Dimension Agriculture Pty Ltd v Nicoletti - [2025] WASC 287

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DIMENSION AGRICULTURE PTY LTD -v- NICOLETTI [2025] WASC 287
CORAM:   PALMER J
HEARD:   28 MAY 2025
DELIVERED          :   28 JULY 2025
FILE NO/S:   CIV 2423 of 2024
BETWEEN:   DIMENSION AGRICULTURE PTY LTD
First Plaintiff
JEREMY JOSEPH NIPPS AS LIQUIDATOR OF DIMENSION AGRICULTURE PTY LTD
Second Plaintiff
AND
GIOVANNI BASILIO NICOLETTI
First Defendant
APACHE INVESTMENTS AUSTRALIA PTY LTD
Second Defendant

Catchwords:

Legal practitioners - Application for order restraining solicitors from acting - Alleged conflict of duty and interest - Duty of loyalty

Legislation:

Australian Consumer Law
Corporations Act 2001 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr S Maiden SC
Second Plaintiff	:	Mr S Maiden SC
First Defendant	:	Mr M D Cuerden SC
Second Defendant	:	Mr M D Cuerden SC

Solicitors:

First Plaintiff	:	Hotchkin Hanly
Second Plaintiff	:	Hotchkin Hanly
First Defendant	:	Lawton Gillon
Second Defendant	:	Lawton Gillon

Case(s) referred to in decision(s):

ACN 092 675 164 Pty Ltd v Suckling (2018) 56 VR 448; [2018] VSC 620
Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372
Belgravia Nominees Pty Ltd v Lowe Pty Ltd (No 5) [2016] WASC 263
Bowen v Stott [2004] WASC 94
Clay v Karlson (1997) 17 WAR 495
Cleveland Investments Global Ltd v Evans [2010] NSWSC 567
Commissioner for Corporate Affairs v Harvey [1980] VR 669
Cooper v Winter [2013] NSWCA 261
Farrell v Super Retail Group Limited (Cross-claim) [2024] FCA 1189
Finch v Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791
Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467
Frankland River Olive Co Ltd v Charters Securities Pty Ltd [2004] WASC 88
Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179
Harvard Nominees Pty Ltd v Nicoletti [2023] HCASL 57
Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604
Harvard Nominees Pty Ltd v Tiller (No 4) (2022) 403 ALR 498; [2022] FCA 105
Harvard Nominees Pty Ltd v Tiller and Others [2020] FCAFC 229; (2020) 282 FCR 530
Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379
Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146
McVeigh v Linen House Pty Ltd (1999) 3 VR 394
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501
Tecnicas Reunidas SA v Andrew [2018] NSWCA 192
Tottle Christensen v Westgold Resources NL [2003] WASCA 224

PALMER J:

Introduction

The first defendant (Mr Nicoletti) is a former director of the first plaintiff (Dimension). Dimension is in liquidation and the second plaintiff is its liquidator. The second defendant (Apache) is a company of which Mr Nicoletti is a director.
In these proceedings, Dimension alleges that it suffered loss and damage because Mr Nicoletti breached duties that he owed Dimension both under the Corporations Act 2001 (Cth) (the Corporations Act) and in equity. The proceedings are still at an early stage and the defendants are yet to file a defence.
Mr Nicoletti has instructed Lawton Gillon, a firm of solicitors, to act for him in these proceedings.
Lawton Gillon previously acted for both Dimension and Mr Nicoletti and others (including Mr Simon Tiller) in proceedings brought against them by Harvard Nominees Pty Ltd (Harvard) in the Federal Court of Australia (the Federal Court Proceedings). At that time, Dimension was not in liquidation and was still controlled by Mr Nicoletti.
The ultimate result of the Federal Court Proceedings was that Dimension was ordered to pay Harvard $2,269,413 in damages and interest (the Judgment Debt). Dimension was wound up because it was unable to pay the Judgment Debt. Harvard is funding Dimension in the present litigation.
By a chamber summons dated 10 February 2025, Dimension has applied for an injunction to prevent Lawton Gillon from continuing to represent Mr Nicoletti. The application was brought on two bases.
First, Dimension submitted that there is a prospect that Lawton Gillon's conduct might be brought into question in the present proceedings. It contended that this meant that the Court might lose the assurance of the independence and objectivity that would be expected of an officer of the court.[1]
[1] ts 38 - 39.
Secondly, Dimension submitted that Lawton Gillon's acting against its former client, appeared disloyal and this appearance posed a risk to the due administration of justice.

