Director of Public Prosecutions (Cth) v A Legal Practitioner

[2012] WASC 459

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (CTH) -v- A LEGAL PRACTITIONER [2012] WASC 459

CORAM:   EM HEENAN J

HEARD:   26 OCTOBER 2012

DELIVERED          :   29 NOVEMBER 2012

FILE NO/S:   INS 107 of 2012

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Applicant

AND

A LEGAL PRACTITIONER
Respondent
 

Catchwords:

Legal practitioners - Fiduciary obligations - Criminal prosecutions - Lawyer employed by Commonwealth DPP involved in initial investigations - Major criminal charges laid and trial on indictment pending - Solicitor leaves employment and commences employment with lawyers acting for accused persons - Whether actual or potential conflict of interest - Whether any actual or potential threat to confidential information - Public interest in integrity of trial process - Public interest in absence of appearance of potential conflict - Grounds for an injunction - Undertaking by solicitor - Suppression of identity pending completion of prosecution - Risk to trial process - Principles of open justice

Legislation:

Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 2004 (WA)

Result:

Undertaking accepted for legal practitioner to cease acting

Category:    B

Representation:

Counsel:

Applicant:     Mr R J Davies QC & Mr P N Bevilacqua

Respondent:     Mr W B Zichy­Woinarski QC & Ms K A Vernon

Intervener (by leave)     :     Mr A V McCarthy

Solicitors:

Applicant:     Director of Public Prosecutions (Cth)

Respondent:     Clifford Chance

Intervener (by leave)     :     West Australian Newspapers Ltd

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

Black v Taylor [1993] 3 NZLR 403

Bowen v Stott [2004] WASC 94

D&J Constructions Pty Ltd v Head (1987) 9 NSWLR 118

Fordham v Legal Practitioners Complaints Committee (1997) 18 WAR 467

Grimwade v Meagher [1995] 1 VR 446

Holborow v MacDonald Rudder [2002] WASC 265

Ismail‑Zai v State of Western Australia [2007] WASCA 150

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561

Magro v Magro (1989) FLC 92‑005

Mallesons v KPMG Peat Marwick (1990) 4 WAR 357

McVeigh v Linen House Pty Ltd [1999] VSCA 138; [1999] 3 VR 394

Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151

Newman v Phillips Fox (a firm) [1999] WASC 171; (1999) 21 WAR 309

Pilmer v The Duke Group Ltd (in liq) [2001] HCA 165; (2001) 207 CLR 165

Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222; [1999] 1 All ER 517

R v Thomson (Unreported, WASCR INS 172 of 2009, 13 May 2010

Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831

Re Allison Ruth Robbins SM; Ex parte Western Australian Newspapers Ltd [1999] WASCA 16

Re Bromfield; Ex parte Western Australian Newspapers Ltd (1991) 6 WAR 153

Sent and Prime Life Corporation Ltd v John Fairfax Publications Pty Ltd and Hills [2002] VSC 429

TK v Australian Red Cross Society (1989) 1 WAR 335

Tottle Christensen v Westgold Resources NL [2003] WASCA 224

Wan v McDonald (1992) 33 FCR 491; (1992) 105 ALR 473

Williamson v Nilant [2002] WASC 225

EM HEENAN J: 

The criminal proceedings

1. By a notice of originating motion foreshadowed on 26 October 2012 but dated and filed 27 October 2012, the Commonwealth Director of Public Prosecutions (CDPP) has moved for orders in the nature of injunctions to restrain a named legal practitioner from acting for or advising two persons presently charged on indictment and awaiting trial in the criminal jurisdiction of this court in February 2013 on a joint charge of conspiring with each other and two other named persons with the intention of dishonestly causing a loss to a Commonwealth entity.  Further details of these criminal charges and the events which have led to them are set out later. 

2. By an application in the criminal proceedings dated 15 October 2012, the CDPP had sought similar orders restraining the named legal practitioner from acting for or advising the two accused in these criminal proceedings or in any connected proceedings.  That application was listed for hearing before me on 26 October 2012 as the judge assigned to deal with this criminal trial.  Previously, directions had been given by another judge for the filing of affidavits, written submissions and other materials for use on the hearing of that application.  Pursuant to those directions, several affidavits were filed and served and extensive written submissions were filed and exchanged.  However, when the matter was called on for hearing, counsel for the practitioner directly concerned announced that they sought leave to appear and make submissions for the practitioner although, of course, that practitioner has never been a party to the criminal proceedings and there is no suggestion that the practitioner could, or should, be joined in them.  It is obviously essential that the practitioner have notice of the application and have an opportunity to be heard and to make submissions, but the criminal proceedings are neither suitable nor adaptable to that purpose.  Accordingly, I raised with counsel for the CDPP, for the practitioner and for the three accused the question of whether or not the application for the orders in the nature of injunctions should be made in the civil jurisdiction on originating motion and, if so, whether all parties concerned might be prepared to accept an undertaking by the CDPP to file a formal notice of originating motion as soon as possible and for the other parties to agree to dispense with service, to undertake to file appearances in due course; and to dispense with all time limits so as to allow that motion to be heard and determined instanter in the place of the application which had been filed and served on notice in the criminal proceedings.  I also enquired whether all the parties would be prepared to agree that all the affidavits which had been sworn and filed in the criminal proceedings in support of, or in opposition to, the application of 15 October 2012 and all written submissions and other materials similarly filed or served in connection with that application could be treated as available to be read and relied upon in the fresh originating motion which would be dealt with if these procedures received assent from all concerned.  After taking instructions, all counsel readily agreed to this course and, after a brief adjournment, a form of originating motion was agreed upon.

3. This new notice of originating motion (INS 107 of 2012) is brought in the name of the CDPP as applicant and names only one respondent by the title 'A Legal Practitioner'.  Importantly, none of the three accused is a respondent to the motion.  The orders sought are:

   1.[XYZ], a barrister and solicitor of this Honourable Court, and Senior Associate with the law firm Clifford Chance, acting for the first and second accused persons in respect of Indictment Number INS 107 of 2012, namely Peter Mervyn Bartlett and Ronald George Sayers, be disqualified from providing legal representation, in any way whatsoever, to Peter Mervyn Bartlett and Ronald George Sayers (or any other accused person) in the said criminal proceedings and in any connected proceedings.

   2.[XYZ], a barrister and solicitor of this Honourable Court, and Senior Associate with the law firm, Clifford Chance acting for the first and second accused persons, in respect of Indictment Number INS 107 of 2012, namely Peter Mervyn Bartlett and Ronald George Sayers, be restrained from legal[ly] representing or assisting with the legal representation, in any way whatsoever, of Peter Mervyn Bartlett and Ronald George Sayers (or any other accused person) in the said criminal proceedings and in any connected proceedings.

   3.Such further or other order that the Court considers appropriate.

4. The originating motion also states that the grounds relied upon are set out in the affidavits of Mr Sean Malcolm Mullins affirmed 16 and 23 October 2012 respectively, and filed in the criminal proceedings.

