Dyer v Chrysanthou (No 2) (Injunction)

Case [2021] FCA 641

FEDERAL COURT OF AUSTRALIA

Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641

File number: NSD 426 of 2021
Judgment of: THAWLEY J
Date of judgment: 27 May 2021
Date of publication of reasons: 11 June 2021
Catchwords: PRACTICE AND PROCEDURE – application for injunction to restrain counsel from acting for the Hon Charles Christian Porter in defamation proceedings – whether there is a real and sensible possibility of the misuse of confidential information – whether the proper administration of justice requires counsel be restrained from acting – whether any discretionary reasons for refusing relief – application allowed   
Legislation:

Federal Court of Australia Act 1976 (Cth) s 23

Defamation Act 2005 (NSW) s 30

Cases cited:

Brand v Monks [2009] NSWSC 1454

Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307

Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252

Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1

Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612

Grant v Downs (1976) 135 CLR 674

Grimwade v Meagher [1995] 1 VR 446

Jones v Dunkel (1959) 101 CLR 298

Kallinicos v Hunt (2005) 64 NSWLR 561

Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475

Nash v Timbercorp Finance Pty Ltd (2019) 137 ACSR 189

Sent v John Fairfax Publication Pty Ltd [2002] VSC 429

Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501

Yunghanns v Elfic Pty Ltd (unreported, Supreme Court of Victoria, Gillard J, 16 July 1998)

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 153
Date of hearing: 24-27 May 2021
Counsel for the Applicant: M Hodge QC with S Chordia
Solicitor for the Applicant: Marque Lawyers
Counsel for the First Respondent: N Hutley SC with J McKenzie
Solicitor for the First Respondent: Kennedys
Counsel for the Second Respondent: C Withers SC with E Bathurst
Solicitor for the Second Respondent: Company Giles

ORDERS

NSD 426 of 2021
BETWEEN:

JOANNE ELIZABETH DYER

Applicant
AND:

SUE CHRYSANTHOU SC

First Respondent

THE HON CHARLES CHRISTIAN PORTER

Second Respondent

ORDER MADE BY:

THAWLEY J

DATE OF ORDER:

27 MAY 2021

THE COURT ORDERS THAT:

1.Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), Ms Theognosia (Sue) Chrysanthou SC be restrained from acting for the applicant in proceedings NSD206/2021 in the Federal Court of Australia.

2.The first and second respondents each file a document of no more than three pages identifying their positions with respect to costs and any submission in relation thereto by 5 pm on 1 June 2021.

3.The applicant file a document in response on the issue of costs of no more than three pages by 5 pm on 2 June 2021.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(revised from transcript)

THAWLEY J:

  1. This is an application by Ms…

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AGLC
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Case
[2021] FCA 641
Decision Date

CaseChat Overview and Summary

The case of Dyer v Chrysanthou (No 2) (Injunction) involved Ms Dyer seeking an injunction to prevent Ms Chrysanthou, a legal practitioner, from acting for the Hon Charles Christian Porter in defamation proceedings. Ms Dyer argued that Ms Chrysanthou had obtained confidential information during their prior lawyer-client relationship and that allowing Ms Chrysanthou to represent Mr Porter would compromise the integrity of the judicial process. The matter was heard in the Federal Court of Australia, where the central legal issues revolved around the misuse of confidential information and the need to protect the administration of justice.

The Court was required to determine whether there was a real and sensible possibility that Ms Chrysanthou would misuse confidential information obtained during her prior representation of Ms Dyer. Additionally, the Court needed to assess whether the proper administration of justice required Ms Chrysanthou to be restrained from acting for Mr Porter. The Court also considered whether there were any discretionary reasons that might warrant refusal of the injunction.

In its decision, the Court found that Ms Chrysanthou was indeed in a lawyer-client relationship with Ms Dyer, and that confidential information had been imparted to her in that context. The Court determined that there was a real and sensible possibility that Ms Chrysanthou would misuse this confidential information in her representation of Mr Porter, thereby compromising the integrity of the judicial process. The Court concluded that no discretionary reasons existed to refuse the injunction and thus granted the relief sought by Ms Dyer.

As a result, the Court ordered that Ms Chrysanthou be restrained from acting for the Hon Charles Christian Porter in the defamation proceedings in the Federal Court of Australia. Furthermore, the Court mandated that the parties file specific documents addressing their positions on costs by certain deadlines.

Orders

Orders of the court

1. Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), Ms Theognosia (Sue) Chrysanthou SC be restrained from acting for the applicant in proceedings NSD206/2021 in the Federal Court of Australia.

2. The first and second respondents each file a document of no more than three pages identifying their positions with respect to costs and any submission in relation thereto by 5 pm on 1 June 2021.

