Marshall v Prescott

Case [2015] NSWCA 110

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Marshall v Prescott [2015] NSWCA 110
Hearing dates:18 and 19 March 2015
Decision date: 28 April 2015
Before: Beazley P at [1];
Macfarlan JA at [98];
Emmett JA at [99]
Decision:

Appeal dismissed with costs.

Catchwords: EQUITY – confidential information – where alleged confidential information was obtained as a result of retainer to act as solicitor – effect of concurrent retainers for different clients in the same matter
EQUITY – confidential information – whether information was confidential – whether information alleged to be confidential was in the public domain – whether information alleged to be confidential was shared information as between different clients involved in the same matter
CONTRACT – construction of terms of retainer to act as solicitor – content of retainer where client has no standing to bring claim
Legislation Cited: Family Provision Act 1982 (NSW)
Cases Cited: ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199
Beach Petroleum NL v Kennedy [1999] NSWCA 408; 48 NSWLR 1
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Bristol and West Building Society v Mothew [1998] Ch 1
Coco v A N Clark (Engineers) Ltd [1969] 65 RPC 41
Commonwealth v John Fairfax [1980] HCA 44; 147 CLR 39
Holloway v McFeeters [1956] HCA 25; 94 CLR 470
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Luxton v Vines [1952] HCA 19; 85 CLR 352
Maguire v Makaronis [1997] HCA 23; 188 CLR 449
Marshall v Carruthers [2002] NSWCA 47
Seager v Copydex Ltd [1967] 2 All ER 415
Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1991) 22 FCR 73
Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2
Texts Cited: JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies, (LexisNexis Butterworths, 5th ed, 2014)
Category:Principal judgment
Parties: Margaret Lesley Marshall (Appellant)
Kim Neil Marshall (Second Appellant)
Michael Prescott (Respondent)
Representation:

Counsel:
C Bevan; E Young (Appellants)
J Kelly SC; Mr B McManus (Respondent)

Solicitors:
Turner Freeman (Appellants)
Colin Biggers & Paisley (Respondent)
File Number(s):CA 2014/14663
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law Division
Citation:
Marshall v Prescott (No 3) [2013] NSWSC 1949
Date of Decision:
20 December 2013
Before:
Beech-Jones J
File Number(s):
2009/297404

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants, Margaret Marshall and her son Kim Marshall (the Marshalls), claimed damages against the respondent, Michael Prescott, a solicitor, for his disclosure of information which they alleged was confidential to them and which he had an obligation not to disclose.

Mr Prescott was retained by the appellants to coordinate proceedings in the United States for recovery of damages in respect of the death of Neil Marshall, Kim’s father and Mrs Marshall’s husband, in a plane crash in South Australia on 31 May…

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AGLC
Marshall v Prescott [2015] NSWCA 110
Case
[2015] NSWCA 110
Decision Date

CaseChat Overview and Summary

The appeal concerned the alleged misuse of confidential information by a solicitor, Mr Prescott, who had acted for multiple parties in a complex property development dispute. The appellant, Marshall, alleged that Mr Prescott had breached his duty of confidentiality by using information obtained during his retainer to act for Marshall, to the benefit of other clients in the same matter. The case was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the information Mr Prescott possessed was indeed confidential, and if so, whether its use by Mr Prescott constituted a breach of his equitable duty of confidentiality to Marshall. This involved determining whether the information had entered the public domain or was considered shared information between the various clients Mr Prescott represented in the underlying dispute, particularly given that Marshall himself lacked standing to bring a claim in that dispute. The construction of the terms of Mr Prescott's retainer with Marshall was also a relevant consideration.

The Court of Appeal found that the information in question was not confidential. This conclusion was based on the finding that the information was either already in the public domain or was shared information amongst the parties involved in the underlying dispute, including Mr Prescott's other clients. Consequently, Mr Prescott's use of the information did not breach any equitable duty owed to Marshall. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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