Martin Bruce Jones and Darren Gordon Weaver and Andrew John Saker as Receivers of LOT 563 on Deposited Plan 37286 (Certificate of Title Volume 2536 FOLIO 27), LOT 8793 on Deposited Plan 133514 (Certificate of Title...
[2011] WASC 329
•2 DECEMBER 2011
MARTIN BRUCE JONES AND DARREN GORDON WEAVER AND ANDREW JOHN SAKER AS RECEIVERS OF LOT 563 ON DEPOSITED PLAN 37286 (CERTIFICATE OF TITLE VOLUME 2536 FOLIO 27), LOT 8793 ON DEPOSITED PLAN 133514 (CERTIFICATE OF TITLE VOLUME 1571 FOLIO 668), LOT 4985 ON DEPOSITED PLAN 115829 (CERTIFICATE OF TITLE VOLUME 1137 FOLIO 176), LOT 9023 ON DEPOSITED PLAN 151447 (CERTIFICATE OF TITLE VOLUME 979 FOLIO 162) AND LOT 11321 ON DEPOSITED PLAN 85021 (CERTIFICATE OF TITLE VOLUME 1032 FOLIO 431) -v- THOMPSON [2011] WASC 329
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 329 | |
| Case No: | CIV:2637/2010 | 2 AUGUST 2011 | |
| Coram: | LE MIERE J | 2/12/11 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application to cross-vest proceedings dismissed Application to restrain plaintiffs' solicitors dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARTIN BRUCE JONES AND DARREN GORDON WEAVER AND ANDREW JOHN SAKER AS RECEIVERS OF LOT 563 ON DEPOSITED PLAN 37286 (CERTIFICATE OF TITLE VOLUME 2536 FOLIO 27), LOT 8793 ON DEPOSITED PLAN 133514 (CERTIFICATE OF TITLE VOLUME 1571 FOLIO 668), LOT 4985 ON DEPOSITED PLAN 115829 (CERTIFICATE OF TITLE VOLUME 1137 FOLIO 176), LOT 9023 ON DEPOSITED PLAN 151447 (CERTIFICATE OF TITLE VOLUME 979 FOLIO 162) AND LOT 11321 ON DEPOSITED PLAN 85021 (CERTIFICATE OF TITLE VOLUME 1032 FOLIO 431) NATIONAL AUSTRALIA BANK LTD JANET HUFNAGEL THOMPSON MATT WILLIS THOMPSON |
Catchwords: | Legal practitioners Application to restrain solicitors Conflict of interest Whether real and sensible risk of conflict Risk that solicitors will disclose confidential information Turns on own facts Courts Application to transfer Supreme Court proceedings to Federal Court Cross-vesting legislation Whether in interests of justice Turns on own facts |
Legislation: | Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth), s 237, s 418A, s 481A Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 5(1) Trade Practices Act 1974 (Cth) (repealed), s 51A, s 51AC, s 52, s 75B, s 80 |
Case References: | BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112 Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 Hall v Nominal Defendant (1966) 117 CLR 423 Jones v Narrogin Beef Producers Pty Ltd (Receivers and Managers Appointed) [2010] WASC 327 Licul v Corney (1976) 180 CLR 213 Thompson v Department of Environment and Conservation [2011] FCA 617 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
- NATIONAL AUSTRALIA BANK LTD
Second Plaintiff
AND
JANET HUFNAGEL THOMPSON
MATT WILLIS THOMPSON
Defendants
Catchwords:
Legal practitioners - Application to restrain solicitors - Conflict of interest - Whether real and sensible risk of conflict - Risk that solicitors will disclose confidential information - Turns on own facts
Courts - Application to transfer Supreme Court proceedings to Federal Court - Cross-vesting legislation - Whether in interests of justice - Turns on own facts
Legislation:
Competition and Consumer Act 2010 (Cth)
Corporations Act 2001 (Cth), s 237, s 418A, s 481A
Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 5(1)
Trade Practices Act 1974 (Cth) (repealed), s 51A, s 51AC, s 52, s 75B, s 80
Result:
Application to cross-vest proceedings dismissed
Application to restrain plaintiffs' solicitors dismissed
Category: B
(Page 3)
Representation:
Counsel:
First Plaintiff : Dr J O'Donovan
Second Plaintiff : Dr J O'Donovan
Defendants : Mr E J Forrester
Solicitors:
First Plaintiff : Lavan Legal
Second Plaintiff : Lavan Legal
Defendants : Ranger Legal
Case(s) referred to in judgment(s):
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Hall v Nominal Defendant (1966) 117 CLR 423
Jones v Narrogin Beef Producers Pty Ltd (Receivers and Managers Appointed) [2010] WASC 327
Licul v Corney (1976) 180 CLR 213
Thompson v Department of Environment and Conservation [2011] FCA 617
(Page 4)
- LE MIERE J:
Present applications
1 The defendants have brought two applications. The first is to transfer the action to the Federal Court of Australia pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) (the Cross-Vesting Act). The second is to restrain the law firm Lavan Legal from acting for the first plaintiff or the second plaintiff in this action.
