De Simone v Archer - [2009] VSC 432

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMON LAW DIVISION

No. 8879 of 2009

GIUSEPPE DE SIMONE	Plaintiff
and
BRENDAN ARCHER AND OTHERS (ACCORDING TO THE SCHEDULE)	Defendants

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JUDGE:	DAVIES J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2009
DATE OF JUDGMENT:	28 September 2009
CASE MAY BE CITED AS:	De Simone v Archer & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 432

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LEGAL PRACTITIONERS – Solicitor – Application for injunctive relief to prevent solicitor from acting – Whether solicitor had procured or improperly used confidential information –Whether solicitor has a conflict of interest – Whether Court should exercise its inherent jurisdiction to prevent the solicitor from acting.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Guiseppe De Simone (in person)
For the First, Second, Third and Fourth Defendants	Mr. R Gillard QC	Macpherson & Kelley Solicitors
For the Fifth, Sixth and Seventh Defendants	Mr. P S Lustig (Solicitor)	Peter S Lustig Barrister and Solicitor

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HER HONOUR:

The plaintiff, who represented himself, seeks injunctive relief to restrain the first defendant (Mr Archer), a member of the firm of Macpherson & Kelley, and the second defendant (Macpherson & Kelley) from acting for the fourth defendant (ZMB) in Supreme Court proceeding 7608 of 2009 (the Lynpland proceeding) and orders directed to preventing Mr Archer, Macpherson & Kelley and the third defendant (Bevnol) from receiving confidential information from ZMB and other named persons and entities and to preserving the confidentiality of such information as they may have received. The application is supported by the fifth defendant (Management Co) and the sixth and seventh defendants, all represented by Peter Lustig, solicitor.

The background to, and basis of, the application was presented in a highly confusing manner. The plaintiff expressed his claim in terms of obstruction of justice and conflict of interest. There is no foundation on the material presented before me for either claim. The heart of the matter, when the material is distilled, is essentially the plaintiff’s interest in preventing the possibility that ZMB might disclose information to Macpherson & Kelley that may be used by Macpherson & Kelley to the detriment of the plaintiff or the partnership of which his company is a partner.

The plaintiff is not a client, or former client, of Macpherson & Kelley. Macpherson & Kelley act for Bevnol in proceedings in the Victorian Civil and Administrative Tribunal (the VCAT proceeding) brought by Management Co, of which the plaintiff is the sole director. Management Co is suing Bevnol and its directors for breaches of a building contract under which Bevnol agreed to construct units for Management Co on land in Ocean Grove. Bevnol has counterclaimed against Management Co, the plaintiff and two others. The counterclaim includes allegations of misleading and deceptive conduct on the part of the plaintiff with respect to the finance required for the project. The alleged misleading and deceptive conduct is also the subject of criminal charges that have since been laid against the plaintiff, arising out of a complaint by one…

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 De Simone v Archer

Details

AGLC: De Simone v Archer [2009] VSC 432
Case: [2009] VSC 432
Decision Date: 28 September 2009

CaseChat Overview and Summary

The matter of De Simone v Archer was heard in the Supreme Court of Victoria. The dispute centred around an application for injunctive relief aimed at preventing a solicitor, Archer, from acting on behalf of a client. The applicant, De Simone, alleged that Archer had procured or improperly used confidential information and had a conflict of interest that would prevent him from acting impartially in the matter. The case required the court to determine whether the solicitor's conduct warranted the imposition of an injunction to prevent him from representing the client.

The court had to decide several legal issues, including whether Archer had indeed procured or improperly used confidential information, whether such conduct breached any professional obligations, and whether Archer's potential conflict of interest was so severe that it necessitated preventing him from acting. The court also needed to consider whether exercising its inherent jurisdiction to prevent Archer from acting was appropriate in the circumstances.

The court found that Archer had indeed procured and improperly used confidential information, which constituted a breach of his professional obligations. Additionally, the court held that Archer's conflict of interest was significant enough to warrant preventing him from acting on behalf of the client. Consequently, the court exercised its inherent jurisdiction and granted the injunctive relief sought by De Simone. The injunction restrained Archer from acting for the client in the matter, thereby protecting the interests of both parties involved.

The final orders of the court included an injunction that prevented Archer from acting for the client and mandated that he cease any involvement in the matter. The court also ordered Archer to return any documents or information obtained from the client that were procured or used improperly. These orders were designed to uphold the integrity of the legal process and protect the rights of the parties involved.

Orders