Scallan v Scallan [2001] NSWSC 1078

New South Wales Supreme Court

CITATION : Scallan v Scallan [2001] NSWSC 1078 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 109065 of 2000 HEARING DATE(S) : 12 November 2001 JUDGMENT DATE : 26 November 2001

Victoria Sarah Scallan (First Plaintiff) PARTIES : Peter Khoury (Second Plaintiff) Eden Charles Scallan (Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr S Rares, SC with him Mr D Warren and Ms T Catanzarim (Plaintiffs) Mr S Moteby (Defendant) SOLICITORS : Cassidy Gibson & Howlin (Plaintiffs) Jenkins & Associates (Defendant) CATCHWORDS : PROCEDURE - solicitor's duties to the court - Rule 19 of Practice Rules - attesting witness to will in a contested probate suit also consultant to firm acting for party propounding the will - whether court should grant injunction restraining that firm from acting LEGISLATION CITED : Legal Profession Act 1987 s57B, s57D Afkos Industries Pty Ltd v Pullinger Stewart (2001) WASC 69 CASES CITED : Chapman v Rogers, ex parte Chapman [1984] 1 Qd.R 542 Yamaji v Westpac Banking Corporation (1993) 42 FCR 431 DECISION : See paragraph 11

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION probate list WINDEYER J MONDAY 26 NOVEMBER 2001 109065/00 VICTORIA SARAH SCALLAN & PETER KHOURY V EDEN CHARLES SCALLAN IN THE ESTATE OF GAIL ANNE SCALLAN JUDGMENT 1 By notice of motion filed on 5 November 2001 the applicant, Mr Eden Scallan, who is the defendant in the action, seeks an order restraining Messrs. Cassidy Gibson & Howlin from acting as solicitors for the plaintiff in this action. 2 The principal action is a contested probate suit. The plaintiffs seek probate in solemn form of a will dated 30 March 2000 of Gail Anne Scallan, deceased, who died on 19 May 2000. The defendant disputes the validity of that will and counter claims for probate of a will dated 19 March 1997 of which he is named sole executor. 3 Mr Cassidy is a consultant to the firm of Messrs. Cassidy Gibson & Howlin, solicitors, of Cronulla. Messrs. Gibson & Howlin are partners in that firm; Mr David Crawford is an associate of that firm. When Mr Cassidy became a consultant is not established but certainly it seems he was one at the time the will in question was made. 4 The document dated 30 March 2000 is witnessed by Messrs. Cassidy and Crawford. It is clear that Mr Cassidy will be a material witness in the action, although for some reason this was not admitted. It was he who took instructions for the will. He is a witness to the will. How it could be said that he was not a material witness is beyond me. In a number of affidavits he has stated that he is solicitor for the plaintiff, Victoria Scallan, the daughter of the deceased. Mr Howlin signed the statement of claim as solicitor for the plaintiffs. The applicant's solicitor wrote to Messrs. Cassidy Gibson & Howlin asking that they cease to act, stating that in so acting they were in contravention of rule 19 of the Solicitors Practice Rules. I am told that a notice of change of solicitor was filed to the effect that Mr Howlin was acting for the plaintiff in place of Mr Cassidy. I am unable to locate this notice of change but I accept that to be the position. The assumption that it was filed really only added to the confusion. As I understand it a party may appear in person or by solicitor; the solicitor must be an individual, not a firm; and at least the normal understanding is that when a firm is involved the solicitor on the record must be a partner in that firm. 5 Rule 19 of the Professional Conduct and Practice Rules made by the Law Society of New South Wales is as follows: 19 - Practitioner a material witness in client's case A practitioner must not appear as an advocate and, unless there are exceptional circumstances justifying the practitioner's continuing retainer by the practitioner's client, the practitioner must not act, or continue to act, in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court 6 The Rules are made pursuant to the powers under s57B of the Legal Profession Act 1987. Section 57D provides the Rules are binding on solicitors and sub-section 4 of that section provides that failure to comply with the Rule does not itself amount to breach of the Legal Profession Act but is capable of amounting to professional misconduct. 7 Whatever was the position at an earlier stage, it is clear that Mr Howlin is now the practitioner acting for the plaintiffs. He is not in breach of Rule 19. In any event it was not contended that Rule 19 gave rise to some private obligation which could be enforced by other parties to litigation. It was said that its existence gave additional force to the applicant's claim for a restraining order. 