What happened in the Federal Court Proceedings

Harvard's claims in the Federal Court Proceedings arose out of the lease (the Leases) by Harvard of farms near Esperance (the Farms) to Mr Tiller and Dimension. The Leases were entered into on 8 February 2019. At the time Mr Tiller was a director of Dimension but Mr Nicoletti was not.
On 15 February 2019, shortly after the Leases were executed, Mr Tiller and Dimension executed deeds (the Assignments) by which Mr Tiller assigned his interest in the Leases to Dimension and relinquished any involvement in the Farms.[2]
[2] Affidavit of Gilbert Alexander Flynn Sworn 10 February 2025 (First Flynn Affidavit), Attachment GAF‑3(a) and GAF-3(b), pages 36 - 41.
On 28 February 2019, Mr Nicoletti replaced Mr Tiller as a director of Dimension.
Dimension alleges in these proceedings that Mr Nicoletti then permitted Apache to occupy and farm the Farms.
Mr Nicoletti had leased the Farms previously in the 1990s. Mr John Caratti (one of Harvard's directors) had told Mr Nicoletti that he did not want to deal with Mr Nicoletti again because of various disputes that had arisen while he was leasing the Farms.
Harvard did not find out about the Assignments until October 2019, as a result of discovery in the Federal Court Proceedings.
On 2 April 2019, after Harvard discovered that Mr Nicoletti was involved in Dimension (but before it knew of the Assignments), Harvard's solicitors sent a letter to Lawton Gillon who were acting for Mr Tiller demanding the surrender of the Farms.
The letter said that it enclosed a separate letter that Harvard's solicitors sent to the solicitors acting for Dimension and Mr Nicoletti, Nova Legal.[3] There is a suggestion in these proceedings that Lawton Gillon may also have been acting for Dimension at this time.[4]
[3] First Flynn Affidavit, Attachment GAF-2(a), pages 11 - 13.
[4] Statement of Claim dated 18 December 2024 (Statement of Claim), par 10; ts 17.
On 5 April 2019, Lawton Gillon (who indicated that they acted on behalf of both Mr Tiller and Dimension) sent a letter in reply (the 5 April Letter).[5] That letter stated that:
(a)Mr Tiller was to remain in control of the farming operations;
(b)Mr Nicoletti's involvement was limited to providing financial backing through Dimension; and
(c)it was surprising that Mr Caratti considered Mr Nicoletti to be an unsuitable tenant. In this regard, the letter made observations about the previous dealings between Mr Nicoletti and Mr Caratti.
[5] First Flynn Affidavit, Attachment GAF-2(c), pages 17 - 23.
In the Federal Court Proceedings, Harvard sued Dimension and Mr Tiller for misleading or deceptive conduct, contrary to s 18 of the Australian Consumer Law (ACL). Mr Nicoletti was also named as a defendant and Harvard alleged that he was knowingly involved in Dimension's misleading or deceptive conduct.
Harvard alleged two instances of misleading or deceptive conduct.
First, it alleged that Dimension and Mr Tiller engaged in misleading or deceptive conduct by making representations which concealed Mr Nicoletti's involvement. It alleged that Mr Nicoletti was knowingly involved in Dimension's misleading or deceptive conduct.
Secondly, it alleged that in the context of the correspondence exchanged between the solicitors (including the 5 April Letter), the failure by Mr Tiller, Dimension and Mr Nicoletti to disclose the existence of the Assignments was also misleading or deceptive conduct.
Harvard alleged that both instances of misleading or deceptive conduct caused it loss and damage because if it had not entered into the Leases, it would have leased the Farms to someone else for a higher rent.
The second instance of alleged misleading or deceptive conduct (concerning the 5 April Letter and the alleged concealment of the Assignments) occurred after the Leases had been entered into. Harvard alleged that the entry into the Assignments was a fundamental breach constituting a repudiation of the Leases. It claimed that if it had known of the Assignments, it would have accepted the repudiation, gained vacant possession of the Farms and re-leased them.
Lawton Gillon represented all of the respondents in the Federal Court Proceedings. Part of the respondents' defence was that it was never intended that the Assignments be acted on and that, in any event, they were rescinded by a deed of recission dated 31 July 2019[6] and a deed of confirmation dated 7 November 2019[7] (collectively the Deeds).[8]
[6] First Flynn Affidavit, Attachment GAF-3(c), pages 42 - 43.
[7] First Flynn Affidavit, Attachment GAF-23(d), pages 44 - 45.
[8]See paragraph 27 of the Amended Defence dated 15 November 2019 (Amended Defence), Affidavit of Gilbert Alexander Flynn Sworn 14 April 2025 (Second Flynn Affidavit), Attachment GAF-2, pages 36 - 37.
It is also relevant to note that the defence filed also alleged that it was Mr Tiller alone who instructed Lawton Gillon about the 5 April Letter.[9]
[9] See paragraph 29 of the Amended Defence, Second Flynn Affidavit, Attachment GAF-2, page 37.
In May 2020, following a trial, Jackson J dismissed Harvard's claims.[10]
[10] Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604 (Federal Court Primary Judgment).
Jackson J held that Harvard's claim in respect of the first alleged instance of misleading or deceptive conduct failed because, while it had established that it relied on misleading representations made by Mr Tiller and Dimension, it had not proved that it suffered any loss or damage because of that reliance. He also found that it had not been established that Mr Nicoletti had sufficient knowledge of the misleading or deceptive conduct to attract liability for the conduct under the ACL.
Jackson J considered Harvard's claim in relation to the second instance of misleading or deceptive conduct failed because, while the conduct was misleading or deceptive or likely to mislead or deceive, and while the entry into the Assignment was a breach of the Leases, it was not a fundamental breach which would have permitted Harvard to re‑enter the Farms.
In relation to the 5 April Letter, Jackson J found that Mr Nicoletti gave Lawton Gillon instructions in relation to the letter and not Mr Tiller. In this regard, his Honour said:[11]
Turning to Mr Nicoletti, Mr Tiller's evidence was that he (Mr Tiller) gave the instructions in relation to the letter of 5 April 2019, and he said he was sure that Mr Nicoletti did not (Tiller I, para 193; ts 256). But in cross‑examination Mr Nicoletti accepted that by the time of the letter, Dimension was his company, and when asked whether he instructed Lawton Gillon on the occasion of the letter he said 'obviously I did' (ts 299). But he said he could not recall whether he did and he did not know whether it was both he and Mr Tiller who did so (ts 299). I do not take Mr Nicoletti's evidence, as a whole, to contain an admission that he instructed Lawton Gillon on the letter. In my view, it is better read as an acknowledgment that as a director of Dimension he could be expected to have given instructions, coupled with a disclaimer of any recollection that he actually did.
Nevertheless, there are reasons on the face of the letter to conclude that Mr Nicoletti did give instructions on its content. It contains statements about the history of Mr and Mrs Nicoletti's relationship with the Carattis, Mr Nicoletti's instructions to Mr Bryce about the incorporation of Dimension, and Mr Nicoletti's discussion in late March with Mr Caratti. Mr Nicoletti was, at the time of the letter a director and sole shareholder of Dimension and in cross‑examination he accepted that by this time it was his company (ts 299). It is open to infer that he gave instructions on the letter and his evidence on the point, while not a clear admission, supports that inference. I find that Mr Nicoletti gave instructions on the letter to an extent which means that the sending of it is conduct attributable to him and he knew what it said….
[11] Federal Court Primary Judgment [661] - [662].
Harvard appealed to the Full Court of the Federal Court. The Full Court set aside the orders dismissing Harvard's application and remitted the matter back to the trial judge to determine the question of what relief should be granted.[12]
[12] Harvard Nominees Pty Ltd v Tiller and Others [2020] FCAFC 229; (2020) 282 FCR 530.
Following the remitter, a further hearing took place before Jackson J during which he assessed the damages due to Harvard which resulted in Dimension (and Tiller) being ordered to pay the Judgment Debt. He dismissed the claim against Mr Nicoletti.[13]
[13] Harvard Nominees Pty Ltd v Tiller (No 4) (2022) 403 ALR 498; [2022] FCA 105.
Harvard then unsuccessfully appealed the dismissal of its claim against Mr Nicoletti,[14] and an application for special leave to appeal to the High Court was subsequently dismissed.[15]
[14] Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179 (Second Appeal Judgment).
[15] Harvard Nominees Pty Ltd v Nicoletti [2023] HCASL 57.