5. Counsel for Messrs Sayers and Bartlett did not appear initially on this application, but there can be no doubt that each of those accused and their solicitors and counsel had notice of the original application of 15 October 2012 and that their solicitors were aware of the change in the nature of the proceedings to the present civil proceedings, including the variation in the parties.  No application has been made by or on behalf of Messrs Sayers or Bartlett to be joined as respondents to the new civil proceedings or to seek leave to be heard on them (with one exception which I shall explain later).  The accused Grace has been represented by counsel who appeared on the original application of 15 October 2012 and, by leave, remained in court while the fresh civil proceedings were argued.  She expressly submitted that Ms Grace did not wish to apply to be joined as a party to these fresh civil proceedings, and she did not seek leave to be heard in the course of them.

6. As is apparent from the descriptions of the respondent in these civil proceedings, the CDPP has, with considered deliberation, thought it unnecessary that the name of the legal practitioner who is sought to be enjoined should be publicly identified.  Among several reasons given by the CDPP for that position, it is important to record that the Director quite explicitly states that no actual breach of confidence, illegality or other wrongdoing is alleged against the practitioner and that the purpose of these proceedings and the relief sought is precautionary and in the nature of quia timet relief to prevent the possibility of any breach of confidence or other obligation or the appearance of any breach of confidence or other obligation in the future.  Accordingly, while the name of the practitioner appears on the court record in the body of the notice of originating motion, I therefore made an order, on the application of counsel for the practitioner, that this name should not be published outside the courtroom or referred to in the courtroom unless necessary, in which case further publication would be suppressed, pending further order.  The proceedings, therefore, continued on that basis.

7. Nevertheless, after submissions had been made by counsel in support of and against the originating motion, Mr A V McCarthy, counsel for West Australian Newspapers Ltd and TVW Channel 7, both well‑known Western Australian media corporations, sought leave to appear for those bodies to make submissions that the suppression or non‑publication orders should be discharged or modified to allow his clients and other media, if interested, to publish a full and fair report of the legal proceedings in accordance with what is frequently referred to as the principle of open justice.  I gave Mr McCarthy leave to appear for his clients and to advance submissions accordingly and he did so.  In response to that application, however, counsel for the two accused, Messrs Bartlett and Sayers, sought leave to appear to oppose any discharge or modification of the non‑publication or suppression orders because of the potential that publication of these matters may cause prejudice to the forthcoming trial.  In that regard, those submissions were also supported by counsel for the practitioner and, for similar reasons, by counsel for the CDPP.  Hence, upon the oral application made by the media outlets by Mr McCarthy, two of the accused, Bartlett and Sayers, did appear by counsel and were heard.

8. By an indictment dated 13 July 2012, the CDPP alleges the commission of an indictable offence by three persons, Peter Mervyn Bartlett; Ronald George Sayers and Deborah Jeanne Grace. The indictment charges that between about 15 August 2002 and 17 July 2004, at Perth, in the State of Western Australia and elsewhere, Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace (nee Cammiade) did conspire with each other and with Gregory John Dunn and Trevor Neil Thomson with the intention of dishonestly causing a loss to a Commonwealth entity, contrary to s 135.4(3) of the Criminal Code (Cth). That indictment followed an order made by the Magistrates Court in Perth on 18 April 2012 committing those three accused to this court for trial on that charge. The original prosecution notice against the three accused and a fourth person, whom has since been dealt with separately, had been signed on 4 December 2011 and filed in the Magistrates Court apparently on or about 21 December 2011.

9. Each of the three accused has pleaded not guilty to the charge and is presently on bail awaiting trial.  The trial has been listed for hearing for eight weeks or more commencing on 4 February 2013.  Several directions hearings have already been held in the matter and more are pending, including an application by the accused to stay the proceedings and for other relief.

10. As appears from the time allocated for its hearing, the trial is expected to be rather long and detailed.  Pursuant to directions already mentioned, the prosecutor has filed a statement of material facts which, essentially, is a statement of particulars enlarging on the allegations in the indictment.  This has been revised several times and the latest version is dated 19 September 2012.  This states that the loss alleged in the indictment is the non‑payment of income tax on the net income of the Barminco Unit Trust for the financial year ending 30 June 1999 which had been represented in the income tax returns as having been distributed equally to the PM Bartlett Family Trust and the RG Sayers Family Trust. 

11. These particulars further state that it will be alleged that the three accused conspired by agreeing that the Barminco Unit Trust would purport to issue special units to the two family trusts evidenced by false backdated documentation to show that the allotment had taken place during the 1999 financial year.  It is alleged that what was agreed by the conspirators was dishonest and done with the intention of causing loss to the Commonwealth by the non‑payment of income tax which was lawfully due.  The statement of material facts sets out, in further detail, the role of the alleged conspirators and associated entities and trusts and other material background.  That includes an assertion that Barminco Pty Ltd was made the corporate trustee of the Barminco Unit Trust in or about August 1989.  Various other historical details relating to the establishment and the operation of the PM Bartlett Family Trust, the AP Bartlett Family Trust and the RG Sayers Family Trust are also described. 

12. The statement of material facts then details the background of what is called the 'Appointor Arrangement' which is alleged to have had its origins in late 1999 as the result of the presentation of a tax scheme to Bartlett and Sayers.  Two legal opinions were obtained about the efficacy of the scheme proposed, one of which was largely supportive of the scheme and the other of which was not.  Various contingencies are alleged to have been discussed between the accused, including the establishment of funds to be used for the expense of litigation in anticipation that the Australian Taxation Office (ATO) would not accept the Appointor Arrangement.

13. The statement of material facts also alleges that in May 2000, certain further documents were signed and that the first interim Barminco distribution for the 2000 financial year was made in accordance with the Appointor Arrangement.  Further similar transactions took place in 2001.  By October 2001, officers of the ATO were making enquiries about the Appointor Arrangement. 

14. During the latter part of the 2002 financial year, discussions began between Bartlett and Sayers and another about a new tax scheme resulting in further legal opinion being obtained.  According to the allegations in the statement of material facts, this new legal advice advised against entering that new scheme and it also emphasised the implications of the criminal law for those involved in tax schemes which involved, or could be said to involve, tax evasion. 

15. In late June 2002, there were a series of meetings to finalise documentation concerning the profit distribution of the Barminco Unit Trust to the Bartlett and Sayers Family Trusts for the 2002 year.  The accused Bartlett and Sayers are alleged to have been present at these meetings together with a third person, another alleged conspirator who has not been charged. 

16. Later in 2002, meetings were held to deal with the accounts of the Barminco Unit Trust and the calculation of the 1999 financial year profit for the tax return then soon to be lodged.  The details of what is alleged to have happened are lengthy and complicated.  It is sufficient for present purposes to say that the prosecution case is that Bartlett and Sayers and another agreed to prepare backdated resolutions falsely recording transactions alleged to have occurred in 1999 in a manner which concealed and falsely represented what had been done with the profit of Barminco for that tax year.  In the statement of material facts, it is also alleged that in subsequent years, various other income tax returns and documents were prepared which also falsely misrepresented the distribution of the profit of the Barminco Unit Trust for the 1999 tax year.  Further measures are alleged to have been taken to similar effect and purpose in January 2004 by the accused Grace in relation to the lodgment of income tax returns for the PM Bartlett Family Trust and the RG Sayers Family Trust for the 2001 financial year.

