constituted a material denial of procedural fairness amounting to a substantial wrong or miscarriage. But all of the matters, in combination … were manifestations of the material denial of procedural fairness to the appellant.17
Ultimately, the matter was remitted for rehearing in its original jurisdiction, with Stellios J noting the importance of providing the appellant with a ‘fresh opportunity to present her case’.18
- [2025] FCAFC 133 (‘Maclean v Brylewski’) ↩︎
- Ibid [5] ↩︎
- Ibid [6] ↩︎
- Ibid [11]. ↩︎
- Ibid [25]. ↩︎
- Ibid [114] ↩︎
- Ibid [9] ↩︎
- Ibid [14], [18]-[19] ↩︎
- [1993] 3 NZLR 403 ↩︎
- Ibid 409 ↩︎
- Maclean v Brylewski (n 1) [22] ↩︎
- Ibid [21] ↩︎
- Ibid [23] ↩︎
- Ibid [110] ↩︎
- Maclean v Brylewski (n 1) [131] ↩︎
- [2018] HCA 36 ↩︎
- Ibid [44] ↩︎
- Maclean v Brylewski (n 1) [132] ↩︎
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