Sent v John Fairfax Publication Pty Ltd
[2002] VSC 429
•7 October 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 6926 of 2001
| EDUARD CHRISTIAAN SENT and PRIMELIFE CORPORATION LTD | Plaintiffs |
| v | |
| JOHN FAIRFAX PUBLICATION PTY LTD and BEN HILLS | Defendants |
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JUDGE: | Nettle J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 6 and 7 October 2002 | |
DATE OF JUDGMENT: | 7 October 2002 | |
CASE MAY BE CITED AS: | Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 429 | |
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Legal practitioners – counsel – duty of confidence to former client – duty of loyalty – inherent jurisdiction of court to control counsel – application for order restraining continued retainer of counsel by party opposed to former client.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr S.K. Wilson QC with Mr G.L. Meehan | Russell Kennedy |
| For the Defendants | Mr M.F. Wheelahan | Freehills Lawyers |
TABLE [L1]OF CONTENTS
THE PLEADINGS................................................................................................................................................................................. 2
THE FACTS............................................................................................................................................................................................ 5
THE APPLICATION......................................................................................................................................................................... 14
Possibility of disclosure of confidential information....................................................................................... 15
PRECISION OF DESCRIPTION................................................................................................................................................... 20
MATTERS IN ISSUE AT TRIAL................................................................................................................................................... 22
MR SHER’S RECOLLECTION..................................................................................................................................................... 25
CONCLUSIONS ON CONFIDENTIAL INFORMATION..................................................................................................... 26
DUTY OF LOYALTY........................................................................................................................................................................ 27
PUBLIC POLICY................................................................................................................................................................................ 29
HIS HONOUR:
Plaintiffs’ application by summons dated 16 August 2002 for orders to restrain the defendants continuing to retain Mr Jeffrey Sher QC as their counsel for the remainder of this action.
The action, instituted by a writ filed on 27 July 2001, is for damages for defamation alleged to be the result of the publication in the Sydney Morning Herald of 26 July 2001, and also upon the Internet, of two articles respectively entitled "Dark Side of the Aged Care Czar" and "Trouble in Primelife paradise."
In the article entitled "Dark side of the Aged Care Czar" (which I will call the first article) the following was reported amongst other matters:
“Specifically, Eduard Christiaan Sent, to give him his full name, has been charged (though not convicted) on three occasions with serious criminal offences including fraud… His next grand venture also involved tax minimisation – this time using boats instead of planes. He built scallop-dredges which he sold to syndicates of high-income individuals such as doctors and lawyers and leased them back for fishing in Bass Strait.
This was supposed to return $100,000 plus a year, on top of the juicy tax benefits derived from ‘revenue trips’ just before the end of the financial year.
The venture became such a runaway success that a massive flotilla of 60 $500,000 boats was launched in just 18 months, prompting the then Primary Industries Minister, Mr. John Kerin, to warn in Parliament that Mr. Sent’s company, Allied Fisheries Limited, was ‘promoting the purchase by professional people of new scallop boats on the basis of exaggerated claims about the extent of our fisheries’ resources’.
But within two years that company had also capsized under massive debts, with Allied blaming everything from fleet breakdowns (the propeller fell off one boat) to poor catches during the El Nino weather effect. In 1984, the Tasmanian Supreme Court ordered the company wound-up.
The following year, the Tasmanian Attorney General, Mr. Geoffrey Persall, announced that the NCA was investigating Allied’s operations and had seized five tea chests of documents from its former premises at Beauty Point near Launceston. This eventually led to Mr. Sent’s third appearance in Court on criminal charges.
In its 1989 Annual Report, the NCA said that four people had been charged under the Commonwealth Crimes Act with conspiracy to defraud the Commonwealth over ‘an alleged tax avoidance scheme involving the formation of partnerships of investing members of the public for the purpose of purchasing and updating fishing vessels’.
The NCA told the Herald that Mr. Sent and his partner, Mr. Forshaw, were two of those charged. In September 1989, a Magistrate found there was insufficient evidence to commit them for trial and the charges were dismissed.”