17. One of the alleged co‑conspirators and promoters of the tax scheme is Gregory John Dunn.  He is named in the indictment but not charged.  He came to the attention of the Australian Crime Commission (ACC) in 2004 as part of its investigation named Operation Wickenby.  In 2005, the ACC began the issue of a number of search warrants in connection with, inter alia, the various tax schemes that Dunn, Bartlett and Sayers had been involved with during the years 1999 to 2004.  In addition, various persons, including Bartlett, Sayers, a third person and Grace (but not Dunn) were examined by the ACC pursuant to its compulsory powers. 

18. One of the alleged conspirators, Trevor Neil Thomson, admitted his involvement in the false interest transactions, was charged with an offence under s 135.4(3) of the Criminal Code (Cth), pleaded guilty and was sentenced to a term of imprisonment by McKechnie J: R v Thomson (Unreported, WASCR INS 172 of 2009, 13 May 2010.

19. Prepared written statements by Bartlett and Sayers were submitted to officers of the ACC in December 2010.  By these statements, each of Bartlett and Sayers denied any wrongdoing or involvement in the alleged false minutes and resolutions in relation to the Barminco Unit Trust.  Each claimed that he had acted honestly and had followed the advice of Dunn in good faith and without any knowledge of any illegality or fraud. 

20. It is, of course, vital to emphasise that the allegations in the indictment and the statement of material facts are only allegations which have been put in issue by the three accused by their pleas of not guilty to the charge.  As yet no evidence has been adduced and the trial has not begun.  Each of the accused is, and remains, presumed to be innocent of any wrongdoing.

21. However, from the foregoing, it will be evident that the events which are considered by the prosecution to be material to these charges cover an extended period from 1999 until the date when the charges were laid and involve many commercial dealings over several tax years from 1999 onwards.  It is also apparent that detailed investigations have been underway by the ATO, and then by the ACC, culminating in this prosecution by the CDPP from about 2005 onwards.  The investigation extends beyond the activities of the three accused and certainly includes the activities of Thomson (who, as mentioned, has already been charged, pleaded guilty and has been sentenced), and to other alleged conspirators, including Dunn. 

1. On any view, the events and transactions which are the subject of the charge occurred over an extended period both in Australia and also, so it is alleged, in Singapore.  It can, therefore, readily be inferred that the materials assembled for the prosecution and canvassed in the course of the investigation are very extensive. 

Basis for injunctive relief

1. The application by the CDPP for relief in the nature of injunctions against the practitioner is that the legal practitioner concerned, now an employee of the solicitors for the accused Sayers and Bartlett, was a former principal legal officer employed by the CDPP and was a former case officer for what the ACC had termed Operation Haycastle.  The present criminal prosecution against Messrs Bartlett, Sayers and Grace arose out of a Project Wickenby brief referred to the CDPP by the ACC and which had been codenamed Operation Haycastle.

2. In the affidavits filed in support of the application, it is deposed that the practitioner, as a former case officer for the Operation Haycastle referral, had access to confidential material and has provided legal advice over which a claim for client/legal privilege has been asserted.  By correspondence commencing with a letter from the CDPP to the solicitors for first the two accused and dated 23 December 2011, the CDPP informed those solicitors that the practitioner, in the capacity as a principal legal officer at the CDPP Perth office, has previously had access to material referred to in that office which is said to be directly relevant to the criminal proceedings and which includes, but may not be limited to, information which is security classified as protected and which enabled the practitioner to provide legal advice for which the CDPP asserts a claim of legal professional privilege.  In that letter, the CDPP contended that this constituted a real and clear conflict of interest should the practitioner have access to the brief of evidence in this matter, or be part of the legal team preparing the defence or having the carriage of the matter.  In that letter, the CDPP invited the solicitors for the two accused to consider the position of the practitioner and to advise on how it intended to respond.

3. This resulted in the solicitors for Messrs Bartlett and Sayers responding by requesting further details of the alleged confidential information to which the practitioner may have become privy and an explanation of why it might be considered that the practitioner was in any position of conflict, especially when, so it was contended, all material information in the possession of the prosecution had been, or would need to be, disclosed to the accused as part of the Crown's obligations of disclosure in the criminal proceedings - see Criminal Procedure Act 2004 (WA), s 42, s 95 and s 138.

4. From these beginnings, a chain of correspondence followed in which the solicitors for Messrs Bartlett and Sayers consistently repeated, but in greater detail, their requests for statements by the CDPP of what information or documents it was contended the practitioner had become aware by reason of her prior employment with the CDPP; why it was being contended that any of that was confidential; and how any such contention could be maintained in the light of the actual or necessary disclosure obligations of the prosecution which would continue throughout the pendency of the criminal proceedings.  As a result, as this correspondence progressed, there was more and more focus upon individual documents with, variously, contention and attempted refutation in relation to each of them, over whether any was confidential or not, or would, in any event, need to be disclosed.  Suffice it to say, this correspondence did not produce any resolution of the respective positions adopted by the CDPP, or by the solicitors for Messrs Sayers and Bartlett on the other hand, but it has resulted in the present application becoming dominated, in my view to a disproportionate extent, by controversies over which, if any, particular documents are confidential and, if so, whether such confidentiality has been or will soon be ended by disclosure obligations.

5. The materials relied on by the CDPP in this respect are the two affidavits of Mr Mullins affirmed 16 and 23 October 2012 and annexures.  Mr Mullins is employed by the CDPP as a principal legal officer in the tax and economic crime branch and his primary duties involve the carriage of Project Wickenby prosecutions and referrals.  He is currently the CDPP's case officer with respect to the prosecution brought against these three accused.  He became the case officer for the ACC's Operation Haycastle referral in about April 2011.  In this role, he is the successor to three other former case officers of the CDPP, the first of which was the present practitioner.

6. Among the annexures to Mr Mullins' affidavit is a list of documents accompanying a letter from the CDPP dated 3 September 2012 to the solicitors for Messrs Bartlett and Sayers.  That is referred to as a schedule which details the practitioner's involvement in the preparation of the prosecution case against those two accused and was provided in response to the request by their solicitors for further details about the basis upon which the Crown asserts that the practitioner, by now acting for the defence solicitors, has a conflict of interest.  That schedule contains a list of documents numbered from 1 to 83 (but with some omissions in the sequence) described as evidentiary material from the CDPP's Operation Haycastle folder and a further list of documents numbered from 2 to 75 (but again not continuous) said to be non‑evidentiary material from the CDPP's Operation Haycastle folder, all of which could be demonstrated to have come to the knowledge of, or involved some degree of participation by, the individual practitioner. 

7. In the course of the hearing, counsel for the practitioner sought leave to cross‑examine Mr Mullins upon his affidavit and particularly with regard to that schedule in order, so it was submitted, to contest the assertions of confidentiality relating to the several documents.  After hearing submissions on the application, which was opposed by the CDPP, I refused the application for Mr Mullins to be cross‑examined.  My reasons for doing so were that any such cross‑examination was very likely to be unnecessary and inconclusive, but also time‑consuming and likely to be productive of collateral issues which had the potential to dilate controversy unnecessarily.  I was of the view that there could be little doubt that many of the documents listed in the schedule, if not all, were at least at one time confidential and subject to privilege in the hands of the CDPP and possibly also subject to public interest privilege or immunity when in the possession of the ACC.  More significantly, I took the view that the question of whether or not the practitioner should be restrained in the manner sought by the CDPP involved considerations far broader than questions of whether individual documents were or were not confidential.  I considered that important issues arose because of the practitioner's former employment and membership of an office which had the overall responsibility for investigating and pursuing this prosecution.  Because of the degree of knowledge which any professional person in such a role could be expected to have and to have acquired from working in a team on such a project and for such a purpose that knowledge would almost certainly extend beyond the contents of any particular set or series of individual documents.  It was also apparent that the practitioner had had access to documents and materials which had a high security classification within the ACC and the CDPP.  While this was not a conclusive factor, it seemed generally to be undesirable to permit a cross‑examination which very possibly would intrude into these areas when the exact purpose and extent of the intrusion would be difficult to evaluate. 