The parties
2 The defendants, Janet Thompson and Matt Thompson (Mr and Mrs Thompson or the defendants) are the sole directors and shareholders of Narrogin Beef Producers Pty Ltd (the company). Mr and Mrs Thompson purchased land at Narrogin (the Narrogin land) on which the company proceeded to develop and operate a cattle feedlot business. Over a period of time Mr and Mrs Thompson, on behalf of the company, had a number of dealings with officers of the Department of Environment and Conservation and other officers of the State of Western Australia in relation to the establishment and operation of the business and in particular the issue of licences and work approvals in relation to the feedlot.
3 The second plaintiff (the Bank) entered into written loan agreements pursuant to which it provided the company with loan facilities. The loan agreements are described as the Bill Facility, the Farm Management Overdraft Facility and the Market Rate Facility. I will refer to them collectively as the Facilities. Pursuant to a deed of guarantee and indemnity (Guarantee) in favour of the Bank, Mr and Mrs Thompson guaranteed the company's performance of its obligations under the Facilities. The Guarantee was secured by a mortgage given by Mr and Mrs Thompson over the Narrogin Land (the Mortgage).
4 The plaintiffs allege that the Farm Management Overdraft Facility expired on 31 December 2009 and the company failed to repay the Bank (Principal Default) and by reason of that default the company defaulted under the Market Rate Facility and Bill Facility. The plaintiffs say that the company was thereby in default of each of the Facilities and the Bank was entitled to demand all amounts payable under the Facilities and the Guarantee. By notice of demand served on the company the Bank demanded that the company repay the outstanding balance of the Facilities (Notice of Demand). The company failed to comply with the Notice of Demand. By notice of demand served on Mr and
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- Mrs Thompson the Bank demanded that Mr and Mrs Thompson repay the outstanding balance of the Facilities (Guarantee Demand). Mr and Mrs Thompson did not do so. The plaintiffs say that by reason of the failure of the company and Mr and Mrs Thompson to comply with the demands upon them, Mr and Mrs Thompson have defaulted under the Guarantee and the Mortgage. The Bank appointed the first plaintiffs (Receivers) as receivers and managers of the assets and undertakings of the company and subsequently appointed the Receivers as receivers and managers of the Narrogin Land pursuant to the terms of the Mortgage.
The plaintiffs' claim
5 The plaintiffs say that they are entitled to vacant possession of the Narrogin Land and that Mr and Mrs Thompson have failed and refused to deliver possession of the land to the plaintiffs. On 14 October 2010 the plaintiffs commenced this action against Mr and Mrs Thompson claiming an order for delivery up of possession of the Narrogin Land.
6 The defendants deny that the Farm Management Overdraft Facility expired on 31 December 2009. The defendants admit that the company failed to comply with the Notice of Demand but say that it was of no effect because there was no Principal Default because the Farm Management Overdraft Facility had not expired. The defendants admit that they failed to comply with the Guarantors' Demand but say that it was of no force or effect because there was no Principal Default because the Farm Management Overdraft Facility had not expired. The defendants say that the Bank's appointment of the Receivers as receivers and managers over the assets and undertakings of the company and their appointment as receivers and managers over the Narrogin Land was of no force and effect because there was no Principal Default. The defendants say that the plaintiffs are not entitled to possession of the Narrogin Land.
