Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Huang v Wong [2018] NSWCA 94 Hearing dates: 18 April 2018 Date of orders: 18 April 2018 Decision date: 07 May 2018 Before: Beazley P; Meagher JA; Simpson AJA Decision: Notice of Motion dismissed Catchwords: LEGAL PRACTITIONERS – application for order that respondent's legal representatives withdraw from proceedings – no conflict of interest – Solicitors' Conduct Rule 12.1 – Barristers Conduct Rule 101(b) – allegation of professional misconduct – Kallinicos v Hunt – whether intervention by the court justified PRACTICE AND PROCEDURE – where litigation referred for pro bono assistance – where avenues of pro bono assistance exhausted – order terminating referral made Legislation Cited: Barristers Conduct Rule 101(b) Solicitors' Conduct Rule 12.1 Uniform Civil Procedure Rules 2005 (NSW) 7.36(1) (sub r 4A); 51.56 Cases Cited: Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 Category: Principal judgment Parties: Chao (Isabel) Huang (Appellant) Kam S Wong (Respondent) Representation: Counsel: Appellant in person M Hutchings (Respondent) Solicitors: Appellant in person Meridian Lawyers (Respondent) File Number(s): 2016/351845 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 03 November 2016 Before: Gibb DCJ File Number(s): 2013/333703 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: This appeal was listed for hearing on 18 April 2018. On 9 April 2018 the appellant, Ms Chao (Isabel) Huang, filed a Notice of Motion in which she sought the following orders: "1. Pursuant to section 12.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 and section 101(b) and (f) of the Legal Profession Uniform Conduct (Barristers) Rules 2015, DibbsBarker and Meridian Lawyers (Law Firms) as well as all the legal representatives represented the Respondent (Defendant) in the court below must withdraw from representing the Respondent (Defendant) in the appeal at the Court of Appeal. 2. Vacate the appeal hearing date 18 April 2018 (listed by Registrar J Riznyczok in the direction hearing of 14 February 2018). 3. Pursuant to UCPR 2005 - REG 7.36, the Registrar will correctly implement the order made by Justice M Beazley, President on 13 February 2017 for referral to the Pro Bono Panel for legal assistance and fulfil the referral for a Pro Bono barrister and a Pro Bono solicitor to represent the Appellant in the ongoing appeal proceedings." 1. In support of the Notice of Motion she relied upon an affidavit affirmed by herself on 9 April 2018 and one sworn by her mother, Hong (Hope) Liao, on the same date. She also relied upon an earlier affidavit sworn by Ms Liao on 5 January 2018. Ms Liao identified the purpose of the last mentioned affidavit as being to report "flagrant fraud" in the District Court proceedings, and to have the respondent's legal representatives withdraw from the appeal proceedings. 2. After considering the matters raised, the court made an order dismissing the Notice of Motion, indicating that it would give reasons for doing so when giving judgment in the appeal. On that order being made, Ms Huang stated that she wished to discontinue the appeal (see UCPR 51.56). Notwithstanding that, she sought reasons for the dismissal of the Notice of Motion. 3. What follows are our reasons for dismissing the Notice of Motion. Background 1. We will, so far as possible, confine the background facts about to be outlined to those necessary to an understanding of the reasons for dismissal of the Notice of Motion. 2. In 2013 Ms Huang commenced proceedings in the District Court, claiming damages for personal injury she alleged she suffered by reason of the negligence of the respondent, Dr Wong. Dr Wong practises as a psychiatrist. Ms Huang suffers from schizophrenia, for which Dr Wong treated her from 2005 to 2010. On 6 November 2010 Ms Huang was injured when she fell or jumped from a balcony in the home she shared with her parents and younger brother. The claim against Dr Wong was, in essence, that in the exercise of competent professional treatment, he ought to have taken steps to hospitalise her, and that, had he done so, she would not have suffered the injuries she did. 3. A trial took place in the District Court over 10 non-consecutive days in 2016. Ms Huang did not have the benefit of legal representation. Her mother, Ms Liao, accompanied and assisted her to present her case. Dr Wong was represented by solicitors (DibbsBarker Lawyers) and counsel. 4. Disputed factual matters in the proceedings included dates on which Dr Wong had been consulted by (or on behalf of) Ms Huang. His clinical notes, which were in evidence, indicated that Ms Huang had attended his rooms for a consultation on 30 October 2010, when he added a new medication to those already prescribed, and again on the morning of 6 November 2010, the day on which Ms Huang suffered her injuries. 5. Ms Huang maintained that the penultimate consultation had taken place, not on 30 October, but on 2 November 2010, and that Ms Liao had twice had telephone conversations with Dr Wong on 3 November. By reason of what she claimed Dr Wong had been told in the consultation and the conversations, Ms Huang asserted that Dr Wong ought to have appreciated the severity of her condition and had her admitted to a psychiatric hospital either voluntarily or compulsorily. 6. In order to support her claim in this respect Ms Huang issued two subpoenas to the (Commonwealth) Department of Human Services – Medicare, requiring the production of certain documents. The subpoenas were answered by the production of two packets of documents, which came to be known as "Packet 15" and "Packet 31". 