8. In short, I considered that the proposed cross‑examination did not appear to have sufficient utility to render it necessary or desirable in the determination of the issues before the court.  On this question and in some other respects, it is not insignificant that there has been no affidavit or other evidence from the practitioner concerned describing the extent or nature of the knowledge, documents or other information of which the practitioner became aware or may have become aware because of the practitioner's previous employment in that role at the CDPP. 

9. Another factor leading to this decision to decline leave to cross‑examine and which applies also to the application generally, is that this prosecution is still in a comparatively early stage.  The trial has not been commenced and, apart from the written statements provided by Messrs Sayers and Bartlett to the ACC already mentioned, it is not clear exactly what issues or sub‑issues are likely to be contentious at the trial.  Without that knowledge, and particularly without any ability to discern what may become critical issues of fact at the trial, it is extremely difficult to say what information in the possession of the prosecuting authorities and the CDPP which has, or may have, come to the attention of the practitioner may turn out to have some special significance in the course of the trial.  It is very possible, indeed probable, because of the amount of the detail and the length of time which has expired, that even the practitioner at this point may not know the potential significance or sensitivity of information or instructions received or acquired during the practitioner's tenure of the role of case officer at the CDPP.  Some forgotten detail or some apparently insignificant feature of the information so gained or acquired may turn out to be significant and then remembered by the practitioner in the course of proceedings.  If that were to occur, very difficult questions could then arise as to whether or not the information was or remained confidential or privileged or whether it was free to be deployed in the interest of Messrs Bartlett and Sayers.  No cross‑examination of Mr Mullins at this point could be expected to deal with such potential situations which could quite easily arise in the course of this anticipated long trial.

Background facts

1. In the affidavit of Mr B D Luscombe sworn 25 October 2012, there are details of the dates when the practitioner commenced employment with the firm now acting for Messrs Bartlett and Sayers and its predecessor.  Mr Luscombe is a partner at the firm of Clifford Chance, the solicitors for those two accused, and is responsible for the oversight of the day‑to‑day care and conduct of their defence.  He deposes that the practitioner the subject of this application commenced employment as a senior associate at the firm of Cochrane Lishman Carson Luscombe on 25 October 2010.  That firm then merged with Clifford Chance at a later date and the practitioner has remained employed as a senior associate of the merged firm. 

2. There is also a short supplementary affidavit of Mr B D Luscombe of 25 October 2012 annexing some additional correspondence and this was also read on behalf of the practitioner.  These materials do not provide any detailed indication of the role which the practitioner has had in acting for the accused Bartlett and Sayers since leaving the office of the CDPP, but there is material in the annexures to the affidavits of Mr Mullins which discloses that, to a not insignificant extent, the practitioner has been so involved.  I hasten to repeat that there is no allegation made by the applicant that there has been any actual breach of fiduciary obligation or disclosure of confidential information so far.

3. The legal practitioner was employed at the office of the CDPP in Perth from 31 July 2000 until 15 October 2010.  It was only 10 days later that the practitioner was first employed by Mr Luscombe at the firm which was the predecessor of Clifford Chance.  The evidence does not exactly establish when Clifford Chance were first instructed to act for Sayers or Bartlett but they were so acting in January 2012, when the present charges were originally laid. 

4. A letter from Clifford Chance to the CDPP of 18 September 2012 confirms that the firm of Cochrane Lishman Carson Luscombe were acting for Messrs Bartlett and Sayers before this practitioner left the employment of the CDPP and that it was well known that they were acting for those men.

5. The practitioner's liaison with the ACC about Project Wickenby's Operation Haycastle investigation commenced in September 2006 and the CDPP internal report documents for October 2006 indicate that one‑quarter of the practitioner's workload was dedicated to Project Wickenby.  The CDPP and the ACC liaised with respect to Operation Haycastle before the opening of the CDPP Operation Haycastle file, which was opened in early March 2007, whereupon it was allocated to this legal practitioner as case officer.  All the Operation Haycastle material provided to the CDPP was securely  stored in an Australian Government top secret security classified room with limited access to a small number of CDPP employees who had the requisite security clearance, one of which was this practitioner. 

6. The practitioner remained case officer for Operation Haycastle until 12 February 2008, where upon it was transferred to another practitioner, and subsequently to a third, and ultimately to Mr Mullins in April 2011.  Notwithstanding these transfers, this practitioner continued to have involvement in the Operation Haycastle referral after the files were transferred to the second case officer.  In particular, the practitioner attended at a case on 7 November 2006, again on 9 February 2007, and at a conference with senior counsel on 16 May 2007, at another meeting on 17 July 2007, at an ACC meeting on 14 February 2008, at a presentation by ACC on the Haycastle referral on 18 August 2008.

7. One of the co‑conspirators named in the indictment is Trevor Neil Thomson, although he is not one of the accused. He was prosecuted by the CDPP separately while this practitioner was still employed by the CDPP. He was charged and convicted on his plea of guilty and sentenced in respect of similar conduct which gives rise to the charge against these two accused. The practitioner was involved in a process which resulted in the provision of a statement to the CDPP by Thomson and by the provision to him of the certificate under s 21E of the Crimes Act (Cth). Also while employed at the CDPP and being case officer for Operation Haycastle this practitioner was involved in the exchange of information between the CDPP and officers of the ACC, which included legal advice.

8. The present charges against Bartlett and Sayers were issued on 14 December 2011 and the CDPP made contact with Clifford Chance the next day in order to arrange service of the summons and related materials upon Messrs Bartlett and Sayers.  The CDPP learned on 16 December 2011 that the legal practitioner was involved with others at Clifford Chance, in acting for Bartlett and Sayers and wrote to Clifford Chance on 23 December 2011, protesting about the practitioner's involvement, asserting that it would constitute a conflict of interest.  That gave rise to the chain of correspondence which I have previously described and, in turn, to these proceedings.

9. From a perusal of documents within the office of the CDPP for which a claim of legal professional privilege and/or public interest immunity has been laid, Mr Mullins, in his further affidavit of 23 October 2012, says that these documents show that the practitioner:

   •attended significant meetings with ACC investigators about Operation Haycastle referral

   •liaised with the CDPP's senior decision makers about the Operation Haycastle referral

   •liaised with the CDPP's then senior counsel about the Operation Haycastle referral

   •prepared minutes and file notes of significant meetings which the practitioner had had with ACC investigators and internal staff of the CDPP

   •provided legal advice and was privy to legal advice provided by the CDPP to the ACC

   •provided reports to the CDPP's national Wickenby co‑ordinator about the progress of Operation Haycastle

10. Since the commencement of the prosecution the practitioner has been observed to have been present at several court appearances for this prosecution and at associated proceedings, together with Mr B D Luscombe and/or counsel for Messrs Bartlett and Sayers on the following occasions:

    •31 January 2012 (Supreme Court application by Bartlett and Sayers to suppress the judgment in R v Thomson)

    •14 March 2012 (committal mention hearing at Stirling Gardens Magistrates Court)

    •18 April 2012 (committal mention hearing at Stirling Gardens Magistrates Court)

    •23 May 2012 (committal mention hearing at Stirling Gardens Magistrates Court)

    •20 September 2012 (status conference at Supreme Court of Western Australia)

11. There is further evidence, which need not be itemised, to show that the practitioner was acting as an instructing solicitor to Mr Luscombe in the application to suppress the judgment in the Thomson case on 31 January 2012, that the practitioner has been copied into correspondence with respect to that application, has corresponded with the CDPP about matters relating to bail of the two accused, and that the practitioner has been copied into email correspondence to or from the CDPP and the solicitors for the third accused, D J Grace.

