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Kallinicos v Hunt

Kallinicos v Hunt

Case [2005] NSWSC 1181 22 November 2005

Breach of Confidence

Fiduciary Duty

Injunction

Professional Conduct & Ethics

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Reported Decision:
64 NSWLR 561

New South Wales

Supreme Court

CITATION:
Kallinicos & anor v Hunt & ors [2005] NSWSC 1181

HEARING DATE(S): 5 September 2005

JUDGMENT DATE :

22 November 2005

JUDGMENT OF:
Brereton J

DECISION:
Order that respondent solicitor cease to act for defendants.

CATCHWORDS:
LEGAL PRACTITIONERS – Solicitors – former client seeking to restrain from acting – when solicitor can be restrained – whether breach of confidence sole basis for intervention – whether inherent supervisory jurisdiction available after Prince Jefri – held, it is still available – test for intervention – objective perception of want of independence and impartiality necessitating removal – discretionary considerations

LEGISLATION CITED:
Corporations Act 2001 (Cth), ss 236, 237

CASES CITED:
Abse v Smith [1986] QB 536
Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372
Asia Pacific Telecommunications Limited v Optus Networks Pty Limited [2005] NSWSC 550
Barnes v Addy (1874) LR 9 Ch App 244; (1874) 43 LJ Ch 513; (1874) 30 LT 4; (1874) 22 WR 505
Beach Petroleum NL v Abbott Tout Russell Kennedy (1999) 48 NSWLR 1
Belan v Casey [2002] NSWSC 58
Black v Taylor [1993] 3 NZLR 403
Bowen v Stott [2004] WASC 94
Bricheno v Thorp (1821) Jac 300; 37 ER 864
British American Tobacco Australia Services Limited v Blanch [2004] NSWSC 70
Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307
Clay v Karlson (1997) 17 WAR 493
Corporations Act 2001 (Cth), ss 236, 237
Davies v Clough (1837) 8 Sim 262; 59 ER 105
Earl Cholmondeley v Lord Clinton (1815) 19 Ves Jun 261; 34 ER 515
Everingham v Ontario (1992) 88 DLR (4th) 755
Fruehauf Finance Corp Pty Ltd v Feez Ruthning [1991] 1 QdR 558
Giannarelli v Wraith (1988) 165 CLR 543
Grimwade v Meagher [1995] 1 VR 446
Holborow v Rudder [2002] WASC 265
Holdsworth v M R Anderson and Associates Pty Ltd (VSC, J D Phillips J, 26 August 1994, unreported)
Kooky Garments Limited v Charlton [1994] 1 NZLR 587
Law Society of New South Wales v Holt [2003] NSWSC 629
Macquarie Bank Ltd v Myer [1994] VR 350
McVeigh v Linen House Pty Ltd [1993] 3 VR 394
Mills v Day Dawn Bloch Gold Mining Co Limited (1882) 1 QLJ 62
Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015
Murray v Macquarie Bank Ltd (1991) 33 FCR 46
National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209
Newman v Phillips Fox [1999] WASC 171
Oceanic Life Limited v HIH Casualty and General Insurance Limited [1999] NSWSC 292
Photocure ASA v Queens University at Kingston (2002) 56 IPR 86
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
Rakusen v Ellis Munday and Clarke [1912] 1 Ch 831
Re A Firm of Solicitors [1997] Ch 1
Re A Solicitor (1987) 131 SJ 1063
Re J A Grieve [1861] 1 WWL 197
Re LPO Transact Pty Ltd (In Liq); Williamson v Nilant [2002] WASC 225
Revised Professional Conduct and Practice…

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 Kallinicos v Hunt

Details

AGLC: Kallinicos v Hunt [2005] NSWSC 1181
Case: [2005] NSWSC 1181
Decision Date: 22 November 2005

CaseChat Overview and Summary

In the Federal Court of Australia, Kallinicos sought to restrain Hunt, a former solicitor, from acting against him in proceedings related to his former role as a director of a company. The dispute centred on whether Hunt's involvement in the litigation was inappropriate and warranted a court order to prevent it. The court had to determine the circumstances under which a former solicitor could be restrained from acting against a former client and whether the inherent supervisory jurisdiction could still be exercised following the case of Prince Jefri Bolkiah v KPMG.

The key legal issue was whether the court could intervene to restrain a former solicitor from acting against a former client based solely on a breach of confidence, or whether the inherent supervisory jurisdiction could be exercised to prevent an objective perception of a want of independence and impartiality. The court considered the established principles and tests for intervention in such circumstances. It was necessary to examine whether the solicitor's conduct gave rise to an objective perception of a lack of independence or impartiality, which would necessitate removal from the case.

The court concluded that the inherent supervisory jurisdiction remained available in appropriate circumstances. It held that the test for intervention involves considering whether the solicitor's conduct would lead to an objective perception of a lack of independence or impartiality, necessitating their removal. The court also acknowledged that discretionary considerations could influence the decision to intervene. The inherent jurisdiction could still be exercised to ensure the integrity of the legal process and the public's confidence in it. In this case, the court determined that Hunt could continue to act in the proceedings, as there was no objective perception of a lack of independence or impartiality.

Orders