Complaints about conflicted lawyers thrown out of court … Barrister free to act against former client and “friend” … And Mum can act as a solicitor for her daughter in a family estate dispute … Emilie Lentz reports from courtside 

NSW and Yarraside Supremes have knocked back a couple of applications to remove lawyers from cases where it was alleged they were too close to the action. 

Justice Rowan Darke, in the NSW Supremes, refused an application from George Dimitriou to stop Windeyer Chambers’ Damien Allen from appearing against him. 

Four days earlier, at the Yarraside Supremes, Justice Jack Rush said it was quite all right for a mother to act for her daughter in a deceased estate matter. 

Dimitriou said that he and Allen had a business relationship and a “firm friendship” between September 2012 and July 2014. Allen also had been Dimitriou’s barrister for three years. 

Reference was made to lunches and dinners the two had together, and to Allen attending a Christmas party hosted by Dimitriou’s company.

Allen had acted in the Rosier matter, in which serious allegations were made against Dimitriou. 

It was claimed that in the course of this representation, Allen had come to know of personal and confidential matters of Dimitriou and that Dimitriou also frequently referred clients to Allen. 

Dimitriou claimed, “he knows a lot about me personally [and] I would not want him repeating anything of the matters that we discussed to other persons”. 

Allen made disclosure to his client in the current matter and that he had no confidential information which he was bound not to disclose.

The client was still keen for him to appear. 

Mr Foley, solicitor from Foleys Lawyers, for Dimitriou, cross-examined Allen. Darke found that Foley had failed to establish that Allen possessed any confidential information relevant to the current case. 

Notably, Allen had acted for the first defendant in previous matters, but that this alone did not support the existence of a conflict of interest. 

Upholding the finding of Brereton J in Kallinicos v Hunt, the court considered that it would need to be established that Allen possessed confidential information of his former client that was or could be relevant in the new matter and may be adverse to the interests of Allen’s new client. 

Foley did not managed to establish that was the case.

Darke said the courts needed to be cautious in making orders to restrain lawyers from acting, in the interests of clients not being denied their first choice of lawyer. 

While Allen was aware of some of Dimitriou’s personal information and of the nature of some serious allegations that were made against him in the Rosier matter, HH was unable to see how this was relevant in the present case.

There was no need to restrain Allen from acting as it seemed unlikely that “a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that Mr Allen should not appear for the plaintiff in this case”. 

This was so even though the situation may cause embarrassment or distress to Dimitriou.

Likewise, Justice Jack Rush could not see why Rose Mimmo of  Plaza Legal, Doncaster East, could not act for her daughter, Olivia Italiano, who wanted her deceased partner’s estate to be distributed to her or, alternatively, an order for proper maintenance and support. 

After the matter had been on foot for two years, the administratrix, Debbie Lake, wanted a permanent injunction to restrain Olivia from retaining her Mum.   

VicBar’s Thomas Mah, appeared for Lake. He had already sent Mimmo a letter referring to her “ethical obligation”. He submitted that as the mother of her client she was endangering the administration of justice and undermining her overarching responsibility to the court.

He claimed that Mimmo would be tempted to “tailor her evidence” and that her relationship to her client called into question her ability to give independent, objective advice.

Mah also submitted that Mimmo had a vested financial interest in the case’s outcome, as her ability to recover costs was dependent upon her daughter’s success in the matter.

Evidence included in an affidavit concerned the relationship between Italiano and her deceased partner, and that they were recognised as a de facto couple by their family and friends.

Captain Rush asserted that the proper test was … 

“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 … 

Due weight should be given to the public interest in a litigant not being deprived of the lawyer of [their] choice without due cause.”

The cost and inconvenience caused by Italiano having to find new representation outweighed the danger of any real conflict. 

In fact, Rush found that Mimmo’s conduct in the proceedings to date rendered abandonment of her obligations to the court unnecessary and that there was no danger to the administration of justice. 

The defendant’s application for injunctive relied was denied.