12. Also, while employed at the CDPP, the practitioner was the author of a seven‑page letter of legal advice to the ACC dated 27 November 2007 over which there is presently a claim by the CDPP for legal professional privilege which is contested and challenged by Messrs Sayers and Bartlett.

13. In response to these assertions, the solicitors acting for Messrs Bartlett and Sayers wrote to the CDPP on 18 September 2012 at some length and the letter includes the following paragraph:

    [The practitioner] recalled that [the practitioner] had been involved in a 'pre‑brief' in what is described as Operation Haycastle.  That involved [the practitioner] in communications with the Australian Crime Commission over general issues, such as the indemnity policy of the Commonwealth Director, and the general manner in which a fraud matter should be investigated.  Any facts of which [the practitioner] obtained knowledge during [the practitioner's] involvement in Operation Haycastle were no longer confidential to your office before [the practitioner] ceased ‑ employment with you.  In January 2011 your office provided material, including the full sentencing brief for Thomson, to our predecessor firm, Cochrane Lishman Carson Luscombe.  [The practitioner] has no recollection of any information that [the practitioner] was privy to during … involvement in the matter that could still be described as confidential to your office.  The documents identified in the Schedule [the tabulated documents referred to in Mr Mullins' affidavit] have not changed [the practitioner's] recollection in any way.  We note that chronologically the last document identified in your Schedule was created more than four years ago and over three years before our clients were charged.

14. It is appropriate here to observe that while many documents from the CDPP's office may indeed have been supplied to the accused as part of the disclosure process, it is evident that there are still documents in the possession of the CDPP for which claims of legal professional privilege and/or public interest immunity are made and which have not, at least at present, been disclosed.  Furthermore, not all the information of a confidential or privileged kind which has come to the attention of the practitioner because of presence at meetings, liaison with the other CDPP or ACC officers or, indeed, the contents of files which the practitioner may have read or perused can be said to have been other than confidential or to have lost their confidentiality by subsequent disclosures or developments.  The practitioner's presence at meetings with senior counsel for the CDPP at the time when the investigation was being reviewed is particularly likely to have involved sensitive and confidential evaluations, discussion of strategy, the need for evidence and other tactical and confidential subjects.

1. In addition to the submissions advanced by Clifford Chance in the correspondence with the CDPP asserting that materials which have come to the notice of the practitioner can no longer be recollected; have since been disclosed or otherwise lost their confidentiality; the solicitors acting for Messrs Bartlett and Sayers also contended that there have been episodes of delay by the CDPP in following up requests for clarification of the alleged confidentiality of documents and of the assertion that the practitioner is or is likely to be in a situation of conflict of interest.  These episodes are said to have occurred between December 2011 and October 2012 when the precursor of this application was instituted.  They have, on occasions, involved the passage of two months or so between demands for further explanation by Clifford Chance and responses by the CDPP.  It is asserted in the correspondence and in the written submissions on behalf of the practitioner that these delays amount to discretionary factors which should disincline the court to grant relief or any remedy in the nature of an injunction.

2. As to this, it is apparent that the senior officers of the CDPP, realising that the issues which were being raised were likely to be significantly sensitive and potentially embarrassing, have plainly attempted to deal with the situation as diplomatically as possible.  On or about 3 July 2012 the Deputy Director of Public Prosecutions and the Senior Assistant Director of the Tax and Economic Crime Branch met with Mr B D Luscombe to discuss several matters, including matters relating to the CDPP's objection to the practitioner's involvement in the defence of Messrs Bartlett and Sayers.  That meeting led to further correspondence and the provision of some further information or explanation by the CDPP to the solicitors for Messrs Bartlett and Sayers but, as is now well apparent, did not resolve the controversy.  Despite the time which has elapsed before the matter has been brought formally to the court, I consider that the position and objections by the CDPP have been sufficiently clear since January 2012, at the latest, to demonstrate that the CDPP had serious reservations about the practitioner continuing in any role as legal advisor to these two accused.  Nothing in the correspondence which has been exchanged suggests any withdrawal, modification or likely abandonment of that stance by the CDPP nor, in my view, can it give rise to any implication that the CDPP would not pursue the matter.  As remarked earlier, these criminal proceedings are still at a relatively early stage and the present application has been brought in ample time for it to be heard and resolved before the commencement of the trial.  I see, therefore, no basis upon which any discretionary remedies available to the applicant from this court, if indeed any is available and would otherwise be granted, should be withheld or modified because of the time which has elapsed in dealing with this controversy.

Control over legal practitioners

1. The jurisdiction of this court over legal practitioners who are officers of the court and the principles upon which that jurisdiction may be exercised are well established and accepted by the parties to this motion.  There is a large measure of congruence in the submissions which have been made on behalf of the applicant and the respondent in this regard and in the authorities cited.  It is necessary to set out these principles. 

2. This court has an inherent jurisdiction to control and deal with members of the legal profession and to ensure that the administration of justice is not brought into disrepute by the conduct of any practitioners:  Newman v Phillips Fox (a firm) [1999] WASC 171; (1999) 21 WAR 309, 314 and Tottle Christensen v Westgold Resources NL [2003] WASCA 224 [6]. The fact that a legal practitioner has acted for a particular client in one matter does not mean that the legal practitioner may not act against that client in another matter or will be restrained from doing so: Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831. The court may restrain a legal practitioner from continuing to act for a party to the litigation if a reasonable person informed of the facts might reasonably anticipate a danger of misuse of confidential information of a former client and that there is a real and sensible possibility that the interest of the practitioner in advancing the case and the litigation might conflict with the practitioner's duty to keep the information confidential and to refrain from using that information to the detriment of the former client: Grimwade v Meagher [1995] 1 VR 446. In Fordham v Legal Practitioners Complaints Committee (1997) 18 WAR 467, 489 ‑ 490 Malcolm CJ referred to a solicitor's duty of professional loyalty to clients as being fundamental to the notion of conflict of interest when the learned Chief Justice said:

   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 confidential information provided in the course of the former relationship to the detriment of the former client …

3. The respondent by counsel also accepts that there is an independent equitable obligation of loyalty which forbids a solicitor acting against a former client in the same matter or in a closely related matter:  Sent and Prime Life Corporation Ltd v John Fairfax Publications Pty Ltd and Hills [2002] VSC 429 [98] ‑ [104].