The Pleadings
By their statement of claim, the plaintiffs allege that the first article was defamatory of the first plaintiff, Sent, in that in its natural and ordinary meaning it was meant and was understood to mean that Sent was guilty and ought to have been convicted of the criminal charges brought against him by the National Crime Authority.
By their defence filed on 17 September 2001, which was settled by Mr Sher, and also by Mr Michael Wheelahan of counsel, the defendants denied that the article was defamatory and denied that it had the meaning attributed to it in the statement of claim.
The defence also advanced a Hore-Lacy plea. In paragraph 13 of the defence, it was alleged that in its natural and ordinary meaning the subject part of the first article was meant and understood to mean that Sent had been declared bankrupt with debts of $23M including $2.3M owed to the Australian Taxation Office; had been a director of 43 companies which had been placed into receivership or administration, or which had been deregistered; had been banned for a period of six months from participating in the management of companies; and had been charged on three occasions with serious criminal offences including fraud.
It was then averred in paragraph 15 of the defence that the Hore-Lacy meaning was true in substance and in fact.
It was further averred in paragraph 16 of the defence that the Hore-Lacy meaning constituted fair comment upon a matter of public interest, and under the particulars of fair comment, it was alleged amongst other things that:
“(i)Mr Sent engaged in a venture through Allied Fisheries Ltd involving scallop fishing vessels. In relation to this venture Mr John Kerin, a Commonwealth Minister, stated to Federal Parliament that Allied Fisheries was promoting the purchase by professional people of new scallop boats on the basis of exaggerated claims about the extent of fisheries resources.
(ii)In 1984 Allied Fisheries was unable to pay its debts and was wound up by order of the Tasmanian Supreme Court.
(iii)In about 1985 the National Crime Authority commenced investigating Allied Fisheries’ operations.
(iv)In about 1989 Mr Sent was charged with conspiracy to defraud the Commonwealth over an alleged tax avoidance scheme involving the formation of partnerships of investing members of the public for the purposes of purchasing and updating fishing vessels. In September 1989 a Magistrate found that there was insufficient evidence to commit Mr Sent for trial and the charges were dismissed.”
By reply dated 22 November 2001, the plaintiffs joined issue with the defendants’ allegations and pleaded also that the defendants had published the articles with actual malice.
Under the particulars of malice it was alleged in paragraph 28(b) of the reply that the defendants published the articles either knowing that the defamatory imputations therein were false or with reckless indifference as to whether they were true or false.
By an amended defence filed on 15 March 2002, which was also settled by Mr Sher and Mr Wheelahan, the Hore-Lacy meaning which had been averred in the original defence was amended by deleting reference to reasons expressed in the second article. Otherwise it remained unaltered.
At a Directions Hearing before Bongiorno J the same day, Mr Wilson QC who then as now appears with Mr Meehan for the plaintiffs, told his Honour that the plaintiffs considered that the amended defence was defective and also that there was another issue as to whether Mr Sher should continue to act for the defendants, because it was said that Mr Sher had conferred some years ago with Sent, "in relation to one of the matters that indirectly forms part of the subject matter of the article..."
Mr Wilson expressed the hope that the issue could be resolved and established with his Honour that if it could not be resolved, application for injunction could be made returnable at a future date.
As it would appear, the issue of Mr Sher's continued involvement could not be resolved and, as already recorded, this application to restrain the defendants from continuing to retain Mr Sher was initiated by summons filed on 16 August 2002.
Some three weeks later, on 6 September 2002 the defendants filed a further amended defence, which was also settled by Mr Sher and Mr Wheelahan.
In the further amended defence, the defendants have maintained their denial that the articles were defamatory but they now aver a new and different Hore-Lacy meaning and that that meaning was true in substance and in fact. The defendants also maintain their defence of fair comment.
In paragraph 13 of the further amended defence, the defendants allege that, in its natural and ordinary meaning, the first article was meant and understood to mean that the “business track record” of Sent was so bad that in view of the relevant legal requirements for approval by the Commonwealth Department of Health and Aged Care, Primelife ought not to have been granted approved provider status by the Commonwealth Government.
In paragraph 15 of the further amended defence, the defendants allege that in the meaning alleged in paragraph 13, which is to say, the new and different Hore-Lacy meaning, the article was true in substance and in fact, because among other things:
(i)Sent engaged in a venture through Allied Fisheries Ltd involving scallop fishing vessels.
