Ruling acknowledges public interest in not depriving litigant of chosen lawyer
To ensure the due and proper administration of justice, Victoria’s Supreme Court ordered a firm of solicitors, if retained to act, not to represent both defendants of a proceeding involving family members, given the matter’s novel and quasi-criminal character.
In Hemingway v Kennedy [2026] VSC 51, the plaintiff and the second defendant were former domestic partners with two daughters, born in 2009 and 2010. The first defendant, born in 2001, was the second defendant’s daughter from a prior relationship.
On 24 January 2018, when she was 16 years old, the first defendant alleged to Victoria’s police that the plaintiff raped and inappropriately touched her when she was eight.
On 19 December 2024, the plaintiff filed a writ to commence the present proceeding.
Against the defendants, the plaintiff alleged fraud and conduct in breach of s 53 of the Summary Offences Act 1966. He asserted that the first defendant was aware that the accusation to Victoria’s police was false and fraudulent.
For most of the proceeding, the same law firm represented the co-defendants. On 9 October 2025, the plaintiff filed a summons. He wanted to restrain the firm from acting for both defendants. He alternatively sought to permit the firm to act for just one of the defendants.
The Supreme Court of Victoria acknowledged the public interest in not depriving a litigant of their lawyer of choice. The court also accepted that it should cautiously exercise its exceptional inherent jurisdiction to restrain solicitors from acting in a proceeding.
However, the court ruled that the novel circumstances of the proceeding, which involved quasi-criminal allegations, justified the exercise of its inherent jurisdiction to restrain the law firm from representing both defendants.
The court explained that a reasonably informed member of the public would conclude that the firm should not keep acting for the co-defendants, as the continued engagement would pose a real and immediate risk to the integrity of the judicial process and the administration of justice.
First, the court said determining the claim of conspiracy by unlawful means would necessarily require an examination of the defendants’ relationship, communications, and dealings, and whether they had engaged in a fraudulent common enterprise.
Second, the court accepted that the case involved a mother-daughter relationship, which ordinarily led to intense attachments, affections, and obligations.
Third, the court noted that the amended statement of claim alleged that:
In these circumstances, the court held that the defendants’ joint representation posed a real risk of compromising the integrity of the judicial process.
Fourth, the court recognised real risks to the integrity of the evidence arising from the co-defendants’ joint representation.
Given the nature of the allegations, the court found fundamental conflicts in the solicitors advising both defendants on the lengthy interrogatories served by the plaintiff and drafting responses to them. The court said recourse to the professional and ethical obligations of legal representatives would not likely resolve the profound conflicts practically and satisfactorily.
Fifth, the court saw no evidence that the first defendant had the benefit of any independent legal advice in connection with her legal representation.
Lastly, the court concluded that the delay, which was not inordinate and had a reasonable explanation, did not disentitle the plaintiff from the relief required for the proper administration of justice.
