Carindale Country Club Estate Pty Ltd v Astill

[1993] FCA 336

CARINDALE COUNTRY CLUB ESTATE PTY. LTD. v. ROWAN A. ASTILL; JOHN CONSIGLIO;
WESLEY SINNATHAMBY; ANITA PATEL; TIMOTHY COLEMAN and PETER McINALLY
No. QG33 of 1993
FED No. 336
Number of pages - 14
Legal Practitioners
(1993) 115 ALR 112
(1993) 42 FCR 307

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Drummond J(1)

CATCHWORDS

Legal Practitioners - solicitor restrained from acting against former client in later proceedings due to confidential information communicated to the solicitor by the client in the course of an earlier retainer - principles applicable - information must be identified with sufficient particularity to enable the court to determine whether there is obligation of confidence - solicitor enjoined if reasonable observer would consider that there is a real possibility that the solicitor may use confidential information to advance the interest of a new client to the detriment of former client

Australian Commercial Research and Development v Hampson (1991) 1 QdR 508

Baker v Campbell (1983) 153 CLR 52

D and J Constructions Pty. Ltd. v Clayton Utz (1987) 9 NSWLR 118

Farrington v Rowe McBride and Partners (1985) 1 NZLR 83

Fruehauf Finance Corporation Pty. Ltd. v Feez Ruthning (1991) QdR 558

Grant v Downes (1976) 135 CLR 674

Independent Management Resources Pty. Ltd. v Brown (1987) VR 605

Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357

McDonald Estate v Martin (1990) 77 DLR (4) 249

Mills v Day Dawn Block Gold Mining Co. Ltd. (1882) QLJ 62

Murray v Macquarie Bank Ltd. (1991) 33 FCR 46

National Mutual Holdings v Sentry Corporation (1989) 22 FCR 209

O'Brien v Komesaroff (1982) 150 CLR 310

Spector v Ageda (1973) Ch 30

Rakusen v Ellis Munday and Clarke (1912) 1 Ch 831

Wan v McDonald (1991) 33 FCR 491

HEARING

BRISBANE, 15 April 1993

#DATE 10:5:1993

Counsel for the applicant: P.D. McMurdo QC and R.N. Wensley

Solicitors for the applicant: Phillips Fox

Counsel for the respondent: P.R. Dutney QC

Solicitors for the respondent: Astills

ORDER

THE COURT ORDERS THAT:

1. The respondents by their servants or agents be restrained

from otherwise continuing to act as the solicitors for Terry Bernard Smith and Joan Elizabeth Smith in application No. QC180 of 1992 against the applicant.

2. The respondents pay the applicant's costs of and

incidental to the application to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DRUMMOND J This is an application by Carindale Country Club Estate Pty. Ltd. ("Carindale"), the respondent in another action pending in this Court, number QG 180 of 1992, for an injunction to restrain the five present members and one former member of a firm of solicitors, Messrs. Astills, from acting on behalf of Mr. and Mrs. Smith, the applicants in that other action ("the main proceedings"). The injunction is sought on the ground that one of the partners in the firm, Mr. Astill, is in possession of confidential information concerning the operations of Carindale which touches on issues in the main proceedings and which he obtained while acting as its solicitor. It was not suggested that, if Mr. Astill is enjoined, other members of his firm should be free to act for the Smiths.

1. Carindale seeks the injunction against Messrs. Astills by way of originating application rather than by notice of motion in the main proceedings. The respondents took no point about this but, given the limited nature of the relief sought by paragraph 1 of the application, I think that Carindale's claim against Mr. Astill arises in the course of and forms part of the matter that gave rise to the main proceedings and which is the matter that has attracted the jurisdiction of this Court: see National Mutual Holdings Pty. Ltd. v Sentry Corporation (1989) 22 FCR 209 at 233.

2. In the main proceedings, the Smiths claim damages in respect of conduct allegedly engaged in by Carindale in contravention of ss. 52 and 53A of the Trade Practices Act 1974. They allege that in August 1991 it was misrepresented to them that Carindale would not accept a price of less than $150,000.00 for any of the lots contained in the First Stage of the Carindale Country Club Estate, that the next stage of the Estate to be released would be priced from $175,000.00 and that it would ensure that all houses built in the Estate would be of a minimum size of 300 m2 and of such a standard as to result in the Estate having an "exclusive" quality and character. These misrepresentations are alleged to have induced the Smiths to buy one of the lots in the First Stage on the Estate on 3 September, 1991, from which purchase losses are said to have flowed to them. They are pleaded both as representations of existing facts, i.e., of Carindale's state of mind at the time they were made, and as representations as to what would happen in the future, there being no reasonable grounds for them being made.

