Kingston, Lindsay John v State Fire Commission

[1998] TASSC 140

140/1998

PARTIES:  KINGSTON, Lindsay John
  v
  STATE FIRE COMMISSION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1039/1995
DELIVERED:  6 November 1998
HEARING DATE/S:  16 September 1998
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure - Discovery and interrogatories - Discovery and inspection of documents - Production and inspection - Grounds for resisting production - Legal professional privilege - Waiver of privilege - Inadvertent disclosure of brief by counsel retained by defendant.

Grant v Downs (1976) 135 CLR 674; Baker v Campbell (1983) 153 CLR 52, applied.
HongKong Bank of Australia Ltd v Murphyand Others [1993] 2 VR 419; Webster v James Chapman & Co (a firm) and others [1989] 3 All ER 939; Meltend Pty Ltd and Others v Restoration Clinics of Australia Pty Ltd and Others (1997) 145 ALR 391; Derby and Co Ltd v Weldon (No 8) [1990] 3 All ER 762, followed.
R v Board of Inland Revenue, ex parte Goldberg [1988] 3 All ER 248, considered.
Shaw and Anor v Harris and Ors (No 1) (1993 - 1994) 3 Tas R 153; Goldberg and Anor v Ng and Others (1995 - 1996) 185 CLR 83; Attorney-General (NT) v Maurice (1986) 161 CLR 475, referred to.
Aust Dig Procedure [449]

Evidence - Facts excluded from proof - On grounds of privilege - Professional confidence - Legal profession - Waiver of privilege - Inadvertent disclosure of brief by counsel retained by defendant.

Aust Dig Evidence [75]

Equity - Equitable remedies - Injunctions for particular purposes - To restrain breach of confidence- General principles - Application by defendant for orders restraining plaintiff's solicitors from continuing to act.

Mallesons Stephen Jaques v KPMG Peat Marwick and Others (1990 - 1991) 4 WAR 357; Webster v James Chapman and Co (a firm) and Others [1989] 3 All ER 939; English and American Insurance Co Ltd v Herbet Smith [1988] FSR 232, referred to.
Aust Dig Equity [362]

REPRESENTATION:

Counsel:
             Applicant/Defendant:  R C MacKay
             Respondent/Plaintiff:  A M Blow QC
Solicitors:
             Applicant/Defendant:  Dobson Mitchell and Allport
             Respondent/Plaintiff:  Jennings Elliott

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  140/1998
Number of pages:  8

Serial No 140/1998

File No 1039/1995

LINDSAY JOHN KINGSTON v STATE FIRE COMMISSION

REASONS FOR JUDGMENT  SLICER J

6 November 1998

The applicant is the defendant to an action brought by the respondent in respect of an injury claimed to have been caused in the course of employment.  The action had been certified as ready for trial and a trial date, since vacated, allocated.  On 19 August 1998, the applicant's solicitors forwarded a brief to Sydney counsel retained to appear on the trial, requesting him to provide advice in relation to liability, quantum and the general conduct of the trial.  The brief comprised a letter of instructions and five folders containing pleadings, affidavits, witness statements, reports of potential expert witnesses and a surveillance video tape taken of the respondent.  The brief contained material which had not been discovered and which, on any test, is the subject of legal professional privilege.  The brief was mistakenly returned by counsel to the solicitors for the respondent.  Mr Read, the solicitor with the carriage of the action, received the material and, aware of its status and significance, took the advice of counsel.  In accordance with that advice he made copies of a selection of material and forwarded relevant extracts to counsel retained by him for the trial and to the respondent.  Having done so, he forwarded the file to the applicant's solicitors, and, upon enquiry, disclosed that he "had read, copied and made notes of the brief".

The brief and the actual documents therein were both privileged and remained the property of the applicant or its solicitors.  Some of the documents, such as pleadings and the like, were common to both parties, whilst some had been discovered; and, apart from the status of copies comprising the brief, were either never privileged or had lost their privileged status (Commissioner of Australian Federal Police and Another v Propend Finance Pty Limited and Others (1996 - 1997) 188 CLR 501). The remainder, with one exception, retained their privileged status on the tests laid down by the High Court in Grant v Downs (1976) 135 CLR 674 and Baker v Campbell (1983) 153 CLR 52. The exception is an internal memorandum which predates the cause of action and which had not, for some reason, been discovered. Counsel for the applicant has given an undertaking that, irrespective of the outcome of these proceedings, discovery will be made and its particular status has no further import in this determination. The applicant has applied for the following orders:

"1That the plaintiff, his solicitors, and counsel be ordered to deliver up to the defendant's solicitors any letter, copy letter, or other written record within their possession relating to or containing information derived from the defendant's brief to Mr John Gleeson QC or any copy, or note of the brief or any part of it.

