Salsano v E and S Projects Pty Ltd (No.2) - [2020] FCCA 1125

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALSANO v E & S PROJECTS PTY LTD (No.2)

[2020] FCCA 1125

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application by respondent for injunction restraining lawyer retained by the applicant (applicant’s lawyer) from acting for the applicant because another lawyer of the practice of which the applicant’s lawyer had previously acted for the respondent in an unrelated matter – whether the respondent had previously communicated confidential information to the law practice in relation to the respondent – whether such confidential information is relevant to any issue in the proceeding in which the applicant’s lawyer has been retained to act – whether effective measures can be put in place to prevent unwitting disclosure of confidential information – application for injunction dismissed.

Legislation:

Fair Work Act 2009 (Cth)

Cases cited:

McMillan & McMillan [2000] FamCA 1046

Oram & Lambert (No.2) [2018] FamCAFC 161

Osferatu & Osferatu [2015] FamCAFC 177

PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905

Applicant:

BIANCO PAUL SALSANO

Respondent:

E & S PROJECTS PTY LTD

File Number:

SYG 1853 of 2019

Judgment of:

Judge Manousaridis

Hearing date:

4 May 2020

Date of Last Submission:

4 May 2020

Delivered at:

Sydney

Delivered on:

4 May 2020

REPRESENTATION

Solicitors for the Applicant:

Mr C McArdle of McArdle Legal

Counsel for the Respondent:

Ms A Petrie

Solicitors for the Respondent:

Urania Zafiris Solicitors

ON THE UNDERTAKING given to the Court by Christopher John McArdle that he will not seek to obtain in any way, and Christopher John McArdle will actively avoid receiving, any information in relation to the claim identified in paragraph 3 of the affidavit of Stephen Fabrizio affirmed on 1 May 2020,

AND ON THE UNDERTAKING given to the Court by Deirdre Catherine McEvoy that she will not divulge to Christopher John McArdle or to any other person in McArdle Legal any confidential communication between Deirdre Catherine McEvoy and Stephen Fabrizio, or any other employee or agent of any company within the Cemento Group,

THE COURT ORDERS THAT:

The application in a case filed on 4 May 2020 seeking an order that McArdle Legal be restrained from acting on behalf of the applicant in this proceeding is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1853 of 2019

BIANCO PAUL SALSANO

Applicant

And

E & S PROJECTS PTY LTD

Respondent

REASONS FOR JUDGMENT
(Revised from Transcript)

Introduction

The matter that is listed before me today is the resumption of a part‑heard hearing of an application brought by Mr Salsano under the Fair Work Act 2009 (Cth). Two days had previously been allocated to the matter and it was part heard on those two days, but the matter was adjourned to today, largely because there was additional material that Mr Salsano indicated that he wanted to adduce.

Background

At the previous hearing Mr Salsano was not represented. However, early last week, or perhaps shortly before early last week, Mr Salsano consulted Mr McArdle, who is a lawyer, who practices through…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1125
Decision Date: 4 May 2020

CaseChat Overview and Summary

In *Salsano v E and S Projects Pty Ltd (No.2)*, the applicant, Salsano, was represented by a lawyer from a particular law practice. The respondent, E and S Projects Pty Ltd, sought an injunction to restrain this lawyer from acting for Salsano. The basis of the application was that another lawyer within the same law practice had previously acted for E and S Projects in an unrelated matter, and it was alleged that confidential information had been communicated to that lawyer in relation to the respondent.

The central legal issues before the court were whether the respondent had indeed communicated confidential information to the law practice in the prior, unrelated matter, and if so, whether that confidential information was relevant to any issues in the current proceeding. Furthermore, the court was required to consider whether effective measures could be implemented to prevent any unwitting disclosure of such confidential information by the law practice to the lawyer acting for Salsano.

His Honour Judge Manousaridis dismissed the application for an injunction. The court's reasoning, though not detailed in the provided text, would have involved an assessment of the nature of the prior retainer, the information disclosed, its relevance to the current dispute, and the adequacy of any proposed conflict management measures. The ultimate decision indicates that the threshold for disqualifying a legal practitioner based on a former client's confidential information, when that information was held by a different practitioner within the same firm and the matters are unrelated, was not met in this instance.

Orders