Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd - [2005] WASC 255

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD -v- ANDERSON FORMRITE PTY LTD & ANOR [2005] WASC 255

CORAM: JOHNSON J

HEARD: 23 JUNE 2005

DELIVERED : 17 NOVEMBER 2005

FILE NO/S: CIV 2446 of 2002

BETWEEN: RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD (ACN 004 304 447)
Plaintiff
AND
ANDERSON FORMRITE PTY LTD (ACN 097 507 652)
First Defendant
WARREN PERRY ANDERSON
Second Defendant

Catchwords:

Injunction - Engineering advice - Duty of confidentiality - Expert witness - Whether there is property in a witness

Legislation:

Nil

Result:

Injunctive relief granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr G T Stubbs
First Defendant             :     Mr J C Giles
Second Defendant         :     Mr J C Giles

Solicitors:

Plaintiff:     Dwyer Durack
First Defendant             :     Solomon Brothers
Second Defendant         :     Solomon Brothers

Case(s) referred to in judgment(s):

A v Hayden (1984) 156 CLR 532
AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464
American Cyanamid Co v Alcoa of Australia Ltd (1993) 27 IPR 16
Attorney‑General v Observer Ltd; Times Newspapers Ltd; Guardian Newspapers Ltd (No 2) [1990] 1 AC 109
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Competition & Consumer Commission v Australian Safeway Stores (1998) 81 FCR 526
Belan v Casey [2002] NSWSC 58
Black v Taylor [1993] 3 NZLR 403
Bureau Interprofessionnel Des Vins de Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards [2002] FCA 588
Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434
D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118
Davies v Clough (1837) 8 Sim 262
Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167
Duchess of Argyll v Duke of Argyll [1967] Ch 302
Durban Roodepoort Deep, Ltd v Reilly & Featherby (as Administrators of the Deed of Company Arrangement of Laverton Gold NL (subject to Deed of Company Arrangement) [2003] WASC 232
Elliott & Ors v Ivey & Anor [1998] NSWSC 116
Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties (1995) 1 VR 1
Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467
Frankland River Olive Company Ltd v Charters Securities Pty Ltd (Receiver and Manager Appointed) & Anor [2004] WASC 88
Grimwade v Meagher [1995] 1 VR 446
Gugiatti v City of Stirling (2002) 25 WAR 349
Harmony Shipping v Davis & Ors [1979] 3 All ER 177
Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104
LAC Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 1
Lawrence David Ltd v Ashton [1991] 1 All ER 385
Lord Ashburton v Pape [1913] 2 Ch 469
Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357
Mancini v Mancini [1999] NSWSC 800
McVeigh v Linen House Pty Ltd & Rugs Galore Australia Pty Ltd [1999] 3 VR 394
Mills v Day Dawn Block Goldmining Co Ltd; In re Marsland (1882) 1 QLJ 62
Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414
Newman v Phillips Fox (a firm) (1999) 21 WAR 309
O'Brien v Komesaroff (1982) 150 CLR 310
Parry‑Jones v Law Society [1969] 1 Ch 1
Prince Albert v Strange (1849) 1 Mac & G 25
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222
R v King [1983] 1 All ER 929
R v R [1994] 4 All ER 260
R v Ward (1981) 3 A Crim R 171
Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831
Re a firm of Solicitors [1997] Ch 1
Re JA Grieve [1862] 1 W & W(L) 197
Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203
Seager v Copydex Ltd [1967] 2 All ER 415
Sent & Anor v John Fairfax Publication Pty Ltd [2002] VSC 429
Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73
Sullivan & Ors v Sclanders (2000) 77 SASR 419
Telstra Corporation Ltd v First Netcom Pty Ltd (1997) 78 FCR 132
The Commonwealth of Australia v John Fairfax & Sons Ltd & Ors (1980) 147 CLR 39
Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227
Tottle Christensen v Westgold Resources NL [2003] WASCA 224
Vokes v Heather (1945) 62 RPC 135
W v Edgell [1990] 1 Ch 359
Wagdy Hanna and Associates Pty Ltd v National Library of Australia (2004) 155 ACTR 39
Waiviata Pty Ltd v New Millenium Publications Pty Ltd [2002] FCA 98
Wan v McDonald (1992) 33 FCR 491
World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick & Anor (2000) VSC 196
Yunghanns & Ors v Elfic Ltd, unreported; SCt of Victoria; Library No 5970 of 1997; 3 July 1998

Case(s) also cited:

Clark v Ryan (1960) 103 CLR 486
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
R (Factortame Ltd & Ors) v Secretary of State for the Environment, Transport and the Regions (No 2) [2003] QB 381

JOHNSON J:

Introduction

This is an application by the first defendant, Anderson Formrite Pty Ltd ("Anderson Formrite"), for an injunction restraining the plaintiff, Rapid Metal Developments (Australia) Pty Ltd ('RMD"), with respect to the company's dealings with Van der Meer Consulting Pty Ltd ("Van der Meers"), a consultant engineering firm. For ease of reference the parties will be referred to by their company name and where each party, and also Van Der Meers, is referred to in the course of these reasons, the reference will include reference to the company's agents and employees.
The heading of the chamber summons describes the application as being for "an injunction to restrain the plaintiff engaging Van Der Meer Consulting Pty Ltd and related orders". Curiously, a specific order to that effect is not incorporated in the orders sought in the summons. The orders sought seek to restrain RMD from utilising in the course of preparing its case any materials in its possession which comprise information relating to formwork carried out during the construction of 240 St George's Terrace, Perth (the "Woodside Building") derived from (1) any discussions between Van der Meers and RMD; (2) any correspondence between Van der Meers and RMD; and/or (3) any materials provided by Van Der Meers to RMD, except insofar as such material comprises information falling within the following categories:
(a)information which is now or subsequently becomes generally known to the public otherwise than as a breach, known to RMD to be a breach, of any duty of confidentiality owed by Van der Meers to Anderson Formrite;
(b)information which has been approved in writing by Anderson Formrite for disclosure subject to any restrictions, limitations or conditions imposed by Anderson Formrite in relation to disclosure; and
(c)information which the plaintiff is required to disclose by law.
Anderson Formrite seeks a further order that RMD delivers up to it all materials in its possession insofar as such materials comprise information regarding formwork carried out during the construction of the Woodside Building save insofar as the materials comprise information within any of the exceptions outlined above or have been obtained from Anderson Formrite. Where the materials include an incomplete document, Anderson Formrite requires RMD to deliver up the document together with an affidavit swearing that any parts of the complete document which are not delivered up consist of information within the exceptions. Perhaps it is the case that the effect of these orders is to restrain RMD from engaging Van der Meers.

