Barron v Ward Keller Pty Ltd - [2006] NTSC 43

Barron v Ward Keller Pty Ltd [2006] NTSC 43
PARTIES:BARRON, James Robert
v

WARD KELLER PTY LTD Trading as Ward Keller

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL
FILE NO:46 of 2006 (20611595)
DELIVERED:  5 June 2006
EDITED:In accordance with Orders made on
6 June 2006

HEARING DATES: 30 May 2006
JUDGMENT OF: SOUTHWOOD J
CATCHWORDS:

PRACTICE AND PROCEDURE – Legal practitioners – confidential information – duty of confidence to former client – maintaining confidentiality of certain information of a former client- whether injunction should be granted to prevent firm from acting against interests of former client
EQUITY – FIDUCIARY OBLIGATIONS – EQUITABLE REMEDIES – INJUNCTIONS – for the purpose of restraining a breach of fiduciary duty – possession of confidential information – risk of use of confidential information – real risk of disclosure of confidential information to former client’s detriment – administration of justice
Belan v Casey [2002] NSWSC 58; NASR v Vihervaara (2005) 91 SASR 222; Photocure ASA v Queen’s University at Kingston 56 IPR 86; Sent and Primelife Corp Ltd v John Fairfax Publication Pty Ltd [2002] VSC 429 - applied
REPRESENTATION:
Counsel:
Plaintiff:C. Ford
Defendant:J. M. Neill
Solicitors:
Plaintiff:Cridlands
Defendant:Ward Keller
Judgment category classification:    C
Judgment ID Number:  Sou0626
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Barron v Ward Keller Pty Ltd [2006] NTSC 43
No. 46 of 2006 (20611595)

BETWEEN:
JAMES ROBERT BARRON
Plaintiff

AND:
WARD KELLER PTY LTD
Trading as Ward Keller

Defendant

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 5 June 2006)
(Edited in accordance with Orders made 6 June 2006)
Introduction

This is an application for injunctions restraining the defendant, a firm of solicitors, from acting against the plaintiff in the face of a conflict of interest between the plaintiff, who was a former client of the defendant, and Mathew Lesley Neil, an existing client of the defendant, and to preserve the confidentiality of information given to the defendant by the plaintiff.
By originating motion dated 27 April 2006, the plaintiff seeks the following orders:
1.The defendant, whether by its directors, servants, agents or otherwise howsoever, be restrained from acting or continuing to act for Mathew Lesley Neil against the plaintiff.
2.The defendant, whether by its directors, servants or agents or otherwise howsoever, be restrained from using or disclosing to any person any information acquired or obtained about the plaintiff during the course of acting for the plaintiff between May 2005 and August 2005; and
3.The defendant, whether by its directors, servants, agents or otherwise howsoever, be restrained from commencing proceedings in any court on behalf of Mathew Lesley Neil against the plaintiff.
In support of the application the plaintiff relies on an affidavit of Rhona Mary Douglas Millar sworn on 28 April 2006 and two affidavits of the plaintiff both sworn on 10 May 2006.
The facts
The facts are not in dispute. They are as follows.
The plaintiff is a medical practitioner who now…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barron v Ward Keller Pty Ltd

Details

AGLC: Barron v Ward Keller Pty Ltd [2006] NTSC 43
Case: [2006] NTSC 43
Decision Date: 5 June 2006

CaseChat Overview and Summary

In the case of Barron v Ward Keller Pty Ltd, the plaintiff, a medical practitioner, sought to restrain the defendant, a firm of solicitors, from acting against his interests in a potential negligence claim brought by Mathew Lesley Neil. The plaintiff had previously engaged the defendant to advise him on professional indemnity insurance matters. During their discussions, the plaintiff disclosed confidential information about his medical practice, which the defendant acknowledged as confidential and relevant to the plaintiff’s professional indemnity insurance. Shortly after, the defendant informed the plaintiff of a potential negligence claim by Mr Neil, alleging a misdiagnosis by the plaintiff, and commenced acting for Mr Neil against the plaintiff. The plaintiff sought an injunction to prevent the defendant from acting for Mr Neil and from commencing proceedings against him.

The central legal issue was whether the confidential information disclosed by the plaintiff to the defendant was relevant to the subject matter of Mr Neil’s retainer and, if so, whether the defendant should be restrained from acting for Mr Neil against the plaintiff. The court examined whether the information could be used to the plaintiff’s detriment in the conduct and progress of the proceedings against him, as well as in assessing the strength and weakness of his case. The court considered whether the defendant’s possession of the information disclosed a real conflict of interest and whether the defendant could use the information in a way that might compromise the plaintiff’s interests.

The court found that the confidential information in the defendant’s possession was indeed relevant to the subject matter of Mr Neil’s potential claim against the plaintiff. The information had the potential to be used to the plaintiff’s detriment in various ways, including in cross-examining the plaintiff and in assessing the strength and weakness of his case. The court emphasised the importance of maintaining the confidentiality of information disclosed by a client to a solicitor and preserving the integrity of the administration of justice. The court held that the defendant should not be allowed to act for Mr Neil against the plaintiff, as doing so would create an appearance of impropriety and undermine the public’s confidence in the justice system.

