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Johnston v Allen

Johnston v Allen

Case [2024] NSWSC 187 29 February 2024

Confidentiality

Implied Terms

Limitation Periods

Admissibility of Evidence

Civil Litigation & Procedure

No judgment structure available for this case.

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Johnston v Allen [2024] NSWSC 187
Hearing dates: 4 December 2023, further written submissions ending 12 December 2023
Date of orders: 29 February 2024
Decision date: 29 February 2024
Jurisdiction: Equity - Expedition List
Before: Parker J
Decision:
See [147]

Catchwords:
CIVIL PROCEDURE – confidentiality – implied and express obligations to use documents only for purposes of proceedings – reach of obligations – application to agent, solicitor and counsel for party – use for purposes of complaint against solicitor after proceedings completed – release of obligations by court – release to permit ongoing use for complaint proceedings – release nunc pro tunc to permit past use – order for return or destruction of copies by recipients no longer involved in complaint proceedings

Legislation Cited:
Nil

Cases Cited:
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333
EB v GB [2020] NSWSC 1291
Findex v iiNet [2019] NSWSC 1198
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Miller v Scorey [1996] 1 WLR 1122
NorthbuildConstructions Pty Ltd v Discovery Beach Project Pty Ltd(No4) [2011] 1 Qd R 145; [2009] QCA 345
Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85
Telnet Pty Ltd v Takapana Investments Pty Ltd (1994) 51 FCR 520
Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd (2020) 282 FCR 95

Texts Cited:
Nil

Category: Procedural rulings
Parties:
Notice of Motion filed 26 September 2023
Sharna Clemmett (Applicant)
Bede Augustine Webster (First Respondent)
Amber Johnston (Second Respondent)
Lauren Gidley (Third Respondent)

Notice of Motion filed 13 October 2023
Bede Augustine Webster (Applicant)
Sharna Clemmett (First Respondent)
Amber Johnston (Second Respondent)
Lauren Gidley (Third Respondent)
Jake Johnston (Fourth Respondent)
Notice of Motion filed 5 December 2023
Amber Johnston (First Applicant)
Jake Johnston (Second Applicant)
Bede Augustine Webster (Respondent)
Representation:
Notice of Motion filed 26 September 2023

Counsel:
A Horvath SC/ B Smith (Applicant)
B A Webster (self-represented)
P Abdiel (Second Respondent)
K Holcombe (Third Respondent)

Solicitors:
Collin Biggers & Paisley (Applicant)
Rostron Carlyle Rojas Lawyers (Second Respondent)
Moray & Agnew (Third Respondent)

Notice of Motion filed 13 October 2023
Counsel:
B A Webster (self-represented)
A Horvath SC/ B Smith (First Respondent)
P Abdiel (Second and Fourth Respondent)
K Holcombe (Third Respondent)

Solicitors:
Collin Biggers & Paisley (First Respondent)
Rostron Carlyle Rojas Lawyers (Second and Fourth Respondents)
Moray & Agnew (Third Respondent)

Notice of Motion filed 5 December 2023
Counsel:
P Abdiel (Applicants)
B A Webster (self-represented)
Solicitors:
Rostron Carlyle Rojas Lawyers (Applicants)

File Number(s): 2021/231586
Publication restriction: Nil

JUDGMENT

Before the Court are competing applications concerning the use of an affidavit and other documents produced to the Court in proceedings which were later settled. The applications arise out of the implied obligation of confidentiality which attaches to those documents (and, in the case of the documents other than the affidavit, an express confidentiality order made by the Court). One application seeks to…

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.

Continue reading Johnston v Allen

Details

AGLC: Johnston v Allen [2024] NSWSC 187
Case: [2024] NSWSC 187
Decision Date: 29 February 2024

CaseChat Overview and Summary

The plaintiff brought an action against the defendant for damages in the Supreme Court of Victoria. The plaintiff sought to recover damages for breach of an implied obligation of confidentiality, and an express obligation under a retainer agreement, to use documents only for the purposes of the proceedings. The plaintiff argued that the defendant had breached those obligations by using the documents for the purposes of a complaint made against the defendant's solicitor after the proceedings had concluded. The defendant argued that the court had no jurisdiction to make orders that would permit the use of documents for the purposes of the complaint proceedings.

The court was required to decide whether the obligation of confidentiality extended to the use of documents for the purposes of a complaint made against a solicitor after the proceedings had concluded. The court also had to determine whether it had the jurisdiction to make orders that would permit the use of documents for the purposes of the complaint proceedings. The court had to consider the extent of the obligation of confidentiality, and whether it could be released by the court, either prospectively or retrospectively, to permit the use of documents for the purposes of the complaint proceedings.

The court held that the obligation of confidentiality extended to the use of documents for the purposes of a complaint made against a solicitor after the proceedings had concluded. The court found that the obligation was an implied term of the retainer agreement, and that it was owed to the plaintiff by the defendant, the defendant's agent, the defendant's solicitor, and the defendant's counsel. The court held that the obligation could be released by the court, either prospectively or retrospectively, to permit the use of documents for the purposes of the complaint proceedings. The court found that it had the jurisdiction to make orders that would permit the use of documents for the purposes of the complaint proceedings.

The court made an order that the defendant return or destroy any copies of the documents in the possession of the defendant's agent, solicitor, and counsel who were no longer involved in the complaint proceedings. The court also made an order that the defendant's agent, solicitor, and counsel who were still involved in the complaint proceedings return or destroy any copies of the documents that they had made before the court released the obligation of confidentiality.

Orders