The defendants' counterclaim against the plaintiffs
7 The defendants say that under the agreement which they call the farm management account overdraft agreement, the expiry date of the loan facility was 10 March 2016. On or about 5 March 2009 the Bank notified the company that the expiry date of the farm management account overdraft was varied from 10 March 2016 to 31 December 2009. The defendants say that shortening the expiry date of the farm management account overdraft was unconscionable conduct in breach of s 51AC of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth) but which for convenience I will continue to refer to as the TPA). The defendants say that by drafting, sending and relying on the
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- Notice of Demand and the Guarantors' Demand (the Demands) the Bank engaged in conduct in breach of s 51AC of the TPA and/or s 52 of the TPA. The defendants say that they will suffer or are likely to suffer loss and damage, namely loss of possession of the Narrogin Land, if the plaintiffs act on the Demands and enforce the Guarantee and Mortgage.
8 The defendants make the following further or alternative claims against the plaintiffs. In about early December 2008 the Bank represented to the defendants and the company that the company's file would be transferred to the Bank's Strategic Business Services Division (SBS) and that SBS would be able to assist the company in financing its activities by extending the Bank's current facilities with the company or exploring alternative finance arrangements. The Bank did not inform the defendants or the company that the reason that SBS had taken over the company's portfolio was that the Bank regarded the company's loans or securities as impaired assets and its role was to recover money for the Bank for loans it regarded as in danger of not being repaid in part or whole. The defendants say that had they been informed of the true position they would not have agreed to the independent business review referred to below and would have made arrangements to refinance the company's loans with a financier other than the Bank. The conduct of the Bank is said to be in breach of s 52 of the TPA and/or s 51AC of the TPA.
9 The defendants further allege that the Bank represented to them and the company that in order for the Bank to consider providing additional funding to the company under the Bill Facility, the company must undergo an independent business review and needed to choose one of three nominated parties to provide the independent business review. In reliance upon that representation the company chose Ferrier Hodgson to perform the independent business review and to enter into an agreement with Ferrier Hodgson to conduct the independent business review. The defendants say that in reliance upon those matters the company and the defendants provided Ferrier Hodgson with information that was confidential or commercially sensitive (the Information). The Information was provided to Mr Powell of Ferrier Hodgson. In Mr Powell's reports to the Bank a significant proportion of the Information to which he was exposed was either not referred to at all or referred to in a way that it did not lose its confidentiality or commercial sensitivity (the Residual Information). The defendants say that contrary to the representations made to them, Ferrier Hodgson had been commissioned by the Bank to act on its behalf to conduct a forensic assessment of the company's trading and financial position for the purposes of determining whether or not to continue funding and Ferrier Hodgson knew of that matter but did not
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- disclose it to the defendants but represented that it would conduct an 'independent business review'. The defendants say that had the Bank or Ferrier Hodgson disclosed the matters referred to, they would not have agreed to the company being subject to an independent business review and would have made arrangements to refinance the company's loans with a financier other than the Bank. The defendants say that by reason of the matters referred to the Bank and Ferrier Hodgson each breached s 52(1) of the TPA and/or s 51AC of the TPA. Alternatively, the defendants say that Ferrier Hodgson, of which the Receivers are partners, were involved in the Bank's contravention of s 51A, s 52 and/or s 51AC of the TPA for the purposes of s 75B of the TPA.
10 The defendants further allege that by reason of the matters already referred to, Ferrier Hodgson engaged in unconscionable conduct in breach of s 51AC of the TPA. In their counterclaim the defendants claim declarations under s 87 of the TPA varying the terms of the Facilities, and in particular the expiry dates and declarations that the company is not in default of the Facilities, that the Demands are void and of no effect and that any action taken by the Bank based on the Demands is void and of no effect. The defendants claim an injunction under s 80 of the TPA permanently restraining the Receivers from acting as receivers and managers of the company and/or from selling the Narrogin Land. The defendants seek an injunction under s 80 of the TPA restraining the Bank and/or the Receivers from enforcing the Guarantee and/or the Mortgage in relation to the facilities or loan agreements until 10 March 2016 or 31 August 2013.