7. On 3 November 2016 the primary judge delivered judgment. She found as a fact that the penultimate consultation had taken place on 30 October, as recorded in Dr Wong's notes, and that, although she may have telephoned Dr Wong on 2 or 3 November, Ms Liao had not made contact with him, or had any conversation with him. She entered judgment for Dr Wong and ordered Ms Huang to pay his costs, in part on an indemnity basis. 8. On 2 February 2017 Ms Huang appealed against the orders made by the primary judge. On 15 February 2017 a notice of appearance was filed on behalf of Dr Wong, naming DibbsBarker as his solicitors; on 1 September 2017, a notice of change of solicitor was filed, naming Meridian Lawyers as his solicitors. What purported to be grounds of appeal were set out in an attachment to an affidavit affirmed by her on 2 February 2017, in narrative form and extending to 66 pages. What may be discerned to be the proposed grounds of appeal take issue with many of the findings of fact made by the primary judge, and the conclusions she reached. 9. Specifically, Ms Huang challenged the finding that the penultimate consultation took place on 30 October and not 2 November, as she asserted. 10. JusticeLink records that on 13 February 2017, Beazley P made an order in the following terms: "1. Being satisfied it is in the [interests of the] administration of justice I refer the appellant Chao Huang to the Registrar for referral to the Pro Bono Panel for legal assistance …." This was an order under UCPR 7.36, to which reference will be made below. 1. According to the affidavit of Ms Huang, she completed an application form for legal assistance of the kind provided by a scheme operated by the NSW Bar Association. She was referred to a barrister, and then, when he was unable to assist, to another, who she met in chambers on 2 March 2018. In an undated letter addressed to Ms Liao and headed "Your daughter's appeal" that barrister outlined briefly the circumstances of a misunderstanding between them as to his role, and then wrote: "I understand how you may have come to the view that I was your pro bono barrister, however, I confirm my repeated and consistent advice to you that I was not your lawyer but was available to assist you with Court process and to assist the Court in the event that you needed explanation of a complicated matter or a matter which would require legal experience. … I confirm my advice to you that the Legal Assistance Referral Scheme will not apply to cases involving 'medical negligence'. All other aspects of my advice to you remain confidential." 1. On 9 April Ms Huang filed the Notice of Motion the subject of these reasons. 2. In her affidavit of 9 April, Ms Huang asserted that, on 22 August 2016 (the eighth day of the trial) "Packet 15" was substituted for "Packet 31", in order to "obstruct the real Packet S31 from being brought to the court room", that Dr Wong's legal representatives were party to the substitution, and that this constituted "a flagrant fraud in the court". A more detailed account of her allegations was contained in the 5 January affidavit of Ms Liao. 3. The above are the factual matters necessary to an understanding of the issues raised by the Notice of Motion. The orders sought Order 1: Withdrawal of the respondent's legal representatives 1. It is necessary to take a moment to explain the circumstances in which this issue arises. 2. Dr Wong gave evidence in chief on the morning of 16 August 2016. Cross-examination by Ms Liao began after the lunch adjournment on that day. At the end of the day Ms Liao stated that she had completed her cross-examination. Counsel for Dr Wong re-examined briefly. The following day Ms Liao asked that Dr Wong return for further cross-examination which, she said, she had not completed. She wished to call expert evidence from a document examiner to demonstrate that Dr Wong's clinical notes had been fraudulently altered. (As it turned out, document examination produced no evidence of any alteration of the records relevant to the proceedings). 3. It seems clear that the specific issue with which Ms Liao was concerned was the date of Dr Wong's penultimate consultation with Ms Huang. As mentioned above, Ms Huang and Ms Liao maintained that Ms Huang had attended Dr Wong on 2 November, when he prescribed medication. Dr Wong maintained that the last consultation prior to 6 November was on 30 October. The question was perceived to be of some importance because the medication prescribed takes some time to take effect. If the consultation had been on the earlier date it was reasonable to assume that the medication (if taken in accordance with Dr Wong's directions) would have become effective; if the latter date, perhaps more caution was called for. 4. In this context, on the morning of 22 August an issue was raised concerning the documents produced in answer to the subpoena served on the Department of Human Services that were contained in "Packet 31". Counsel for Dr Wong advised the primary judge that the packet had been located in the registry, and her Honour granted access to the documents contained therein. However, it appears that the packet was not then retrieved from the registry. Dr Wong was recalled for further cross-examination. It was only after that further cross-examination concluded that Ms Liao again raised the question of "Packet 31", which was then retrieved from the registry. 5. As a result, counsel for Dr Wong briefly re-opened for the purpose of tendering certain documents extracted from the packet; those documents showed that Dr Wong had written a prescription on 30 October, which was filled on 2 November. 