The claims made by Dimension against Mr Nicoletti in these proceedings

As I have mentioned, in these proceedings, Dimension alleges that Mr Nicoletti breached duties that he owed it under the Corporations Act and in equity. Dimension alleges three breaches of duty.
First, Dimension alleges that Mr Nicoletti breached the duty of care and diligence that he owed to Dimension under s 180 of the Corporations Act and in equity.[16] Dimension alleges that Mr Nicoletti caused it to incur the Judgment Debt, liability for its own legal expenses, and the costs and expenses of its winding up by causing:
(a)Apache to occupy the farms; and
(b)Dimension to refuse to surrender possession of the farms to Harvard until 10 January 2021 and defend the Federal Court Proceedings, including on bases which he knew to be untrue.[17]
[16] Statement of Claim, pars 33 - 36.
[17] Statement of Claim, par 33.
In relation to the defence of the Federal Court Proceedings, Dimension alleges that Mr Nicoletti caused a defence to be filed in those proceedings which contained the following untruths about Mr Nicoletti's involvement in the Farms:
(a)the Assignments were never implemented or acted or relied upon when in truth, Dimension, Mr Nicoletti and Mr Tiller acted in accordance with them;
(b)the Assignments had been rescinded by the Deeds when in truth, the Deeds were a sham, and the Assignments were never rescinded; and
(c)Mr Tiller alone instructed Lawton Gillon in relation to the 5 April Letter when in truth, Mr Nicoletti instructed Lawton Gillon on the sending of that letter.[18]
[18] Statement of Claim, pars 24 and 33.
Dimension alleges that in causing Dimension to allow Apache to occupy the Farms without making any payment to Dimension or without paying the market price, Mr Nicoletti caused Dimension to earn less than it could have from its rights under the Leases.[19]
[19] Statement of Claim, pars 26 - 27 and 34.
Secondly, Dimension alleges that Mr Nicoletti breached the duty to act in good faith and for proper purposes that he owed to Dimension under s 180 of the Corporations Act and in equity.[20]
[20] Statement of Claim, pars 37- 38.
Dimension alleges that it must be inferred that Mr Nicoletti acted with the purpose of misleading Harvard about the true nature of his involvement, enabling Apache to farm the Farms and obtain the benefit of the below-market rent for Apache and himself from:
(a)giving instructions to Lawton Gillon to send the 5 April Letter, knowing of the Leases and that they falsified the letter and therefore causing the false statement in the letter to be made;
(b)failing to cause the Assignments to be disclosed to Harvard;
(c)causing Harvard to be misled;
(d)causing the execution of the Deeds despite knowing them to be a sham; and
(e)causing Dimension to defend the Federal Court Proceedings, including on bases which he knew to be untrue.[21]
[21] Statement of Claim, pars, 15 - 16, 18 - 23 and 37.
Thirdly, Dimension alleges that Mr Nicoletti acted in a position of conflict of interest and thereby breached duties that he owed to Dimension under s 182 of the Corporations Act and in equity. It is alleged that Mr Nicoletti did this by causing Dimension to refuse to surrender possession of the farms and to allow Apache to farm them without paying Dimension any or adequate consideration.[22]
[22] Statement of Claim, pars 39 - 41.
Dimension alleges that these breaches of duty caused it to suffer loss and damage. That loss and damage is particularised as:
(a)damages and interest payable to Harvard;
(b)adverse costs orders payable to Harvard;
(c)liability for its own costs incurred in the dispute with Harvard;
(d)loss of the opportunity to earn income, alternatively greater income from the Leases; and
(e)the costs and expenses of its winding up.
Dimension also alleges that
(a)Apache received the benefit of occupying the farms, knowing that it did so as a result of Mr Nicoletti's breach of duty;[23] and
(b)Apache's occupation of the farms without paying any or adequate consideration is voidable as an unreasonable director-related transaction under pt 5.7B of the Corporations Act.[24]
[23] Statement of Claim, pars 43 - 46.
[24] Statement of Claim, pars 47 - 49.

When a court will restrain solicitors from acting

Three possible grounds of restraint

In Ismail-Zai v The State of Western Australia,[25] (a decision of the Full Court of the Supreme Court of Western Australia) Steytler P observed that when lawyers have been restrained from acting against former clients it has been on one of the following three grounds:
(a)first, ensuring the protection of confidential information that has been provided by the client to the lawyer in the course of the lawyer/client relationship;
(b)secondly, when the court acting under its inherent supervisory jurisdiction, considers that it is necessary to do so in order to ensure the due administration of justice; and
(c)thirdly, preventing a breach of a supposed fiduciary duty of loyalty by the lawyer to the former client notwithstanding the termination of the retainer.
[25] Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379 (Ismail-Zai) [19].
There is no suggestion that Lawton Gillon is in possession of confidential information. Dimension relies on both the second and third grounds.

Ensuring the due administration of justice

In Tottle Christensen v Westgold Resources NL,[26] the Full Court of the Supreme Court of Western Australia (constituted by Malcolm CJ, Murray and Anderson JJ) observed that the circumstances in which a court might restrain a solicitor in its inherent supervisory jurisdiction include where:
(a)the representation of a litigant by a solicitor and/or counsel may be seen objectively to involve a real risk of actual or apparent conflict of interest - the risk of conflict between a duty owed to the client of the solicitor or counsel and a duty owed to some other interest to be served in the litigation; and
(b)viewed objectively, there is a real need for an order preventing a solicitor or counsel from acting to imperil the due administration of justice and to protect the integrity of the judicial process.
[26] Tottle Christensen v Westgold Resources NL [2003] WASCA 224 (Westgold Resources) [6].