The Facts

In September 2001 Anderson Formrite commenced work for Baulderstone Hornibrook Ltd, the builder of the Woodside Building, as the formwork sub-contractor on the Woodside building site. Anderson Formrite subsequently engaged RMD to supply formwork for the construction. Although RMD installed the formwork, Anderson Formrite was responsible to Baulderstone Hornibrook for any failure with the formwork. Under the agreement between RMD and Anderson Formrite, Anderson Formrite arguably carried the risk of improper use of the formwork. In the submissions and material provided to the court, reference was made to "falsework". I am advised that falsework is a component of the formwork. As nothing turns on the difference between the two terms I shall use the term formwork throughout these reasons.
On or around 26 September 2001, Anderson Formrite engaged Van der Meers to inspect the erection of the formwork system and then, when satisfied, to provide certification that the erection of the formwork system complied with the applicable Australian Standards. Kane Kuenen from Van der Meers was the engineer in charge of the project and dealt with the day‑to‑day running of the engagement. James Van der Meer, consulting engineer and a director of Van Der Meers, had a general supervisory role.
From September 2001 until May 2002 Van der Meers provided Anderson Formrite with certification as required. Mr Kuenen or Mr Van der Meer were the only members of the firm that made the necessary inspections and provided the certification to Anderson Formrite. That aspect of the engagement is not contentious.
Another purpose of the engagement of Van der Meers was for the firm to act as Anderson Formrite's consulting engineers for the project. In an affidavit filed in support of the application, Anderson Formrite's solicitors produced a company document dated 22 October 2001 entitled "Decision Making Progress and Reporting Arrangements". The document sets out Anderson Formrite's organisational structure and describes Mr Kuenen of Van der Meers as "site engineer". It is alleged by Anderson Formrite's project manager, Joe Passione, that he spoke to Mr Kuenen about that role prior to preparing the document.
In February 2002, four elbow joints on formwork platforms installed by RMD failed. Over the ensuing months Anderson Formrite had discussions with RMD and Baulderstone Hornibrook regarding the stressing sequences for each formwork structure and the calculation of the maximum loads that could be supported by each formwork structure. During that period Anderson Formrite received copies of Baulderstone Hornibrook's correspondence with Halliburton KBR Pty Ltd ("Halliburton") who were consultant engineers engaged by Baulderstone Hornibrook regarding the stressing sequences for each formwork structure and the calculation of the maximum loads that could be imposed on each formwork structure. At the same time, Anderson Formrite corresponded with RMD about the cause of the failures of the formwork which had been supplied by RMD.
Anderson Formrite, Baulderstone Hornibrook and RMD disagreed as to the cause of the failures. Baulderstone Hornibrook contended that the formwork was inadequate and defective. RMD contended that the formwork was being overloaded. Van der Meers was aware that there were differences in opinion between RMD and Anderson Formrite as to the cause of the failures and that Anderson Formrite anticipated a dispute arising between it, Baulderstone Hornibrook and RMD. Van der Meers was copied into correspondence between Anderson Formrite and its solicitors. As it has transpired, the cause of the failure of the formwork is indeed an issue in this action.
Anderson Formrite's construction manager and site manager, Mr Gordon Bell, became concerned that the responses provided by Baulderstone Hornibrook and RMD to Anderson Formrite's concern as to the cause of the failure of the formwork were insufficient and possibly inaccurate. It is alleged that those responses were conflicting, each blaming Anderson Formrite for different and inconsistent reasons. A decision was made to retain Van der Meers to provide advice to Anderson Formrite on the cause of the failures and provide recommendations as to what action needed to be taken. As part of the engagement, Van der Meers was to provide calculations of the maximum loads that could be placed on each formwork structure. Mr Kuenen advised Mr Van der Meer of the failure of the formwork and of Anderson Formrite's request for advice. Mr Van der Meer agreed that the firm would provide the requested advice. At that time Van der Meers were still engaged by Anderson Formrite to certify the formwork.
In his affidavit in support of the application, Mr Bell said that when he engaged Van der Meers on 8 March 2002 he did so on the understanding that Van der Meers was to act as consultants to Anderson Formrite. That is how he described Van der Meer's role to Mr Kuenen when instructing him. Whilst Van der Meers was expected to provide objective advice and recommendations, Van der Meers was engaged on the basis that the firm was Anderson Formrite's consulting engineer and the advice was confidential and was only to be disclosed to Anderson Formrite.
At a meeting held on 8 March 2002 Mr Kuenen was briefed as to the events which occurred, as to Anderson Formrite's correspondence with RMD and Baulderstone Hornibrook and Anderson Formrite's opinion as to the cause of the failures. It is alleged that the briefing also included Mr Bell's observations as to the material events surrounding the failure of the formwork as well as his observations on the cause of the failure. No detailed record of the meeting of 8 March 2002 has been discovered in the action.
Also on 8 March 2002 Anderson Formrite sent to Van de Meers a written request for advice and recommendations. The request enclosed copies of correspondence between Anderson Formrite and RMD. The written request for advice has not been discovered in this action.
Representatives of Van der Meers attended the construction site with Mr Bell in order to inspect the relevant formwork structures for the purpose of providing advice to Anderson Formrite. It is alleged that, both at the 8 March 2002 meeting and at the site inspection, Mr Kuenen engaged in discussions with Mr Bell and Mr Passione on behalf of Anderson Formrite regarding, amongst other matters, the cause of the failure of the formwork.
The report from Van der Meers to Anderson Formrite dated 8 March 2002 and signed by Mr Kuenen is stated to be based on a site inspection and an assessment of the failed formwork components. In the report Mr Kuenen noted that the primary source of concern was that some of the collar components have experienced a bearing failure at the interface with the locking pin. It is said that, due to the geometry of the pin, as the collar yielded, the effective bearing area of the pin increased, increasing its capacity. Mr Kuenen concluded that this ductile yielding had occurred prior to stripping. The other damage noted was a fractured collar which occurred during stripping and was said to be the result of an increased amount of force that was required to unscrew the collar when the pin was embedded. The conclusion drawn was that the fractured collar was a result of the bearing failure embedding the pin.
Mr Kuenen also addressed the issue of the stressing sequence. He stated that, as indicated to him on site, the stressing sequence involved stressing secondary beams before the primary beams. During the stressing of the secondary beams, additional loadings were applied to the primary beam at points of intersection. As the primary beam had yet to be stressed to its design capacity, the additional loadings were transferred to the support system. It is at this stage that the bearing failure of the collar occurred. Mr Kuenen observed that, if this stressing sequence were to continue, the additional forces would need to be quantified and designed for as a part of the formwork system. Alternatively, a stressing sequence that nominates all primary beams to be stressed first would need to be adopted. The report concludes with a list of recommendations.
The 8 March 2002 report was to be used by Anderson Formrite to negotiate with Baulderstone Hornibrook and was disclosed to Baulderstone Hornibrook as part of that negotiation. Haliburton KBR, Baulderstone Hornibrook's engineers, provided a response to the Van der Meers report on 13 March 2002. Van der Meers' report has also been disclosed on discovery in this action but the information provided orally and in the site inspections has not been disclosed by Anderson Formrite.
Mr Bell maintained that on numerous occasions during March and April 2002 he forwarded to Mr Kuenen correspondence received from RMD, Baulderstone Hornibrook and Halliburton KBR. On most and possibly all occasions he forwarded that correspondence to Mr Kuenen he would subsequently discuss the content of the correspondence with Mr Kuenen and provide him with his comments and opinions. In his affidavit evidence, Mr Bell maintained that he discussed these matters candidly with Mr Kuenen because of his understanding that Van der Meers was Anderson Formrite's consulting engineer and that everything he said to Mr Kuenen would be kept confidential.
It is alleged that at a meeting on 3 April 2002 Van der Meers received further oral information from Anderson Formrite and Baulderstone Hornibrook which has not been the subject of discovery. That information is again said to have been provided on the basis that it was confidential to those persons who attended the meeting. It is significant to note that no representative of RMD attended this meeting.
By letter dated 5 April 2002 Anderson Formrite confirmed the verbal instructions given to Mr Kuenen at the 3 April 2002 meeting to urgently review the table form support system and to advise Anderson Formrite of any deficiencies in the current design and the method of use. The letter also refers to some legal advice received by the company's principal, Mr Warren Anderson, on the company's legal liability in the event of any further formwork failure. The letter confirms that Mr Anderson has in his possession a letter from RMD's engineer, Mr D Hartley, confirming that any table form that may have been overloaded could not be guaranteed in the future. The letter places on record "the conversations held at that meeting on 2.4.02", with a brief summary as follows:
"Anderson Formrite called the meeting as a result of information provided by Baulderstone Hornibrook on Thursday 25.3.02 that additional loads were being imposed on the formwork system by the stressing procedures … When this information was provided to RMD they advised they had not allowed for any loads imposed by post tension stressing and that they believed the tables may have been overstressed by these loads and would be unsafe for future use."
The letter goes on to state:
"Since the meeting Stephen Surjan has advised that Kane Kuenen can talk direct to Baulderstone Hornibrook's design engineer. Also Joe Passione of Anderson Formrite has arranged for Kane Kuenen to talk direct to RMD's engineer to obtain load capacities of the RMD shoring system being used."
The former arrangement may have given Mr Kuenen access to information which he would not otherwise have had. That situation contributes to Anderson Formrite's concern that, on being engaged by RMD, Van der Meers, may have used the information obtained during that contact for the purposes of providing advice to RMD. The letter continues:
"We have since sent you the revised loads and herewith attach written information received from Baulderstone Hornibrook today…."
The request for advice is in the following terms:
"In summary we need your urgent review of the tables forms and formal advice:
whether the existing system is safe to proceed with the works, including stressing;
whether additional supports are required;
whether these additional loads have in fact damaged the support system to a point where we should not proceed to use the system as it is at the moment, or whether modification is required before any further use, including stressing is carried out."
Van Der Meers provided its report on 5 April 2002. In that report, Mr Kuenen concluded that from the information available at that time, the then current table support system, designed and supplied by RMD, had been subject to post‑tensioning loadings that were not specified in the original design brief. On Van der Meers' understanding, during the stressing sequence some components of the table system had been overstressed. Van der Meers recommended that an inspection and testing plan be implemented by RMD, Van der Meers and Anderson Formrite to address RMD's concerns on the overstressed items. Mr Kuenen further recommended that "all additional loads due to stressing be made available to Anderson Formrite for assessment". In Mr Kuenen's opinion this would allow RMD to assess all tables for over stressing where visual inspection was inadequate. Finally, Mr Kuenen recommended additional propping.

