Solicitor who went off the record for party restrained from giving assistance to former client

Lee v MK Trading Co Australia Pty Ltd [2021] VSC 343 is a decision of Sloss J which takes the law relating to the restraint of lawyers for acting for a party in litigation a step further in that she restrained a solicitor who had already gone off the record from providing legal assistance behind the scenes.  The decision  was made in the Court’s exercise of its inherent jurisdiction to restrain lawyers where ‘the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and appearance of justice’ articulated in Grimwade v Meagher [1995] 1 VR 446, 452.

There is a dispute about bubble tea brewing and one of the parties objected to Clifford Qwah of Cliffords Lawyers acting for the other party.  The application featured a recording of a meeting conducted in Cantonese at Stalactites.  There were allegations of threats made by Mr Qwah.  He did not deny them on oath or seek to cross-examine the deponents of the affidavits containing those allegations, denying them only through an affidavit of an employee solicitor on information and belief.

Cliffords refused to cease acting but when an application was made to the Court, the client went to a new lawyer.  One of Cliffords’ lawyers who had the file at Cliffords, Mr Zheng, had gone to Fumens Lawyers (still features prominently on Cliffords’ website though…) and the client went to the new firm where Mr Zheng again acted.

Worried that Mr Qwah would remain the master strategist puppeteer behind the scenes, the applicant sought an undertaking from him that he would not continue to provide assistance to the other party.  Mr Qwah, whom it was common ground might well be a material witness in the case, declined to give any such undertaking.  The applicant persisted with its application.  Sloss J enjoined Cliffords, a sole practice, from ‘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’ because:

  1. 61. In the present case, following service of the defendants’ application, the plaintiffs’ response was to engage Fumens Lawyers as their solicitor in place of Cliffords.  With the plaintiffs having chosen Fumens Lawyers to act for them, it is that firm, and no longer Cliffords, that has responsibility for the conduct of the plaintiffs’ proceeding before the Court.  In light of that election, no occasion arises for the Court to consider whether any inconvenience, cost or disruption is occasioned by the change of solicitor.
  1. 62. In my view, in circumstances where the plaintiffs’ response to the defendants‘ application was to engage Fumens Lawyers to replace Cliffords, a fair-minded reasonably informed member of the public would not accept that Cliffords, and in particular Mr Qwah, having gone off the record in the proceeding, could thereafter perform a role in the background so to speak, as a sort of de facto solicitor for the plaintiffs and continue to provide legal advice or advise them on legal strategy.
  1. 63. On the material before the Court, and having regard to the submissions made at the hearing, it seems clear that unless restrained from doing so, Mr Qwah proposes to continue to provide legal advice to the plaintiffs or advise them on legal strategy on either a paid or unpaid basis.  In my view, were he to do so, there is a real risk that the integrity of the judicial process would be undermined.  Further, in circumstances where Mr Qwah has asserted a personal financial interest in the business conducting the Gong Cha stores the subject of the proceeding and is alleged to have made threats to the second defendant and his family, which he denies through his employee solicitor, Mr Qwah does not possess the objectivity and independence which his professional responsibilities as a solicitor and his concurrent obligations to the Court require of him.  This affords a sufficient basis for the grant of injunctive relief.’
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