Confirmation proceedings
11 Mr and Mrs Thompson disputed the validity of the appointment of the Receivers. In broad terms Mr and Mrs Thompson said that the Bank did not have authority to appoint the Receivers as receivers and managers of the company because of a conflict of interest arising from the work previously done by Ferrier Hodgson in relation to the company and its affairs.
12 On the same day as the plaintiffs commenced this action, 14 October 2010, the Receivers commenced COR 174 of 2010 in this court against the company and Mr and Mrs Thompson seeking an order under s 418A of the Corporations Act 2001 (Cth) (the Corporations Act) that their appointment as receivers and managers of the property of the company was not valid.
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Federal Court action
13 Before the Receivers commenced this action and the Confirmation Proceedings Mr and Mrs Thompson had served notice on the Receivers of their intention to bring proceedings in the Federal Court, amongst other things, to contest the appointment of the Receivers as receivers and managers and to bring a derivative action on behalf of the company under s 237 of the Corporations Act. On 20 October 2010 Mr and Mrs Thompson commenced proceedings in the New South Wales District Registry of the Federal Court against the Department of Environment and Conservation (Department), the State of Western Australia, Paul Byrnes (an employee of the Department), the Bank, the Receivers and the company. In the Federal Court proceeding Mr and Mrs Thompson claimed, as against the Department, the State and Mr Byrnes (the State parties) damages, compensation and related orders pursuant to the TPA, Fair Trading Act 1987 (WA) and the Corporations Act as well as under the general or common law. They also sought a declaration that Works Approval Number 3600 issued in 2002 in respect of the cattle feedlot to the company by the State parties is a valid and continuing approval. Additionally, they have sought a declaration that other restrictions and conditions imposed on a licence issued under the Environmental Protection Act 1986 (WA) by the State and the Department in respect of the cattle feedlot are void and of no effect.
14 In the Federal Court proceeding, Mr and Mrs Thompson, as against the Bank and the Receivers did not seek, or appear to seek, any final relief but sought by way of interlocutory relief an order restraining the Receivers from entering into possession of the property of the company and from trespassing upon the Narrogin Land: see Thompson v Department of Environment and Conservation [2011] FCA 617 [12]. In the Federal Court proceeding Mr and Mrs Thompson pleaded material facts in support of a claim that the Bank is liable to it for unconscionable conduct contrary to the TPA, a plea that seems to be related to the further plea that the company is entitled to a declaration that the Receivers have not been validly appointed.
First transfer application
15 On 1 November 2010 Mr and Mrs Thompson applied in the Confirmation Proceedings for orders that the Confirmation Proceedings and this action be transferred to the Federal Court pursuant to the Cross-Vesting Act. Mr and Mrs Thompson based their application on two principal grounds. First, they said that they first served notice on the Receivers of their intention to bring Federal Court proceedings, amongst
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- other things, to contest the appointment of the Receivers and to bring a derivative action on behalf of the company under s 237 of the Corporations Act and instead of responding appropriately to that notice the Receivers 'forum jumped' by issuing the Confirmation Proceedings seeking a declaration pursuant to s 418A of the Corporations Act that they have been validly appointed as receivers and managers of the company. The second ground relied upon by Mr and Mrs Thompson was that if this action and the Confirmation Proceedings were transferred to the Federal Court, then all of the matters in dispute between the parties would be resolved in the Federal Court, whereas if the proceedings were not transferred the question of the validity of the Receivers' appointment would be determined in this court and the other matters in dispute between the parties would be determined in the Federal Court. Mr and Mrs Thompson submitted that the issues that arise in determining the validity of the appointment of the Receivers overlap with the issues and other matters in dispute in the Federal Court proceedings.