On 9 April 2002, having completed a site inspection and made various calculations, Mr Kuenen wrote to Anderson Formrite re-stating some of the matters referred to in the 5 April report and addressing the additional propping recommended in that report. Mr Kuenen attached to his letter a design for additional props which was stated to be based on published design manuals.
Mr Bell further deposed to receiving from Mr Kuenen a facsimile dated 11 April 2002 in which Mr Kuenen advised that Van der Meers intended to decline to certify that the erection of formwork complied with Australian Standards until doubts regarding design assumptions made by RMD had been resolved. Mr Kuenen requested that Anderson Formrite address a number of points including the provision of project documentation stating the requirements of stack loadings, the provision of revised calculations and certification from RMD and a copy of the project documentation concerning the stripping and backpropping of multistorey formwork. In a further facsimile of the same date, Van der Meers provided a qualified formwork inspection report. In the facsimile report Mr Kuenen confirmed that he inspected the formwork support structure and that the Table support system had been erected in accordance with design drawings from RMD. However, he noted that any additional propping was outside the scope of the verification of the formwork system. Consequently, the erection verification from Van der Meers in no way certified the structural adequacy or design of any new or used components within the system. It was further noted by Mr Kuenen that the loading criteria specified on the design drawings varied from those applied during construction and that it would, therefore, be necessary to make an accurate assessment of those loads prior to the pour.
According to Mr Bell, he discussed with Mr Kuenen the facsimile letter of 11 April 2002 and the subsequent formwork certificates. On Mr Bell's evidence, he did so on the basis that Van der Meers was Anderson Formrite's consulting engineer and would keep all communications confidential.
Anderson Formrite subsequently sought advice from Van der Meers as to the continuation of the concrete pours. That advice was provided but it is unnecessary to specifically refer to the content of it in these reasons.
It is clear from the material put before the Court that Anderson Formrite were responsible for Van der Meers' fees and that Van der Meers was paid for all its services, including the advice requested by Anderson Formrite.
On 11 August 2004 a senior associate of Dwyer Durack, the solicitors acting for RMD, wrote to Mr James Van der Meer of Van der Meers requesting an opinion on a number of matters which are outlined in detail in the letter. It is unnecessary to reproduce the content of that letter. It is sufficient to note that, with one possible exception, there is nothing in the matters Mr Van der Meer is asked to address which indicate, on the face of the document, that providing the report would lead to a breach of confidentiality. The letter does indicate that Mr Van der Meer had advised a David Hartley from RMD that he would be prepared to act as an expert witness in the case. There is, however, one issue raised by the letter. In the final paragraph the solicitor writes:
"We have anticipated that you would have retained the documentation relating to this project. If that is not the case, or if you require further documents, please do not hesitate to contact us."
This is a clear reference to documentation relating to the project which could only have come into existence when Van der Meers was engaged by Anderson Formrite. Of course, it does not follow that all such documentation would be confidential, even assuming for present purposes that a relationship of confidentiality had come into existence. On one construction, the letter is simply making reference to the basic information which would be required to prepare the requested report which was common to all those involved in the formwork component of the construction. Indeed, it may be the case that the writer was unaware that there existed a further relationship between Van der Meers and Anderson Formrite beyond the one which required Van der Meers to provide certification. Whilst the letter does not invite a breach of confidentiality, it is capable of undermining the preservation of confidentiality in circumstances where the recipient is unaware of his or her legal obligations of confidentiality to a former client.
It would appear that an initial version of Van der Meers' report was forwarded to RMD's solicitors. On 16 March 2005 the solicitor again wrote to Mr Van der Meer advising that the report provided would need to be more detailed. In the course of the letter, the solicitor refers to extracts from Mr Van der Meer's report. I note in passing that some matters referred to seem to be outside the usual realms of expert evidence and descend to determining issues of fact. However, apart from that observation, the material contained in the letter does not appear to breach any confidentiality or invite such a breach on Mr Van der Meer's part.
I have taken the opportunity to read in full Mr Van der Meer's report dated March 2005. In the report Mr Van der Meer notes that he is familiar with the actual formwork system because his firm was retained by Anderson Formrite for the purpose of carrying out a number of structural adequacy checks on the system while it was in use. It is apparent from the content of the report that Mr Van der Meer carried out a site inspection or relied on information provided by someone who had access to the site. For example, Mr Van der Meer states:
"From our observations, it was obvious that the RMD shores near the beam intersections were being overloaded during the prestressing of the beams supporting the slabs. I say this based upon:
(a)the fact that the shores failed;
(b)the pattern of the shore failure;
(c)the timing of the failure – that they did not fail when the concrete was poured, but rather after the stressing sequence;
(d)the fact that once the stressing sequences was modified, the problem did not recur."
In the report, Mr Van der Meer does not attribute to any particular source the information relied upon in reaching his conclusion.
On 2 March 2005 Mr Van der Meer wrote to RMD's solicitors providing further advice including the following:
"(a)In view of the complexity of the slab soffit and handling constraints imposed by the defendant I believe the formwork system was efficient." [emphasis added]
Unfortunately, Mr Van der Meer does not identify the source of the observation that handling constraints were imposed by the defendant and therefore it is not immediately apparent whether this reference is to confidential information coming from Anderson Formrite.
The initial reaction of Anderson Formrite senior managers on becoming aware that Van der Meers had provided a report to RMD's solicitors is probably best encapsulated by the comments made by Mr Passione in the final paragraph of his affidavit where he stated:
"I am gravely concerned, having read the plaintiff's brief to Van der Meer and Van der Meer's report that Van der Meer have disclosed to the plaintiff, and used, information provided in confidence by the first defendant. Further, I am concerned and shocked that Van der Meer have changed sides in the dispute. I also am concerned that Van der Meer owed the first defendant a duty of care and now has conflicting duties."
On 4 April 2005 the solicitors for Anderson Formrite wrote to Dwyer Durack alleging, inter alia, that:
"[I]t is readily apparent that Van der Meer Consulting used information obtained by it, in confidence, from our client in preparing its report. It is clear that your client contemplated that Van der Meer Consulting would have and would use information provided by our client. The final paragraph of your brief to Van der Meer Consulting is clear: you anticipated that Van der Meer Consulting would rely on information obtained from our client.
The report itself refers to a number of facts which Van der Meer Consulting was informed of by our client in the course of acting as our client's consulting engineers."
The solicitors for Anderson Formrite do not amplify this allegation by identifying those portions of the report said to be based on information from Anderson Formrite and have not done so at any stage in this application. The letter also contains an allegation that Van der Meers had committed a breach of confidence in providing the report and that an injunction would lie to restrain RMD from using the information, the report and related materials.
The penultimate paragraph of the letter identifies a complaint as to Van der Meers' conduct which goes somewhat beyond the simple allegation of a breach of confidentiality. The letter states:
"We have a further concern that Van der Meer Consulting, a putative expert witness, has undertaken a role which is [sic] either is, or is analogous to, an officer of the Court. In providing the report to your client, having been our client's consulting engineer, Van der Meer Consulting appears to have placed itself in a position of a conflict of interest. There are a number of expressions of opinion in the report to the effect that our client should have taken certain steps or have informed your client of certain matters. However, Van der Meer Consulting was our client's consulting engineer at the time. The failures identified by Van der Meer Consulting are failures for which Van der Meer Consulting are, at least arguably (and we put it at that level as we have yet to fully investigate the precise scope of Van der Meer Consulting's retainer), responsible. That is, Van der Meer Consulting's report expresses Van der Meer Consulting's own arguable failures and arguable breaches of duty if it is otherwise correct. The irreconcilable conflict is readily apparent. That is a further reason why Van der Meer Consulting cannot give expert evidence in the above action."
