The Supreme Court of Western Australia in Lafferty v Waterton [No 3] [2017] WASC 230 has restrained a lawyer from acting as counsel for the plaintiff, his wife, because of a combination of factors: it would be difficult for him to maintain professional independence by reason of their relationship; his own financial affairs were important to the issues in the proceedings; and he had directly participated in events which were part of the facts in issue in the proceedings.
Background
The plaintiff’s father had died in Victoria in 2003, leaving real property in that State. Probate of his last will, which had provided for his entire estate to pass to the plaintiff’s mother, had been granted in the Supreme Court of Victoria in 2004.
In 2013, the plaintiff had commenced proceedings in the Supreme Court of Western Australia claiming, in substance, that:
- the plaintiff’s mother had made a representation in 2004 that, on the mother’s death, all of her property (including the assets which had passed to her from her husband’s estate) would be left to her three children equally;
- the plaintiff, who had been entitled to apply for an order for provision out of the estate of her father pursuant to Pt IV of the Administration and Probate Act 1958 (Vic), had relied on her mother’s representation by refraining from applying for such an order within time or at all;
- the plaintiff’s mother had acted inconsistently with her representation; and
- the plaintiff had thereby suffered detriment and was entitled to various equitable relief.
The defendants denied that the plaintiff had been entitled to a family provision order or had suffered any detriment and alleged that the court in any proceedings would have determined that her father had had no responsibility to provide for her.
Two days before the date on which the trial of the proceedings was due to commence, the plaintiff changed her legal representatives. Her husband, a lawyer, came onto the record as solicitor for the plaintiff and, on the first day of the trial, appeared as counsel for the plaintiff.
One of the defendants then raised the issue of the husband acting as counsel for his wife.
Decision
The issue was dealt with by Allanson J.
His Honour said (at [10]) that the matters which would be considered in an application under the Administration and Probate Act included the financial resources and financial needs of the plaintiff at the time and for the foreseeable future, and the liability of any other person to maintain her. Accordingly, the factual issues in the trial would include the financial position of the plaintiff and her husband around the time of her father’s death.
His Honour then noted as follows (at [11]-[12]):
- The plaintiff had referred in opening submissions to her husband’s employment and earnings, and to other financial matters of her husband.
- The plaintiff had referred in her witness statement to her husband having told her that she might be entitled to make a claim against her father’s estate, and to family meetings having been held at which her husband was present when the estate and gifts from her mother to the children were discussed.
- Some of the parties had provided the court with documents which related to companies in which the husband held office and to real property which was jointly owned by the plaintiff and her husband.
After commenting (at [12]) that the husband’s financial position at various times could not be disentangled from the issues in the proceedings, Allanson J referred to and adopted (at [14]) the principles applicable to restraining a legal practitioner which had been summarised in Frigger v Mervyn Jonathon Kitay in his capacity as Liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 10] [2016] WASC 63 at [23]. Those principles included the following:
- The Court, in its inherent supervisory jurisdiction, could restrain practitioners from acting for a client in proceedings if the Court considered it was necessary to do so in order to ensure the due administration of justice.
- The Court might exercise this control in the event that a practitioner had a personal interest, because, for example, he or she was closely related to the client or had a financial or professional interest in the outcome of the proceedings or where he or she was likely to be called as a witness, such that he or she was unable to give the Court the independent and uninvolved assistance which it expected.
His Honour said (at [15]) that the power to restrain a practitioner from acting was not lightly exercised and was a power which had been described as extraordinary, to be used sparingly and only in a clear case. His Honour then said (also at [15]) that the case before the Court was “both extraordinary and clear” by reason of the following combination of factors:
- the relationship (as husband) which the practitioner had with the plaintiff;
- the proscription in the Legal Profession Conduct Rules 2010 (WA) that a practitioner must not act as counsel if it would be difficult for the practitioner to maintain professional independence because of that relationship (see r 33(2));
- the importance of the husband’s own financial affairs to the issues in the proceedings; and
- the husband’s direct participation in events which were part of the facts in issue in the proceedings, even if he was not to be called as a witness.
Accordingly, his Honour adjourned the trial and ordered that the husband not act as counsel for the plaintiff.