In the same case, the Full Court said that in both respects the test is an objective one, viewed from the perspective of a fair-minded, reasonably well-informed, disinterested bystander.[27]
[27] Westgold Resources [6].
The 'bystander' or 'reasonably informed member of the public' is taken to know all the circumstances of the case and to have an understanding of the culture and norms regulating the legal profession and what the administration of justice requires. The reasonably informed member of the public is also assumed to be neither complacent, nor suspicious.[28]
[28] Farrell v Super Retail Group Limited (Cross-claim) [2024] FCA 1189 [48].
Dimension referred to the decision of the Full Court of the Supreme Court of Western Australia (constituted by Murray, Anderson and Steytler JJ (as Steytler J then was)) in Afkos Industries Pty Ltd v Pullinger Stewart.[29] In that case Murray J (with whom Anderson and Steytler JJ agreed) said the following about when it may be necessary for a solicitor to be restrained because of an actual or potential conflict:
The question therefore before Miller J was whether there was a serious question to be tried which would support the grant of the injunction sought on the ground that it was asserted in the action by the respondent that the appellant failed to mitigate its loss because its solicitors could have sought but did not seek an order of the kind contemplated by O 66 r 12. Did the fact that that issue was raised in the litigation arguably give rise to the need for the court to exercise its undoubted inherent jurisdiction to control legal practitioners acting in litigious matters so as to prevent them from acting on the ground that there was actually or potentially a conflict of interest between solicitor and client, or the circumstances were such that the necessary independence and objectivity of the legal practitioner would be compromised?
As to that matter, Miller J found useful guidance in the formulation of the principles by Thomas J of the New Zealand High Court in Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 at 589 - 90 as follows:
Unfortunately, this is a situation which is not all that uncommon. Representatives of law firms appear for clients where there is an actual or potential conflict of interest often enough for it to be a matter of grave concern to the Court. Where the acts or omissions of the law firm, including situations where the actions of the client are based on advice given by the solicitors, are at the heart of the question in issue, the firm is, in a real sense, 'defending' its actions or advice. There is, in such circumstances, a danger that the client will not be represented with the objectivity and independence which the client is entitled to and which the Court demands. There is no sound reason to presume or accept that the solicitors must first have the opportunity to clarify whether their client is liable as a result of their actions or of acting on their advice before confronting the conflict.
What I have said, of course, does not apply where the advice given is unrelated to liability or the question in dispute. Advising a client to prosecute or defend a claim does not attract these observations. They are restricted to the situation where the acts or omissions of the solicitors are an integral part of the other party's complaint or the client has been sued in circumstances where he or she was acting on the advice of their solicitors and it is effectively that advice which is in issue.
In such cases, apart altogether from the position of the client, the Court is not receiving the assistance of counsel who are observably independent. Independence is a function of counsel. The Court is entitled to assume that solicitors and counsel appearing before it possess that independence. Solicitors not only owe a duty to their clients to do their best for them but also owe an overriding duty to the Court. The same overriding duty is owed by counsel who have been granted a right of audience to appear in this Court. As part of their professional responsibility, therefore, solicitors and counsel must ensure that they do not appear in a matter in which they have an actual or potential conflict of interest or where, by reason of their relationship with their client, their professional independence can be called in question.
[29] Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372 (Afkos) [28] - [29].
Later, Murray J observed that there could be 'no doubt' in the case before him that the lawyers in question would be required to defend their professional conduct and there was therefore a real danger that the Court would lose the independence and objectivity required of a solicitor. It was on this basis that Murray J concluded that it had been appropriate for the primary judge to grant the injunction that had been granted.[30]
[30] Afkos [32].
Dimension also referred to the decision of Clay v Karlson[31] where Templeman J referred to the decision of Marks J in Commissioner forCorporate Affairs v Harvey.[32] In Harvey Marks J said that the court sets its face against giving audience to legal representatives who are unable to assure the court of a singular interest and that it is the purity of interest in the adversaries before the court that give what fundamental utility and credence there is in the system.[33]
[31] Clay v Karlson (1997) 17 WAR 493 (Clay), 495.
[32] Commissioner for Corporate Affairs v Harvey [1980] VR 669 (Harvey).
[33] Harvey, 762.
As in Afkos, in Clay Templeman J considered that it was appropriate for the firm of solicitors to be restrained because their professional conduct was the subject of serious criticism in the proceedings.[34]
[34] Clay, 496.
Further, if a practitioner's credibility is at stake as a witness, the practitioner's personal integrity may be put in issue and that may constitute a personal interest, inconsistent with the practitioner's duty to the court or to the client.[35]
[35] Bowen v Stott [2004] WASC 94 [57] and Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 5] [2016] WASC 263.
The fact that a lawyer from a firm may be required to give evidence in a matter does not compel the conclusion that the firm cannot act in the matter, however. There must be some realistic sense of impropriety about the circumstances which justifies the conclusion that unless an injunction is granted, the integrity of the judicial process would be impaired.[36]

The duty of loyalty

[36] Belgravia Nominees Pty Ltd v Lowe Pty Ltd (No 5) [2016] WASC 263 [40].