It can be seen that Anderson Formrite's position is that, in providing a report to RMD, Van der Meers has acted in breach of the relationship of confidentiality which came into existence when it accepted the request to provide an expert report to Anderson Formrite on the failure of the formwork. It is also alleged that, because of Van der Meers' role as Anderson Formrite's consulting engineers and the possibility that it is therefore complicit in any act or omission for which Anderson Formrite is liable, Van der Meers has placed itself in a position of conflict of interest.
Mr Kuenen ceased working for Van der Meers on 5 July 2002 and now resides in the United Kingdom. The solicitors for RMD were unable to file an affidavit from Mr Kuenen in the time available. However, one of RMD's solicitors filed an affidavit of a conversation she had with Mr Kuenen during which he said that over the course of the project he had many conversations with Gordon Bell, Joe Passione and other members of the Anderson Formrite team. He provided independent advice on technical matters of formwork design and erection, as well as the requirements of the relevant Australian Standards in regards to the supply of design criteria. He was aware of Mr Bell's opinions in regards to the overstressing of the formwork components, as he was also aware of RMD's view. He was not asked by either party to treat his opinions on these matters as confidential. It was his understanding, based on what was said by Mr Bell, that Mr Bell understood that Van der Meers were independent and that all relevant information would be assessed.
It is apparent from the affidavit evidence of Mr Van der Meer that he also disputes Anderson Formrite's view of the confidential nature of the relationship. In regard to the report prepared by him for RMD, Mr Van der Meer states that there was nothing of a confidential nature which had been disclosed to Van der Meers by Anderson Formrite which has been used in the report. In preparing the report, he relied on the pleadings, his own knowledge acquired from discussions with Mr Kuenen and from the site, reference to Australian Standards, his own knowledge of industry standards, discussions with officers of RMD and examination of documents provided by RMD. He also relied on the content of the file retained by Van der Meers which had presumably been created by Mr Kuenen. In his affidavit, Mr Van der Meer observed:
"My opinion about the reason for the failure of the components has not changed between when Van der Meers was first retained to investigate the problem and now. To the best of my knowledge, my report only details what Anderson Formrite have consistently been told since the cause of the problem became clear.
Mr Van der Meer refutes the evidence of Mr Bell that he gave Van der Meers confidential information and that he or anyone on behalf of Anderson Formrite expressly asked or expected Van der Meers to keep any information confidential.
Mr Van der Meer maintained that the essence of the contract that Van der Meers had with Anderson Formrite was that Van der Meers was independent of Anderson Formrite. While it was retained by Anderson Formrite, Van der Meers did not work for that company. Rather, they were there as an independent review to ensure and confirm that the erection of the formwork structure was carried out properly. On Mr Van der Meer's evidence, they were there for safety and quality control.
According to Mr Van der Meer, this role did not change when he agreed to help Anderson Formrite determine the reason for the failure of the component. He said:
"We were not 'their engineers' in that we were not there to try and craft a solution to the problem that would suit them. Instead, our brief was to work out why the component had failed and what could be done to remedy that. To do that we worked with Baulderstone Hornibrook, their engineers and with RMD.
Our independence was fundamental to our agreement with Anderson Formrite. It was part of our value to the process. Any agreement between ourselves and Anderson Formrite to keep information confidential would have compromised our independence and therefore our role in the Project."
Mr Van der Meer stated that Van der Meers has an established protocol if confidentiality is a requirement of the firm's involvement. An agreement is drawn up which outlines exactly what is to be kept confidential and is signed by both parties. Mr Van der Meer's expectation was that Mr Kuenen would have acted in accordance with this protocol. However, there is no evidence that Mr Kuenen did in fact comply with any protocol.
In providing his affidavit evidence in opposition to the application, Mr Van der Meer deposed to the contents of Van der Meer's file regarding the Woodside building. He deposed that there was no other information on the file. Mr Van der Meer referred to the content of the file and maintained that there was no other information held by Van der Meers. None of the information contained in the file to which Mr Van der Meer referred has the appearance on its face of being confidential.
Subsequent to filing that affidavit, Mr Van der Meer was told that another file had been found. The second file relates specifically to the failure of the components and the investigation that ensued. It contains a copy of notes taken by Mr Kuenen at the 8 March 2002 meeting. The file also contains a copy of a memo handed to Mr Kuenen on 8 March 2002 which sets out the terms of the retainer. It notes that the firm was retained to provide "independent engineering advice". Amongst other items, the second folder contains some calculations, drawings of the formwork system supplied by RMD, communications between Van der Meers and Anderson Formrite, a copy of which was sent to RMD, communications in relation to invoices, communications between Anderson Formrite and Baulderstone Hornibrook providing technical details, correspondence between Mr Kuenen and Mr Ian McAteer of Halliburton KBR, two substantive letters of advice from Van der Meers to Anderson Formrite and a letter from Anderson Formrite to Van der Meers marked "strictly confidential". These three letters have been discovered.
The second file also contains a memorandum dated 22 April 2002 from Warren Perry Anderson, as a director of Anderson Formrite, to Mr Kuenen and headed "Private & Confidential". In this document Mr Anderson expressed serious concerns about advice he had received from sources other than Van der Meers and requested that Van der Meers, as Anderson Formrite's engineers' immediately provide advice confirming or rebutting Mr Anderson's concerns. Mr Anderson wrote that he intended to rely on Van der Meer's further advice when making decisions. Written advice was provided by Mr Kuenen later that day. A copy of this advice has not been put before the Court. However, if the report questioned that Van der Meer's were acting as Anderson Formrite's engineers or questioned the confidentiality of the relationship, one would expect the letter to have been relied upon by RMD in opposing the application.
In considering the content of the second file it must be kept in mind that, on the affidavit evidence, that file was not available to Mr Van der Meer at the time he provided his advice to RMD's solicitors.
The file also included a copy of a facsimile cover sheet from Mr Passione to Minter Ellison dated 2 April 2002, expressed to be copied to Van der Meer, which enclosed a copy of a facsimile from Baulderstone Hornibrook to Anderson Formrite. It is said that Mr Passione sent the document to Van der Meers in order to keep Van der Meers informed of the potential dispute between Baulderstone Hornibrook, Anderson Formrite and RMD. It is further alleged that Mr Passione had orally informed Mr Kuenen that there was the potential for a dispute between Baulderstone Hornibrook, Anderson Formrite and RMD. On that basis, from approximately 2 April 2002 Mr Kuenen was on notice that legal proceedings might arise in relation to the matters about which Van der Meers had provided advice to Anderson Formrite.
On 30 May 2005 Anderson Formrite's solicitors sent a facsimile to RMD's solicitors requesting discovery of the documents in the second file and reiterating the proposition that the documents were confidential and should be sent directly to Anderson Formrite's solicitors. In response, RMD's solicitors advised that Anderson Formrite's solicitors would be allowed to inspect the folder at the office of RMD's solicitors. That inspection took place on 2 June 2005 and was carried out in the presence of one of RMD's solicitors. Copies of the documents were requested and later provided.
The attitude of Mr Van der Meer and, because of his role in the firm, the attitude of Van der Meers on the role of consulting engineers is readily identifiable from comments made by him in the affidavits sworn by him and filed in opposition to the application. In relation to the memorandum to Mr Kuenen of 8 March 2002 which is headed "STRICTLY CONFIDENTIAL" and which requests advice on whether there has been overloading of the formwork, Mr Van der Meer stressed that the request was stated to be for "independent engineering advice". Mr Van der Meer also disputes the view expressed by Mr Passione in his affidavit that Van der Meers had "changed sides". He disputes that Van der Meers was ever on any side and again emphasised that Van der Meers were acting as independent experts.