3. Carindale was set up as the vehicle, jointly owned by companies controlled by Mr. Mitchell and Mr. Devine, for developing as a joint venture residential land which was marketed as the Carindale Country Club Estate. Mr. Woodley, Marketing Director of the Devine Group of Companies, described Carindale as a member of that Group. Mr. Astill was the solicitor for the Devine Group until early 1992. He was also closely involved in the marketing of estates developed by the Devine Group, as well as the Carindale Country Club Estate. That this involvement went far beyond that of a solicitor to the Group or members of the Group is graphically demonstrated by his report of the marketing seminar he conducted for overseas buyers.

4. Mr. Astill also had a close association with Carindale from the outset. He was retained as the company's solicitor in late 1989 until about January 1992. As such, he provided legal advice with respect to a range of matters, including the drafting of terms for the standard contract used by Carindale for the sale of lots in the Estate. However, the project financier, Esanda, insisted that its solicitors, Feez Ruthning, settle these contractual documents and that they also act as the vendor's solicitors, in lieu of Mr. Astill, on the sale of the various lots in the Estate. Mr. Mitchell says that, notwithstanding this, Mr. Astill continued to act as Carindale's solicitor in any matter in respect of which Esanda did not require its own solicitors to be instructed.

5. Mr. Astill's involvement with Carindale also extended beyond the normal relationship of solicitor and client. He was involved in the establishment of Carindale, being for a short time in late 1989-early 1990 a director and the company secretary of Carindale. After his retirement as secretary, he maintained a close association with the activities of Carindale. He was kept advised of the progress of the development of the Carindale Country Club Estate and was regularly informed of details of lot sales. He was closely involved in the marketing of the Estate. I accept that he undertook numerous business trips to Hong Kong in connection with that. Mr. Astill and his then partner, Mr. McInally, initially contributed funds to the Carindale project and jointly held a 10% stake in Extraforce Pty. Ltd., Mr. Mitchell's company, which was a 50% shareholder of Carindale. The precise nature of this interest is unclear but Mr. Astill remains entitled to receive a portion of any profits made from the development of this project which is still continuing.

6. The lower the damages that his new clients, the Smiths, recover against Carindale in the main proceedings, the more Mr. Astill's own personal financial interests in the profitability of the Estate will be advanced. The duty of a solicitor in that sort of position was discussed in Wan v McDonald (1991) 33 FCR 491, particularly at 512. In the course of his oral evidence, Mr. Astill stated that he had disclosed this consequence of his financial interest in Carindale to the Smiths and that they had excused him from all liability in respect of this particular conflict of interest. It was not suggested that Mr. Astill was disqualified from acting for the Smiths because of the conflict between his personal financial interest and his duty as the Smiths' solicitor. I therefore do not express any opinion on this aspect of the case; I should not be taken by such lack of comment to be indicating approval of it.

7. In Rakusen v Ellis, Munday and Clarke (1912) 1 Ch 831 the Court of Appeal unanimously held that the mere fact that a solicitor has acted for a particular person does not prevent him acting for another in relation to the same matter: see pp 838, 840 and 842. Cozens-Hardy MR at 835 adopted a test which imposes a heavy burden on the party seeking to restrain the solicitor from acting for the new client, saying: "... we must be satisfied that real mischief and real prejudice will in all human probability result if the solicitor is allowed to act." Fletcher Moulton LJ, at 841, expressed a similar view. However, Buckley LJ at 845, adopted a much more liberal test, requiring the applicant for such an injunction to prove only that "there exists, or ... may exist, or may be reasonably anticipated to exist, a danger of a breach of ... the duty not to communicate confidential information".

8. The approach of the Master of the Rolls and Fletcher Moulton LJ in Rakusen is in sharp contrast to that of the Queensland Full Court in Mills v Day Dawn Block Gold Mining Co. Ltd. (1882) QLJ 62. Lilley CJ, with whom Harding and Pring JJ agreed, said at 63:
   

"It was the duty of the Attorney not to place himself in such a relation as might lead to there being even an unwitting breach of duty."