16 On 10 November 2010 I dismissed Mr and Mrs Thompson's application to transfer the Confirmation Proceedings and this action to the Federal Court. In relation to the first ground argued I found that Mr and Mrs Thompson's contention that the Receivers had 'forum jumped' by issuing the Confirmation Proceedings was not a reason for transferring the proceedings to the Federal Court. I said that in identifying the more appropriate forum the court must do so without any specific emphasis in favour of the choice of forum made by the plaintiffs and it followed that the court must identify the more appropriate forum without any specific emphasis in favour of the foreshadowed choice of forum by Mr and Mrs Thompson. In relation to the second ground advanced by Mr and Mrs Thompson, I concluded that it was in the interests of justice that the Confirmation Proceedings should be determined in this court and not transferred to the Federal Court.
17 I found that there were other reasons for refusing to transfer this action to the Federal Court but the application to transfer this action to the Federal Court should also be refused because it was in the interests of justice that the proceedings be determined in this court and not transferred to the Federal Court. I found that transferring the action to the Federal Court would cause inconvenience and lead to a delay in the resolution of the action.
(Page 10)
Confirmation Proceedings determined
18 On 9 December 2010 I determined the Confirmation Proceedings. I held that the Receivers' appointment as receivers and managers of the company was not invalid by reason of the alleged conflict of interest or by reason of any fiduciary duties they owe to the Bank or the company. I found that the factual basis of Mr and Mrs Thompson's allegation of a conflict of interest was not made out because the Receivers were not engaged by the company to carry out the work previously done by Ferrier Hodgson in relation to the company and its affairs. Ferrier Hodgson were engaged by the Bank to carry out that work. I found that there was no fiduciary relationship between Ferrier Hodgson and the Bank or between Ferrier Hodgson and the company prior to the Receivers being appointed receivers and managers of the company.
19 At the hearing of the Confirmation Proceedings Mr and Mrs Thompson alleged that the appointment of the Receivers was invalid by reason of misleading or deceptive conduct or unconscionable conduct by the Bank. Those grounds were advanced for the first time in written submissions filed on the morning of the hearing and elaborated upon by counsel at the hearing of the application. I did not determine those issues in the Confirmation Proceedings for a number of reasons.
Further steps in the Federal Court
20 After the conclusion of the first transfer application the Federal Court proceeding was transferred to the Western Australian registry of that court. On 3 June 2011 Barker J gave judgment on a number of motions in the Federal Court proceeding: Thompson v Department of Environment and Conservation. Barker J struck out part of the claims against the State parties and part of the claim against the Receivers and the Bank. Barker J described the substance of Mr and Mrs Thompson's claims against the Bank and the Receivers to be:
… that the Bank, through its officers, acted contrary to the terms of the financial agreements and in an underhand way. The clear allegation is that at least one letter was falsely created and that in other respects the Bank induced a certain belief in [Mr and Mrs Thompson] (and the company through them) that the Bank would support their business through difficult times, when at all times the Bank intended something different [59].
- Further, Barker J said that in substance Mr and Mrs Thompson seek to undermine the validity of the appointment of the Receivers by the Bank by reason of the misleading or deceptive or unconscionable conduct of the Bank in contravention of the TPA: [2011] FCA 617 [68]. Barker J
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- dismissed Mr and Mrs Thompson's application for leave to bring derivative proceedings on behalf of the company.
The present transfer application - no issue estoppel
21 The plaintiffs submit that the cross-vesting application now before the court should be dismissed because the court has already determined an application to cross-vest this action in Jones v Narrogin Beef Producers Pty Ltd (Receivers and Managers Appointed) [2010] WASC 327 where I dismissed the defendants' first transfer application. The plaintiffs say that that judgment gives rise to an issue estoppel against the defendants.