8 The interest of the court in these matters is that there should not be a conflict of interest arising as a result of the representation. Usually a restraining order is sought by a former client to prevent that client's former solicitor from acting in proceedings against that client, or in proceedings where confidential information of the former client might be used or divulged. The conflict said to arise in the present case is a conflict between the duty to the client and the duty to the court. In most such cases, what would be involved would be some personal interest of the lawyer in the litigation. For instance, there are cases where a particular result would be likely to result in a claim in negligence against the solicitor which might be thought to influence the frankness of the solicitor as a witness in the conduct of the action, perhaps giving rise to an apprehension as to incomplete disclosure of documents and the like. Afkos Industries Pty Ltd v Pullinger Stewart (2001) WASC 69 is a good example of such a case where an injunction was granted. 9 When dealing with matters such as the present, reliance is almost always placed upon a passage on the judgment of Campbell CJ in Chapman v Rogers, ex parte Chapman [1984] 1 Qd.R 542 at 545, which I should add did not really bear upon the question to be decided in that case. In that case a solicitor acting for a man charged with driving under the influence gave evidence of his observations of the client about an hour after a breathalyser test was administered by police. After referring to the Solicitors Professional Conduct Rule 11 which stated that a practitioner appearing in court for a client, should withdraw if it became clear that that practitioner or his partner or employee was likely to be a witness on a material question, the Chief Justice went on to state: I appreciate that the opening words of that ruling refer expressly to a practitioner "appearing in Court for a client"; the solicitor here was not himself appearing in court so that the terms of the ruling do not seem to be directly applicable to the present circumstances. However, for the reason that it is desirable to avoid any suggestion of real or apparent conflict between the duty to the court and the obligation to the client, I consider that it is generally unwise for a solicitor, who is not himself appearing as advocate or as instructing solicitor in court but who is aware that it is likely that he will be called as a material witness (other than in relation to formal or non-contentious issues), to continue, either personally or through his firm, to represent the client if this can be reasonably avoided. It may be unavoidable in some cases such as those involving complex commercial issues. I do not suggest, and it was not suggested to the magistrate or to us, that the solicitor's evidence in this case should not have been accepted and acted upon by the magistrate in relation to the matters of fact sought to have been established thereby. However, I have mentioned the matter generally as I think it is desirable that it be drawn to the attention of the legal profession. 10 Drummond J in Yamaji v Westpac Banking Corporation (1993) 42 FCR 431 stated that breach of the rule of professional conduct would not found jurisdiction for an injunction unless such jurisdiction arose as a result of the power of the Supreme Court to control its practitioners. Accepting that jurisdiction exists in this Court, the basis on which an injunction was sought was not clearly articulated by counsel for the applicants other than upon the basis of the decision in Chapman v Rogers and the passage which I have set out. Nevertheless I proceed on the basis that the true argument was that there was some risk of conflict between the duty of the solicitor to the court and the duty of the solicitor to the client. That supposed conflict really assumes that a solicitor might give tailored or biased evidence or even false evidence to assist a client, or to support the solicitor's actions so as to negative negligence, but that same conflict could perhaps be said to arise where a solicitor advises a client on discovery. It is, I think, apparent that the conflicts would only arise if the solicitor had an interest in the result of an action, additional to his interest in doing his best for a client to have success in an action. 11 I do not think it unusual for instructing solicitors in contested probate proceedings to give evidence as to facts relevant to instructions for and execution of a will. In the instant case the real issue is the capacity of the deceased. One can assume the solicitor attesting witness, who took instructions for the will, would give evidence relevant to that issue, but I do not consider this involves some possibility of conflict of duty in way sufficient to require the making of a restraining order against the wishes of those who desire to retain the witness as their solicitor. In those circumstances the notice of motion will be dismissed with costs. **********