1. This test, although similar to that of Buckley LJ in Rakusen, places an even less onerous burden on the party seeking the injunction.

2. The views of the Master of the Rolls and Fletcher Moulton LJ in Rakusen, however, long prevailed and until recently, were regarded AS establishing that before a solicitor will be restrained from acting for a new client because he possesses confidential information given him by a former client, the party seeking to enjoin the solicitor must prove, as a matter of probability, that real prejudice and real mischief will result if the solicitor is allowed to continue to act for the new client. See Australian Commercial Research and Development Ltd. v Hampson (1991) 1 QdR 508 at 515 and 516, where MacKenzie J referred to the "less rigorous" formulation of the test adopted by Buckley LJ but considered that the existing state of the authorities did not support this approach. His Honour also noted, at 516, but found it unnecessary to further consider the argument noted by Gummow J in National Mutual Holdings v Sentry Corporation (1989) 22 FCR 209 that modern developments in the law of confidentiality make the principles set out in Rakusen too narrow.

3. The arguments that the test in Rakusen should no longer be accepted as suitable to modern conditions are noted in National Mutual Holdings Pty. Ltd. v Sentry Corporation, supra, at 229-230 and Wan v McDonald, supra, at 514. Spender J, in Murray v Macquarie Bank Ltd. (1991) 33 FCR 46 at 49 said, after referring to these comments in the Sentry Corporation case:
   

"Those observations persuade me to think that the question of whether there is a real possibility of conflict of interest or breach of confidence is to be approached on a less stringent basis than that adopted by the Court of Appeal in Rakusen."

1. In Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357, Ipp J rejected the approach in Rakusen that favours the solicitor and concluded at 362-363:
   

"... (I)f, by a solicitor acting for a new client, there is a real and sensible possibility that his interests in advancing the case of the new client might conflict with his duty to keep information given to him by the former client confidential, or to refrain from using that information to the detriment of a former client, then an injunction will lie."

1. All seven judges of the Supreme Court of Canada in McDonald Estate v Martin (1990) 77 DLR (4) 249 rejected Rakusen in favour of the following:
   

"... The test must be such that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the Court in answering the question: Is there a disqualifying conflict of interest?"

1. See pages 267 and 251-252. The difference in opinion there was between that of Sopinka J, supported by three other members of the Court, that a rebuttable presumption only arose from proof by the client of the existence of a previous confidential relationship related to the new retainer and the view of Cory J, supported by the two other members of the Court, that it was an irrebuttable presumption that arose in those circumstances.

2. In Rakusen, Fletcher Moulton LJ treated the answer to the question whether a solicitor should be restrained from acting against a former client as governed, in large part, by the same principles that govern whether a person in any other confidential relationship is, after the termination of that relationship, free to provide his services to a third person. See pages 839-840. Although his Lordship did refer to the special position of a solicitor as justifying his conclusion that, unlike the ordinary recipient of confidential information who was free to go into employment with a new employer provided only that he did not disclose his old employer's secrets, a solicitor would be prevented from taking up a new employment if the former client showed that there was a probability that mischief would result, much greater emphasis has been placed in more recent times on the special fiduciary role of the solicitor. "The relationship between client and solicitor is one of the most important fiduciary relationships known to the law." Mallesons Stephen Jaques v KPMG Peat Marwick, supra, at 361. "But even among fiduciaries, solicitors stand in a special position." National Mutual Holdings Pty. Ltd. v Sentry Corporation, supra, at 229.

3. The reason for this new emphasis on the special fiduciary position of a solicitor, where a question arises as to his freedom to act against the interests of a former client who has given him confidential information, is twofold. Firstly, there is a public element in the work that a solicitor does in that he is an officer of the court and, in performing his professional function, he plays an integral part in the administration of justice. In this regard, he is unlike a private fiduciary. In Wan v McDonald, supra, at 513, Burchett J said, in the present context:
   

"But there are at least two other aspects of the problem to which attention has more recently been drawn; a solicitor's duty of loyalty, which cannot be treated as extinguished by the mere termination of the period of his retainer, and the important consideration of public policy which gives a special quality to the relationship of solicitor and client that the law will not generally permit to be stained by the appearance of disloyalty."