Dimension referred to and relied upon the observations made by Burchett J in Wan v McDonald[37] that:
It is obvious that, at least in the application of these principles to particular circumstances, there is likely to be a great difference between cases such as Rakusen and D and J Constructions, on the one hand, and cases, on the other, where the one solicitor, having acted for both parties, seeks to act against one of his former clients, and in the interest of a preferred client, in litigation arising out of the very matter in which he himself acted for both. In my opinion, it could only be in a rare and very special case of this latter kind that a solicitor could properly be permitted to act against his former client, whether or not any real question of the use of confidential information could arise. As Gummow J. said in National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 87 ALR 539 at 559: "(E)ven among fiduciaries, solicitors stand in a special position.
[37] Wan v McDonald (1992) 33 FCR 491, 513.
In Ismail-Zai,[38] Steytler P observed that there is conflicting authority concerning the question of whether a duty of loyalty survives the termination of the retainer but that in his opinion the weight of authority supported the proposition that the duty does not survive the termination of the retainer.
[38] Ismail-Zai [20] - [23].
Steytler P also noted that the cases that supported the continuing duty of loyalty seemed to draw no clear distinction between a fiduciary obligation of loyalty on the one hand and the court's inherent supervisory jurisdiction to protect the integrity of the judicial process on the other. He said that the cases indicated that there would be a breach of a continuing duty of loyalty if a solicitor acts against a former client in the same, or a closely related matter. In this regard, Steytler P referred to Fordham v Legal Practitioners' Complaints Committee[39] and Spincode Pty Ltd v Look Software Pty Ltd.[40]
[39] Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467(Fordham).
[40] Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 (Spincode); Ismail-Zai [23] - [24].
Fordham is a decision of the Full Court of the Supreme Court of Western Australia (constituted by Malcolm CJ, Franklyn and Wheeler JJ). In that case Malcolm CJ (with whom Franklyn and Wheeler JJ agreed) said:[41]
…the rule not only prevents the use of knowledge or information gained from the client during the course of a retainer, but also prevents the assumption of a position hostile to the client concerning the same matter. In my opinion, the extension to any related matter is both logical and consistent with the public policy which gives rise to the duty of professional loyalty. In the context of loyalty it is the establishment of the hostile relationship against the former client in relation to the same or a related matter which is the breach of professional duty. To put it another way, it is the existence of the former relationship which has the potential to create in the mind not only of the former client but also of the reasonable bystander a reasonable apprehension that use will be made of information provided in the course of the former relationship to the detriment of the former client, as by a cross-examination for the purpose of destroying his or her credit. The submission that a practitioner is free to cross-examine a former client in the same or related matter without any inhibition, save for not actually making use of, or appearing to make use of or in circumstances giving rise to a reasonable apprehension that he or she was making use of confidential information is not a satisfactory test.
[41] Fordham, 489G-490A.
In Spincode (a decision of the Court of Appeal of the Supreme Court of Victoria) Brooking JA said that the equitable obligation of loyalty is not observed by a solicitor who acts against a former client in the same matter.[42]
[42] Spincode [53].
In New South Wales, the proposition that a duty of loyalty is an independent ground for restraining a solicitor has been rejected by the Court of Appeal.[43] The position in Victoria appears different to that in Western Australia.[44]

The power to restrain is an exceptional one

[43] Cooper v Winter [2013] NSWCA 261 [92] - [102] (Ward JA, with whom McColl and Barrett JJA concurred); Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 [24] (Barrett JA, with whom Beazley P and McColl JA concurred); Técnicas Reunidas SA v Andrew [2018] NSWCA 192 [36] (Leeming JA, with whom Bathurst CJ and White JA agreed). See also Cleveland Investments Global Ltd v Evans [2010] NSWSC 567 [3], [33], [40] - [50].

[44] McVeigh v Linen House Pty Ltd (1999) 3 VR 394 (Callaway and Batt JJA); ACN 092 675 164 Pty Ltd v Suckling (2018) 56 VR 448; [2018] VSC 620 (Suckling) [56] ‑ [66].

It has been recognised that the power to restrain is an exceptional one that should be exercised with caution.[45] In Finch v Heat Group Pty Ltd (No 2),[46] Pagone J gave the following explanation of why:
It is a high test with a heavy burden imposed upon a party making the application. The jurisdiction has been described as "extraordinary and protective" (Woodgate vLeonard [2007] NSWSC 495… at [37]), of an "exceptional nature" (TJ Board & Sons Pty Ltd v Castello [2008] VSC 91 at [30]) and to be applied only in a "clear" case (Bransdon v Davis & Gilbert (2007) 37 Fam LR 555; 212 FLR 28; [2007] FamCA 579 at [70]): see also GE Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th Edition) [17.20], p538. There are many reasons for a heavy burden to be satisfied by the party making such an application. One reason is that a court should not make an order that interferes with the relation between the opposing party and that party's chosen and trusted legal practitioners. Public confidence in the administration of justice depends in part upon litigants being able to choose who they have to represent them and in whom they place their trust and confidence. The proper administration of justice is assisted by trust and confidence existing between litigants and their legal representatives. The legal practitioner plays a crucial role in conveying the client's case to a court for adjudication and the confidence and trust of the client in the chosen legal practitioner is an essential aspect of that role. An order restraining a legal practitioner from acting for a client interferes with that role, adversely affects the client and may unjustifiable interfere with the proper conduct of the client's case. It may also have the effect of causing irreparable harm to the client's case and is apt to undermine the proper administration of justice in all but the clearest cases. To restrain the legal practitioners from acting for a party in continuing proceedings may also confer an unjustifiable forensic advantage upon the party seeking the restraint.
[45] Ismail-Zai [35].
[46] Finch v Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791 [9].

