Finch v The Heat Group Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Finch v The Heat Group Pty Ltd [2024] FedCFamC2G 161

File number: MLG 576 of 2016
Judgment of: JUDGE RILEY
Date of judgment: 27 February 2024
Catchwords: PRACTICE AND PROCEDURE – application to restrain legal practitioners from acting for the respondents – the legal practitioners having never acted for the applicant – whether there is any other proper basis to restrain the legal practitioners from acting for the respondents.
Legislation:

Australian Solicitors’ Conduct Rules 2015

Disability Discrimination Act 1992

Federal Circuit and Family Court of Australia Act 2021

Federal Court of Australia Act 1976

Federal Court Rules 2011

Legal Profession Uniform Conduct (Barristers) Rules 2015

Legal Profession Uniform General Rules 2015

Trade Practices Act 1974

Victorian Bar Rules 2009

Cases cited:

Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152

Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550

Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491

Belan v Casey [2002] NSWSC 58

Calidad Pty Ltd v Seiko Epson Corp (2019) 270 FCR 572; (2019) 370 ALR 563; (2019) 142 IPR 381; [2019] FCAFC 115

Finch v The Heat Group Pty Ltd & Ors (Anti-Discrimination) [2010] VCAT 802

Finch v The Heat Group Pty Ltd & Ors (Anti-Discrimination) [2012] VCAT 223

Finch v The Heat Group Pty Ltd(No 2) (2016) 353 ALR 193; [2016] FCA 791

Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191

Finch v Heat Group Pty Ltd [2022] FedCFamC2G 848

Grattan & Grattan and Anor (No. 3) [2014] FamCA 839

Grimwade v Meagher [1995] 1 VR 446

Makripoulias v Arhontovasilis [2022] VSC 53

SmithKline Beecham (Australia) Pty Ltd v Chipman [2003] FCA 796

Western Australia v Ward (1997) 76 FCR 491

Westpac Banking Corporation v Lenthall [2018] FCA 1422

Whiteford v R [2016] VSCA 26

Yunghanns v Elfic Ltd (formerly known as Elders Finance & Investment Co Ltd) (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)
Division: Division 2 General Federal Law
Number of paragraphs: 208
Date of last submission: 7 September 2023
Dates of hearing: 20 December 2022, 8 March 2023 and 17 July 2023
Place: Melbourne
Advocate for the Applicant: In person
Solicitor for the Applicant: None
Counsel for the Respondents: Nadia Stojanova (on 20 December 2022 & 8 March 2023)
Catherine Pase (on 17 July 2023)
Solicitor for the Respondents: MinterEllison

ORDERS

MLG 576 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JO-ANNE FINCH

Applicant
AND:

THE HEAT GROUP PTY LTD (ACN 092 941 430)

First Respondent

GILLIAN FRANKLIN
Second Respondent

PETER KADLECIK (and others named in the Schedule)
Third Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

27 FEBRUARY 2024

Amended pursuant to r.17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 20 March 2024

THE COURT ORDERS THAT:

1.The applicant’s application to restrain MinterEllison, Mr Felman…

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Details
Case
[2024] FedCFamC2G 161
Decision Date

CaseChat Overview and Summary

Ms Finch brought an application against The Heat Group Pty Ltd seeking to restrain MinterEllison and Mr Marc Felman KC from acting for the respondents. This was despite the fact that neither MinterEllison nor Mr Felman KC had acted for Ms Finch previously. The matter was heard in the Federal Circuit and Family Court of Australia, where the application was dismissed. Ms Finch sought to expand the restraint to include any member of counsel briefed by MinterEllison. The court noted that in an earlier case, Ms Finch had made serious allegations against the legal practitioners who were to act for the respondents, including perjury and reliance on misleading and deceptive documents. The court considered whether there was any proper basis for the restraint, noting that it was not necessary to consider whether the allegations had any substance. The court concluded that the restraint was not warranted and that the proper administration of justice did not require the restraint. The court referred to the case of Grimwade v Meagher, which considered the issue of restraining legal practitioners who had not acted for the relevant applicant. The court found that the reasoning in that case did not exclude the present application.

The court dismissed Ms Finch’s application to restrain MinterEllison, Mr Felman KC, and any other counsel briefed by MinterEllison from acting on behalf of the respondents. The court also made an order suppressing certain parts of documents for as long as the suppression order remained on foot in the Organisation X proceeding. The substantive matter was adjourned for directions before Judge Young on 25 March 2024 at 9.30am.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The applicant’s application to restrain MinterEllison, Mr Felman KC and any other counsel briefed by MinterEllison from acting on behalf of the respondents be dismissed.

2. Pursuant to s.230(1)(b)(iv) of the Federal Circuit and Family Court of Australia Act 2021, the parts of documents set out in Annexure A be suppressed for as long as the suppression order remains on foot in the proceeding referred to in the reasons for judgment as the Organisation X proceeding.

3. The substantive matter be adjourned for directions before Judge Young on 25 March 2024 at 9.30am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In written submissions filed on 8 November 2022, Ms Finch expanded the restraint she was seeking from “MinterEllison and Marc Felman of counsel” to include “any other briefed member of counsel”. At the hearing on 20 December 2022, Ms Finch orally clarified that she meant “any member of counsel briefed by MinterEllison”.PAGONE J’S DECISION In Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791, Pagone J noted that Ms Finch had made serious allegations including that:(a)Ms Prpich and Mr Avallone, solicitors at MinterEllison, had perjured themselves in the VCAT proceedings, and had relied on documents in the VCAT proceedings knowing them to be misleading and deceptive; and(b)Mr Felman KC also relied on documents in the VCAT proceedings knowing them to be misleading and deceptive. At paragraph 11 of Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791, Pagone J noted that:… For present purposes it is not necessary, and it would be undesirable, to consider whether there is substance in any of the serious allegations which have been made by Ms Finch against the legal practitioners whom she seeks to restrain from acting against her. Some of the allegations could be put to one side on the basis that Ms Finch alleged the commission of crimes and misconduct which have not been established in appropriate proceedings in courts of competent jurisdiction by reference to the laws, standards and burdens relevant to those allegations. However, the point is not whether any of the claims are made out, but whether it is required for the proper administration of justice to preserve the integrity of the judicial process in question that the Court restrain the legal practitioners chosen by the respondents to act on their behalf against Ms Finch in proceedings commenced by her in the appellate jurisdiction of this Court. His Honour concluded that the restraint was not warranted, largely because Ms Finch was seeking to restrain legal practitioners from acting for their clients in an appeal from the judgment in a proceeding in which they had also acted. The present case is obviously not an appeal, so the reasoning in Finch v The Heat Group Pty Ltd (No 2) (2016) 353 ALR 193; [2016] FCA 791 does not necessarily exclude the present application.GRIMWADE V MEAGHER A leading case on restraints of legal practitioners who have not acted for the relevant applicant is the decision of Mandie J in Grimwade v Meagher [1995] 1 VR 446. In that case, Mr Grimwade sought to restrain Mr Meagher QC from acting against him in a civil proceeding. The background was that Mr Meagher QC had prosecuted Mr Grimwade in a very long running criminal matter at the committal proceeding, an abortive first trial, a second trial of “unexampled length” which resulted in the conviction of Mr Grimwade, and the appeal which resulted in the conviction being set aside with a direction that there be no third trial. The appeal court made a number of criticisms of the manner in which the prosecution had been conducted. The civil proceeding concerned some of the same facts as the criminal proceeding had concerned, which centred on the alleged non-disclosure by Mr Grimwade to his partners of a commission of $452,000.

Ratio Decidendi

Legal Principle Established

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