(ii)In 1984 Allied Fisheries was unable to pay its debts and was wound up by order of the Supreme Court of Tasmania
(iii)The affairs of Allied Fisheries were later investigated by the National Crime Authority and Sent was charged with conspiracy to defraud the Commonwealth.
In paragraph 17 of the further amended defence, it is also alleged that the first article was fair comment upon a matter of public interest, and the particulars relied upon to substantiate the plea of fair comment are now the same as the particulars given under paragraph 15 in support of the averment of truth of the newly alleged Hore-Lacy meaning.
The Facts
Most of the facts which give rise to this application are deposed to in an affidavit affirmed by the plaintiffs’ solicitor, Leonard Adrian Warren, on 3 September 2002 as follows:
“7Mr Jeffrey Sher QC has also appeared on behalf of the Defendants in proceeding no. 6972/01 commenced by the Plaintiffs for pre-trial discovery, and in proceedings no. 2018/00 and 6896/00 in respect of an application by the Defendants to dissolve injunctions granted in favour of Primelife Corporation Ltd against Mr Zlatko Andrejic and Ms Lilliana Curkovic.
8I am informed by Ted Sent, and verily believe, that:
(a)Brian Forshaw and he had been directors of Allied Fisheries Pty Ltd, which had run a scallop fishing business. Allied Fisheries Pty Ltd was wound up in about 1984.
(b)In the mid to late 1980s, the NCA conducted an investigation in relation to his and others involvement in Allied Fisheries Pty Ltd.
(c)Jonathan Mott, a solicitor, formerly of Gadens Ridgeway, and now of Deacons, was acting for him and Brian Forshaw in their personal capacities in relation to their involvement with Allied Fisheries Pty Ltd. All of their documents in respect of Allied Fisheries were handed to him.
(d)In or about February 1989, he was charged with conspiracy to defraud the Commonwealth in respect of an alleged tax avoidance scheme in relation to Allied Fisheries Pty Ltd. The file in this regard was destroyed some years after the charges against him were dismissed in or about September 1989.
(e)Sometime in the late 1980s as a result of the ongoing NCA investigation, he was advised by his solicitor, Jonathan Mott, to seek the advice of Queen’s Counsel. He cannot remember now whether at this time charges had been laid or it was simply clear that charges were likely to be laid against him in relation to the Allied Fisheries venture.
(f)The decision to retain Jeffrey Sher QC was made on the recommendation of his then solicitor Jonathan Mott and his friend and business colleague, Brian Forshaw. His recollection is that Brian Forshaw, on Jeffrey Sher QC’s name being mentioned, said something to the effect that he knew Sher. His recollection was that Brian Forshaw said he had known Sher since school days and he assumed that this meant that they had been to the same school, however he now knows that this may not have been the case.
(g)Jonathan Mott prepared a brief for Jeffrey Sher QC and he recalls that at that time Jonathan Mott told him that he had put into the brief such of the documents that would explain the matter to Jeffrey Sher QC.
(h)A conference was held in Jeffrey Sher QC’s chambers. Present at the conference were him, Jeffrey Sher QC, Brian Forshaw, and Jonathan Mott. He knows that Jeffrey Sher QC must have read the papers in the brief because he asked him a series of questions and although he cannot remember the specific questions, he recalls thinking that they demonstrated a detailed knowledge of the brief.
(i)The conference lasted approximately 2 hours and again, although he cannot recall specifically what was said, he remembers that he detailed his involvement with Allied Fisheries from its inception up until that point in time.
(j)The concept of Allied Fisheries was the construction and establishment of a major fishing fleet to operate from Australian shores and to export the catch to Japan, France and the United States of America. The operation was to be by way of syndication where individual persons could purchase a share in a boat which would have been constructed and leased back to the Allied Fisheries operation on the basis of a guaranteed minimum return.
(k)During the course of his conference with Jeffrey Sher QC, he recalls that he discussed with him and told him about the commercial structural arrangements in relation to Allied Fisheries, the involvement of outside syndicate promoters and his negotiations with the Commonwealth Government and the Tasmanian Government in relation to Allied Fisheries. In the context of all of these topics, he informed Jeffrey Sher QC in great detail of his involvement at each level of the business and in respect of each of these matters.
