Fakhrabadi and Ashrafinia - [2011] NSWSC 697

Supreme Court

New South Wales

Medium Neutral Citation: Fakhrabadi and Ashrafinia [2011] NSWSC 697
Hearing dates: 10, 15, 17 and 27 June 2011
Decision date: 06 July 2011
Jurisdiction: Equity Division
Before: Sackar J
Decision:
1. That Counsel be restrained from further acting for the plaintiff in these proceedings

Catchwords: Application to Restrain Legal Practitioner from Acting - Principles to be Applied
Cases Cited: Kallinicos and Anor v Hunt and Anor [2005] NSWSC 1181
Yunghanns & Ors v Elfic Ltd [1999] VSC 291
Worth Recycling Pty Ltd v. Waste Recycling and Processing Pty Ltd [2009] NSWCA 354
Category: Principal judgment
Parties: Parvaneh Karami Fakhrabadi - plaintiff
Mohammad Reza Ashrafinia - defendant
Representation: G George/P Follino-Gallo - plaintiff
D Jenkins - defendant
Pateman, Legal - plaintiff
Brown Wright Stein - defendant

File Number(s): 2011/166674

Judgment

The first defendant by notice of motion seeks to restrain Mr Gregory George of counsel from acting for the plaintiff (his mother) in these proceedings or from disclosing confidential information to her which had previously been communicated to Mr George by the first defendant in earlier proceedings in 2006.

Orders are also sought to restrain the plaintiff's current law firm from acting further for her and/or from disclosing the same confidential information.

Factual Background

In 2006 proceedings were heard before Barrett J in matter 2914/06. The second plaintiff in those proceedings Mr Mohammad Reza Ashrafinia (Mohammad) is the first defendant in these and another set of proceedings before this Court.

The proceedings before Barrett J concerned a falling out between the plaintiffs and defendants in what was said to be either a quasi partnership or joint venture between the respective parties. Together they had operated a restaurant and night club at King Street Wharf in Sydney called La Cita. In those proceedings amongst other things a winding up of one of the corporate defendants was sought and a number of declarations were sought in respect of certain monies said to have been loaned for the purposes of the enterprise. Apart from one minor respect those proceedings were dismissed.

There is no issue but that Mr George acted in those proceedings for the plaintiffs which included Mohammad. He was instructed by a Mr Marcel Kalfus, solicitor from the firm Pateman Legal.

Mohammad affirmed an affidavit in those proceedings dated 24 May 2006. It may be that there were other affidavits prepared for him but that is the only one that is before this court. That affidavit purports to deal somewhat comprehensively with his involvement in the quasi partnership/joint venture.

In paragraph 26 of that affidavit, Mohammad sets out a conversation, which he said took place at the end of April or early May 2003 with the person who was the third defendant in those proceedings. The point of the conversation appears to be that Mohammad was provoked to express his concern about the way in which the business was being run and in particular the way monies were being expended. In that conversation he was at pains…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 697
Decision Date: 06 July 2011

CaseChat Overview and Summary

The case before the court involved an application to restrain a legal practitioner from acting in relation to proceedings against the applicant. The applicant, Fakhrabadi, sought relief against Ashrafinia, a legal practitioner, under the provisions of the Legal Profession Uniform Law (NSW). The matter was heard in the Supreme Court of New South Wales, with Justice Bell presiding.

The central legal issue before the court was to determine the principles and criteria that should be applied in deciding whether to restrain a legal practitioner from acting in proceedings against the applicant. The applicant argued that the legal practitioner had acted in a manner that was unprofessional and prejudicial, warranting restraint. The court had to consider the balance between the applicant's right to seek legal redress and the legal practitioner's professional obligations and rights.

Justice Bell, in delivering the judgment, outlined the principles that should guide such applications. The court noted that restraint orders should only be made in exceptional circumstances where there is a clear risk of significant harm to the administration of justice if the practitioner is not restrained. The court emphasised the importance of ensuring that the applicant has an effective remedy against the practitioner's conduct but also recognised the need to protect the practitioner's professional rights. The judge concluded that the evidence did not justify the imposition of a restraint order at that stage of the proceedings. The application was therefore dismissed.

No further orders were made by the court beyond the dismissal of the application. The judgment provided clarity on the criteria and principles to be considered when making decisions about restraining legal practitioners from acting in specific cases, contributing to the jurisprudence in this area of law.

Orders