22 The judgment on the first transfer application does not give rise to an issue estoppel. The judgment upon which an estoppel is to be founded must be a final judgment. In broad terms, a judgment is treated as final if it finally disposes of the rights of the parties. Otherwise it is an interlocutory order: Hall v Nominal Defendant (1966) 117 CLR 423, 439 - 440 (Taylor J, Owen J agreeing), 443 (Windeyer J); Licul v Corney (1976) 180 CLR 213, 225 (Gibbs J, Steven, Jacobs & Mason JJ agreeing). The decision not to transfer the proceedings to the Federal Court did not finally dispose of the rights of the parties. It was an exercise of discretion on a point of practice or procedure, not a decision that determined substantive rights.
23 In any event, if the judgment on the first transfer application gives rise to an issue estoppel then the issue estoppel relates only to what was decided in that application. The judgment decided that the proceedings should not be transferred to the Federal Court at that time. A party may make a further application to transfer proceedings under the cross-vesting legislation if circumstances change such that it is in the interests of justice that the proceedings should be transferred.
24 Even if the judgment on the first transfer application does not give rise to an issue estoppel, the court may dismiss a second application seeking the same relief as has been unsuccessfully sought in an earlier application on the ground that it is an abuse of process: Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [71] (Pullin JA). It is not an abuse of process in this case because the defendants say that there has been a relevant change of circumstances. The change of circumstances is that the Federal Court proceeding has been transferred from the New South Wales District registry to the Western Australian District registry. Hence, the defendants submit that a factor that was important in determining the first transfer application - that the proceedings should be heard in Western Australia, see [2010] WASC
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- 327 [19] - no longer exists. I will consider the defendants' application in light of the present circumstances.
Cross-vesting of proceedings
25 The defendants rely upon s 5(1) of the Cross-vesting Act which relevantly provides:
(1) Where -
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court; and
(b) it appears to [the Supreme Court] that:
(ii) having regard to:
(C) the interests of justice;
it is more appropriate that the relevant proceeding be determined by the Federal Court …
26 The court must determine which is the more appropriate forum: BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400. In determining which is the more appropriate forum no weight is to be given to the choice of forum made by the plaintiff: BHP Billiton v Schultz [77]. In this case the question is whether in the interests of justice it is more appropriate that the action be determined by the Federal Court.
Defendants' contentions
27 The defendants' first argument is based upon the fact that they foreshadowed the Federal Court proceeding before the plaintiffs commenced the present action. The defendants submit that after they had given notice of their intention to bring Federal Court proceedings the plaintiffs responded inappropriately by issuing this action. The defendants say that the plaintiffs should have sought the relief they claim in this action by way of a counterclaim to the foreshadowed Federal Court proceeding. The defendants say that the court should discourage such conduct by transferring the proceeding to the Federal Court. In my view this is a rehash of the argument I rejected in the first transfer application. In identifying the more appropriate forum the court must do so without any specific emphasis in favour of the choice of forum made by the plaintiff. It follows that the court must identify the more appropriate
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- forum without any specific emphasis in favour of the foreshadowed choice of forum by the defendants.
28 The defendants submit that the Federal Court is the more appropriate forum. They submit that there is a high degree of overlap between the issues in this action and in the Federal Court proceeding. Cross-vesting this action will remove the risk of unnecessary duplication of costs in trying the same issues and inconsistent findings of fact and law in relation to the same issue. To allow the present action and the Federal Court proceeding to continue simultaneously would carry an unacceptable risk of an abuse of process in both proceedings because some issues would be tried in each proceeding. The defendants say the most convenient forum for deciding all issues in dispute between the Bank, the Receivers and Mr and Mrs Thompson is the Federal Court because the Federal Court is adjudicating a wider dispute that includes the issues pleaded in this action.
29 It does not appear to me that, having regard to the interests of justice, it is more appropriate that this action be determined by the Federal Court. The plaintiffs' claim is for possession of the Narrogin Land by reason of the defendants' breach of the terms of the Mortgage and Guarantee and the rights of the plaintiffs under the Mortgage. That is a claim of a nature that is ordinarily tried in this court.