4. Drawing upon these general principles, counsel for the CDPP submits that this legal practitioner should be restrained from representing the accused because continuation to do so would or would threaten to:

   •present a real risk of a breach of a duty of confidence to the CDPP

   •undermine the due administration of justice and the integrity of the judicial process

   •breach the legal practitioner's duty of loyalty to the CDPP

5. Counsel for the applicant referred to the observations of Steytler J (as his Honour then was) in Newman v Phillips Fox [18] where his Honour said:

   The justification for intervention by the court in applications of this kind has traditionally been founded upon one or more of three bases.  These are the protection of confidential information, restraint from a breach of fiduciary duties in the context of a conflict of interest and the court's control over the conduct of solicitors as its officers.

6. In a later case of Ismail‑Zai v State of Western Australia [2007] WASCA 150 [19] Steytler P enlarged on that rationale by saying:

   There is a considerable body of case law touching upon the circumstances in which a lawyer may not act against a former client.  Most of the cases have arisen in a civil context.  They reveal that, when lawyers have been restrained from acting against former clients, it has been for one or more of three reasons.  The first is that in ensuring the protection of confidential information that has been provided by the client to the lawyer in the course of the lawyer/client relationship:  see, for example, Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831; D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118; Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; (1993) 42 FCR 307. The second is 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: see, for example, Black v Taylor [1993] 3 NZLR 403; Grimwade v Meagher [1995] 1 VR 446; Newman v Phillips Fox (a firm) [1999] WASC 171; (1999) 21 WAR at [21] ‑ [25]; Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 at 571 ‑ 582 and the cases there cited. The third is that of preventing a breach of a supposed fiduciary duty of loyalty owed by the lawyer to the former client notwithstanding the termination of the retainer: see, for example, Wan v McDonald [1992] FCA 4; (1992) 33 FCR 491 at 512 ‑ 513 per Burchett J; Fordham v Legal Practitioners' Complaints Committee(1997) 18 WAR 597 at 489 ‑ 490; McVeigh v Linen House Pty Ltd [1999] PCSA 138; [1999] 3 VR 394 …

7. Counsel for the applicant cited Mallesons v KPMG Peat Marwick (1990) 4 WAR 357, 369 for the proposition that it does not matter that information imparted in confidence within a solicitor‑client relationship may be available from other sources, because it remains a 'springboard' for activities detrimental to the person who made the confidential communication. That proposition is borne out by that case and I accept it. It is also the case that once a former client has established that a legal practitioner is in possession of information which was imparted in confidence, an evidentiary burden shifts to the practitioner to show that there is no risk that the information will come into the possession of those now acting for the other party: Ismail‑Zai v State of Western Australia [26] (Steytler P) and that a practitioner's lack of any particular recollection of the earlier matter will not be determinative as there remains the possibility that his or her recollection might be refreshed during the course of the later matter.  In the present case, counsel for the practitioner submits that the applicant has not produced evidence of any confidential information possessed by the legal practitioner as a result of the employment within the office of the CDPP which is in any sense relevant to or potentially relevant to the prosecution which, if disclosed to the accused, would put the prosecution at risk.  With respect, that is putting the test too high.  First of all, it is very difficult, if not impossible, and at any rate would be highly undesirable, to conduct an enquiry as to whether there is any such information in the possession of the CDPP or of the practitioner 'which would put the prosecution at risk' when the trial is still pending.  The test is simply whether there is confidential information which has come to the practitioner by virtue of employment within the office of the CDPP which may not be disclosed without a breach of confidence.  It is not necessary to show that the confidential information is of such a character that it may disadvantage the prosecution.  Simply, its character being confidential means that it ought not be disclosed and that remedies are available to prevent disclosure if that is threatened.  More importantly, as the authorities cited already establish, preservation of confidence is only one basis for the jurisdiction to restrain legal practitioners from acting against a former client and in the present case, as I have already remarked, the prominence given to it risks eclipsing the other important considerations.

8. Turning to other bases for imposing a restraint, namely conflict of interest and breach of duty of loyalty, counsel for the respondent submits that passages in Ismail‑Zai v State of Western Australia at [24] and [70] ‑ [71] suggest that the court should not be limited by a concept like 'duty of loyalty' when the issue is whether there is an impropriety of a kind which is likely to undermine the integrity of the judicial process so that, correspondingly, it becomes crucial to identify precisely what obligations towards the former client or to the court have been or may be breached or imperilled by the legal practitioner acting against the former client. There is every reason to emphasise the need to identify these factors because, with respect to protection of a former client's interests, it is clear that there is no obligation on a solicitor or counsel as a fiduciary to act positively in the best interests of the person to whom the duty of good faith as a former client may be owed once the retainer has been terminated for then the practitioner has no obligation thereafter to advance the interests of the client: Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222; [1999] 1 All ER 517 and Pilmer v The Duke Group Ltd (in liq) [2001] HCA 165; (2001) 207 CLR 165, 195 ‑ 197.

9. I now address the power of the court to restrain the solicitor from acting because of an alleged conflict of interest on occasions not limited to those instances where the future action of the practitioner may imperil the confidences of the former client. I referred to the ample power of the court to control the conduct of solicitors or legal practitioners in this setting in Holborow v MacDonald Rudder [2002] WASC 265 [23] and again in Izmail‑Zai v State of Western Australia [70].  For the moment I shall first confine a consideration of these principles to a situation where a claim to restrain a legal practitioner from acting rests upon the risk of disclosure of confidences of the former client.  In the present case, there has been much reliance placed by the respondent on submissions to the effect that the duty of disclosure by the prosecution in the present criminal trial means, or will mean, that all material information in the possession of the CDPP will be disclosed to Messrs Sayers and Bartlett so that there can be no possibility of the practitioner remaining in the possession of such confidences.  The first observation to make in this regard is that the preservation of confidences goes well beyond preventing disclosure or access to written documents and that unrecorded information, discussions and advices such as occur at meetings or conferences are within the realms of the client's confidences which are entitled to protection.  The next is that even in cases of total material disclosure by a prosecution there will remain, in many if not most cases, privileged legal advice, opinions of counsel, notes of conferences and many other pieces of information which, on any account, will be privileged or subject to public interest immunity. 

10. In a case like the present, where the trial has not begun and where one must have regard to the multiplicity of information likely to have been available within the office of the CDPP while Operation Haycastle was under investigation and implementation it would, I consider, be quite unreasonable and unjustifiable to assume that there would be no, or no significant, confidences of the CDPP which were entitled to protection and preservation and which had come to the notice or attention of this practitioner even though the practitioner may have no present recollection of them.  Some at least of these have been identified in the schedule of documents referred to in annexure 5 of the affidavit of Mr Mullins of 16 October 2012, although I accept that there may be controversy as to whether other documents in that list are truly confidential.  Even an issue over whether or not some of the documents are, in fact, confidential or not gives rise to a potential conflict of interest because, if the solicitor is aware of the content of the documents for which the CDPP chooses to claim privilege from disclosure, then any use of that or disclosure of that content may in itself be a breach of the duty of confidence or of good faith.  Consequently, I am of the view that sufficient has been shown in the present case to justify restraining this solicitor from acting in any capacity which would involve the practitioner advising or representing Messrs Bartlett and Sayers in the present proceedings or in related proceedings.

Other bases for restraint

1. There is, however, if anything, a more substantial basis for the court restraining the legal practitioner from so acting which rests upon the court's power to supervise its officers and to ensure the integrity of legal proceeding quite apart from the preservation of identified or identifiable confidential information.