Why Dimension contends that Lawton Gillon must be restrained

Lawton Gillon's independence and objectivity

Dimension referred to the fact that in these proceedings it is alleged that Mr Nicoletti caused Dimension loss by giving instructions to issue the 5 April Letter, causing the execution of the Deeds and causing Dimension to defend the Federal Court Proceedings on bases which Mr Nicoletti knew to be false. It submitted that the nature of Lawton Gillon's involvement in each of these matters made its continued involvement in these proceedings untenable.[47]
[47] Plaintiff's Written Submissions in Support of Application to Restrain Lawton Gillon From Representing the Defendants dated 11 April 2025 (Plaintiff’s Submissions), pars 32 - 33.
Dimension submitted that it was not in dispute that Lawton Gillon sent the 5 April Letter and that the Federal Court found that Mr Nicoletti knew of the matters which falsified the relevant parts of that letter when he did so.[48]
[48] Plaintiff's Submissions, par 34. Federal Court Primary Judgment [662] - [664].
Dimension referred to correspondence sent by Lawton Gillon which seemed to reserve the position of Mr Nicoletti and Apache regarding the binding effect on them of the findings made in the Federal Court Proceedings.[49]
[49] Plaintiff's Submissions, pars 35 - 36.
Dimension referred to correspondence sent by Lawton Gillon and an affidavit sworn by a partner of Lawton Gillon, Mr Freund, in which Lawton Gillon said that they did not act for Dimension and Mr Nicoletti during or with respect to the preparation of the 5 April Letter. In Mr Fruend's affidavit, he said that Lawton Gillon only came to act for Dimension (but not for Mr Nicoletti who was represented by another firm) immediately prior to the 5 April Letter being sent.[50]
[50] Plaintiff's Submissions, pars 35 - 37. Affidavit of Alexander Max Freund sworn 26 February 2025 (Freund Affidavit), pars 8 ‑ 13.
Dimension submitted that this statement could be 'compared' with a Lawton Gillon invoice dated 9 April 2019 which billed Dimension and Mr Tiller for professional services for the period from 25 March 2019 to 5 April 2019, including:
• our telephone attendance of 5 April 2019 on Nova Legal in relation John Nicoletti's involvement in Dimension Agriculture and
• our detailed letter of 5 April 2019 to Hotchkin Hanly and liaising at length with Simon Tiller and Nova Legal in relation to this letter …[51]
[51] Plaintiff's Submissions, par 38.
It was submitted that the dispatch of the 5 April Letter, the falsity of part of its contents, and the knowledge which Mr Nicoletti had of that falsity are likely to be in issue in this proceeding. It was argued that it is apparent that Lawton Gillon wrote the letter, but the question of from whom it received instructions, and what those instructions were, will be germane.[52]
[52] Plaintiff's Submissions, par 39.
Dimension argued that there were 'inconsistencies' apparent in the material already available. It argued that although Lawton Gillon said that it did not act for Mr Nicoletti when the 5 April Letter was prepared, Mr Bryce gave sworn testimony that he could not recall dealing with Lawton Gillon and Lawton Gillon's invoice recorded it liaising at length with Nova Legal (who were Mr Nicoletti's solicitors). Dimension also referred to Lawton Gillon's invoice billing Dimension for services in the period from 25 March to 5 April.[53]
[53] Plaintiff's Submissions, par 40.
Dimension argued that if Mr Nicoletti intends to deny the allegations regarding the 5 April Letter, he would need to call Mr Freund and another solicitor formerly employed by Lawton Gillon, Mr Michael Hobson, to give evidence. It was submitted that Lawton Gillon's conduct would be scrutinised in evidence.[54]
[54] Plaintiff's Submissions, par 41, ts 40 - 41.
Dimension argued that even advising Mr Nicoletti about whether to call Lawton Gillon's current and former solicitors put the firm in a position where it would be 'defending its actions and advice' such that its independence and objectivity would be lost.[55]
[55] Plaintiff's Submissions, par 42.
Before me, Senior Counsel for Dimension made it clear that it is not suggested that Lawton Gillon deliberately made any false statement when it prepared the 5 April Letter.[56]
[56] ts 20.
Dimension alleges in these proceedings that Mr Nicoletti instructed Lawton Gillon to draw and have the Deeds executed.[57]
[57] Statement of Claim, par 18.
Dimension referred to the opening submissions filed in the Federal Court Proceedings[58] in which it was submitted that the Deeds were entered into on advice from lawyers. Dimension said that it was Lawton Gillon who acted for the respondents at the relevant time.[59]
[58] Affidavit of Michael Hotchkin sworn 20 February 2025, Attachment MCH-1, page 8.
[59] Plaintiff's Submissions, par 44, ts 30 - 31.
Dimension argued that there was no commercial purpose for the Deeds and that they were intended to bolster Dimension's defence of the Federal Court Proceedings. It was contended that the circumstances in which the Deeds were prepared and executed will be a key issue at trial and that as Lawton Gillon advised Dimension to enter into them, members or employees of the firm might need to give evidence.[60]
[60] Plaintiff's Submissions, pars 44 - 48, ts 41.
Dimension referred to the fact that Lawton Gillon received instructions to act on behalf of all of the respondents to the Federal Court Proceedings. It argued that while it was unclear when the firm first learned of the Assignments (which falsified the basis of the defence as filed) it was some time before 31 July 2019 when the Deed of Recission was executed. It submitted that from that time until the defendants discovered the Assignments in October 2019, Lawton Gillon conducted the defence on behalf of the defendants without the Assignments being revealed to Harvard. It argued that the defence was not amended to acknowledge the existence of the Assignments until 14 November 2019.[61]
[61] Plaintiff's Submissions, par 49, ts 41 - 42.
Dimension submitted that the manner in which Mr Nicoletti caused Dimension to conduct the Federal Court Proceedings was central to the allegations against him in these proceedings. It contended that Lawton Gillon's conduct would be scrutinised as part of the scrutiny of Mr Nicoletti's conduct because it had the carriage of the proceedings. It argued that Lawton Gillon's independence was fatally compromised and it referred to Clay.[62]
[62] Plaintiff's Submissions, par 50.

Senior counsel for Dimension submitted that none of this was to suggest that Lawton Gillon necessarily did anything wrong but that Lawton Gillon's actions would be the subject of scrutiny. In this regard, he referred to the reasoning in Clay.[63]
[63] ts 42 - 43.
Senior counsel argued that Lawton Gillon could not remain impartial and objective because it had an interest in not seeing its professional conduct called into question. It was contended that the advice that Lawton Gillon would need to give would necessarily involve them making decisions about the presentation of the evidence which might not paint the firm in a favourable light. It was further argued that it would also need to advise about settlement strategies and negotiation tactics.[64]

The appearance created by Lawton Gillon acting

[64] ts 43.