30 The defendants' defence is that the expiry date of the Facilities was varied and the Farm Management Overdraft Facility did not expire on 31 December 2009 and consequently there was no Principal Default and no default under the other Facilities; the company did not repay all amounts payable under the Facilities because they had not become payable, the notices of demand were of no effect, there was no breach under the Guarantee or Mortgage and the Bank is not entitled to possession of the Narrogin Land. The defendants raise other claims in their counterclaim to which I have already referred. The defendants say that the Bank engaged in unconscionable conduct and misleading or deceptive conduct in relation to the Facilities. The defendants claim declarations under s 87 of the TPA as to the expiry date of the Facilities, that various clauses of the instruments between the parties are void, that the defendants were not in default of the Facilities, that the demands made by the Bank were void and of no effect and that actions taken by the Bank based on the demand are void and of no effect. The defendants seek an injunction restraining the Receivers from acting as receivers of the company and from selling the Narrogin Land. The defendants seek an injunction restraining the plaintiffs from enforcing the Guarantee and the Mortgage.
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31 This court has jurisdiction to hear all of the claims made by the defendants in their counterclaim. The claims made by Mr and Mrs Thompson against the State parties are discrete from the claims against the Receivers and the Bank. There is no reason why they should be determined together.
32 The plaintiffs have proceeded with this action diligently and expeditiously. The delay in resolving the action has been due to the defendants. The defendants have not progressed the Federal Court proceeding with any degree of urgency or expedition. The interlocutory decisions of Barker J in Thompson v Department of Environment and Conservation struck out a number of claims made by Mr and Mrs Thompson in that proceeding. His Honour dismissed their application for leave to bring derivative proceedings on behalf of the company. I was informed during the hearing of the application that Mr and Mrs Thompson have applied for leave to appeal from the decision of Barker J. There are substantial obstacles in the way of Mr and Mrs Thompson pursuing all of the claims they wished to pursue in the Federal Court. It may be some time before their application for leave to appeal is resolved. If their appeal is unsuccessful they may not be able to pursue many of their claims. In any event, if this action is transferred to the Federal Court there is likely to be substantial delay in resolving the plaintiffs' claim to possession of the Narrogin Land.
33 The principal delay in resolving the plaintiffs' claim in this action has been delay on the part of the defendants in putting forward their defence and counterclaim. Now that that has been done there is no reason why this action should not be resolved expeditiously. It is in the interests of justice that the plaintiffs' claim and the defendants' counterclaim be resolved expeditiously. That is most likely to occur if the action remains in this court.
34 The defendants' application to transfer the action to the Federal Court is dismissed.
Application to restrain solicitors
35 The defendants apply for an order that the firm Lavan Legal be permanently restrained from acting for the first plaintiff, the Receivers, and the second plaintiff, the Bank, in this action. The application is made on two grounds. The first is that Lavan Legal have a conflict of interest in acting for both plaintiffs in this action. The second is that there is a risk that Lavan Legal will disclose confidential information of the Bank to the Receivers through Clare Petersen, a senior associate of Lavan Legal who
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- was for a time seconded to the Bank's legal department. I will deal with each in turn.
No conflict of interest
36 The defendants submit that there is a real and sensible possibility that Lavan Legal's duties to the Bank on the one hand and the Receivers on the other hand might conflict for the following reasons. In their defence and counterclaim the defendants allege that the Bank breached the TPA, the Receivers breached the TPA and the Receivers were involved in the Bank's breach of the TPA such as to attract liability by the operation of s 75B of the TPA. In their written submissions the defendants submitted that:
At its most basic, both [the Bank] and the Receivers have an interest in minimising or avoiding the liability alleged. There is the real and sensible possibility that minimising or avoiding liability the Receivers may depend on arguments that implicate (or further implicate) [the Bank] (and vice versa). Advancing such arguments would not present a problem if different firms represented [the Bank] and the Receivers. This is because each firm would be free to advocate the case that best promoted [the Bank's] and the Receiver's respective interest. However, it is a problem if one firm purports to advance the interests of both [the Bank] and the Receivers.
37 A solicitor must protect and preserve the interests of a client unaffected by the interests of another client. A solicitor must not act for two clients in the same matter if the interests of the clients are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client. That does not mean that a solicitor cannot act for two clients in the same action, even if the clients are unrelated. The critical factors are whether the interests of the clients are adverse and whether there is a potential conflict of the duties to act in the best interests of each client.