2. The tripartite approach to considering whether a lawyer ought be restrained from acting in a matter as described by Steytler J in Newman v Phillips Fox, and again in Izmail‑Zai v State of Western Australia, in the passages already cited, recognises that such restraints may be imposed in cases going beyond or not involving a threat or possibility of a breach of confidence.  The second of those bases involving the inherent supervisory jurisdiction of a court to act to ensure the due administration of justice and the third of preventing a breaching of a supposed fiduciary duty of loyalty owed by the lawyer to the former client in certain circumstances (the details of which are not exhaustively settled) will sometimes, but not always, involve and overlap with notions of confidence.  I have already concluded that there is a sufficient potential for a risk of a breach of confidence in the present case to restrain the legal practitioner from acting for or advising Messrs Sayers and Bartlett but it is important that these other bases for restraint be recognised and examined because of their application in this case.  To do so involves a brief examination of authorities dealing with these forms of restraint.

3. Black v Taylor [1993] 3 NZLR 403 is a decision of the New Zealand Court of Appeal in which a restraint was imposed upon a legal practitioner from continuing to act for one member of a family where the practitioner had previously acted for several members of the same family and a deceased relative. The practitioner was acting for a claimant who had brought proceedings against the estate of the deceased and other members of the family alleging breach of an agreement as to reciprocal wills. Richardson J referred to the role of the court in acting to protect and preserve the due administration of justice and to the associated basic need to preserve confidence in the judicial system. His Honour examined a series of Australian and Canadian cases, including a decision of O'Rourke J in Magro v Magro (1989) FLC 92‑005 in the Family Court of Australia, where his Honour cited with approval the observations of Bryson J in D&J Constructions Pty Ltd v Head (1987) 9 NSWLR 118. O'Rourke J observed at 77,191 that by reason of the previous role of counsel in acting for an opposing party in the litigation that:

   By dint of his lengthy retainer, [the practitioner] is in possession of at least some privileged material belonging to the wife which could be put to good use by the husband.  This might only consist of impressions of the wife's personality gained after many hours of confidence, which could be exploited by a skilful advocate presented with those impressions.  In these circumstances the appearance of justice will, to borrow Bryson J's words, not long 'survive any general impression that lawyers can readily change sides'.

4. Then at 412 Richardson J concluded:

   Disqualification will ordinarily be the appropriate remedy where the integrity of the judicial process would be impaired by counsel's adversarial representation of one party against the other.  A decision to disqualify is not dependent on any finding of culpable conduct on the lawyer's part.  Disqualification is not imposed as a punishment for misconduct.  Rather it is a protection for the parties and for the wider interests of justice.  The legitimacy of judicial decisions depends in large part on the observance of the standards of procedural justice.  Where the integrity of the judicial process is perceived to be at risk from the proposed or continuing representation by counsel on behalf of one party, disqualification is the obvious and in some cases the only effective remedy although considerations of delay, inconvenience and expense arising from a change in representation may be important in determining in particular cases whether the interests of justice truly demand disqualification.

1. McKay J in a separate judgment in Black v Taylor also reviewed the English, Australian and Canadian authorities and cited with approval the passage in Wan v McDonald (1992) 33 FCR 491; (1992) 105 ALR 473 where a solicitor who had acted for both parties sought to act against one of his former clients in the interest of a preferred client. There Burchett J said (494):

   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.

2. McKay J then observed that a common feature of the cases which he had examined was that the issue was approached as one of the court's control over solicitors in a conflict of interest situation and that it was not regarded as a breach of confidence issue founded on the law of confidence.

3. In Wan v McDonald Burchett J had also said (512 ‑ 513):

   The emphasis in the judgments was placed on the solicitor's duty to safeguard confidential information of his client.  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.

4. Another example of protective intervention by the court to control a solicitor from acting in litigation against a former client, where there was a risk of conflict of interest but no disclosure of confidential information is McVeigh v Linen House Pty Ltd [1999] VSCA 138; [1999] 3 VR 394. In that case, Batt JA (Callaway JA agreeing) said [23]:

   The authorities establish that a court will restrain a solicitor from acting for a litigant not only in order to prevent disclosure of confidences of a client or former client, but also to ensure that the solicitor's duty of loyalty to the former client is respected, notwithstanding termination of the retainer, and to uphold as a matter of public policy the special relationship of solicitor and client.

5. Batt JA then cited the passage from Wan v McDonald which has previously been set out, and went on to observe [25]:

   In Holdsworth and Others v MR Anderson & Associates Pty Ltd and Others (unreported 26 August 1994) Phillips J, speaking of a solicitor who having once been engaged for a client to effect a certain transaction was then retained by another to act against the former client in litigation involving that very same transaction, said at p17:

   'In such a situation I am strongly disposed to the view that the solicitor ought not to act, and I do not think that that depends upon the existence or not of confidences imparted on the earlier occasion that now merit protection.  It seems to me to depend rather upon the existence of the contract of retainer that was made in the first place, than upon the existence of confidences disclosed and meriting protection against misuse.'

6. In Izmail‑Zai v State of Western Australia [2007] WASC 150 at [70] I referred to the cases where the restraint power had often been referred to as ensuring 'that the solicitor's duty of loyalty to the former client is respected, notwithstanding termination of retainer, and to uphold, as a matter of public policy a special relationship of solicitor and client: McVeigh v Linen House Pty Ltd (398) and mentioned further cases in this jurisdiction where that approach had been followed.  There I went on to observe, as I think I should again, that this approach demonstrates that the 'duty of loyalty' does not involve any connotation of partisanship or sympathy with the former client or any right of the former client to prevent the solicitor or counsel from acting against him or her in some other cause, not involving any encroachment on the solicitor's duty of good faith.  There I mentioned that it is not possible, nor would it be justifiable in the public interest, that by one act of engagement of a solicitor or counsel on a previous occasion, the client could achieve a position which would forever prevent the solicitor or counsel then engaged from acting against him in the future.  Because of this, I stressed that it was essential, when any issue such as the present arises, to identify precisely what obligations towards the former client have been, or may be, breached or impelled by the practitioner acting against the former client. 

7. Clearly enough, the protection of confidences comes clearly within this principle, but confidences go beyond confidential information or instructions and include awareness of strengths or flaws of character, past convictions or discreditable behaviour, a direct appreciation of the client's pecuniary interests and motives or an understanding of his network of friends, relatives and connections.  Any or all of these matters, if gleaned from a professional relationship with a former client on previous occasions, provide the legal practitioner concerned with a knowledge and intimacy of the client's affairs which, potentially, could be deployed to the disadvantage of the former client at the hands of an opponent.  Advantages of this kind, even if obtained indirectly out of the preceding professional relationship, could not be used against the interests of the former client in subsequent proceedings without a very perception and, in many cases, the actuality, of a conflict of interest being utilised to the disadvantage of the former client or without a breach of a fiduciary obligation to keep silent about knowledge professionally acquired.