3. The applicant file a document in response on the issue of costs of no more than three pages by 5 pm on 2 June 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Ms Dyer relied upon two alternative grounds on which the Court might restrain a legal practitioner from acting for a person who has retained that practitioner. The first was based on the danger of misuse of confidential information received by Ms Chrysanthou in the context of her dealings with Ms Dyer. The second was based on the need to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice. Whilst these two bases provide distinct justifications for preventing a legal practitioner from acting, there is potential overlap. The fact that confidential information generally is, and might be shown in fact to have been, provided to a legal practitioner in the course of acting for a client is relevant to whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be prevented from acting in a situation which might, or might be seen to, be against the former client’s interests.BACKGROUND FACTS On 9 November 2020, the ABC broadcast a Four Corners programme entitled “Inside the Canberra Bubble”. The episode addressed the conduct of some federal politicians, including Mr Porter. Ms Dyer had been interviewed for that episode on 8 July 2020. The episode featured interviews with a number of current and former politicians, a former staffer, a barrister and Ms Dyer. Only part of the interview with Ms Dyer was broadcast. What was not aired included matters Ms Dyer had disclosed to Ms Milligan in their interview, in particular her knowledge of an allegation made by Ms Dyer’s friend, “AB”, that Mr Porter had raped AB in January 1988 when they both attended a debating tournament held at the University of Sydney. On 14 November 2020, The Australian newspaper published an article written by Ms Janet Albrechtsen entitled “Vested interests cornered by shoddy ABC hatchet job”. The article concerned the Four Corners episode of 9 November 2020. The article included the following regarding Ms Dyer: Four Corners did not mention that Dyer was a failed Labor candidate for preselection. Nor that she has said “my political views are not exactly secret”. Nor that, as incoming director of Adelaide Writers’ Week, Dyer attacked the state Liberal government for having “no f…king idea” and predicted “they will flog off everything … to their corporate mates”. That background could help explain why she filled out a bingo card of progressive words and phrases when speaking against Porter. On 16 November 2020, Ms Dyer’s friend, Mr James Hooke, spoke to Ms Dyer about the article which, at that time, Ms Dyer had not yet read. He suggested that the article insinuated that Ms Dyer was politically motivated in giving the interview to Four Corners and that it might be defamatory of her. Ms Dyer read the article and took the view that the article wrongly suggested she had provided comment to Four Corners out of partisan political views. She formed the view that the article was possibly defamatory. Ms Dyer and Mr Hooke discussed XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. As the events which follow reveal, Ms Dyer sought legal advice concerning the article in The Australian X XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that I consider that the second basis for restraining Ms Chrysanthou is satisfied. I am satisfied that it is made out on the more rigorous basis identified by Brereton J in Kallinicos. It necessarily follows that I am satisfied it is made out on the test as identified by Griffiths J in Mumbin. I do not consider there are any discretionary reasons sufficient to warrant refusing the relief.CONCLUSION The Court orders that, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), Ms Chrysanthou be restrained from acting for the applicant in proceedings NSD206/2021 in the Federal Court of Australia.

Ratio Decidendi

Legal Principle Established

I will broadly adopt the approach of Anderson J (with which Griffiths J agreed) by responding to the questions his Honour identified in Timbercorp at [64], supplemented by looking at the scope of the lawyer-client relationship in the present case. I would emphasise, however, and as was made clear by Anderson and Griffiths JJ, that these questions provide a framework for analysis as opposed to supplanting the test. ConsiderationWas there a lawyer-client relationship between Ms Chrysanthou and Ms Dyer? There is no question that Ms Chrysanthou was in a lawyer-client relationship with Ms Dyer. The existence of such a relationship was initially denied by Mr Porter, but ultimately, and properly, conceded at hearing. Ms Chrysanthou acted and communicated at the time of the events in a way which was consistent with a barrister acting on a pro bono basis. Her actions after the events were also mostly consistent with her taking the view that Ms Dyer was her client. At the hearing, Mr Porter accepted that a lawyer-client relationship arose between Ms Chrysanthou and Ms Dyer on 20 November 2020, but only in connection with Ms Chrysanthou reviewing the draft Concerns Notice and advising on the prospects of a claim in relation to the publication in The Australian. Even if Ms Chrysanthou was not the subject of a formal retainer as such, she was in a fiduciary relationship with Ms Dyer by virtue of her providing legal advice to Ms Dyer and acting on Ms Dyer’s behalf and acting on her instructions and in her interests. Those present at the conference on 20 November 2020 sought Ms Chrysanthou’s advice as to what matters known to Ms Dyer could properly be stated in the Concerns Notice and, for that as well as other purposes, confidential information was given to Ms Chrysanthou for her consideration and so that Ms Chrysanthou was made aware of the matters those present considered were relevant. I accept that one of the issues in relation to which Ms Chrysanthou’s advice was sought was XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. What was the information imparted in the context of that relationship? Mr Porter emphasised that the information said to be confidential must be precisely identified. As Drummond J explained in Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 314:It is a basic requirement that before material will be recognised as having the character of confidential information, the information in question must be identified with precision and not merely in global terms: Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443 and cf O’Brien v Komesaroff (1982) 150 CLR 310 at 327. The requirement is insisted upon even though it may necessitate disclosing to the court the very information the confidentiality of which it is sought to preserve by the action. This requirement has its foundation in the need for the court to be able to frame a clear injunction, should relief against misuse of confidential information be granted. There are procedures available that will minimise the risk that confidentiality will be lost by the litigation process, although the applicant did not seek to invoke them here. Cf R Dean, Law of Trade Secrets, p 122 and s 50 of the Federal Court of Australia Act 1976 (Cth). But the requirement goes to a matter more fundamental than that: “The more general the description of the information which a plaintiff seeks to protect, the more difficult it is for the court to satisfy itself that information so described was imparted or received or retained by a defendant in circumstances which give rise to an obligation of confidence”: Independent Management Resources Pty Ltd v Brown [1987] VR 605 at 609.