Dyer v Chrysanthou (NSD 426 of 2021, Orders dated 23 June 2021)
File number:
NSD 612 of 2021
Judgment of:
BESANKO, LEE AND ABRAHAM JJ
Date of judgment:
14 July 2022
Catchwords:
PRACTICE AND PROCEDURE — appeal from orders made by Federal Court of Australia pursuant to s 23 of Federal Court of Australia Act 1976 (Cth), enjoining second respondent from acting for appellant in proceedings NSD 206 of 2021 (defamation proceedings) — where prior to defamation proceedings being brought by appellant, first respondent had sought legal advice and attended conference with second respondent and instructing solicitor, as well as friend of first respondent, Mr James Hooke — where primary judge found real and sensible possibility of misuse of confidential information imparted to second respondent during conference, applying analytical framework in Nash v Timbercorp Finance Pty Ltd (in liq) [2019] FCA 957; (2019) 137 ACSR 189 and, as second basis for order, need to protect integrity of judicial process and due administration of justice — whether open to primary judge to accept evidence of Mr Hooke as to what occurred at conference — whether error established on basis that confidential information found by primary judge or any of it had lost character of confidentiality by having entered public domain — whether primary judge erred in finding second respondent proposed to act “against” first respondent in defamation proceedings — whether primary judge erred in finding real risk that confidential information imparted during conference was relevant to defamation proceedings — whether error established in relation to conclusion of risk of misuse of confidential information — whether primary judge erred in relation to second basis of injunction in failing to consider “cab rank” principle in Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) and appellant’s rights — appeal dismissed
PRACTICE AND PROCEDURE — appeal from ruling made during hearing before primary judge, allowing second affidavit of Mr Hooke to be filed and read by first respondent — where affidavit served on appellant two days before first day of hearing before primary judge and purported to set out precise content of confidential information said to have been imparted to second respondent at conference — whether primary judge failed to consider matters advanced by appellant in the appeal as giving rise to prejudice to appellant — appeal dismissed
PRACTICE AND PROCEDURE — application for leave to appeal from orders made by primary judge pursuant to s 37AF of Federal Court of Australia Act, prohibiting publication or disclosure of documents tendered as Exhibits 2, 3 and 6 — whether error in process of reasoning adopted by primary judge, to link information in Exhibits 2, 3 and 6 to one or more of categories of confidential information identified — application dismissed — consideration of requirement in s 37AJ of Federal…
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.
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Details
AGLC
Porter v Dyer [2022] FCAFC 116
Case
[2022] FCAFC 116
Decision Date
CaseChat Overview and Summary
In Porter v Dyer, the parties were involved in defamation proceedings where the appellant, Porter, sought to have his legal representative, Chrysanthou, act for him. However, the first respondent, Dyer, raised concerns about the possibility of misuse of confidential information that had been shared with Chrysanthou during a meeting with the second respondent. The primary judge issued orders enjoining Chrysanthou from acting for Porter in the defamation proceedings, and this decision was appealed. The appeal was dismissed, but certain suppression orders were varied to allow the publication of certain documents. The court considered various issues, including whether the primary judge had erred in his assessment of the risk of misuse of confidential information and whether he had properly considered the "cab rank" principle in the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW). The court found that no error had been demonstrated in relation to the primary judge's conclusion that there was a risk of misuse, and therefore the primary judge did not err in enjoining Chrysanthou. The court also dismissed an appeal against a ruling allowing a second affidavit to be filed and read by the first respondent. Finally, an application for leave to appeal from orders prohibiting publication or disclosure of certain documents was dismissed. The court found that the primary judge had not erred in his process of reasoning, and that the orders should specify a period for their operation.