8. In Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 Brereton J examined the principles and the authorities dealing with the restraint of a previous solicitor acting against a former client and made restraining orders on grounds other than the risk of disclosure of confidential information. This was a case where the applicant relied on a broader scope of the court's inherent jurisdiction to preserve the proper administration of justice by restraining a legal practitioner from acting in a particular case relying on Bowen v Stott [2004] WASC 94 [51] (Hasluck J); Re LPO Transact Pty Ltd (in liq); Williamson v Nilant [2002] WASC 225 [25] (McKechnie J); and my decision in Holborow v MacDonald Rudder.  At  [32] Brereton J concluded that the jurisdiction of the court to intervene at the suit of a former client remains notwithstanding the cessation of the previous retainer when founded solely on obligations of confidence:  Prince Jefri Bolkiah (234 ‑ 235) and the other authorities mentioned at [32]. After a comprehensive examination of the authorities at [31] ‑ [75] his Honour then concluded that they established the following:

   •During the subsistence of a retainer, where the court's intervention to restrain the solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court's jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests.

   •Once the retainer is at an end, however, the court's jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure).

   •After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court's intervention, such duty having come to an end with the retainer.

   •However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice.

   •The test to be applied in this inherent jurisdiction is whether a fair‑minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

   •The jurisdiction is to be regarded as exceptional and is to be exercised with caution.

   •Due weight should be given to the public interest and the litigant not being deprived of the lawyer of his or her choice without due cause.

   •The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.

9. I respectfully agree with and adopt the principles distilled by Brereton J from his Honour's examination of the cases.

10. In the present case, both when this legal practitioner was in the employ of the CDPP and acting as a case officer on Operation Haycastle and, after the practitioner's departure from that employment and on gaining employment with the solicitors now acting for Messrs Bartlett and Sayers, the practitioner concerned was acting as one of a team of several lawyers engaged in this major litigation.  There has been no suggestion that restraining this practitioner from acting as a result of the present application would imperil the defence of Messrs Sayers or Bartlett or, at least at this point, force them to change solicitors or counsel.  The role of a legal practitioner is, no doubt, important but the complexity and size of the litigation and because Messrs Sayers and Bartlett have already had a long established relationship with their existing solicitors and counsel, it has not been submitted that a restraint of any kind would necessitate a complete change of legal representatives for them.

11. Just as I am satisfied that there are confidences which may not presently be fully appreciated or remembered which have the potential to be imperilled if the practitioner continues to act or advise Messrs Bartlett or Sayers, I consider that the appearance of the practitioner continuing so to act and advise could also create a view or anxiety in the minds of fair‑minded observers that the due administration of justice, including the appearance of justice, for the protection of the integrity of the judicial process and the prevention of a not insignificant risk that there may be, however unwittingly, a breach of fiduciary obligation means that the solicitor should be restrained from continuing to advise or to act in any way for Messrs Sayers or Bartlett in the present proceedings or in any connected proceedings.

12. The applicant has sought an order in the nature of an injunction by the terms of the originating motion which have previously been set out.  The practitioner, by counsel, has very freely and openly offered that, if the submissions advanced on the practitioner's behalf are not accepted, the practitioner would undertake not to act for, or to advise, either of the two accused further in relation to the present prosecution or in relation to any connected matter.  A form of a written undertaking in this behalf has been proffered to the court.  Counsel for the applicant have, however, submitted that the undertaking offered is not adequate and that final orders in the nature of injunctions should be made by this court.  I note that in McVeigh v Linen House Pty Ltd a suitable undertaking was offered to the court by the solicitors concerned and that on the basis of that undertaking the court declined to order an injunction.  I consider, with respect, that there is much to be said for that approach and there would seem to be every possibility that an undertaking in satisfactory terms could be drawn and offered to the court by this practitioner or, if not, in the absence of other compelling reasons, the court could require an undertaking in the form of any injunctions or restraining orders that would otherwise be made. 

13. It would seem, in these circumstances, that it would be desirable to allow the parties an opportunity to confer over the terms of an undertaking which the court could then accept or, failing which, the court itself would formulate the undertaking or make orders in the nature of an injunction.

Principles of open justice

1. I have already referred to the leave which was granted to counsel for West Australian Newspapers and TVW Channel Seven to appear and make submissions to the effect that the interim suppression orders restraining publication of the name of the solicitors or the evidence in the prosecution canvassed on this application should be set aside or varied.  Counsel submitted, and I accept, that the criminal prosecution already on foot is litigation of major public interest and importance of which the public are entitled to have a true and fair report.  So by extension, proceedings such as these canvassing the issue of whether or not a legal practitioner previously involved in the litigation on one side, but now employed by the firm of solicitors acting on the other side, should be allowed to continue in that new role is also a question of public interest and importance upon which a full and fair true report should be allowed by the media.  There has been no suggestion that there should be no media report of these proceedings at all or that the public is not entitled to have a full and fair true report of the nature of the proceedings or their outcome.  Rather, the question is whether or not the name of the legal practitioner concerned should be published or that details of the evidence, confidential information or other associated matters available to that practitioner from prior employment at the office of the CDPP and acting as case officer for Operation Haycastle should be available for publication.

2. The importance of the open system of justice and legal proceedings in a cause being conducted in public has been examined and reviewed on many occasions.  They have been examined in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, recently by the Court of Appeal in Medical Board of Western Australiav A Medical Practitioner [2011] WASCA 151, and in Re Allison Ruth Robbins SM; Ex parte Western Australian Newspapers Ltd [1999] WASCA 16. The principles were also examined in TK v Australian Red Cross Society (1989) 1 WAR 335 and in Re Bromfield; Ex parte Western Australian Newspapers Ltd (1991) 6 WAR 153.

3. These authorities and the underlying principles all emphasise that, subject to any statutory provision to the contrary, the starting point should always be in favour of an unrestricted public access to judicial proceedings and the ability of the media, the press and the public to have unrestricted access to those proceedings.  Any restraints upon those principles of open access to judicial proceeding should be rare and should only occur where it is clearly necessary to impose such a restraint.

4. One consideration, however, which needs to be weighed carefully is whether or not disclosure of the evidence or the name of the practitioner or details of the evidence likely to be adduced at the criminal trial may affect or prejudice the prospects of a fair trial of the persons accused.  As mentioned, they have already been indicted and face a major lengthy trial commencing in February next.  There may be scope for some inference or speculation, however unreasonable or unmerited, that by what has happened there has been some threat or attempted threat to the independence of the system of criminal trial or the integrity of its processes and, again without substance but within the realms of possibility, that if inferences or speculation of this kind take hold they may be interpreted by some as creating unjustified advantage for the accused.  I stress again no allegation or suggestion of actual impropriety or breach of confidence has been put forward by the prosecution and that these proceedings have been initiated entirely as protective measures to safeguard against any possibility that this might happen. 

5. Counsel for both the prosecution and the accused have combined to submit that, in order to protect the trial process there should be no detailed publication of the evidence on this application or the name of the practitioner.  Counsel for the legal practitioner has made the same application, coupled with renewed emphasis of the acknowledgement by the applicant that no actual breach of confidence or other impropriety has occurred.  The personal interests of the practitioner on an issue like this are, I am afraid, very much a secondary consideration.  The overwhelming factor for consideration in the present instance is the prevention of any possible threat to the fairness or independence of the forthcoming trial especially by the creation of any risk or appearance that in some way or another the integrity of the criminal process has been jeopardised.  That being so, I consider that the suppression orders previously made should continue but that the result of these proceedings and their nature can be the subject of a true and fair report by the media.

6. I will allow the parties an opportunity to confer about the terms of any proposed undertaking and, failing agreement, the matter can be brought on again for final orders.