Restraining Breaches Of Confidence

Anderson Formrite's application for injunctive relief is founded on two bases. The first is the Court's power to prevent the misuse of confidential information. The second is the Court's inherent power to control the conduct of officers of the court. Central to this second basis is a determination that the position of an expert witness is sufficiently analogous to that of a solicitor so as to invoke the Court's jurisdiction to control the behaviour of its officers. It can be seen from this formulation of the applicant's position that it is necessary to address the nature and scope of the power to restrain breaches of confidentiality and the parameters of the Court's power to control the conduct of members of the legal profession in their role as officers of the Court.

The jurisdiction to grant relief against actual or threatened abuse of confidential information arises in a variety of circumstances. An action in tort, or for breach of some express or implied contractual provision, or a breach of some wider fiduciary duty or some copyright or trade mark right may each result in the grant of injunctive relief to protect confidentiality. Where there is a contract then it is to the contract that the court should look to see from express words, or necessary implication, what the obligation of the parties are: Vokes v Heather (1945) 62 RPC 135 at 142; Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191. In these cases the preferred approach was stated to be consideration of the express terms of the contract rather than the introduction of equitable concepts. In contracts where there are no express terms, terms will often be implied to control use by the defendant of information valuable or otherwise important to the plaintiff. However, over time, there developed a significant body of cases where there was no contract but relief was given, expressly on equitable grounds. Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 is an example of a case where relief was granted notwithstanding that there had been no contractual breach. In Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47 Megarry J, citing Lord Greene in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 211-2, 216, observed that the obligation of confidence may exist where there is no contractual relationship between the parties.
It is now well established that there is jurisdiction in equity to restrain breaches of confidence both as an aid to contractual rights and, in its exclusive jurisdiction, where the plaintiff has no legal right. In Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438 Deane J, delivering the judgment of the High Court, considered that it should now be accepted that there exists a general equitable jurisdiction to grant relief against actual or threatened abuse of confidential information, not involving any tort or breach of contract or some wider fiduciary duty. The relationship under scrutiny in Moorgate was that of licensee and licensor under an agreement to manufacture and sell a product. It was argued that the effect of the combination of the confidential nature of the relevant information and the circumstances in which it was communicated was that the licensee was under a duty, enforceable in personam by equitable remedies, not to disclose or make use of the confidential information other than for the purposes for which it was communicated (at 437). As Deane J observed (at 438):
"A general equitable jurisdiction to grant such relief has long been asserted and should, in my view, now be accepted: see The Commonwealth v John Fairfax & Sons Ltd [(1980) 147 CLR 39 at pp 50‑52]. Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. Relief under the jurisdiction is not available, however, unless it appears that the information in question has "the necessary quality of confidence about it" (per Lord Greene MR, Saltman [(1947) 65 RPC at p 215]) and that it is significant, not necessarily in the sense of commercially valuable (see Argyll v Argyll ([1967] Ch 302 at p 329)) but in the sense that the preservation of confidentiality or secrecy is of substantial concern to the plaintiff. That being so, the starting point of the alternative argument must be the identification of the relevant confidential information."
In AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464 Campbell J summarised the accepted bases for the obligation of confidentiality (at 487): "The law recognises three different ways in which an obligation of confidentiality might arise. The first is by express provisions in a contract. The second is by an implied term in a contract. The third is as an obligation recognised in the exclusive jurisdiction of equity."
The nature and content of the equitable duty of confidence has been variously described. In Lord Ashburton v Pape [1913] 2 Ch 469 the dictum of Swinfen Eady LJ at 475 to the effect that equity restrains the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged, emphasises that equity is moved to intervene by reason of the circumstances in which the information is obtained, rather than by any intrinsic value or importance in the information itself or by any apprehended damage to the plaintiff by misuse thereof. The fundamental notion is that one party places trust and confidence in the other. Swinfen Eady LJ's statement of this fundamental principle of equity was cited with approval by Mason J in The Commonwealth of Australia v John Fairfax & Sons Ltd & Ors (1980) 147 CLR 39 at 50 and adopted by Gummow J in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 86.
In Elliott & Ors v Ivey & Anor [1998] NSWSC 116, Sperling J supported the following description (at 9): "The content of the duty of confidentiality is that use and disclosure of information obtained in confidence is limited to the purpose for which the information was provided". Lord Denning MR in Seager v Copydex Ltd [1967] 2 All ER 415 at 417 relied on a similar description. He described the equitable duty of confidence as being "the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it". He must not make use of it "to the prejudice of him who gave it without obtaining consent".
Thus, it is necessary for the person who receives information in confidence to establish what he is entitled to do with the information rather than what uses are prohibited: In LAC Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4^th) 1 La Forest J noted (at 24): "Any use other than a permitted use is prohibited and amounts to a breach of duty. When information is provided in confidence, the obligation is on the confidee to show that the use to which he put the information is not a prohibited use.". See also Coco v AN Clark (Engineers) Ltd per Megarry J at 48. In most situations, the limits on the use of the information will be apparent from the circumstances in which the information is received. Consequently, it is not in every circumstance in which a person comes into possession of information known to be confidential that the person will come under a duty not to publish it: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 per Gleeson CJ at 222, citing Prince Albert v Strange (1849) 1 Mac & G 25; Duchess of Argyll v Duke of Argyll [1967] Ch 302 and Attorney‑General v Observer Ltd; Times Newspapers Ltd; Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 260, 268.
Without doubting the accuracy of the descriptions of the duty of confidentiality referred to above, broad statements are often of only limited assistance in identifying whether a breach of confidence has occurred. In Coco v AN Clark (Engineers) Ltd Sir Robert Meggary J identified three elements which are normally required to establish a breach of an equitable duty of confidence. They are (at 47‑8):
(i)the information had to have the necessary quality of confidence about it;
(ii)it must have been imparted in circumstances importing an obligation of confidence; and
(iii)there must be an unauthorised use of that information to the detriment of the party communicating it.
In essence, these three elements summarise the position taken by Deane J in Morgate at 438.
In Smith Kline & French Gummow J (at 86‑7) approved and adopted Megarry J's approach on the basis that it directed attention to the central issue of what in the whole of the relevant circumstances would suffice to impose an equitable obligation of confidence upon a defendant. The High Court in Australian Broadcasting Corporation v Lenah Game Meats also adopted "the usual elements for an equitable remedy" as set out in Coco v AN Clark (Engineers) Ltd: see, for example, Gleeson CJ at 222.
As to the first element, the requirement of confidentiality cannot be met by information which is public property or public knowledge: see Saltman Engineering Co Ltd v Campbell Engineering Co Ltd per Lord Greene at 215. The information must possess an objective character, namely that it be not "public" and that it possesses at least some degree of "secrecy". As Mason J observed in O'Brien v Komesaroff (1982) 150 CLR 310 at 326:
"It is a fundamental problem with the information which the respondent seeks to protect that it is information which, by way of advice to others, he regularly publishes to the world at large, albeit for a limited purpose. The nature of such information ill accords with the accepted conception of confidentiality, which in substance involves the person seeking to protect the information largely keeping it to himself."
However confidential the circumstances of the communication, there can be no breach of confidence in revealing to others something which is already common knowledge: Coco v AN Clark per Megarry J at 47. A particular difficulty arises in circumstances where the information is partly public and partly private. As Lord Denning pointed out in Seager at 931, the recipient must then somehow segregate the two and, although free to use the former must take no advantage of the communication of the latter.
The significance of complying with the second requirement was emphasised by Megarry J in Coco v AN Clark (at 47‑8) when he said:
"The second requirement is that the information must have been communicated in circumstances importing an obligation of confidence. However, secret and confidential the information, there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential."
Although the courts have had difficulty in identifying a test to be applied in determining whether the circumstances import an obligation of confidence, Ungoed‑Thomas J in Duchess of Argyll v Duke of Argyll (at 330) made the following observation (approved and applied by Megarry J in Coco v AN Clark (Engineers) Ltd at 48):
"It may well be that that hard-worked creature, the reasonable man, may be pressed into service once more; for I do not see why he should not labour in equity as well as at law. It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence."
Thus the test is an objective one and can be summarised in the following terms: an obligation of confidentiality arises when a reasonable person in the shoes of the recipient of the information would have realised that the information was being provided in confidence: Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 96 and 98. In Smith Kline & French Gummow J had his attention drawn to the fact that, in the text "Breach of Confidence" (1984) by F Gurry, a number of authorities on which the learned author relied were inapt. Notwithstanding that criticism, Gummow J accepted the general thesis of the learned author that equity may impose an obligation of confidence upon a defendant having regard, not only to what the defendant knew, but to what he ought to have known in all the relevant circumstances.
In Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 Bowen CJ addressed the situation where the issue of confidentiality is not raised by the participants in a conversation. He said (at 108):
"No express mention was made of the confidentiality or otherwise of the discussions … However, it was the kind of discussion which would generally be assumed by those taking part would be treated as confidential, in the sense that use would be made of what was said for purposes consistent with the holding of the meeting, but not otherwise."
In Telstra Corporation Ltd v First Netcom Pty Ltd (1997) 78 FCR 132 the Court held (at 138) that the question whether a duty of confidence exists in information will largely depend upon the circumstances in which that information is communicated. The court also followed Coco v AN Clark (at 48) and Moorgate (at 438) in concluding that if the circumstances are such that a reasonable person would have realised that the information was communicated in confidence, then that would generally suffice to impose the equitable obligation.
An objective test of confidentiality was also adopted by the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd. As Gummow J observed (at 224‑5):
"When in Attorney-General v Guardian Newspapers Ltd [No2] [1990] 1 AC 109 at 281 Lord Goff of Chievely gave examples of cases where an obligation of confidence would be imposed, even in the absence of some confidential relationship, his Lordship referred to "obviously confidential" documents, or "secrets of importance to national security" coming into the possession of a member of the public. What his Lordship described as "a public interest in the maintenance of confidences" extends to matters which a reasonable person would understand to be intended to be secret or to be available to a limited group to which that person does not belong."
The third element identified in Coco v AN Clark is that there is an unauthorised use of the confidential information to the detriment of the party communicating it. Megarry J (at 48) noted that some of the statements of principle in the cases omit any mention of detriment whilst others include it. As detriment clearly existed in the case which he was considering, it was unnecessary for Megarry J to determine the point. However, he expressly left open the possibility of adopting a wider interpretation which did not require proof of actual detriment.
In Attorney-General v Observer Ltd there are observations from four members of the House of Lords that detriment in a specific sense need not always be shown. Lord Keith of Kinkel (with whom Lord Jauncey of Tullichettle agreed at 640) stated (at 256):
"As a general rule, it is in the public interest that confidences should be respected, and the encouragement of such respect may in itself constitute a sufficient ground for recognising and enforcing the obligation of confidence even where the confider can point to no specific detriment to himself … I would think it a sufficient detriment to the confider that information given in confidence is to be disclosed to person to whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way."
In concluding that actual detriment need not be established, Gummow J in Smith Kline & French v Commonwealth Services emphasised the nature of the obligation of confidence. He said (at 112):
"The basis of the equitable jurisdiction to protect obligations of confidence lies … in an obligation of conscience arising from the circumstances in or through which the information, the subject of the obligation, was communicated or obtained: Moorgate Tobacco Co Ltd (No 2) at 438. The obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff. The plaintiff comes to equity to vindicate his right to observance of the obligation, not necessarily to recover loss or to restrain infliction of apprehended loss."
In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd Kirby J adopted a similar approach. He said (at 271):
"Where an attempt is made to restrain the use of information that has come into the hands of a party, the basis for the exercise of equitable jurisdiction does not lie, as such, in the proprietary rights of that party over the object containing the information. It lies, in the words of Deane J in Moorgate Tobacco Co Ltd v Phillip Morris Ltd [No2] (1984) 156 CLR 414 at 438 "in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained."
In Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 Lord Millett observed (at 235‑6) that, whether founded on contract or equity, the duty to preserve confidentiality is unqualified. He described the duty in the following terms:
"It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. Moreover, it is not merely a duty not to communicate the information to a third party. It is a duty not to misuse it, that is to say, without the consent of the former client to make any use of it or to cause any use to be made of it by others otherwise than for his benefit." (emphasis added)
It is apparent from these statements of principle that the grant of equitable relief is dependent on establishing that the obligation of confidence has been, or is about to be, breached. Clearly, an obligation of that type may be breached without causing identifiable detriment or harm. The result of the breach may simply be that the confidential information becomes known to a person that the provider of the information would prefer did not know: Attorney‑General v Observer Ltd per Lord Keith of Kinkel (at 256). In my view, the requirement for proof of detriment is inconsistent with the established notion that the basis for the exercise of equitable jurisdiction is to enforce the obligation of confidence. I believe the third element identified by Megarry J in Coco v AN Clark is better expressed by Gummow J in Smith Kline & French (at 87) as "an actual or threatened misuse of that information, without the consent of the plaintiff". On that basis, all that is required for a case of breach of confidence to succeed is proof of an unauthorised use of the confidential information.
A number of authorities which followed the decision in Coco v AN Clark dealt with a related matter of proof: the degree of detail required in identifying the allegedly confidential information. In Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 Gummow J identified a further criteria to be satisfied in order to make out a case for protection in equity of allegedly confidential information (at 443). Gummow J gleaned this and the existing elements for the grant of equitable relief from Saltman Engineering at 215, The Commonwealth of Australia v John Fairfax and Sons Ltd & Ors at 50‑51 and O'Brien v Komesaroff at 326‑8. In Smith Kline & French Laboratories (Aust) Limited v Department of Community Services and Health Gummow J (at 87) adopted the additional criteria and identified the necessary elements in the following terms:
"A general formulation apt for the present case of an equitable obligation of confidence has four elements: (i) the plaintiff must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must be able to show that; (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information, without the consent of the applicant.
In "Equity: Doctrines and Remedies" by Meagher, Gummow and Lehane (4^th Edition), the learned authors posit this question (at 1122): " How is equity to protect that which the plaintiff cannot adequately describe?"