The court granted the injunction, restraining the defendant from acting or continuing to act for Mr Neil against the plaintiff and from commencing proceedings on behalf of Mr Neil against the plaintiff. The court will hear the parties regarding costs and any ancillary orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In support of the application the plaintiff relies on an affidavit of Rhona Mary Douglas Millar sworn on 28 April 2006 and two affidavits of the plaintiff both sworn on 10 May 2006.The facts The facts are not in dispute. They are as follows. The plaintiff is a medical practitioner who now practises as a general practitioner in Darwin. He is 40 years of age. … On 19 May 2005 the plaintiff had an initial conference with John Michael Neill, a partner in the defendant firm of solicitors. At the initial conference the plaintiff and Mr J M Neill discussed a number of confidential matters which concerned the plaintiff between 1993 and 2005. … … … None of this information was told to Mr J M Neill. … By letter dated 20 December 2005, less than six months after the plaintiff received the written advice from the defendant, the defendant informed the plaintiff of a potential negligence claim against him by Mathew Lesley Neil. It is contended by Mr M L Neil that in December 2003 the plaintiff may have misdiagnosed Mr M L Neil’s medical condition and that instead of diagnosing that Mr M L Neil was suffering from viral cardiomyopathy the plaintiff made a diagnosis that Mr M L Neil was suffering from asthma. As a result of the misdiagnosis Mr M L Neil complains that he had a heart attack in January 2004 which led to him suffering severe brain damage. Further, it is possible that if the plaintiff had correctly diagnosed that Mr M L Neil was suffering from a heart condition he might have avoided the heart attack and subsequent brain damage. Mr M L Neil has not as yet commenced legal proceedings against the plaintiff. His legal advisers are still investigating his claim. However, the defendant, on behalf of Mr M L Neil, has advised the solicitors for the plaintiff of an imminent application for pre-trial discovery of the plaintiff’s notes of his consultations with Mr M L Neil.The issue The principal issue in the proceeding is whether the confidential information that the plaintiff gave to the defendant is relevant to the subject matter of Mr M L Neil’s retainer of the defendant. The defendant admits that it received the information which is the subject of this proceeding and that the information is confidential. The information is relevant to the subject matter of Mr M L Neil’s retainer of the defendant if it – assists in proving or disproving directly or indirectly an issue in any claim that Mr M L Neil may have against the plaintiff; could be used to the plaintiff’s detriment in the general conduct and progress of the proceeding, as well as in relation to the assessment of the strength and weakness of his case: Photocure ASA v Queen’s University at Kingston 56 IPR 86 at par [22] per Goldberg J; would be helpful to counsel in the cross examination of the plaintiff including cross examining the plaintiff as to his credit: Belan v Casey [2002] NSWSC 58 at [18]; deals with issues, tactics and strategies which might arise in the course of the proceeding, and the manner in which the proceeding might be conducted: Photocure ASA v Queen’s University at Kingston (supra) at [28]; and has enabled the defendant to learn a great deal about the plaintiff: Sent and Primelife Corp Ltd v John Fairfax Publication Pty Ltd [2002] VSC 429 at [67].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The defendant argued that Mr M L Neil’s claim against the plaintiff simply involved consideration of the correctness of the diagnosis made by the plaintiff in the light of a specific series of consultations and examinations of Mr M L Neil by the plaintiff. Resolution of Mr M L Neil’s claim against the plaintiff primarily depended on an examination of the notes that the plaintiff took during each consultation. The notes of themselves would reveal whether the plaintiff’s investigations and history taking were adequate, thorough and complete and formed a proper basis to make the diagnosis that was made by the plaintiff and whether the diagnosis was correct. The context in which the consultations took place and … Conclusion For the reasons set out below I accept the submissions of the plaintiff and I reject the submissions of the defendant. The confidential information in the defendant’s possession reveals the following. … The confidential information leads to a train of inquiry … The information in the defendant’s possession does disclose a real conflict of interest. It is capable of being used to the plaintiff’s detriment in the general conduct and progress of the proceeding, as well as in relation to the assessment of the strength and weakness of his case. The defendant has been able to learn a great deal about the plaintiff. The information is capable of having an impact on how the litigation may be conducted to the detriment of the plaintiff. The information would be helpful to counsel cross examining the plaintiff. As Nettle J said in Sent and Primelife Corp Ltd v John Fairfax Publication Pty Ltd (supra) at [83], the plaintiff should be free to make choices in the sure and certain knowledge that whatever he disclosed previously cannot be used against him. He should not be required to conduct his case according to whether his former solicitors are to act against him. It is also of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with adverse interests. The defendant started to act for Mr M L Neil against the plaintiff within six months of advising the plaintiff that …. The appearance that a legal firm can readily change sides undermines the appearance that justice is being done. It is important that the appearance of the integrity of the administration of justice is preserved.Orders I order that1. The defendant, whether by its directors, servants, agents or otherwise howsoever, be restrained from acting or continuing to act for Mathew Lesley Neil against the plaintiff.2. The defendant, whether by its directors, servants, agents or otherwise howsoever, be restrained from commencing proceedings in any court on behalf of Mathew Lesley Neil against the plaintiff. I will hear the parties as to costs and any ancillary orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.