Mitchell v Burrell [2008] NSWSC 772

Mitchell v Burrell [2008] NSWSC 772

There is a real and substantial risk that Mr Morey may be a material witness whose conduct and credit may be robustly attacked, raising concerns that decisions in the conduct of the plaintiff's case may not be made solely in her interest. Replacement of Mr Morey by his partner does not resolve the risk. The interests of justice require that solicitor and firm be restrained from acting.

Parties
Plaintiff/respondent: Doreen Florence Mitchell; First Defendant/applicant: Gary William Burrell; Second Defendant/applicant: Maureen Elizabeth Burrell
Jurisdiction
Australia
Judgment Date
26 June 2008
Procedural Posture
Equity Proceeding / Interlocutory; Ruling on Injunction Restraining Solicitor and Firm From Acting
Outcome
Solicitor and firm restrained from continuing to act for plaintiff.
Legal Topics
Inherent Jurisdiction to Restrain Solicitors, Material Witness, Professional Conduct, Conflict of Interest
Legal Profession Equity Inherent Jurisdiction to Restrain Solicitors Material Witness Professional Conduct Conflict of Interest

Case Brief

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Parties

Doreen Florence Mitchell

Plaintiff/respondent

Gary William Burrell

First Defendant/applicant

Maureen Elizabeth Burrell

Second Defendant/applicant

Procedural Posture

Equity Proceeding / Interlocutory; Ruling on Injunction Restraining Solicitor and Firm From Acting

Legal Issues

  1. 1 Whether the solicitor or firm acting for the plaintiff should be restrained due to potential for solicitor being a material witness and credit/professional conduct being impugned
  2. 2 Whether the solicitor's partner should also be restrained from acting

Ratio Decidendi

There is a real and substantial risk that Mr Morey may be a material witness whose conduct and credit may be robustly attacked, raising concerns that decisions in the conduct of the plaintiff's case may not be made solely in her interest. Replacement of Mr Morey by his partner does not resolve the risk. The interests of justice require that solicitor and firm be restrained from acting.

Court Disposition

Solicitor and firm restrained from continuing to act for plaintiff.

Orders

  • Orders 1 and 2 in the Notice of Motion filed 12 June 2008 granted.
  • Proceedings adjourned to 9.30am on Tuesday 1 July 2008 for argument as to costs.