In O'Brien v Komesaroff (at 326‑8) Mason J treated the failure to define with any precision or detail the alleged confidential information as fatal to any attempt to treat it as something that could be protected against use by those to whom it had allegedly been imparted. Further, the inability of a plaintiff to define with sufficient precision what he seeks to call confidential information will call into play the cardinal principle that a defendant should only be enjoined in terms which indicate that which is forbidden on pain of contempt: Lawrence David Ltd v Ashton [1991] 1 All ER 385 at 393; see also American Cyanamid Co v Alcoa of Australia Ltd (1993) 27 IPR 16 at 20.
Mason J considered (at 327) that the generality of description created a situation where the court could not satisfy itself that the information so described was imparted in circumstances giving rise to an obligation of confidence and did not include material which was common knowledge. However, these comments should be considered in light of the nature of the material alleged to be confidential. It was not information given by a client to a solicitor, or information given to a professional person for the purposes of receiving that person's advice. The circumstances were that a solicitor devised and prepared a unit trust deed which had never before been produced in that form. The deed was modified from time to time. The solicitor was also the author of a set of articles of association for a company which was to act as trustee for a unit trust constituted under the trust deed. The solicitor prepared a set of unit trust deed documents which were given to a client who was an accountant and life insurance salesman who then prepared documents which were identical or very similar to the copies obtained form the solicitors and gave them to his own clients. The solicitor later sued the accountant and companies associated with him for breach of copyright. In the context of that action the issue of confidentiality of the material arose. It can be seen that in these particular circumstances it would be necessary to identify with considerable particularity those parts of the document which were said to be confidential as there must have been numerous documents of this type which were generally available.
In Mills v Day Dawn Block Goldmining Co Ltd; In re Marsland (1882) 1 QLJ 62 the Full Court of the Supreme Court of Queensland held that if the Court were to insist on actual proof of the existence of such confidence and to insist on knowing what it was and whether it was likely to prejudice a client's interests, "they would compel him to strip himself of the protection which the court usually afforded and the whole mischief he wished to avoid might arise": see Gugiatti v City of Stirling (2002) 25 WAR 349 per Templeman J at 11
In Sent & Anor v John Fairfax Publication Pty Ltd [2002] VSC 429, Nettle J considered the precision with which the confidential information must be described [66]. In doing so he relied on the following statement of principle of Drummond J of the Federal Court in Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 314‑5 (and also to Mancini v Mancini [1999] NSWSC 800 and Belan v Casey [2002] NSWSC 58):
"It is a basic requirement that before material will be recognised as having the character of confidential information, the information in question must be identified with precision and not merely in global terms: Corrs Pavy & Byrne and Chandler v Collector of Customs (Vic) (1987) 14 FCR 434 at 443 and cf O'Brien v Komesaroff (1982) 150 CLR 310 at 327. The requirement is insisted upon even though it may necessitate disclosing to the court the very information the confidentiality of which it is sought to prevent by the action. This requirement has its foundation in the need for the court to be able to frame a clear injunction, should relief against misuse of confidential information be granted. There are procedures available that will minimise the risk that confidentiality will be lost by the litigation process. Although the applicant did not seek to invoke them here: cf R Dean, Law of Trade Secrets p122 and s50 of the Federal Curt Act 1976 (Cwlth). But the requirement goes to a matter more fundamental than that: 'The more general the description of the information which a plaintiff seeks to protect, the more difficult it is for the court to satisfy itself that information so described was imparted or received or retained by a defendant in circumstances which give rise to an obligation of confidence.' Independent Management Resources Pty Ltd v Brown [1987] VR 605 at 609. Even though no injunction is sought restraining Mr Astill from disclosing information acquired by him in the course of his retainer from Carindale, I think the principles I have referred to are directly applicable in determining whether Carindale's claim to the injunction here sought is made out."
However, Nettle J considered this statement of Drummond J to be in the nature of a statement of principle and that, when it comes to the facts of a particular case, the principle needed to be applied with a degree of flexibility [par 67]. His Honour adopted the following statement by Gillard J in Yunghanns & Ors v Elfic Ltd, unreported; SCt of Victoria; Library No 5970 of 1997; 3 July 1998:
"The degree of particularity of the confidential information must depend upon all the circumstances. Often it cannot be identified for fear of disclosure."
Nettle J concluded his consideration of this issue by stating at [69]: "But that said, I think that there are things which Gillard J said which are directly applicable here: notably that less precision of description may be required where more would annihilate the confidence sought to be protected; … " (emphasis added).
In Nettle J's opinion the information sought to be protected had been sufficiently precisely described. In his view, "any more precision of description than has been employed … would tend to disclose the information which it is sought to keep confidential" [at 70].
In Gugiatti v City of Stirling, Templeman J (at 13) concluded that the court should not require the applicant to provide further detail even where the confidential information is considered to be inadequately identified. The appropriate course is to consider the application on the basis of the evidence as it stands.
A recent decision of this Court containing an analysis of the relevant authorities is Durban Roodepoort Deep, Ltd v Reilly & Featherby (as Administrators of the Deed of Company Arrangement of Laverton Gold NL (subject to Deed of Company Arrangement) [2003] WASC 232 where the applicant sought an order that the firm of solicitors for the respondents be restrained from acting. The factual basis of the application was that a solicitor who had previously acted for and advised the applicant was now employed by the firm of solicitors representing the respondents. In the affidavit material filed on behalf of the applicant, the information provided to the solicitor was identified at some length although without reference to the precise content. For example, the issues on which advice was provided by the solicitor were identified as (i) solvency, (ii) the obligations and liabilities of the directors in circumstances where it might be alleged that the company might have been trading whilst insolvent, (iii) the potential for any conflict of interest between the directors, and (iv) the proposed sale of interests in a particular mine. A director of the applicant company indicated that the information provided to the solicitor covered (a) the company's financial information, (b) information regarding the interests of the directors, (c) detailed information regarding the relationship between the company and its major shareholders, (d) information regarding the mine, (e) information regarding the creditor, and (f) information relating to the knowledge of the directors of the alleged insolvency of the company at the material time.
In addressing the requirement for the precise identification of confidential information, Le Miere J summarised the legal position in the following terms [par 80]:
"Before a court will grant an injunction to protect a client's confidential information by restraining his former solicitor from acting against him, the former client must establish that the solicitor possesses confidential information and must identify the confidential information with precision and not merely in global terms. The client must identify the confidential information with some particularity. The degree of particularity required must depend upon the facts of the particular case. The confidential information must be identified with sufficient particularity to enable the court to determine whether the information is truly confidential, whether the confidential information which once existed, if it did, continues to be confidential and whether the confidential information is relevant to any issue in the current proceedings and might be used in those proceedings."
In reaching this conclusion, his Honour relied on the statements of principle in Carindale Country Club Estate Pty Ltd v Astill per Drummond J at 313; Mancini v Mancini at [7] per Bryson J; Bureau Interprofessionnel Des Vins de Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards [2002] FCA 588 per Ryan J; Waiviata Pty Ltd v New Millenium Publications Pty Ltd [2002] FCA 98 per Sunderberg J at [6]; Gugiatti v City of Stirling per Templeman J; and Sent & Anor v John Fairfax Publication Pty Ltd, per Nettle J.
Another case to which Le Miere J referred was Re a firm of Solicitors [1997] Ch 1 in which Lightman J identified a number of factors which, in certain circumstances, might suffice to adequately identify the information in the solicitor's possession (at 10):
"… but the degree of particularity required must depend upon the facts of the particular case, and in many cases identification of the nature of the matter on which the solicitor was instructed, the length of the period of original retainer and the date of the proposed fresh retainer and the nature of the subject matter for practical purposes will be sufficient to establish the possession by the solicitor of relevant information."