1. In Murray v Macquarie Bank Ltd., supra, at 49, Spender J said:
   

"It is important that the legal profession conduct its business in such a way as to maintain and enhance public confidence in it and in the administration of justice ... The integrity of the legal profession and the perception of that integrity by the public is in large measure a consequence of the fidelity which a legal practitioner shows to his client and conduct which has a tendency to jeopardise that perception of faithful commitment to the interests of the client should be prevented."

1. In an oft quoted passage, Bryson J in D and J Constructions Pty. Ltd. v Clayton Utz (1987) 9 NSWLR 118 at 124-125 said:
   

"Where confidential information has been communicated by a client to a solicitor and is relevant to litigation in which the client is now engaged and still available to the solicitor, the Court should take a cautious approach to any proposal that it should allow the solicitor to act against that client.

...

Cautious conduct by the Court is appropriate because the spectacle or the appearance that a lawyer can readily change sides is very subversive of the appearance that justice is being done."

1. In McDonald Estate v Martin, supra, Sopinka J, in rejecting the Rakusen test, said, at 266:
   

"Nevertheless it is evident from this review of authorities that the clear trend is in favour of a stricter test. This trend is the product of a strong policy in favour of ensuring not only that there be no actual conflict, but that there be no appearance of conflict."

1. Secondly, the existence of legal professional privilege and the policy considerations which justify its continued recognition are inconsistent with a rule that would too readily allow a solicitor, who has received confidential information from one client, to later act for another client against the old client's interests. In Grant v Downs (1976) 135 CLR 674, Stephen, Mason and Murphy JJ said, at 685:
   

"The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain a solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor."

1. Deane J in Baker v Campbell (1983) 153 CLR 52 at 115-116 identified the principle underlying legal professional privilege as being "that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications".

2. It would be inconsistent for the law to encourage the client to repose confidential information in a solicitor by making those confidences privileged from disclosure without the client's consent, if the law, on the other hand, were to readily allow the solicitor to act for a new client in a matter adverse to the interests of the old client, i.e., to act in circumstances in which a perception that confidences might not be kept could easily arise. The modern cases recognise that it is the need to avoid such inconsistency that justifies a more stringent test than that in Rakusen, which a solicitor must meet before he is free, over a former client's objection, to act for the new client in a matter which may be against the old client's interests. See Mallesons Stephen Jaques v KPMG Peat Marwick, supra, at 361-632. National Mutual Holdings Pty. Ltd. v Sentry Corporation, supra, at 229-230. Murray v Macquarie Bank Ltd., supra, at 51. See also Farrington v Rowe McBride and Partners (1985) 1 NZLR 83 at 89 and McDonald Estate v Martin, supra, at 255-256.

3. In recognition of the special position of the solicitor as a fiduciary and of the importance now placed on the need for the appearance of integrity on the part of solicitors, as repositories of confidences, in the role they play in the administration of justice, I think that the stringent approach to when a solicitor will be free to act adverse to the interests of a former client that has been taken in recent cases is preferable to the more lenient approach that was generally, but by no means invariably, adopted in past times. In my opinion, a solicitor is liable to be restrained from acting for a new client against a former client if a reasonable observer, aware of the relevant facts, would think that there was a real, as opposed to a theoretical possibility that confidential information given to the solicitor by the former client might be used by the solicitor to advance the interests of a new client to the detriment of the old client.

1. The better view may be that the mere threat of disclosure of information given in confidence will ordinarily be enough to enliven the jurisdiction to restrain the disclosure and that it is not necessary to prove that disclosure would result in a detriment to the source of the information. See Equity Doctrines and Remedies, Meagher, Gummow and Lehane, 3rd Ed., 4110; Essays in Equity, (Ed. - Finn) at p 112; Breach of Confidence, Gurry, at 407-408 and the Law of Trade Secrets, Dean, at 177-178. However, the cases all indicate that before a solicitor will be restrained from acting for a new client at the behest of an old client, not only must there be a threat of disclosure of information given in confidence, but there must be evidence that such disclosure will be to the former client's disadvantage. The requirement of proof of detriment is at the core of the ruling in Rakusen. It is emphasised as a requirement in the later cases: see, e.g., D and J Constructions Pty. Ltd. v Clayton Utz, supra, at 124; Murray v Macquarie Bank Ltd., supra, at 49 and McDonald Estate v Martin, supra, at 267. There may be justification for insisting upon proof of detriment where it is sought to prevent a solicitor acting for a new client. A solicitor should not too readily be disqualified from acting for a new client who wants his services: it is in the public interest that the services of solicitors (who, together with barristers, have a monopoly in the provision of legal services) should be freely available. Cf. Fruehauf Finance Corporation Pty. Ltd. v Feez Ruthning (1991) 1 QdR 558 at 566 and McDonald Estate v Martin, supra, at 270. This public interest will be unnecessarily intruded upon unless it is shown that disclosure by the solicitor of confidential information will disadvantage the confiding client.

