Radin, Michael (aka Milosh Radin) v Commonwealth Bank of Australia

[1997] FCA 411

CATCHWORDS

Counsel  - ethical obligations - confidential information imparted by client - whether barrister was entitled to retain subsequent brief, or whether he had confidential information from an earlier case that might, “as a real possibility,” be helpful to his later client’s case - meaning of relevant rule - whether injunction should be granted to restrain counsel’s appearance in proceeding.

New South Wales Barristers’ Rules, rules 103, 107

MICHAEL RADIN also known as MILOSH RADIN -V- COMMONWEALTH BANK OF AUSTRALIA

NG 202 of 1997

Burchett J
Sydney
19 March 1997

IN THE FEDERAL COURT OF AUSTRALIA       )
  )
NEW SOUTH WALES DISTRICT REGISTRY     )          NG 202 of 1997
  )
GENERAL DIVISION  )

BETWEEN:              MICHAEL RADIN also known   as MILOSH RADIN

Applicant

AND:              COMMONWEALTH BANK OF   AUSTRALIA

Respondent

CORAM:       Burchett J
PLACE:        Sydney
DATE:           19 March 1997

REASONS FOR JUDGMENT

BURCHETT J:

An application has been made, as a matter of considerable urgency, for an order restraining Commonwealth Bank of Australia from continuing to retain Mr John Sackar of Queens Counsel as its counsel in a proceeding involving Michael Radin as applicant and the bank as respondent.  An order is also sought against Mr Sackar personally, restraining him from continuing to appear for the bank in that proceeding.  The case was due to continue today, and has in part, as I understand, in fact continued, despite this application also being heard; but undoubtedly it is a matter of considerable importance that this application should not be delayed any more than the interests of justice require.  In different circumstances, it may be that it would be a proper exercise of discretion to delay matters to enable further inquiries to be made which,  it is suggested, might possibly be productive of some further evidence.  However, nothing more than that can be said, and I do not think it is appropriate that I should delay the action, which one party desires should proceed, on such a vague and uncertain basis. 

The material that has actually been presented to the Court does not seem to me to come anywhere near the establishing of a case under rules 103 and 107 of the New South Wales Barristers’ Rules, upon which particular reliance has been placed.  By rule 103, it is provided that “[a] barrister must not disclose (except as compelled by law) or use in any way in the course of practice confidential information obtained by the barrister concerning any person unless or until” - and there follow a series of provisions one of which relates to information that has been published, and another to the case where information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person, and who does not give the information confidentially to the barrister.  Rule 107 provides:

“A barrister who has accepted a brief must return the brief as soon as possible after the barrister becomes aware that the barrister has information confidential to a person other than the client which may, as a real possibility, be helpful to the client’s case or to the advancement of the client’s interests, being information which the barrister is prohibited from disclosing or using [by certain rules].”

Among others, rule 103 is then referred to. There is a proviso:  “unless the person entitled to the confidentiality consents to the barrister disclosing or using the information as the barrister thinks fit.”

In the present case, Mr Radin is a former solicitor who has been struck off as a result of proceedings which were commenced in the appropriate Tribunal; were subsequently dealt with by a judge of the Supreme Court; and  are now subject to appeal.  A number of allegations have, at this stage of those proceedings, been found to be established.  They do not include the particular matter out of which the present application arises.  That particular matter may be briefly outlined as follows.  A proceeding was brought, by a party to a de facto marriage relationship, to set aside a consent order that had been made in a matter in which Mr Radin acted.  Material put on affidavit in this proceeding is claimed to have been susceptible to the interpretation that the solicitor, Mr Radin, had been a party to a fraudulent and sham transaction designed to enable legal obligations, measured by a large sum of money, to be evaded.  Mr Radin was the solicitor acting for a party, Mrs Kalinic, involved in the proceeding, and he instructed Mr Sackar as counsel in that proceeding. 

I do not regard the allegations put on affidavit as unambiguous.  By that I mean that the alleged very serious impropriety does not seem to me necessarily to be implicit in a reasonable understanding of what is disclosed by that material.  On the other hand, there was undoubtedly a risk that, if those proceedings had gone to a hearing, a view might have been taken which would have been seriously adverse to the solicitor, Mr Radin.  Mr Sackar is now alleged by Mr Radin to have become possessed,  through what he was told in that proceeding, of knowledge of the kind referred to in rules 103 and 107, being knowledge of the allegations made against the solicitor, either expressly or by reasonable implication, in the Kalinic proceeding. 

It should, of course, be understood that Mr Radin denied those allegations at the time, so that any knowledge Mr Sackar had was knowledge of allegations,  supported though they were by affidavit material,  which were disputed.  It is not suggested that he was the recipient of confidences acknowledging the truth of any such allegation.  Mr Sackar has filed an affidavit; he has been cross-examined in detail; and I should say that I accept him as a witness of truth.  Bearing in mind the significant period of time which has elapsed, and to which he himself drew attention, but subject only to that qualification, I accept him also as accurate in his recollection.

Mr Sackar  stated in clear terms, and he was firm in making this assertion, that he did not believe he would receive any assistance from any information imparted to him in connection with the Kalinic matter.  It seems to me that, in rule 107, the words "as a real possibility" must be given their ordinary meaning.    They are designed to introduce a measure of practical reality into the operation of the rule, and to avoid it becoming an overly refined and purely technical barrier to the appearance of counsel in a case where, in reality, some piece of information that he may have is very unlikely to have any significance.

But, of course, one should not substitute for the rule some other formulation, and the question I have to answer is whether, in the very words of the rule, there is a real possibility that any confidential information Mr Sackar has would be helpful to his client’s case, or to the advancement of his client’s interests in the principal proceeding.  I am quite satisfied that there is no such real possibility, and accordingly I dismiss the application.  It is dismissed with costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date:  22 May 1997

Counsel for the Applicant:  Mr G. McVay

Solicitors for the Applicant:  Ms M. Milicevic of Milicevic   Solicitors

Counsel for the Respondent:  Mr T.F. Bathurst QC with
  Ms L. McCallum

Solicitors for the Respondent:  Mr S.L. Purcell of Henry Davis   York

Date of hearing:  19 March 1997