An unfortunate trend in commercial disputes across Australia has been the rise of superior court applications by a party seeking to remove their opponent’s lawyers (either solicitors or counsel or both) from the dispute in the guise of protecting the integrity of the judicial process and the due administration of justice, including the appearance of justice.
Indeed, the last couple of years have seen almost a judgment a month being handed down by the State Supreme Courts or the Federal Court dealing with applications of this type.
Tellingly, the overwhelming majority of these applications have been dismissed.
The power of a superior court to restrain a lawyer (including counsel) from acting for their client in the interests of protecting the integrity of the judicial process and the due administration of justice is regarded as an exceptional one. This ‘power’ derives from the court’s supervisory jurisdiction over its officers as an aid to the administration of justice and is exercised by the court with caution.
As noted by Pagone J in Premier Capital (China) Ltd v Sandhurst Trustees Ltd  VSC 611 at , when exercising this supervisory jurisdiction:
“Care must be taken to ensure that applications for removal of practitioners do not become a means by which opposing parties obtain forensic advantages which detract from, rather than advance, the policy for which the jurisdiction is properly to be exercised. It is, therefore, essential that an injunction to restrain a practitioner from acting on behalf of a client be firmly based upon the need for that to occur in the administration of justice.”
The Australian cases emphasise:
the exceptional nature of this power;
the need for the court to approach applications seeking to invoke their supervisory jurisdiction with caution, giving due regard to the public interest in a party not being deprived of the lawyer of their choice without due cause;
the need for the court to assess the application objectively based on what a hypothetical observer (namely a fair-minded, reasonably informed member of the public) would conclude; and
the importance of the timing of the application.
The finding the court must reach before restraining a lawyer from acting for their client in aid of the administration of justice is that the hypothetical observer would conclude that justice requires a party to be deprived of their lawyer of choice. As such, there must be a realistic sense of impropriety about the circumstances of the lawyer acting for their client in the matter which impairs the objectivity and independence required of the lawyer.
The above is a brief summary of Ian Dallen’s article ‘Restraining a lawyer from acting in aid of the administration of justice – exceptional circumstances and caution prevail’, which was first published by Thomas Reuters in The Journal of Civil Litigation and Practice: (2017) 6 JCivLP 31.