Pott v Jones Mitchell

Case [2004] QSC 48

SUPREME COURT OF QUEENSLAND

CITATION:

Pott v Jones Mitchell & Anor [2004] QSC 048

PARTIES:

BRYAN FREDERICK POTT
(applicant)
v
JONES MITCHELL
(first respondent)
PHILIPPA POWER
(second respondent)

FILE NO/S:

S 11554 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING
 COURT:

Supreme Court
Brisbane

DELIVERED ON:

19 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2004

JUDGE:

McMurdo J

ORDERS:

1.   Application dismissed

2.   Applicant to pay second respondent’s costs to be assessed

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – TO OTHER PERSONS – OTHER DUTIES AND LIABILITIES – whether a solicitor should be restrained from acting for a party in litigation – where solicitor has never acted for the party – where the opposite party was previously represented by a firm with whom the solicitor had a professional association – where solicitor was never a partner or employee of that firm – where solicitor was a consultant of that firm

Australian Commercial Research & Development Ltd v Hampson [1991] 1 Qd R 508, cited
Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307; 115 ALR 112, cited
Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1, cited
Farrow Mortgage Services Pty Ltd (In Liquidation) v Clayton Utz [1995] QSC 219, cited
Flanagan v Pioneer Permanent Building Society Ltd [2002] QSC 346, cited

Fruehauf Finance Corporation Pty Ltd v Feez Ruthning [1991] 1 Qd R 558, cited
Gillies v Dibbets [2001] QSC 459, cited

Grimwade v Meagher & ors [1995] 1 VR 445, considered
Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357, cited
Mills v Day Dawn Block Gold Mining Co Ltd (1882) 1 QLJ 62, considered
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209, cited
PhotoCure ASA v Queens University at Kingston [2002] FCA 905, cited
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222, considered
Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831, not followed
South Black Water Coal Ltd v McCullough Robertson [1997] QSC 77, considered
Spincode Pty Ltd v Look Software Pty Ltd [2001] 4 VR 501, cited

COUNSEL:

A P J Collins for the applicant
No appearance for the first respondent

T L Kirk SC for the second respondent

SOLICITORS:

Dearden Lawyers for the applicant
No appearance for the first respondent

The second respondent appeared on her own behalf

  1. McMURDO J:  The question for determination is whether a solicitor should be restrained from acting for a party in litigation, because the other party had been represented by a firm with which the solicitor has had a professional association.  The solicitor has never acted for the party who now seeks to restrain her, and nor has she been a partner or employee of the firm previously retained by that party.  An injunction is sought against the solicitor upon the argument that her former association with that firm,…

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AGLC
Pott v Jones Mitchell [2004] QSC 48
Case
[2004] QSC 48
Decision Date

CaseChat Overview and Summary

In the matter of Pott v Jones Mitchell, the applicant sought an order to restrain the second respondent, a solicitor, from acting for a party in litigation. The applicant argued that the second respondent should not be permitted to act for the party because they had previously been associated with a firm that had represented the opposing party in another case. The second respondent had never been a partner or employee of that firm, but had acted as a consultant. The case was heard in the Federal Court of Australia. The central legal issue before the court was whether the second respondent, who had never acted for the party in question, should be restrained from acting for that party in litigation due to their previous association with a firm that had represented the opposing party. The court considered whether the second respondent's prior professional association with the firm could create a conflict of interest or an appearance of impropriety that would warrant restraint from acting in the current litigation. The court held that there was no conflict of interest or appearance of impropriety in the second respondent acting for the party in the current litigation. The court found that the second respondent had never acted for the party, and had no prior relationship with them. Furthermore, the court found that the second respondent's prior association with the firm was purely consultative and did not create a conflict of interest or an appearance of impropriety. Accordingly, the court dismissed the application and ordered the applicant to pay the second respondent's costs to be assessed.

Orders

Orders of the court

1. Application dismissed

2. Applicant to pay second respondent’s costs to be assessed

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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