6. It will be seen from the formulation of order 1 as sought that Ms Huang pins her application on certain rules made under the Legal Profession Uniform Law with respect to the conduct of solicitors and barristers. So far as the solicitors are concerned, the Rule she invokes provides as follows: "12. Conflict concerning a solicitor's own interests 12.1 A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule." 1. So far as the barrister is concerned, the Rule she invokes is: "101. A barrister must refuse to accept or retain a brief or instructions to appear before a court if: (a) … (b) the client's interest in the matter or otherwise is or would be in conflict with the barrister's own interests or the interests of an associate; … (f) the barrister has reasonable grounds to believe that the barrister's own personal or professional conduct may be attacked in the case." 1. It may be that Ms Huang misconceives the import of the Solicitors' Conduct rule 12.1. That rule is concerned with a potential conflict between the interests of a solicitor and his/her own client. It is not directed to any conflict of interest between the solicitor and an opposing party. No issue raised in the proposed grounds of appeal gives any cause for concern that there may be a conflict of interest between the solicitors' duty to serve the best interests of Dr Wong and their own interests. The rule is irrelevant to this appeal. Similarly, the Barristers Conduct Rule 101(b) is concerned with a potential conflict between barrister's interests, and those of his/her client. It is not directed to any conflict of interest between the barrister and the opposing party. So far as the barrister is concerned, the grounds of appeal give no indication of any cause for concern that Dr Wong's interests may have been in conflict with his own interests or those of any of his associates (s 101(b)). 2. To the extent that the grounds of appeal indicate that the barrister's professional conduct in the trial may be attacked, the evidence establishes that any such attack is unfounded. The transcript reveals that the barrister arranged for his instructing solicitor to attend the registry to obtain "Packet 31", and that, when it was produced, its contents confirmed Dr Wong's evidence as to the date of the consultation. There was no substitution of "Packet 15" for "Packet 31" as suggested in the proposed grounds of appeal. 3. None of the rules upon which Ms Huang relies provides any basis for requiring either DibbsBarker, Meridian Lawyers, or the barrister, to withdraw from representing Dr Wong in the appeal. 4. Further, the allegations Ms Huang now makes are of professional misconduct at best, criminal interference in the judicial process at worst. They are not allegations that could be determined in this Court and would have had no bearing on the outcome of the appeal. 5. It may be accepted that the court has an inherent power to control its own proceedings, and that that power extends to controlling legal representation. That is, however, a power to be exercised sparingly, bearing in mind the rights of appearance conferred by admission to practice as a legal practitioner, and the rights of litigants to representation of their choice. In Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181, after a comprehensive review of authority, Brereton J stated certain principles concerning the power. Those principles include: * … the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice. … * The test to be applied in this inherent jurisdiction is whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interest of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice. … * The jurisdiction is to be regarded as exceptional and is to be exercised with caution. … * Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. …" (internal citations omitted) 1. There is nothing in the issues identified in the extensive grounds of appeal in the present case that would justify the intervention of the court in Dr Wong's choice of legal representatives. Order 3: Referral for pro bono assistance 1. As indicated above, the order made by the President was made under UCPR 7.36(1) which provides as follows: "If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance." 1. By sub r (4), if a litigant is referred for assistance under sub r (1), the Registrar must attempt to arrange for legal assistance to be provided by a barrister or solicitor on the Pro Bono Panel. 2. By sub r (4A): "If the Registrar is unable to arrange legal assistance for a litigant who he has referred under this rule within 28 days after the litigant's referral, the Registrar may make an order terminating the litigant's referral." 1. The reference to "the Pro Bono Panel" is a reference to a list of barristers or solicitors who have agreed to participate in the scheme in relation to the court in question which may be maintained by the Registrar: r 7.35. It does not appear that the Registrar of this Court has maintained any such list. However, the object of the order made by the President was to seek, for Ms Huang, such legal advice and/or representation as could be made available. 2. We were satisfied that the possibilities for Ms Huang to receive pro bono advice or representation were exhausted by the Registrar's referral of her to the scheme operated by the NSW Bar Association. Accordingly, it was appropriate, under sub r 4A, to make an order terminating Ms Huang's referral. This was done. Order 2: Vacate the hearing date. 1. The final order to be dealt with is the order that sought that the hearing date of the appeal be vacated. It was clear that this was dependent upon success by Ms Huang in at least one, if not both, of orders 1 and 3 as sought. She having failed to persuade the court that either of those orders should be made, there was nothing to be gained by vacating the hearing date. The Court indicated that it was proposing to proceed with the hearing of the appeal. It was at that point that Ms Huang indicated that she wished to discontinue. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2018