2. If the solicitor receives information in confidence from the former client which remains confidential at the time application is made to restrain the solicitor from acting for the new client, the solicitor will, in general, only be able to avoid being enjoined if it is clear that the confidential information in question relates only to matters which are remote from the matters relevant to the discharge by the solicitor of his retainer for his new client. This is likely to be so because of a combination of considerations. Firstly, there is the well-established rule, stated in Spector v Ageda (1973) Ch 30 at 48 as follows:
   

"A solicitor must put at his client's disposal not only his skill but also his knowledge, so far as is relevant; and if he is unwilling to reveal his knowledge to his client, he should not act for him. What he cannot do is to act for the client and at the same time withhold from him any relevant knowledge that he has."

1. Secondly, it has long been recognised that a solicitor who, with the best will in the world, is determined not to make use of one client's confidential information for the benefit of another client may still subconsciously draw on that information to the disadvantage of the former. Mills, supra, at 63; National Mutual Holdings Pty. Ltd. v Sentry Corporation, supra, at 29.

2. The Court in Mills held that, in cases of this nature, a Court should not attempt to resolve a conflict of testimony between the former client and the solicitor as to whether the solicitor was in receipt of confidential information. If the client swears that the solicitor received information in confidence, then: "The client's interests should prevail, and the judge should refuse to determine the matter on the conflicting testimony of affidavits." (at 73) Bryson J expressed reserve at this approach in D and J Constructions Pty. Ltd. v Clayton Utz (1987) 9 NSWLR 118 at 124. It is noteworthy that the Supreme Court of Canada only declined, by a bare majority, to follow the very stringent approach taken in this regard in Mills, holding that a rebuttable presumption that a disqualifying conflict of interest existed, rather than an irrebuttable presumption, arose once the client swore that there was a previous professional relationship sufficiently related to the retainer from which it is sought to remove the solicitor: McDonald Estate v Martin, supra, and see the discussion in Wan v McDonald, supra, at 513-514. I share the reserve expressed by Bryson J and approach the evidence on the basis that acceptable testimony by the client that the former solicitor was in receipt of relevant confidential information is not conclusive of the solicitor being disqualified from acting further in his new retainer.

3. I now turn to consider whether, in light of these principles, the injunction sought against Messrs. Astills should be granted. The confidential information in question falls into two classes: firstly, information relating to the "marketing strategy, pricing strategy and pricing policy and progress of the sales in respect of the Carindale Country Club Estate" and secondly, information relating to the minimum size and quality of housing which Carindale would require to be maintained in the Estate. The first category of information is said to be relevant to the Smiths' allegation that they were told Carindale would insist on minimum sale prices for Stages One and Two of $150,000.00 and $175,000.00 respectively; the second category is said to be relevant to what the Smiths say they were told about the Estate's building standards. Mr. Astill's position was simply that he did not possess any information of a confidential character that was relevant to the main proceeding.

4. As to the first class of information, that which concerned Carindale's marketing strategies, pricing policies, sales results and sales prices, it is difficult to identify with any precision just what is the information so described that possesses a confidential quality. At the end of argument, I invited counsel for Carindale to describe as accurately as possible the information in this category that was said to be confidential. Counsel's reply was it comprised: "The applicant's policy or proposals as to pricing the lots on the Estate ... which is a wider area than the subject of specifically what the applicant then intended to ask for as the price for each individual lot. A policy ... is a wider concept. It is a pattern of thought, a cohesive plan, rather than simply the intention to charge $X for lot number 53 or whatever." Notwithstanding this statement by counsel, I do not think the evidence before me as to the marketing and pricing information which Carindale says Mr. Astill received in confidence, but which generally goes no further than providing a general or global description of that information, is sufficient to enable any judgment to be made as to whether the information now in question qualifies as information given in confidence.