Orders
Orders of the court
1. The parties confer as to the outstanding issues of the duration of the order of 23 June 2021, the costs of the cross-appeal and any final suppression orders to be made with respect to documents in the appeal proceeding, including the Court’s reasons. Within 14 days, the first respondent is to file the following:
(a) Agreed and signed minutes of order dealing with the disposition of the appeal and cross-appeal, including all matters of costs and suppression orders; or
(b) A short memorandum indicating the areas of agreement and disagreement between the parties as to the outstanding issues.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
A review of the transcript records that the arguments opposing the receipt of the Hooke Affidavit into evidence were as follows:(1)it was not filed in accordance with the orders of the Court and was not evidence in reply;(2)it went beyond the pleaded case; (3)counsel could not deal with it in cross-examination of Mr Hooke, as it was not received until 8:30am on Saturday 22 May 2021; and(4)the Court should exercise its discretion under s 135(a) of the Evidence Act 1995 (Cth) (Evidence Act) to exclude it. As refined by the submissions made on appeal, it is now contended that receiving the Hooke Affidavit involved an error by the primary judge, as his Honour “failed to consider” the following four matters:(1)the prejudice rendered by the fact that the evidence was principally in chief and not reply, and the significant expansion of the breadth of topics said to be confidential;(2)that the Hooke Affidavit could not be fairly met because of limited time;(3)that the Hooke Affidavit could not be the subject of response because a confidentiality regime existed preventing counsel from obtaining instructions from Ms Chrysanthou; and(4)that a defence had been filed in the Defamation Proceeding (prior to the ruling) “which contained the extent of material asserted by the ABC as relevant to those proceedings from Mr Hooke (and Ms Dyer)”. As noted above, the primary judge gave detailed and thorough reasons for his ruling in the Hooke Judgment. Upon reading those reasons, it is impossible to reconcile a submission that his Honour fell into error in failing to consider the first two matters identified in the preceding paragraph. They were clearly considered and weighed in the exercise of a discretion under Pt 3.11 of the Evidence Act not to exclude evidence otherwise accepted as passing through the Pt 3.1 relevance “gateway”. As to the third matter noted above, Mr Porter’s counsel below did not suggest that any fetter in obtaining instructions from Ms Chrysanthou (because of a confidentiality regime adopted by Ms Chrysanthou) would somehow change depending upon when the Hooke Affidavit had been served. It did not matter when the affidavit was delivered because Ms Chrysanthou had determined it was to her forensic advantage not to familiarise herself with the affidavit evidence served detailing what was alleged to have been communicated to her (which she could not now remember). Even if this factor had been developed below as it was on appeal, given the forensic decision of Ms Chrysanthou, it was not of importance to the exercise of a discretion to allow Ms Dyer to rely on the Hooke Affidavit. As to the fourth factor noted above, this was not the way the argument for discretionary exclusion was advanced below. Needless to say, the primary judge did not fall into error by failing to have regard to a matter not advanced before him. Mr Porter submits that it was not necessary for him to establish error of the type identified in House v The King (1936) 55 CLR 499 in relation to the rejection of the application to exclude the Hooke Affidavit. Although the argument against allowing reception of the Hooke Affidavit relied, in part, on case management considerations, the argument proceeded below on the basis that the evidence should be excluded under s 135 of the Evidence Act. As was recently noted in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68 (at [516] per Lee J, with whom Rares J and Wigney J agreed at [147] and [265] respectively), this involves a three-step (partly evaluative and partly discretionary) exercise: first, assessing the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue; secondly, assessing whether that probative value is substantially outweighed by an identified danger; and thirdly, the exercise of a discretion as to whether the evidence should be the subject of exclusion (being a balancing exercise): see also James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 (at [29] per Giles, McColl and Macfarlan JJA).