Dimension submitted that even if Lawton Gillon's involvement was not significant enough to bring their independence and objectivity into question, it was more than adequate to create that impression and such an impression endangered the appearance of justice and the judicial process.[65]
[65] Plaintiff's Submissions, par 52.
Further, Dimension submitted that the administration of justice is not served by the appearance created by a firm of solicitors acting against a former client in litigation brought by that client against an ongoing client, where the litigation concerns the way that the ongoing client treated the former client in the very matter in which the solicitors represented them both. In this regard, Dimension referred to the decision of Pullin J (as he then was) in Frankland River OliveCo Ltd v Charters Securities Pty Ltd.[66] It was argued that public confidence would be eroded were it accepted that a solicitor could advise multiple parties in the litigation, only later to act against one of those.[67]
[66] Frankland River OliveCo Ltd v Charters Securities Pty Ltd [2004] WASC 88 (Frankland River Olive Co).
[67] Plaintiff's Submissions, pars 53 - 54.

Whether Lawton Gillon should be enjoined

Lawton Gillon's independence and objectivity

Dimension's application was partly founded on the proposition that Lawton Gillon lacks independence and objectivity because the firm has an interest in not seeing its professional conduct called into question.
Lawton Gillon's conduct has not been called into question in these proceedings, however.
The statement of claim does not make any allegation that Lawton Gillon acted inappropriately. Nor would the allegations that are made, if proven, establish that Lawton Gillon acted inappropriately.
Senior Counsel for Dimension made it plain that it was not suggested that Lawton Gillon knowingly made any false statement when it prepared the 5 April Letter.[68]
[68] ts 20.
In correspondence, Dimension's solicitors have also confirmed that they make no allegation that Lawton Gillon knowingly participated in a sham transaction by preparing the Deeds.[69]
[69] Freund Affidavit, Attachment AMF-8, pages 24 - 25.
Senior counsel for Dimension also made it clear that he did not suggest that Lawton Gillon necessarily did anything wrong while defending the Federal Court Proceedings, only that Lawton Gillon's actions would be the subject of scrutiny.[70]
[70] ts 42 - 43.
Further, despite the Federal Court Proceedings being of some duration and involving similar issues concerning Mr Nicoletti's involvement in the 5 April Letter and the execution of the Deeds, no criticism was made of Lawton Gillon's professional conduct in those proceedings.
In relation to the sending of the 5 April Letter, Jackson J observed that there was no evidence that Lawton Gillon were aware of the falsity of the matters stated in the letter. He said:[71]
While I will make findings about this letter below, to the extent that it is necessary to resolve pleaded issues, I cannot pass from the subject without saying that several things said in the letter were glaringly inconsistent with the evidence I have outlined so far. So much so, that it is necessary for me to say that there was no suggestion in the evidence that, at the time of sending the letter, Lawton Gillon were aware of the matters revealed in that evidence. Mr Tiller's evidence was that he had not given Lawton Gillon a copy of the [Leases] (ts 259). It seems that they did not receive them until the discovery process in this proceeding (ts 327). My findings, set out below, are that Mr Tiller and Mr Nicoletti gave Lawton Gillon the instructions in the letter. That reflects poorly on their credit.
[71] Federal Court Primary Judgment [288].
As no allegation is made that Lawton Gillon acted inappropriately and the matters alleged would not if proven, establish that Lawton Gillon acted inappropriately, it is not presently apparent to me why Lawton Gillon's conduct would be 'scrutinised' and if it was, why Lawton Gillon would be concerned about scrutiny of its conduct. This case is quite different to cases such as Afkos or Clay where the issues raised in the proceedings necessarily called the solicitors conduct into question.
Dimension's application was also partly founded on the proposition that a solicitor or solicitors associated with Lawton Gillon might need to give evidence about 5 April Letter, the Deeds or the defence of the Federal Court Proceedings.
Neither Mr Nicoletti nor Apache have indicated that they propose to call a solicitor from Lawton Gillon to give evidence, nor is it apparent to me at this early stage of the proceedings, that there is a significant likelihood that they would be.
Mr Nicoletti and Apache are yet to file a defence. What allegations they deny, and the nature of any positive defence they will advance remains unclear.
In response to Dimension's application, Mr Nicoletti and Apache maintained that neither the 5 April Letter, nor the Deeds, are relevant in any way to Jackson J's reasons for entering judgment in favour of Harvard against Dimension.[72] They submitted that Jackson J dismissed Harvard's claim against Dimension and Mr Nicoletti based upon the 5 April Letter because the misleading or deceptive conduct that he found was established was causally irrelevant to Harvard's loss.[73]
[72] Defendants' Outline of Submissions in Opposition to Plaintiff's Application to Restrain Solicitors dated 5 May 2025 (Defendants' Submissions), pars 27 - 34.
[73] Defendants' Submissions, par 29. Federal Court Primary Judgment [264] - [265], [503], [578], [670] ‑ [673].
Mr Nicoletti and Apache argued that there was no basis on which Dimension or Mr Nicoletti was even said to be liable to Harvard based on the Deeds and the allegation that the Deeds were shams was irrelevant to Jackson J's decision. In this regard, they referred to Jackson J's observation (in the Federal Court Primary Judgment) that:[74]
Harvard made detailed submissions to the effect that the deed of rescission of July 2019 and the deed of confirmation of November 2019 were shams. Since those deeds play no part in the disposition of the application, it is not necessary to determine whether that is so.
[74] Federal Court Primary Judgment [639]. Defendants' Submissions, par 31.
Mr Nicoletti and Apache argued that none of these conclusions were disturbed by Harvard's appeals to the Full Federal Court.[75]
[75] Defendants' Submissions, par 33.
Mr Nicoletti and Apache submitted that Harvard's ultimate success against Dimension was based on the misleading or deceptive conduct of Mr Tiller on behalf of Dimension and that Jackson J rejected Harvard's case that Mr Nicoletti was knowingly involved in that conduct.[76] They contended that that finding was also not challenged on appeal.[77]
[76] Defendants' Submissions, par 28; Federal Court Primary Judgment [490].
[77] Defendants' Submissions, par 28; Second Appeal Judgment [10], [22] and [97].
Mr Nicoletti and Apache foreshadowed an application to strike out the parts of the statement of claim concerning the 5 April Letter, the Deeds and the alleged 'falsity' of the defence filed in the Federal Court proceedings insofar as it related to the 5 April Letter and the Deeds (and in such other respects as the defendants might be advised). Such an application has been the subject of correspondence between the parties but has not progressed given the present application.[78]
[78] Defendants' Submissions, par 28; Second Appeal Judgment [10], [22] and [97].
It is therefore presently unclear how far the claims based on the 5 April Letter and the Deeds will proceed. It is at least possible that the relevant paragraphs of the statement of claim will be struck out.
Further, Dimension's submissions about the defence that Mr Nicoletti and Apache will mount to Harvard's claim and the witnesses that they will call seem to me to involve a large amount of speculation.
It is currently far from clear that Mr Nicoletti and Apache intend to defend the proceedings on the basis asserted by Dimension. Their submissions that the 5 April Letter and the Deeds are causally irrelevant to Jackson J's judgment suggests that the proceedings might be defended on that basis. The position may become clearer once a defence is filed.
Notably, no Lawton Gillon solicitor gave evidence in the Federal Court Proceedings. The manner in which those proceedings were conducted does not support the proposition that a solicitor associated with Lawton Gillon would be likely to be called as a witness in these proceedings.
In all of these circumstances, on the basis of the material presently before the Court, I do not consider that a reasonably informed member of the public would likely conclude that the administration of justice requires Lawton Gillon to be restrained, either because a solicitor associated with that firm might need to give evidence, or because the firm was otherwise unable to exercise impartiality or objectivity.