2That the plaintiff, his solicitors, and counsel be restrained from making any use for the purposes of this action of any information derived from the said brief.

3That the plaintiff's solicitors be restrained from continuing to act for the plaintiff in this action.

4         That the plaintiff pay the costs of this application."

Pursuant to interim orders made by this Court, all the documents referred to in the application par1 have been delivered to the Court.  Resolution of the remaining applications requires consideration of the issues of privilege, waiver and the equitable remedy of breach of confidence.  An ancillary but dependent question is that of the admissibility of evidence.  The respondent sought to read into evidence an affidavit by his solicitor which annexed a number of documents which had been copied from the brief.  The applicant, doubtless concerned that their reception into evidence would affect their status, objected to their reception.  The basis of that objection might well be unwarranted since limited use of material for the purpose of determining the status of a document or class of documents might not involve waiver (Nickmar Pty Ltd and Another v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44, cf Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Others (1998) 153 ALR 393, HongKong Bank of Australia Ltd v Murphy and Others [1993] 2 VR 419).

The question of the reception of evidence will be determined in accordance with the primary questions.

Privilege and waiver

The basis of privilege is that material brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings attracts immunity from production (Grant v Downs (supra)).  The material must be confidential - once it loses this quality it ceases to be privileged.

There has been a difference in authority as to the status of copies of documents in circumstances where the original documents are held by a third party and are not privileged in their own right (R v Board of Inland Revenue, ex parte Goldberg [1988] 3 All ER 248, Dubai Bank Ltd v Galadari [1989] 3 All ER at 769). In part, the reasoning for determining that copies were privileged was that they might reveal the advice or strategy which may be adopted on the trial. As Lord Evershed MR suggested in Watson v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1959] 2 All ER 757 at 759, the copies made by the lawyers were the fruits of expertise "in so far as skill is involved it was part of his professional skill in assisting his client to go to the hospital to get it [the copy]."  The reasoning has been subject to criticism in England (see All England Law Reports Annual Review 1989 149 - 151).  In Australia, the High Court has held that legal professional privilege attaches to a copy document which is provided to a lawyer if the copy was made solely for use in legal proceedings, even where the original document was not privileged (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (supra)), although the subject matter of that decision concerned criminal responsibility, and issues of fairness and illegality were significant matters in the determination.

In some instances, when a privileged document has been accidentally inserted into a bundle of documents supplied in accordance with discovery procedures, the document is read by a recipient, not conscious of its status.  In this case, there could be no such error.  The letter enclosing the brief clearly disclosed that the documents were intended for counsel and the inescapable conclusion was that they had been mistakenly returned to the opponent.  The respondent's solicitor did more than read the contents; he made active use of it by analysing some of the material, disclosing the video tape to the respondent and supplying selected documentation to counsel retained on the trial.  That he did so, on the advice of counsel, is of little consequence.  He made a conscious decision with the knowledge that the material was subject to a claim of privilege (International Business Machines Corp and another v Phoenix International (Computers) Ltd [1995] 1 All ER 413).

There is a divergence of authority in relation to the question of whether inadvertent or fraudulently occasioned disclosures deprive material of its privileged status.  One approach has been that privilege is destroyed and that secondary evidence of such material may be used on the trial (Calcraft v Guest [1898] 1 QB 759; Bell v David Jones Ltd (1948) 49 SR NSW 223; Warner v The Women's Hospital [1954] VLR 410; Waugh v British Railways Board [1980] AC 521; Great Atlantic Insurance Company v Home Insurance Company [1981] 2 All ER 485). The contrary approach reflects acceptance of the equitable principle that a party ought not be advantaged by conduct or circumstances which reflect a misuse of the rules of discovery (Lord Ashburton v Pape [1913] 2 Ch 469; ITC Film Distributors v Video Exchange Ltd [1982] 2 All ER 241).