Despite being provided with this and the further information to which I have referred, Le Miere J held that the applicants had not identified the alleged confidential information with sufficient precision to warrant the grant of an injunction to restrain the firm of solicitors from acting for the respondent [par 81, 87].
Le Miere J appears to have strictly applied the test notwithstanding the caution expressed in Re a firm of Solicitors by Lightman J (at 10) and the flexibility called for by Nettle J in Sent & Anor v John Fairfax Publication Pty Ltd. In Le Miere J's view, the information provided did not enable the court to determine whether the information conveyed was confidential, remains confidential, and is relevant to the proceeding. He also concluded that the information was given to the solicitor in a different context
Once it is established that an equitable obligation of confidence exists and the information has been identified with the appropriate degree of precision, the Court should intervene unless it is satisfied that there is no risk of disclosure. The risk must be a real one, and not merely fanciful or theoretical. However, it need not be substantial: Prince Jefri Bolkiah v KPMG (a firm) per Millet J at 236‑7; Newman v Phillips Fox (a firm) (1999) 21 WAR 309 per Steytler J at 322; Gugiatti v City of Stirling per Templeman J at 3; see also Wagdy Hanna and Associates Pty Ltd v National Library of Australia (2004) 155 ACTR 39 in which Higgins J adopted this test (at 42); AG Australia Holdings Ltd v Burton. As Lord Millett observed in Prince Jefri Bolkiah v KPMG (a firm) (at 236):
"It is in any case difficult to discern any justification in principle for a rule which exposes a former client without his consent to any avoidable risk, however slight, that information which he has imparted in confidence in the course of a fiduciary relationship may come into the possession of a third party and be used to his disadvantage."
However, the duty of confidentiality is not absolute and does not extend to the avoidance of a merely remote possibility of accidental disclosure: Wagdy Hanna per Higgins CJ at 41-2.
In Elliott v Ivey, in determining whether a professional consultant should be restrained from giving evidence for a third party, Sperling J considered that the test he was required to apply was whether the applicant has proved that there was a real and sensible possibility that mischief and prejudice would result before relief would be granted (at 11). In reaching that conclusion, Sperling J relied on the statement of Ipp J to the same effect in Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 at 362‑3.
In Yunghanns & Ors v Elfic Ltd Gillard J adopted the test described by Hayne J in Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties (1995) 1 VR 1 at p 5 as the appropriate test to apply in such cases (at 8):
"Although it is necessary to be acutely conscious of the fact that the court is asked to interfere with the right of a litigant to be represented by the solicitor of the litigant's choice, it is not necessary to conclude that harm is inevitable (or well nigh inevitable) before acting to restrain a possible breach of the duty that a solicitor owes to clients and former clients to keep confidential information given to the solicitor in confidence and not use that information against the interests of the client who gate it to the solicitor … It is enough to say that I consider that injunctions should go if there is a real and sensible possibility of the misuse of confidential information."
In Gillard J's opinion, that test accorded with the well established principles concerning the grant of an injunction for threatened breach of confidence but emphasised that the court should always take into account the other basis for the jurisdiction, namely, confidence in the administration of justice: (at 8‑9)
There are a number of identifiable relationships which have consistently been found to give rise to a duty of confidentiality. In Coco v AN Clarke Megarry J considered (at 48) that if information was received in a commercial context or given on a business-like basis he would regard the recipient as "carrying a heavy burden if he seeks to repel a contention that he was bound by an obligation of confidence". For example, in Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831 at 835, Cozens-Hardy MR said:
"… A solicitor can be restrained as a matter of absolute obligation and as a general principle from disclosing any secret which are confidentially reposed in him. In that respect it does not very much differ from the position of any confidential agent who is employed by a principal."
The jurisdiction has been applied to accountants (Prince Jefri Bolkiah v KPMG (a firm)), employees (AG v Burton), to "similar advisers" (Wagdy Hanna & Associates Pty Ltd v National Library of Australia at 42 [21] per Higgins CJ; Elliott v Ivey) and to non-professional staff of a firm of solicitors (Newman v Philips Fox at 325 [79], Wagdy Hanna at 41‑2 [18]). Whilst some cases identify particular types of relationships and others identify particular occupations, some do both. In Parry‑Jones v Law Society [1969] 1 Ch 1 the court considered that obligations of confidentiality were to be implied into contracts with "professional men", an expression which was said to certainly include medical practitioners, solicitors, accountants and bankers. For example, in W v Edgell [1990] 1 Ch 359 a psychiatrist was engaged in his capacity as an independent consultant psychiatrist by a metal health patient to provide a report for submission to a mental health review tribunal. Scott J held (at 389) that it was, in his judgment, and the contrary had not been suggested to him, that the circumstances did impose on the doctor a duty of confidence.
In some cases it is both the occupation and the purpose of the particular relationship that gives rise to the duty. In R v Ward (1981) 3 A Crim R 171 the defendant, prior to his trial on a charge of murder, had been examined by a psychiatrist. A decision was made not to call the psychiatrist at trial. However, the Crown, having become aware that the psychiatrist had been consulted, sought to call and lead evidence from the psychiatrist in respect of the examination including the account of the killing which the defendant told to the psychiatrist. The court held that there was sufficient material to establish that the psychiatrist was retained by the defendant's solicitors on behalf of the defendant for the purpose of examining the appellant and forming an opinion in the course of the preparation of the appellant's defence and in these circumstances "the communications which passed between the psychiatrist and the appellant were protected by legal professional privilege.": per Street CJ at 175-6.
The application of the principle to professional people, in particular to professional advisers, and to relationships arising in a commercial context, can be found in Elliott and Ors v Ivey where Sperling J found that an agricultural and management consultant engaged by the applicant to provide advice for a fee was subject to a duty of confidence. The circumstances were as follows: in the primary proceedings the State Bank of NSW sued members of the Elliott family for debt and for possession of mortgaged property. The Elliotts defended the proceedings in reliance upon cross-claims. The gist of the case under the cross-claims was that a property "Grove Hill", which adjoined the Elliotts' existing holding, "Ercildoune", was acquired in 1983 with the whole of the purchase price being provided by the Bank, allegedly in reliance upon encouragement and assurances of viability by the Bank, whereas the acquisition allegedly rendered the enterprise as a whole unviable. The application before Sperling J was brought by the Elliotts and sought orders restraining the Bank from calling Mr Ivey, an agricultural and a management consultant, and from tendering in evidence his statement or report. A further order was sought restraining Mr Ivey from disclosing to the Bank any confidential communication by the Elliotts relating to their farming business or their dealing or relationship with the Bank. Mr Ivey had been retained through the NSW Rural Assistance Authority to advise with respect to the Elliott's farming business. He attended their property, spoke with members of the Elliott family, was shown certain documentary material and inspected the property. He sent his report to the Elliotts and to the Authority.
At a later time Mr Ivey was approached by the Bank to provide a report for the purpose of the primary proceeding. He agreed to do so and in the course of correspondence prior to acceptance of such instructions, Mr Ivey provided the Bank's solicitors with a copy of the report he had prepared for the Elliotts. At a later time he provided a report to the Bank. He also provided to the Bank a critical appraisal of the report of an agricultural management consultant who had been retained by the Elliotts for use in the primary proceedings. The report to the Bank identified the facts which had been assumed by him for the purpose of preparing the report. There was no suggestion that any of the material which supported these assumptions had been improperly obtained by the Bank or was in Mr Ivey's hands only as a result of his earlier engagement by the Elliotts. The basis of the application was that, in giving evidence, Mr Ivey would be acting in breach of an obligation of confidentiality owed by Mr Ivey to the Elliotts.
Sperling J approved and applied the statement of F Gurry in his book "Breach of Confidence" (at 158):
"It would also seem apparent from the character of professional adviser that any confidential information which he learns will have been imparted to him for the limited purpose of enabling him to give advice, and thus cannot be used for any extraneous purpose."