38 The pleadings and the evidence before the court does not give rise to a real and sensible possibility that the interests of the Bank and the Receivers in this action are adverse or that there is a potential conflict of the duties of Lavan Legal to act in the best interests of each of the Bank and the Receivers.
39 As best I understand the defendants' submissions, the real and sensible risk of conflict is said to arise principally from the Receivers' firm, Ferrier Hodgson, having conducted what the defendants describe as an independent business review of the affairs of the company before the
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- appointment of the Receivers as receivers and managers of the company. The matter arose in this way. By a letter of 8 December 2008 addressed to Mr Jones of Ferrier Hodgson, the Bank engaged Ferrier Hodgson to conduct an investigating accountant's business review of the company. Mr Jones is one of the Receivers. Ferrier Hodgson reported to the Bank on 15 December 2008 and subsequently on 19 December 2008 and 14 January 2009. Ferrier Hodgson conducted another review, described as a review of the assets of the company, on 5 March 2010. The evidence is that Ferrier Hodgson was engaged by the Bank to conduct its investigations and make its reports. The Bank did so pursuant to the terms of the Facilities. The Receivers were not engaged by the company.
40 Counsel for the defendants, Mr Forrester, submitted that the conflict may arise this way:
It could be NAB's policy - we don't know, we haven't gone through discovery, but it could be NAB's policy to appoint someone to conduct an independent business review who later becomes a receiver. It could also be that Ferrier Hodgson had no knowledge of this. It could be that, putting it another way, Ferrier Hodgson had no problem with - or has a policy of going in and conducting forensic accounting and then later turning around and being appointed as receivers of a corporation which they've done a forensic audit of (ts 67).
- Counsel elaborated upon the matter in this way:
In those circumstances we would say that it's in the interests of Ferrier Hodgson - or the Receivers - to actually, so to speak, turn the guns on NAB in order to say, 'we're not responsible here' and actually advance a positive case against NAB. That's not far-fetched or fanciful by any stretch, because it is common place where you have co-defendants for one co-defendant to turn the guns on the other to exonerate themselves and to advance a positive case accordingly against a fellow co-defendant (ts 72).
We are dealing with risks that haven't eventuated and possibilities that might occur … (ts 73).
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- In my view the risk of a conflict of duty has not only not eventuated but is mere speculation.
42 The second ground relates to Ms Petersen. Ms Petersen is a senior associate with Lavan Legal. She has participated in the conduct of these proceedings on behalf of the Bank and the Receivers. Between 10 August 2009 and 1 April 2010 Ms Petersen was seconded by Lavan Legal to the Bank's legal department in Perth. She was not employed by the Bank. Ms Thompson has sworn that during her secondment she advised the Bank, via Gregory Daniel, in respect of, among other things, the company from time to time and as and when requested to do so by Mr Daniel. Her involvement was limited to drafting occasional correspondence to Mr and Mrs Thompson or their solicitors.
43 It is a basic requirement that before material will be recognised as having the character of confidential information, the information must be identified with precision and not merely in global terms: Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112, 120 (Drummond J). The defendants have not identified any confidential information that Ms Petersen came into possession of, or gained knowledge of, while seconded to the Bank and in relation to which she has a duty to maintain its confidence and not disclose to the Receivers. The evidence as to the information which Ms Petersen received whilst seconded to the Bank goes no further than providing a general or global description of the information and is insufficient to enable any judgment to be made as to whether the information qualifies as confidential information. In any event, the Bank is a sophisticated financial institution. It is one of Australia's four major banks. It is well experienced in litigation and is well resourced. The Receivers are experienced, well resourced, professional people. The Bank is at liberty to disclose its own information to the Receivers if it chooses to do so. The defendants have not identified any information confidential to the Bank which Ms Thompson is in possession of or has knowledge of and in respect of which she has a duty to keep confidential from the Receivers.
44 The defendants have not made out the basis for their application. The application to restrain Lavan Legal will be dismissed.
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