As Mason J said in Baker v Campbell (1983) 153 CLR 52 at 80:

"According to authority, it seems that the availability of the claim for privilege is lost once the document passes into the possession of another who may then tender it in evidence (Waugh v British Railways Board (1980) AC 521, at p 536 ). The same holds true for a copy (see generally Bell v David Jones Ltd (1948) 49 SR (NSW) 223, at pp 227-228; Kuruma v The Queen (1955) AC 197, at pp 203-204; Calcraft v Guest (1898) 1 QB 759).",

although he did not find it necessary to resolve the conflicting lines of authority.  At the core of both lines of authority lies the question of whether evidence, secondary or otherwise, of a document can be led on the trial.  In criminal law there exists a discretion to exclude evidence unfairly or improperly obtained and the distinction between privilege and confidentiality is of less importance (R v Braham and Mason [1976] VR 547; R v Uljee [1982] 1 NZLR 561) and the term "privilege" is efficacious for such purpose. In civil cases, no such discretion is afforded and the question becomes one of the basis upon which an opponent might make use of the material in its possession. If privilege protects a party from the requirement of disclosure, a judicial declaration that it survives inadvertent disclosure does not logically resolve the question of whether an opponent may make use of it. It is for that reason that courts have developed an equitable remedy dependent on the principles of breach of confidentiality.

The preferable approach is that stated by Scott J in Webster v James Chapman & Co (a firm) and others [1989] 3 All ER 939 at 943 - 944:

"Once a privileged document or a copy of a privileged document passes into the hands of some other party to the action, prima facie the benefit of the privilege is lost: the party who has obtained the document has in his hands evidence which … can be used at the trial.  But it will almost invariably be the case that the privileged document will also be a confidential document and, as such, eligible for protection against unauthorised disclosure or use."

The applicant has not waived privilege but the inadvertent disclosure has caused the material to lose its privileged status.

Confidentiality and remedy

When material ceases to be privileged by reason of inadvertent disclosure, it does not follow that that confidentiality is also lost.  When the respondent's solicitor commenced to read the material, the relevant items were confidential by reason of their privileged status.  At that moment a court had power to enjoin an act of reading and order return to the applicant.  The question of the use of any confidential material permits a different remedy.  There has been a difference of opinion as to whether the remedy ought be exercised by reference to the nature of the material and the circumstances of the breach of confidentiality, or by the mandatory application of principle.  The dichotomy of approach was considered by Wright J in Shaw & Anor v Harris & Ors (No 1) (1993 - 1994) 3 Tas R 153, although he was not required to resolve the difference. An appropriate starting point is that if a party takes no steps to restrain subsequent use of confidential information, then the evidence is admissible. This would suggest that the attitude of the party whose confidence has been breached is central to the issue. In Webster v James Chapman & Co (supra), Scott J believed that since the power to enjoin was dependent upon the application of the equitable principles stated in Lord Ashburton v Pape (supra), rather than a maintenance of privileged status (Calcroft v Guest (supra)), there remained a discretion to be exercised with regard to a range of factors.  In relation to the statement of Nourse LJ in Goddard and Another v Nationwide Building Society [1987] QB 670 at 685 that:

"… once it is established that a case is governed by Lord Ashburton v Pape, there is no discretion in the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the communication, the justice of admitting or excluding it or the like."

Scott J in Webster (supra) at 945 said:

"That statement of principle seems to me to deny the historical provenance of the principle underlying Lord Ashburton v Pape.  The protection given in Lord Ashburton v Pape was given as an exercise of the court's discretion.  Whether the unauthorised use of confidential information or of confidential documents will be restrained is essentially discretionary and must, in my opinion, be dependent on the particular circumstances of the particular case.  The privileged nature of the document in question is bound to be a highly material factor but would not, in my view, exclude from the scales other material factors.  I do not, however, think that that sentence in the judgment of Nourse LJ represents the ratio of the case."

And concluded at 946:

"Nothing in these judgments, in my view, detracts from the analysis of the principles underlying Calcraft v Guest and Lord Ashburton v Pape to which I have already referred.  If a document has been disclosed, be it by trickery, accident or otherwise, the benefit and protection of legal privilege will have been lost.  Secondary evidence of the document will have come into the possession of the other side to the litigation.  The question then will be what protection the court should provide given that the document which will have come into the possession of the other side will be confidential and that use of it will be unauthorised.  If the document was obviously confidential and had been obtained by a trick or by fraud, it is not difficult to see that the balance would be struck in favour of the party entitled to the confidential document.  If the document had come into the possession of the other side not through trick or fraud but due to a mistake or carelessness on the part of the party entitled to the document or by his advisers, the balance will be very different from the balance in a fraud case."

