| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT ARBITRATION LIST
No 4655 of 2011
| CHRISTOPHER ANTONY DALE | Plaintiff |
| V | |
| CLAYTON UTZ (a firm) | Defendant |
---
JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 – 24 January 2013 | |
DATE OF JUDGMENT: | 26 March 2013 | |
CASE MAY BE CITED AS: | Dale v Clayton Utz (No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 54 | 1st revision 8 April 2013 |
---
LEGAL PRACTITIONER – Barrister – Application to restrain defendant from retaining senior counsel in this proceeding – Application brought under inherent jurisdiction and to enforce duties of confidence and loyalty – Application granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Ehrlich | O’Donnell Salzano Lawyers |
| For the Defendant | Mr P Riordan SC Mr N De Young | Minter Ellison |
TABLE OF CONTENTS
Introduction
Preliminary matters
Evidence relating to the issues
Dealings between Dale and Myers before the August 2004 meeting
The August 2004 meeting
Mr Dale’s affidavit evidence
Mr Dale’s oral evidence
Mr Myers’ evidence
Subsequent dealings between Dale and Myers
The lead up to Mr Dale’s termination
The 2005 phone call
Mr Dale’s affidavit evidence
Mr Dale’s oral evidence
Mr Myers’ evidence
The email to Mr Dale’s brother
Objections to Mr Myers acting in this proceeding
Mr Dale’s health problems
Evidence relating to credibility
Mr Dale removes documents from Clayton Utz
Mr Dale leaks the information in the documents
Solicitors’ correspondence about the leaks
Whether the solicitors’ correspondence adversely affects Mr Dale’s credibility
Whether Mr Dale’s explanation as to why he leaked documents affects his credibility
Conclusions of fact
The importance of the matters discussed with Mr Myers
Does Mr Myers owe a duty of loyalty to Mr Dale?
The nature and extent of the duty of loyalty
The August 2004 meeting
The 2005 phone call
Is there a risk of disclosure of confidential information by Mr Myers?
The protection of confidential information
The August 2004 meeting
The 2005 phone call
Should the court’s inherent jurisdiction be invoked here?
The nature and extent of the jurisdiction
Why the inherent jurisdiction should be exercised
Conclusion
HER HONOUR:
Introduction
Christopher Dale was, for many years, a litigation partner in the solicitors’ firm of Clayton Utz. In October 2005, Clayton Utz terminated Mr Dale’s partnership. One of the grounds now relied upon by the firm as justifying the termination was an alleged breach by Mr Dale of the firm’s pro bono policy, in relation to some matters involving a Mr and Mrs Ebner.
In September 2011, Mr Dale issued this proceeding, in which he claims that, in deciding to expel him, his former partners acted unlawfully and in breach of the partnership agreement.
The defence, which Clayton Utz filed in January 2012, was signed by Allan Myers QC.
By summons dated 14 February 2012, Mr Dale seeks an order restraining Clayton Utz from continuing to retain Mr Myers as its counsel in this proceeding. In summary:
(a) Mr Dale says that in August 2004 and November 2005 he sought…
Keep reading for free
Create a free CaseChat account to read Dale v Clayton Utz (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2013] VSC 54
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the respondent's retention of senior counsel would breach the duties of confidence and loyalty owed to the applicant, and whether the court had the inherent jurisdiction to restrain the respondent from doing so. The court held that the respondent's retention of senior counsel would indeed breach the duties of confidence and loyalty owed to the applicant, as it would create a conflict of interest. The court also held that it had the inherent jurisdiction to restrain the respondent from retaining senior counsel, as it was necessary to prevent a breach of the duties of confidence and loyalty.
The court granted the application and restrained the respondent from retaining senior counsel in the proceeding. The court held that the respondent's retention of senior counsel would be a serious breach of the duties of confidence and loyalty owed to the applicant, and that it was necessary to prevent such a breach. The court emphasised the importance of maintaining the integrity of the legal profession and the trust that clients place in their legal practitioners. The court made an order restraining the respondent from retaining senior counsel in the proceeding, and from disclosing any confidential information obtained from the applicant to senior counsel or any other person.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.