The Full Court observed [4]: "Such jurisdiction clearly exists. Counsel for the parties before us made no contrary submission, although they hotly debated the parameters of the jurisdiction. In our opinion, there can sensibly be no closed list of circumstances which will justify the exercise of what, on any view, must be regarded as an exceptional jurisdiction and power. Ordinarily, litigants are entitled to solicitors and counsel of their choice and it is only in a clear case that the court would make an order which would interfere with that right." However, the Full Court considered that on the facts of the case there was no basis for an injunction restraining the appellant firm from acting for the defendant.
In Sent & Anor v John Fairfax Publication Ltd and Hills the plaintiff's application was for orders to restrain the defendants from continuing to retain a particular Queen's Counsel as their counsel for the remainder of an action for damages for defamation arising from the publication of two articles. The basis of the application was that the Queen's Counsel had conferred some years ago with the applicant in relation to one of the matters that indirectly formed part of the subject matter of one of the articles. Nettle J stated (at [33]):
"Authority establishes that the court will restrain a legal practitioner continuing to act for a party to litigation if a reasonable person informed of the facts might reasonably anticipate a danger of misuse of confidential information of a former client and that there is a real and sensible possibility that the interest of the practitioner in advancing the case in the litigation might conflict with the practitioner's duty to keep the information confidential, and to refrain from using that information to the detriment of the former client."
In support of that summation of principle Nettle J relied on Farrow Mortgage v Mendel Properties Pty Ltd at p 5 per Hayne J; Yunghanns & Ors v Elfic Ltd per Gillard J; Prince Jefri Bolkiah v KPMG, especially at 237 in the speech of Lord Millet; and World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick & Anor (2000) VSC 196 per Gillard J.
In granting the injunction Nettle J found that there was a real and sensible possibility of confidential information being used to the detriment of the plaintiff who should not be required to conduct his case according to whether counsel previously consulted on a matter in issue is now to appear against him. The plaintiff should be free to make choices in the sure and certain knowledge that whatever he may have disclosed to counsel previously cannot be used against him [83].
The case of Yunghanns & Ors v Elfic Ltd relied on by Nettle J in Sent & Anor v John Fairfax, relates to an application by the plaintiffs seeking a permanent injunction restraining the defendants from retaining or continuing to retain a firm of solicitors. The basis of the complaint was that the firm acted for the plaintiffs over a long period of time and in particular acted for the primary plaintiff in regard to events leading to the transaction the subject of the litigation. The plaintiff's alleged that the firm was privy to substantial confidential information.
Gillard J observed that it had never been doubted that the court does have the jurisdiction to restrain a solicitor acting against a former client (at 7) and proceeded to set out the three different bases for the grant of an injunction to restrain a solicitor acting against his former client which he considered to be established by the authorities. They are [at 6]:
(i)That the relationship between solicitor and client is one of confidence and solicitors are not permitted to reveal any information obtained during the course of that confidential relationship without the express or implied approval and consent of their client. Some of the confidential information may be protected from all disclosure because of legal professional privilege. The former may be disclosed where a court directs, whereas the latter may only be disclosed with the client's consent.
(ii)That the relationship between solicitor and client is a fiduciary one and this imposes obligations of trust, integrity and confidence.
(iii)The administration of justice factor. The fiduciary relationship is one based on trust. The client relies upon his legal practitioner not to abuse that trust. The obligation to maintain it exists even after the cessation of the retainer. It is vital to the proper administration of justice that clients are confident in the expectation that the confidence and trust will be maintained. To permit a legal practitioner to put that obligation at risk by permitting him to act against his former client requires the court to approach the task with caution. To permit a legal practitioner to change sides is an act which cuts across what the average person would consider was right and proper and has the potential to bring the legal profession into disrepute.
Gillard J expressed doubt that there is any real difference between the first two bases for the jurisdiction, a view which I share. It is difficult to identify a set of circumstances involving a solicitor which would fall within one and not also the other.
In the course of his analysis Gillard J referred to the decision in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 where Bryson J said at 122‑3:
"Where confidential information has been communicated by a client to a solicitor and is relevant to litigation in which the client is now engaged and still available to the solicitor, the court should take a cautious approach to any proposal that it should allow the solicitor to act against that client … Cautious conduct by the court is appropriate because the spectacle or appearance that a lawyer can readily change sides is very subversive of the appearance that justice is being done."
Reference was also made to the decision in Wan v McDonald where Burchett J noted the important consideration of public policy concerning the relationship of a solicitor and client "that the law will not generally permit to be stained by the appearance of disloyalty." (at 7).
Gillard J concluded his analysis by identifying what he considered were the factors established by authority which must be considered and weighed on an application to restrain a solicitor (at 10‑11):
(i)the right of a solicitor to act for any client and the right of all members of the community to retain a solicitor of their own choice;
(ii)the right of a client to the maintenance of all confidential information obtained by the solicitor during the course of the retainer, which right continues until the client expressly or impliedly consents to the discharge of the obligation of confidence;
(iii)that as a general rule it is necessary to identify and establish that some confidential information was provided but the degree of particularity of the confidential information must depend upon all the circumstances: see Bricheno v Thorp (1833) 2 Cr and M 183, 149 ER 725. Often it cannot be identified for fear of disclosure. In considering this factor it must be borne in mind that a solicitor makes notes, forms views and opinions of clients and observes things that the client may have forgotten or overlooked. In some cases the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information. In this regard the relationship between the solicitor and client may be such that the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the "getting to know you" factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client.
(iv)That a solicitor must, consistent with his retainer, act in the best interests of his client which means not only exercising skill but also putting at his client's disposal all relevant knowledge and if a solicitor is in a position where he is unable to reveal all his knowledge to a client he should not act for him. See Spector v Ageda (1973) 1 Ch 30 at p48. This must be especially the position where the solicitor has acted for two clients in relation to one transaction and then thereafter acts for one against the other in relation to matters arising out of the same transaction."
Notwithstanding identifying the existence of a jurisdiction to prevent a legal practitioner from changing sides, an injunction was granted on the basis that there was a real and sensible risk that confidential information may be used contrary to the interests of the plaintiffs: (at 27).
It can be seen from the above selection of cases that, notwithstanding acceptance of the existence of a jurisdiction to exercise authority over officers of the court as to the propriety of their behaviour, in particular in circumstances where a solicitor "changes sides", the jurisdiction is almost invariably exercised in cases where there is a risk of a breach of confidentiality. There are, however, cases where the issue of confidentiality was not the basis of the order made.
Grimwade v Meagher is an example of the wider power to exercise authority over officers of the court. In that case the first defendant had been retained as senior counsel to prosecute the plaintiff in relation to certain criminal offences. He appeared for the prosecution in the committal proceedings, an abortive first trial and an extremely lengthy second trial. The plaintiff successfully appealed to the Full Court which allowed the appeal and declined to order a new trial. The first defendant appeared as counsel for the prosecution on the appeal. In its reasons, the Full Court was critical of the conduct of the prosecution case in the second trial. A related civil proceeding was brought against the plaintiff by a number of parties. The first defendant was to appear for the other parties in the civil proceeding. An order was sought by the plaintiff restraining the first defendant from appearing for the other parties. Mandie J held: (at 452)
"In my view it cannot be doubted that this court likewise has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied in the context of this case is whether a fair‑minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause."
In reaching that conclusion Mandie J referred to the case of Black v Taylor [1993] 3 NZLR 403 in which the Court of Appeal of New Zealand dismissed an appeal from a declaration that a solicitor should not act further as counsel for an estate in certain proceedings on the ground of conflict of interest based on the solicitor's past receipt of confidential information from members of the family including the plaintiff and the deceased. Cooke P at 406 said:
"Whether that kind of consideration should be put exclusively under the heading of confidential information is in my view unimportant. As to those who may be allowed to represent parties to argue cases, the Courts have an inherent jurisdiction … The jurisdiction extends to the propriety of a representative appearing in a particular case; it is not then a question of the right of practice generally, which is governed in New Zealand by statute, but a question concerning what is needed or may be permitted to ensure in a particular case both justice and the appearance of justice. Obviously it is a jurisdiction to be exercised with circumspection."
Indeed, in concluding that the first defendant should be restrained from appearing for the other parties, Mandie J made it clear that it was the unique, extraordinary and exceptional circumstances of the particular case which led to that conclusion (454‑5). Some aspects of those circumstances would, in his Honour's evaluation "cause a fair-minded observer to apprehend a real risk that the first defendant would be unable to appear in the said action and act with that objectivity and detachment which the courts expect of counsel appearing before it and a real risk that the first defendant would be unable to properly distinguish or avoid a conflict between his personal interests and his duty to his clients in the said action" (at 454).
Frankland River Olive Company Ltd v Charters Securities Pty Ltd (Receiver and Manager Appointed) & Anor [2004] WASC 88 is another example of a case where the preservation of confidentiality was not at the heart of the order made. The first defendant Chartered Securities Pty Ltd owned land on which a vineyard was located. The plaintiff Frankland River Olive Company Ltd was the lessee of the land. The land was originally leased to Southern Wine Corporation Ltd. This company held a restricted security dealer's licence, which allowed it to carry on a securities business as a responsible entity of a managed investment scheme, known then as Southern Wine Managed Investment scheme. In the Scheme, Southern Wine Corporation entered into a licence and management agreement with investors who were called growers. The prospectus which issued in relation to the scheme, and which led growers to invest funds, revealed that Mr Bennett was one of four directors and chairman of Southern Wine Corporation. Bennett & Co were the solicitors for Southern Wine Corporation. Chartered Securities owned the land. It was indebted to the Commonwealth Bank. A loan was arranged to allow the first defendant to purchase the land. The loan was secured by a mortgage to the bank and a guarantee by Woodzone Nominees Pty Ltd, the second defendant. Chartered Securities defaulted under the loan agreement with the Commonwealth Bank and the Bank appointed receivers to the assets and undertakings of the first defendant. The plaintiff began negotiating with the bank's receivers to pay out the debt owed by the first defendant. Woodzone then competed with the plaintiff for the favours of the Commonwealth Bank but it was Woodzone who succeeded in its dealings with the bank and paid out the debt which was then owing to the bank by the first defendant. As a result, by subrogation, Woodzone took over the Commonwealth Bank's rights under its security document. Woodzone then appointed its own receiver who made demand on the plaintiff for payment of outstanding rent. Bennett & Co commenced to act for Woodzone. Ultimately a writ was issued and the plaintiff sought an urgent injunction preventing the first defendant from interfering with the plaintiff's possession of the land.
In his reasons for judgment Pullin J acknowledged the existence of the jurisdiction to exercise authority over its officers and the power to make orders against solicitors who are not parties to the proceedings but are solicitors on the record. He also acknowledged that it was a serious step to deprive a party of counsel and solicitor of choice but emphasised that it was a step which would be taken if the court considered it necessary to do so (8). Pullin J observed (8):
"The justification for intervention by the Court in an application to restrain solicitors from acting for a litigating party is founded usually on one or more of three bases. These are the protection of confidential information, the restraint of a conflict of interest, and the Court's control over the conduct of solicitors as its officers: see Newman v Phillips Fox at 314. In that case, Steytler J referred to what was said by Sir Lancelot Shadwell, Vice‑Chancellor, in Davies v Clough (1837) 8 Sim 262 at 267, where the Vice‑Chancellor said, in referring to other cases, that that appeared to afford a general principle, namely, that all Courts may exercise an authority over their own officers as to the propriety of their behaviour."
Pullin J also referred to the words of the Chief Justice in Fordham v Legal Practitioners' Complaints Committee at 489 (9):
"Thus, the rule not only prevents the use of knowledge or information gained from the client during the course of a retainer, but also prevents the assumption of a position hostile to the client concerning the same matter. In my opinion, the extension to any related matter is both logical and consistent with the public policy which gives rise to the duty of professional loyalty. In the context of loyalty it is the establishment of the hostile relationship against the former client in relation to the same or a related matter which is the breach of professional duty."
Pullin J, relying on the decision in Grimwade v Meagher, considered that the question which had to be asked was whether a fair‑minded, reasonably informed, member of the public would conclude that the proper administration of justice required that Mr Bennett and Bennett & Co should be restrained from continuing to act for the second defendant: (at 9‑10). His Honour considered the answer to that question to be that Bennett & Co had not only changed sides in the matter, but were assisting the new client, Woodzone, to defeat the plaintiff's and the growers' interests in reliance on a default by Southern Wine Corporation which occurred when a member of the firm of Bennett & Co was chairman and director of Southern Wine Corporation. The effect of the default has been visited upon the plaintiff and then taken advantage of by Bennett & Co's new client (11).
In my view, the authorities to which I have referred establish the existence of the jurisdiction, that it will be readily exercised in cases where the preservation of confidential information is at risk, but that in the absence of the risk of a breach of confidentiality, the jurisdiction will be exercised with caution and only in unique, extraordinary and exceptional circumstances.
The application in this case does not pass the threshold test. There is no basis to conclude that the role of an expert witness is akin to that of a solicitor and there is a wealth of judicial comment and conclusions to the contrary. The one case cited on behalf of the applicant which is directly on point, Elliott v Ivey, contrasted the role of a professional adviser called upon as an expert witness with the role of a solicitor who is bound to employ all information at his or her disposal for the benefit of the client. Expert witnesses were considered by the court to have a much more limited role in that they are bound to confine their attention to specified factual assumptions which are made known to the court.
Even if the analogy were to be drawn, the affidavit material fails to identify any exceptional circumstances which would justify the grant of an order to prevent Van der Meers from assuming a position hostile to its former client.
In the circumstances, and for these reasons, I am not persuaded that it is appropriate to make any order other than those which I consider necessary, and on the available evidence I am able to make, to preserve the applicant's confidentiality.
There is one final matter to which I should refer. In its letter to RMD's solicitors of 4 April 2005, Anderson Formrite's solicitors wrote that, as a result of Mr Van der Meer providing the report to RMD when Van der Meers had been Anderson Formrite's consulting engineer, Van der Meers appears to have placed itself in a position of a conflict of interest. The basis of the alleged conflict was stated to be the fact that the failures identified by Van der Meers were failures for which Van der Meers as Anderson Formrite's consulting engineers were arguably responsible and therefore there existed an irreconcilable conflict preventing Mr Van der Meer from giving expert evidence in the above action. That is the way in which the proposition was put in the letter of 4 April 2005 but the allegation was not really argued in this application. However, insofar as I may be required to address this issue, in my view, the potential conflict would not prevent Mr Van der Meer from giving expert evidence unless he is at some point joined as a party to the proceedings. Van der Meers' alleged responsibility for the failures could properly be dealt with in cross‑examination to undermine the weight of any opinion evidence given by Mr Van der Meer.

I will hear the parties on the terms of the orders which I propose to make.