That approach was reflected by the Court of Appeal in Derby & Co Ltd v Weldon (No 8) [1990] 3 All ER 762, a case in which the court considered the earlier decisions of Guinness Peat Properties Ltd and Others v Fitzroy Robinson Partnership (a firm) [1987] 2 All ER 716; Goddard v Nationwide Building Society (supra); Great Atlantic Insurance Co v Home Insurance Co (supra) and English and American Insurance Co Ltd v Herbert Smith [1988] FSR 232, all of which involved the discussion of the approach taken in  Webster (supra).  However, in the leading judgment in Derby, Dillon LJ rejected at 779 - 780 the approach that:

"… if one party has disclosed privileged documents by mistake, then on application to the court the mistake can and will be set aside and the other party will be ordered to return all copies of the documents in question and not make use of any information contained in them.",

because, in his view, the court was bound by the decision of another division of the court in the Guiness Peat case.  However, Dillon LJ at 781 - 782 adopted the three general propositions stated by Slade LJ in Guinness Peat that:

"(1)      Where solicitors for one party to litigation have, on discovery, mistakenly included a document for which they could properly have claimed privilege in Pt 1 of Sch 1 to a list of documents without claiming privilege, the court will ordinarily permit them to amend the list under RSC Ord 20, r 8, at any time before inspection of the document has taken place.

(2)       However, once in such circumstances the other party has inspected the document in pursuance of the rights conferred on him by RSC Ord 24, r 9, the general rule is that it is too late for the party who seeks to claim privilege to attempt to correct the mistake by applying for injunctive relief. Subject to what is said in (3) below, the Briamore decision is good law.

(3)       If, however, in such a last-mentioned case the other party or his solicitor either (a) has procured inspection of the relevant document by fraud, or (b) on inspection, realises that he has been permitted to see the document only by reason of an obvious mistake, the court has the power to intervene for the protection of the mistaken party by the grant of an injunction in exercise of the equitable jurisdiction illustrated by the Ashburton, Goddard and Herbert Smith cases.  Furthermore, in my view it should ordinarily intervene in such cases, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy, for example, on the ground of inordinate delay (see Goddard v Nationwide Building Society [1986] 3 All ER 264 at 272, [1986] 3 WLR 734 at 745 per Nourse LJ).

Possibly there may be other exceptions to the general rule set out in (2) above.  However, in my judgment, the exception set out in (3) above suffices to cover the present case.  Save where it is too late to restore the previous status quo (eg on facts similar to those of the Great Atlantic case), I do not think the law should encourage parties to litigation or their solicitors to take advantage of obvious mistakes made in the course of the process of discovery."

The import of that reasoning is that the equity determines the remedy in that where there is breach of confidentiality, there is no discretion in the form of remedy, and it is for the party to determine whether he or she will maintain that confidentiality by opposing the use of the material.

The Derby approach has been followed in New Zealand (Corporate Group Holdings Ltd v Corporate Resources Group Ltd [1991] 1 NZLR 115; National Insurance Co Ltd v Whirlybird Holdings Ltd [1994] 2 NZLR 513), whilst in Australia the two lines of authority have been considered (HongKong Bank of Australia Ltd v Murphy (supra); Shaw v Harris (supra)) without a definitive adoption of either of the two approaches.  In Meltend Pty Ltd and Others v Restoration Clinics of Australia Pty Ltd and Others (1997) 145 ALR 391, Goldberg J appears to have preferred the Derby approach, although he decided the case on the issue that there was either an express or an imputed waiver of privilege. However, he rejected the "balancing test", stating at 404:

"I am not suggesting that the existence of privilege or its maintenance is to be determined by a balancing exercise, that is balancing the existence of the privilege and the right to maintain it against the significance and importance of the document.  Such  a suggestion was rejected in Derby & Co Ltd v Weldon(No 8) (supra at 783). Legal professional privilege is a substantive principle of law and not simply a rule of evidence:  Attorney-General (NT) v Maurice (supra, 490).  But once documents have been disclosed to an opposite party as part of the formal process of discovery and inspection, in circumstances involving no criticism of that party, I consider that fairness requires that that party be not disadvantaged in the use it can make of those documents."