5. It is a basic requirement that before material will be recognised as having the character of confidential information, the information in question must be identified with precision and not merely in global terms: Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, 443 and cf. O'Brien v Komesaroff (1982) 150 CLR 310 at 327. The requirement is insisted upon even though it may necessitate disclosing to the Court the very information the confidentiality of which it is sought to preserve by the action. This requirement has its foundation in the need for the Court to be able to frame a clear injunction, should relief against misuse of confidential information be granted. There are procedures available that will minimise the risk that confidentiality will be lost by the litigation process, although the applicant did not seek to invoke them here. Cf. Law of Trade Secrets, supra, at 122 and s. 50 of the Federal Court of Australia Act 1976. But the requirement goes to a matter more fundamental than that: "The more general the description of the information which a plaintiff seeks to protect, the more difficult it is for the court to satisfy itself that information so described was imparted or received or retained by a defendant in circumstances which give rise to an obligation of confidence." Independent Management Resources Pty. Ltd. v Brown (1987) VR 605 at 609. Even though no injunction is sought restraining Mr. Astill from disclosing information acquired by him in the course of his retainer from Carindale, I think the principles I have referred to are directly applicable in determining whether Carindale's claim to the injunction here sought is made out.

6. Mr. Astill participated in the meeting of various persons associated with Carindale held shortly before the Estate was first marketed in November 1990 at which the price list that was distributed to selected real estate agents was settled. It is also clear that Mr. Astill was thereafter kept informed of the progress of sales in the Estate. In cross-examination, Mr. Mitchell said:
   

"You make reference there to discussions during the course of 1991 with Mr Astill about the progress of the development, marketing, pricing, and sales of lots on the estate?---Yes.

So far as that statement is concerned, are you trying to say anything more than that you told Mr Astill how the sales were going?---Well, sales depended on marketing and pricing yes, I told him on all three; talked to him on numerous occasions on all three.

...

Let me get this straight, if I can. You had another property development with which Mr Astill had some involvement?---That's right.

...

Right. So, the discussions were really just comparing this estate with other ones in which you had an interest?--- Because we both had an interest in this."

1. There is reference to Mr. Astill being told of the discounts off the list prices given to some Hong Kong purchasers, but there is nothing in the material before me that enables me to say that the discounted prices are of any relevance to the issues in the main proceeding to which I have earlier referred, i.e., that the information that Mr. Astill was given in that particular respect is relevantly confidential. Such information as there is before me identifying what is said to be the sensitive pricing and marketing information points to that material amounting to nothing more than what prices should be set for individual lots and the order in which segments of the Estate should be marketed. I cannot see anything either in the nature of this information, so far as that is disclosed by the evidence, or in the circumstances in which it was conveyed to Mr. Astill that impresses it with a confidential character.

2. However, even if, contrary to the view I have formed, information of the class now in question was given to Mr. Astill in circumstances in which it had a confidential character, the evidence indicates that the information in question long ago lost any element of confidentiality which it may originally have had. The pricing and marketing information to which I have referred has long since been made known to real estate agents and members of the media interested in the Estate. Moreover, the marketing information does not appear to be relevant to any issue in the main proceedings. Carindale's specific concern about the information possessed by Mr. Astill is that it may indicate that Carindale was prepared to accept less than the $150,000.00 which the Smiths allege it was represented to them in August 1991 as the minimum price which Carindale would accept for lots in the First Stage of the Estate. However, forms lodged in the Valuer-General's public records indicate that at least 17 lots in the Estate were sold by Carindale for less than $150,000.00 between July 1991 and December 1991. These records would also contain details of the discounted sales to which I have referred insofar as they are not included in this group of sales. It thus appears that the only information concerning pricing that is of relevance to the Smith action which Mr. Astill may have acquired has either been publicly disseminated by Carindale or is available in public records.

3. I therefore do not consider that an injunction should lie against the respondents in respect of Mr. Astill's knowledge of the information concerning Carindale's "marketing and pricing policy".