Decision
Reasons for decision
In my view, Ground 7 is substantially made out and I would make variations to the Suppression Orders to allow the publication of Exhibit 2, Exhibit 3, and balance of Exhibit 6 (save as to the parts indicated above).H CONCLUSION AND ORDERS Before coming to the orders that should be made to reflect the rejection of the principal challenges to the primary judge’s judgment and orders, reference should be made to one aspect of the written submissions made on behalf of Ms Dyer. In those submissions, reference was made to “the manner in which Ms Chrysanthou conducted herself in relation to her ethical obligations” in deciding whether to accept the brief on behalf of Mr Porter. No such issue was raised in these terms before the primary judge, nor was any allegation of unethical conduct put to Ms Chrysanthou in cross-examination. Understandably in these circumstances, senior counsel for Ms Dyer clarified the position orally and noted no contention of unethical behaviour on the part of Ms Chrysanthou was being asserted. Ms Chrysanthou, as a barrister, was subject to ethical obligations including the cab rank rule. The importance of this rule should not be minimised. As Brennan J said of the rule in Giannarelli v Wraith (1988) 165 CLR 543 (at 580), whatever its origins: …its observance is essential to the availability of justice according to law. It is difficult enough to ensure that justice according to law is generally available; it is unacceptable that the privileges of legal representation should be available only according to the predilections of counsel or only on the payment of extravagant fees. If access to legal representation before the courts were dependent on counsel’s predilections as to the acceptability of the cause or the munificence of the client, it would be difficult to bring unpopular causes to court and the profession would become the puppet of the powerful. Although a barrister must not act if there is a real risk of misuse of confidential information, the conclusion that a proposed brief would involve such a misuse involves an evaluative judgment by the barrister. Refusing a brief on this basis is not some matter of preference or convenience and can sometimes require close reflection. Although Ms Chrysanthou was mistaken in the judgment she formed, no finding was made by the primary judge that her view was not formed in good faith. In my view, the appeal should be dismissed (save in relation to the Suppression Orders) and I would give leave for submissions to be made as to costs. I agree the cross-appeal should also be dismissed.
Ratio Decidendi
Legal Principle Established
No error has been demonstrated in relation to the primary judge’s conclusion that there was a risk of misuse. It follows that the primary judge did not err in enjoining Ms Chrysanthou based on the danger of misuse of confidential information received by Ms Chrysanthou in the context of her dealings with Ms Dyer. F ADMINISTRATION OF JUSTICE ISSUE There was a second basis upon which the injunction ran, that is, the need to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice. This was described as an alternative basis for relief, but it was not a pure alternative. The primary judge dealt with this basis for relief (at PJ [133]–[151]) and found that an injunction was appropriate because:(1)fair-minded members of the public would think Mr Porter would gain some advantage from briefing Ms Chrysanthou;(2)there was a real and material risk of the public having less faith in the outcome of the Defamation Proceeding; and(3)fair-minded members of the public would recognise the inconsistent interests of Ms Dyer and Mr Porter. Ground 6 is expressed at a high level of generality but was developed in written and oral submissions as resting upon two overlapping complaints: first, the primary judge “paid no regard to the cab rank principle in arriving at [his] conclusion”; and secondly, his Honour erred by paying “scant regard to Mr Porter’s rights”. The complaint that the primary judge paid insufficient attention to that aspect of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Bar Rules) known as the “cab rank” rule assumed a prominence on appeal that did not reflect submissions made by Mr Porter below. Indeed, the complaint made that the Bar Rules were not mentioned in the primary judgment must be seen in the context that the cab rank rule and the Bar Rules were referred to in one subparagraph in Mr Porter’s opening submissions below (as part of a summary of principles) and there was only one reference to the cab rank rule in Mr Porter’s closing written submissions below, and no reference was made by counsel for Mr Porter in oral address. As the argument on appeal was developed orally, emphasis was placed on the importance of the cab rank rule (as to which see [173]–[174] below), and the notion that weighed in the balance against this fundamental aspect of the administration of justice was a mere theoretical possibility of misuse of information. But the difficulty is that the possibility of misuse was not considered by his Honour to be merely theoretical. As explained above, his Honour not only found the confidential information to be relevant, but also found a real risk of misuse. On the findings of the primary judge, there were conflicting duties. On the one hand there was the duty owed to Ms Dyer to keep the information confidential absent her consent, and on the other hand, the duty to Mr Porter to use relevant information for his benefit. His Honour’s conclusions that fair-minded members of the public would recognise an inconsistency in interests, that Mr Porter might gain some advantage, and there was a real and material risk of the public having less faith in the outcome of the Defamation Proceeding, reflect these findings.