Kalenik v Apostolidis - [2005] VSC 27

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7588 of 2000

ZORICA KALENIK	Plaintiff
v
JOHN IOANNIS APOSTOLIDIS	Defendant

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2004
DATE OF JUDGMENT:	18 February 2005
CASE MAY BE CITED AS:	Kalenik v Apostolidis
MEDIUM NEUTRAL CITATION:	[2005] VSC 27

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Legal practitioners – Solicitor - Acted for opposite party to defendant in other litigation settled by confidential terms – Now acting for plaintiff against defendant – Solicitor never acted for defendant – Alleged to possess confidential information concerning defendant from first case - Whether solicitor should be restrained from acting.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Respondent	Mr J I Fajgenbaum QC and Mr S W Stuckey	Leo Dimos & Associates
For the Defendant/Applicant	Mr S K Wilson QC and Dr D Kovacs	David Tonkin & Associates

HIS HONOUR:

Application by the defendant to restrain the plaintiff from continuing to retain as her solicitors Messrs Leo Dimos & Associates (Dimos).

The defendant, John Ioannis Apostolidis (who I will refer to as the defendant or John), has never retained Dimos to act for him.

The defendant has a brother, Kiriakos (Ken) Apostolidis (who I will refer to as Ken). Dimos acted for Ken as plaintiff in a Commercial List proceeding 2101 of 2001. I shall refer to this as the partnership proceeding. The present defendant (John) was the defendant in the partnership proceeding. The partnership proceeding was compromised by a Deed made on 12 May 2003.

The proceeding

The present proceeding was commenced as long ago as 13 November 2000. The plaintiff, Zorica Kalenic, claimed in the statement of claim endorsed on the writ that from in or about May 1993 until on or about 11 March 2000 she and the defendant had lived together in a de facto relationship within the meaning of Part IX of the Property Law Act 1958 (the Act) and sought orders under that Part adjusting in her favour the interest of the defendant in his property.

The plaintiff filed a second further amended statement of claim on 14 January 2004. The statement of claim refers to property of the parties, and in particular to certain property and corporations in which the defendant is alleged to have an interest. The corporations are DSK Holdings Pty Ltd (DSK Holdings), Azura Pty Ltd (Azura) and Yarrabee Investments Pty Ltd (Yarrabee), each of which is alleged to have been owned or controlled by the defendant. It is alleged that DSK Holdings conducted furniture businesses known as Janni’s Furniture and Bedding, and Central Furniture, at Oakleigh. There is reference to a furniture business conducted by DSK Holdings at Dandenong called Leather Lounges Direct. There is also reference to the defendant having acquired an interest in Imex Nominees Pty Ltd (Imex), and an interest in a furniture business and/or factory in Malaysia. It is alleged that during the relationship the plaintiff made financial and non-financial contributions to the acquisition, conservation and improvement…

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: [2005] VSC 27
Decision Date: 18 February 2005

CaseChat Overview and Summary

The case of Kalenik v Apostolidis involved a dispute over the professional conduct of a solicitor, Mr Kalenik, who was alleged to possess confidential information from a previous case in which he had acted for the opposing party to Mr Apostolidis. Mr Apostolidis sought an order restraining Mr Kalenik from acting for the plaintiff, Ms Kalenik, in the current litigation against him. The matter was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether Mr Kalenik's prior representation of the opposing party in a confidentially settled matter created a conflict of interest that would prevent him from ethically representing Ms Kalenik in the present litigation. This required the court to consider the principles of confidentiality in legal practice, the potential for misuse of confidential information, and the implications for the administration of justice if a solicitor were to be restrained from acting based on such allegations.

The court considered the confidential nature of the previous litigation and the terms under which it was settled, as well as the potential for the alleged confidential information to influence the current proceedings. The court emphasised the importance of maintaining public confidence in the legal profession and the potential for harm if confidential information were to be disclosed. However, the court found that there was insufficient evidence to substantiate the claim that Mr Kalenik possessed or was likely to use any confidential information from the previous litigation. Consequently, the court concluded that there was no basis to restrain Mr Kalenik from acting for Ms Kalenik in the current proceedings.

The court did not make any orders restraining Mr Kalenik from acting in the litigation. The decision highlighted the stringent requirements for proving that a solicitor possesses confidential information that would justify such a restraint order. The court's ruling reinforced the principle that such orders should only be made where there is clear evidence of a conflict of interest that could adversely affect the administration of justice.

Orders