The test of fairness referred to is that required by the High Court in Attorney-General (NT) v Maurice (1986) 161 CLR 475 and Goldberg and Anor v Ng and Others (1995 - 1996) 185 CLR 83, which has not, as yet, had occasion to consider the competing approaches. An important distinction might be that the High Court regards legal professional privilege as a substantive principle of law rather than one of evidence. In Director of Public Prosecutions v Kane, unreported, Supreme Court of New South Wales, 10 September 1997, Hunt CJ conducted an exhaustive review of competing authorities, but concluded that in the circumstances of the case before him, it was "once more" unnecessary to resolve the issue.  In this Court, Wright J in Smith v Harris (supra) referred to the question and likewise did not find it necessary to express a concluded view.

Whilst it is true that the doctrine of legal professional privilege is one of substantive law, it has a number of components.  In relation to the matter of the discovery of documents, the application of the doctrine of legal professional privilege involves an evidentiary question.  The party entitled to privilege is not required to disclose the nature or contents of the material attracting privilege.  When the opponent has knowledge of those contents, the "shield" of privilege has been lost.  The question then becomes one of the extent, if any, to which that party ought be permitted to give effect to that knowledge.  If the party claiming privilege does nothing, then full use can be made of the material.  But if that party claims a remedy for breach of confidentiality, then it can only seek the aid of equitable restraint.  In doing so, both parties are subject to the usual principles of equity.  Those principles are dependent on the respective conduct of the parties and ought not relate to the nature or import of the material.  If a party has a right of confidentiality, then it is that right which is the subject of equity, not the nature of the subject matter protected by that right.  Any balancing act is determined by reference to conduct, not the significance or otherwise of the subject matter.  Thus, if there is careless disclosure or material is obtained by fraud or improper conduct, then a finding concerning the circumstances giving rise to discovery or possession will determine the equity.  If a document which ought to have been discovered is found, accidentally or otherwise, by the opponent, then equity would not protect the holder of the document because it ought not benefit from its own disregard of the requirement to make discovery.  The nature or import of the material ought be irrelevant to the grant of an equitable remedy.

If such be a valid approach, then it follows that the evidence sought to be tendered by the respondent ought not be admitted.  The Court is not satisfied that the failure of the applicant to make discovery of the one document which pre-dates the cause of action was one of disregard for his obligation, but rather it was inadvertent and probably found only after formal discovery.  In any event, equity is afforded by the undertaking that it will be furnished to the respondent.  The Court will not receive into evidence the contents of the affidavit pars4, 6, 7, 9, 10, 11 and 12.

It follows that the applicant is entitled to an order restraining the respondent from making use of the material derived from its receipt of the hitherto privileged documents.

Discretion

Even had the Court decided the application by reference to the contents and nature of the documents by conducting a "balancing" analysis, the applicant would nevertheless have been afforded remedy.  The documents comprised medical reports, statements taken solely for the purpose of the action, investigation reports and the like.  They were documents which lie at the core of privilege.  The fact that there was a discrepancy between the two reports of a medical specialist would not have affected the decision to afford relief.

Waiver

There has been no waiver by the applicant.  The brief was returned by counsel to the respondent's solicitors by mistake.  This is not a case where a privileged document was mistakenly included in a batch of other documents intended to be discovered.  This is not a case where a party has incorrectly assessed the status of a document or inadvertently failed to claim professional privilege (Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (supra)).  For there to be waiver there must be the intentional disclosure of protected material (Attorney-General NT v Maurice (supra), Gibbs CJ at 480 - 481), or the disclosure must be incompatible with the retention of confidentiality, Goldberg v Ng (supra).  Where there is disclosure of privileged information by the beneficiary of the privilege to another person for a limited and specific purpose, on the understanding that the recipient is not to use or disclose the information for any other purpose, there is no general waiver, Goldberg v Ng (supra), Deane, Dawson and Gaudron JJ at 96, Toohey J at 106 - 109, Gummow J at 116.  In this case, there has been no waiver by the applicant.