4. As to second class of information, i.e., that relating to the minimum size and quality of housing on the Estate, Mr. Mitchell's unchallenged evidence was that two houses were built there, each of which had an area of less than 300 m2, a matter he specifically discussed with Mr. Astill in 1991. He stated that these houses are not obviously smaller than any of the others and that it was unlikely that anyone would realise that they were below 300 m2 without reference to the relevant building plans. Mr. Mitchell also said:
   

"Why did you talk about it with Mr Astill?---Well, he was my solicitor. He was solicitor, as far as I was concerned, for the Country Club and I asked him - and he was also a shareholder - and I asked him what he thought about it and did he approve of it."

1. It appears he discussed this matter with Mr. Astill in the context of seeking his advice on it as Carindale's solicitor. Moreover, one of the matters that Mr. Astill attended to as Carindale's solicitor in 1990 is referred to in his letter of 26 June, 1990 addressed to the Devine Group: he prepared draft "developer's covenants" and "builder's terms" for inclusion in the standard sale contract Carindale intended to use and forwarded them to the Devine Group for their comment. He was in effect giving legal advice as to what he thought would meet Carindale's needs. One of these draft covenants is in the following terms:
   

"The total area of any dwelling house to be erected upon the subject land shall have a minimum overall floor area (excluding any garage and/or carport but including eaves) of not less than 250 m2 (and) ... the purchaser shall not erect or permit to be erected or remain upon the subject land any dwelling house having less than such minimum overall floor area."

1. In his oral evidence Mr. Astill agreed that the figure of 250 m2 would have been inserted as a result of instructions received from Carindale. I have no difficulty finding that Mr. Astill acquired knowledge of the intention of Carindale at that time to fix 250 m2 as the minimum size for houses on the Estate in his capacity as solicitor for Carindale.

2. The relevant building covenant in the Smiths' contract dated 3 September, 1991 is in these terms:
   

"(ii) No dwelling house with a living area of less than 300 m2 shall be erected on the land. The area shall be measured on the outer skin of external walls inclusive of any closed car accommodation."

1. That two houses were built on the Estate sometime in 1991 which were of less than 300 m2 and that the original draft standard contract, on Carindale's instructions, specified a minimum size of only 250 m2, is I think obviously relevant to and supportive of the Smiths' case that it was misrepresented to them that a 300 m2 minimum standard would be enforced throughout the Estate. Both lots of information were communicated to Mr. Astill in confidence in his capacity as Carindale's solicitor. That the evidence coming from Carindale shows that its intent to fix a 250 m2 minimum standard existed in mid June 1990, 15 months before the Smiths bought their lot, does not mean that it lacks relevance to the issue in the main proceeding, at least in the absence of evidence from Carindale explaining why the 300 m2 minimum that was included in the Smiths' contract and which they say they were told about was selected. That Mr. Mitchell could not say whether the two houses were built before or after the Smiths' purchase also does not detract from the relevance to the main proceedings of Mr. Astill's knowledge of this.

2. I therefore consider that the evidence in this second category is such as to give rise to the perception in a knowledgeable observer that there is a real possibility that the confidential information concerning the minimum house size of which Mr. Astill is aware may, consciously or unconsciously, be utilised in the main proceedings to the detriment of Carindale, when the extent of Mr. Astill's duty of disclosure to the Smiths is kept in mind.

3. It was not suggested initially that an injunction should issue on any basis other than Mr. Astill's having acted for Carindale as its solicitor even though his relationship with Carindale was much more extensive than that. In the course of argument, however, it was submitted that Mr. Astill, as a person interested in the joint venture formed to develop the Estate, was bound as between himself and Carindale to keep the information in question confidential. I do not think I can reach any conclusion on the evidence available to me and to which I have already referred that the relationship between Mr. Astill and Carindale in this respect was such as to stamp the communication to him of this information with a confidential character. I would not be prepared to enjoin Mr. Astill from acting for the Smiths on this basis.

4. There are no discretionary considerations which would justify refusal of the injunction. That the grant of the injunction may deny the Smiths access to evidence supporting their claim that Carindale breached s. 52 of the Trade Practices Act does not justify refusal of relief here since they were never entitled to access to the written and oral communications by means of which the information in question was conveyed, those communications being covered by legal professional privilege.

5. I therefore propose to grant the injunction.