Kemp v Tiirikainen and Sutherland

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kemp v Tiirikainen and Sutherland

Citation:

[2018] ACTSC 287

Hearing Date:

12 October 2018

Decision Date:

17 October 2018

Before:

McWilliam AsJ

Decision:

See [29]

Catchwords:

PRACTICE & PROCEDURE – application to strike out whole or part of pleading – whether pleading discloses reasonable cause of action – whether aspects of pleading embarrassing – whether pleading an abuse of process – application dismissed

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 425

Cases Cited:

Coe v Commonwealth (1979) 24 ALR 118; 53 ALJR 403
Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132
Gemstone Corp of Australia Ltd v Grasso (1994) 62 SASR 239
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Maguire v Makaronis (1997) 188 CLR 449
McColley v Commonwealth of Australia [2014] ACTCA 21
Spencer v Commonwealth [2010] HCA 28;  241 CLR 118
White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; 160 FCR 298

Parties:

Graham Ronald Kemp (Plaintiff)

Mark Martin John Tiirikainen and Ian Alistair Sutherland Trading as S&T Lawyers (First Defendant)

Charles Filgate Giles  (Second Defendant)

Representation:

Counsel

D Hassall (Plaintiff)

J Pappas (Second Defendant)

Solicitors

Nelson & Co Solicitors (Plaintiff)

Sparke Helmore (Second Defendant)

File Number:

SC 328 of 2018

1. The plaintiff in this proceeding is a former client of the first defendant, a law firm in the Australian Capital Territory, practising in partnership under the name S&T Lawyers.  The second defendant, Mr Charles Giles, was a solicitor previously employed by the first defendant.  Since 2012, he has practised on his own account, and the plaintiff alleges that he retained Mr Giles directly from October 2012 to March 2015.

1. By Amended Statement of Claim filed 19 June 2018, the plaintiff is now suing his former solicitors in negligence, breach of contract and breach of fiduciary duties arising out of that previous representation.  He seeks remedies of damages, equitable compensation or equitable damages, interest and costs. 

1. The interlocutory application presently before the Court solely concerns the second defendant.  The first defendant has no interest in the application and did not appear at the hearing.  Before turning to the procedural issue for determination, it is necessary to first understand the substantive allegations.

The pleaded case against the second defendant

1. The plaintiff alleges the second defendant acted in relation to two proceedings, described in the amended pleading as the “Elrington proceedings” and the “O’Brien proceedings”.

1. The plaintiff claims that the second defendant owed him a number of fiduciary duties, which may be summarised as follows:

(i)     a duty to avoid conflicts of interest and disclose them if they arose;

(ii)    a duty to maintain the confidence of information and privileged documents and communications he obtained through acting for the plaintiff; and

(iii)   a duty to advise or warn the plaintiff that he was entitled to claim and maintain client legal privilege in respect of certain specified documents, including providing advice as to waiver.

1. The plaintiff further…