Restraint of representation

The respondent concedes that a court exercising equitable jurisdiction has power to restrain solicitors from continuing to act in circumstances where knowledge held by those solicitors was obtained by virtue of previous representation or where there exists potential for conflict of interest.  That power was exercised in Mallesons Stephen Jaques v KPMG Peat Marwick and Others (1990 - 1991) 4 WAR 357. However, that case was concerned with a conflict of interest occasioned by different partners of the same firm providing advice to opposing parties. The problem is that the remedy of prohibiting the use of the material is directed towards covert acts as distinct from the question of knowledge. That problem was considered by Scott J in Webster v James Chapman (supra) when he refused to suppress a party's use of a second report which had been prepared using knowledge derived following breach of confidentiality, stating as a reason at 947:

"…the conduct of the defendant's case would be seriously embarrassed if the defendant and its legal advisers were not able to make use of their knowledge of the contents of the original report, knowledge that has come into their possession through no fault of theirs."

In English & American Insurance Co Ltd v Herbert Smith (supra), Browne-Wilkinson V-C was required to consider the appropriate remedy in circumstances identical to the present case.  He felt able to make only an order which was enforceable by reference to covert acts as the following exchange with counsel at 240 - 241 records:

"Mr Hobbs:     Then the problem arises on (c).  May I suggest this:  'making any overt use'?  I do not mean thereby to reserve covert use, but your lordship perceives the point that as regards what a man has in his brain no injunction in the world can in fact stop him and he ought not to be under penalty at all.

SIR NICOLAS BROWNE-WILKINSON V-C:  I entirely accept that.  I think we did suggest the wording:  'making any use of any information derived from any document forming part of the bundle in pleading, evidence, cross-examination or otherwise overtly for the purpose of the action.'  Is that the sort of thing?

Mr Hobbs:  Indeed, my lord.  That would be ejusdem generis then with what had gone before.  The 'overt' would be understood.

SIR NICOLAS BROWNE-WILKINSON V-C:  It seems to me that what the plaintiffs are entitled to is to restrain the use for practical purposes.  I think they are entitled to restrain you from using it for any purpose, but I cannot make an order to that effect.  Mr MacDonald, would that do?

Mr MacDonald:  I would prefer 'consciously' to 'overtly', my lord.

SIR NICOLAS BROWNE-WILKINSON V-C:  Yes, but the trouble is that I can go on giving judgment until I am blue in the face, but this rat has bolted and there is no way in which Messrs Herbert Smith can put this out of their mind.

Mr MacDonald:  I accept that, my lord.

SIR NICOLAS BROWNE-WILKINSON V-C:  I think all you can do is to have an order which is capable of being policed, which must be an order directed towards the outward acts rather than the inward thoughts.

Mr MacDonald:  I am sure that it will be well understood that, by forbidding something which is overt, your lordship is not seeking to sanction deliberate covert action.

SIR NICOLAS BROWNE-WILKINSON V-C:  I think that is entirely clear.  I am not sanctioning anything.  I am merely limiting the order to a form in which it will, I hope, be enforceable."

The problem is that knowledge, once obtained, cannot be erased from the mind.  In this case, the respondent has been made aware of the contents of the surveillance video and is doubtless conscious of its significance, irrespective of which solicitor or counsel is retained on the trial.  He doubtless is aware in general terms of some of the other material read by his solicitor.  The general terms of the issue of quantum raised in the documentation might have a bearing on his future conduct of the action.  None of those matters can be redressed by preventing his present solicitors from continuing to act.  The decision by the respondent's solicitor to read the material was, like that in English and American Insurance (supra), made honestly after due consideration and does not require punitive sanction by means of prohibition.  The cases involving conflict of interest and the like involve potential use of unidentified (and perhaps unidentifiable) knowledge by reason of the legal relationship, whereas here the extent of knowledge is governed by the existing material already known.  As Browne-Wilkinson V-C observed, "the rat has bolted".  The remedy sought will be of little advantage to the applicant and will not be granted.

Orders

The respondent has delivered to the applicant the original material and to the Court all of its own documentation created as a result of his access to the files.  Counsel appearing for the respondent on this application has retained a copy of affidavit material for use in this application.  There remains the question of what is to be done with this material.  It can be either destroyed or kept under seal of the Court.  Counsel will be afforded an opportunity to make submissions on this issue.  In relation to the primary remedy sought, the order of the Court is that:  the plaintiff, his solicitors and counsel be restrained from making any use for the purpose of this action of any information derived from the defendant's brief to Mr John Gleeson QC.