The appearance created by Lawton Gillon acting

Dimension contended that Lawton Gillon's restraint was justified by two relevant aspects of the appearance of justice.
First, Dimension submitted that the appearance of justice and the judicial process was endangered by the 'impression' that Lawton Gillon's objectivity was questionable.[79]
[79] Plaintiff's Submissions, par 52.
I am not satisfied that a reasonably informed member of the public would form the impression that Lawton Gillon's objectivity was questionable.
For the reasons I have already given, I do not consider that a reasonably informed member of the public would be likely to conclude that the administration of justice requires Lawton Gillon to be restrained, either because a solicitor associated with that firm might need to give evidence, or because the firm was otherwise unable to exercise impartiality or objectivity.
My reasons for those conclusions are equally relevant to any consideration of the matter at an impressionistic level (if that is a relevant enquiry). For those reasons, I am not satisfied that a reasonably informed member of the public would form a different impression.
Secondly, Dimension submitted that the administration of justice is not served by the appearance created by a firm of solicitors acting against a former client in litigation, where the litigation concerns the way that the ongoing client treated the former client in the very matter in which the solicitors represented them both. It was in this regard that Dimension referred to Frankland River OliveCo.
As Dimension properly acknowledged the position in Frankland River OliveCo was 'starker'[80] than the present case. In that case a solicitor was acting for a client who sought to exploit a default which occurred when the same solicitor was the chairman and a director of the board of an opposed party. He had also signed a defence challenging the events pleaded by that opposed party, where he had himself participated in those events while he was associated with the opposed party.[81]
[80] Plaintiff's Submissions, par 53.
[81] Frankland River OliveCo [31] - [33].
Frankland River OliveCo did not involve a solicitor acting against a former corporate client which had been put into liquidation like, for example Suckling (where an injunction was refused). In my view, the circumstances of the present case are quite removed from those in Frankland River OliveCo and reference to that case does not advance matters.
In the particular circumstances of this case, I do not consider that a reasonably informed member of the public would be likely to consider that the appearance of Lawton Gillon now acting against Dimension requires the restraint of Lawton Gillon to ensure the proper administration of justice. In my view, three particular circumstances are relevant.
First, when Lawton Gillon acted for Dimension in the Federal Court Proceedings, it was controlled by Mr Nicoletti and its interests were aligned with his interests. Dimension was being sued by Harvard and its interests were opposed to Harvard's interests.
Following Dimension's liquidation, it is controlled by a liquidator funded by Harvard and is now represented by the solicitors who acted for Harvard against Dimension in the Federal Court Proceedings. The damages that Dimension seeks to recover from Mr Nicoletti in these proceedings includes the judgment debt due to Harvard following the Federal Court Proceedings.
Secondly, this is not a case in which it is suggested that Lawton Gillon is in possession of any of Dimension's confidential information, or more broadly that the firm knows something about Dimension (during Mr Nicoletti's association with the company) that Mr Nicoletti does not.
Mr Nicoletti's defence of the proceedings will necessarily require him to provide instructions to his lawyers (even if those lawyers are not Lawton Gillon) about what occurred during his involvement with Dimension. Whoever acts for Mr Nicoletti will therefore ultimately presumably do so on the basis of the same information and instructions. If new solicitors are engaged, however, Mr Nicoletti is likely to incur the cost of paying his new lawyers to 'read in'.
Thirdly, it has not been suggested that Lawton Gillon's previous representation of Dimension confers any forensic advantage on Mr Nicoletti or Apache. Dimension is a corporation lacking any corporeal manifestation independent from its liquidator or agents. As a corporation, Dimension is not a person who could suffer the detriment of being cross-examined by its former lawyer to destroy its credit. This case is therefore quite different to Fordham.
In the circumstances, I am not satisfied that the present case is a sufficiently clear case to warrant the 'exceptional' step of restraining Lawton Gillon.
Nor do I consider that there is a different result if the two relevant aspects of the appearance of justice identified by Dimension are considered in combination. I do not consider that the cumulative effect of the matters relied upon rises any higher than the matters considered individually.

Conclusion

For all of these reasons, I do not consider that Lawton Gillon should be restrained and I would dismiss the application.
As I have indicated, my reasoning has been influenced by the fact that these proceedings are still at an early stage and that Dimension's application involved speculation. It is possible, however, that as these proceedings progress and circumstances evolve, it may become clearer that there is an issue with Lawton Gillon acting. If circumstances do change, it will be open to Dimension to apply to restrain Lawton Gillon given those changed circumstances.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CN
Associate to the Judge
28 JULY 2025