(l)At the conclusion of the conference, Jeffrey Sher QC did not provide a written opinion and declined to further act for him in relation to Allied Fisheries, due to its time-consuming nature and due to his other activities at the time, which he explained generally to him, Brian Forshaw and Jonathan Mott at the conference.
(m)As a result, he is concerned that his confidence and trust reposed in his former Counsel, Jeff Sher QC, be maintained.
(n)Further, as a result of Jeffrey Sher QC’s participation in the aforesaid conference, he was privy to confidential and privileged instructions and information concerning Allied Fisheries Pty Ltd, his involvement in the same and the pending charges and/or charges referred to above in relation thereto and his personal characteristics and instructions in relation thereto.
(o)he is extremely concerned, having regard to the nature of this proceeding, that matters discussed with Jeffrey Sher QC at the conference referred to above, will be directly or indirectly of assistance to Jeffrey Sher QC particularly in his cross-examination of him as a Plaintiff in the trial and therefore of assistance to the Defendants.
9On or about 11 October 2001, my firm sent a facsimile to Freehills, the solicitors for the Defendants, in which the Plaintiffs alleged that Jeffrey Sher QC would have a conflict in continuing to act for the Defendants. Now produced and shown to me marked ‘LAW 3’ is a copy of that facsimile.
10On or about 11 October 2001, I spoke to Guy Gaudion, a senior associate employed by Freehills, who informed me that Jeffrey Sher QC was not appearing at the directions hearing on 12 October 2001.
11On or about 12 October 2001, I spoke to Ken Adams, a partner of Freehills, who informed me that he was still obtaining instructions regarding Jeffrey Sher QC’s continued retainer for the Defendants.
12On or about 12 October 2001, Freehills sent a facsimile to my firm by way of response, a true copy of which is now produced and shown to me and marked ‘LAW 4’.
13On or about 26 October 2001, Freehills sent my firm a further facsimile seeking further information about the allegations of conflict of interest. Now produced and shown to me marked ‘LAW 5’ is a true copy of that facsimile.
14On or about 19 June 2002, my firm sent a facsimile to Freehill. Now produced and shown to me marked ‘LAW 6’ is a copy of that facsimile.”
As will be seen from what is there set out, there appears to have been a delay in the prosecution of this application between October 2001 and June 2002 and, to begin with, no explanation of that delay was offered.
Subsequently, the following explanation was provided in a further affidavit affirmed by Mr Warren on 4 October 2002:
“3.I was on leave in early October 2001, and upon my return on or about 11 October 2001, I was instructed by Mr Sent that he had just found out that Mr Sher QC had signed the Defendants’ defence and that Mr Sher QC had a conflict of interest in acting for the Defendants as he had previously given advice to him in connection with Allied Fisheries.
4.On or about 11 October 2001 my firm sent a facsimile to Freehills in which Mr Sent’s concerns regarding the Defendants’ retainer of Mr Sher were raised. That facsimile is exhibit “LAW 3” to my Affidavit affirmed 3 September 2002.
5.On or about 12 October 2001, the Honourable Justice Bongiorno made orders for the Plaintiffs to file and serve their further and better particulars and reply by on or about 8 November 2001, and for the parties list of discoverable documents to be completed by on or about 6 December 2001.
6.On or about 26 October 2001 Freehills sent a facsimile to my firm requesting further information concerning Jeffrey Sher QC’s previous retainer by Mr Sent. That facsimile is exhibit “LAW 5” to my Affidavit affirmed 3 September 2002.
7.In or about late October 2001 and early November 2001, I was unable to obtain instructions from Mr Sent due to an illness he was then suffering.
8.In or about mid November 2001, I received advice from Counsel concerning the matters about which I ought to obtain instructions from Mr Sent in relation to Mr Sher’s retainer, and instructions were sought by my firm from Mr Sent. However at that time, the Plaintiffs were running behind in complying with the Court’s orders made 12 October 2001, and the Plaintiffs focused on completing their pleadings and discovery.
9.On or about 22 November 2001, the Plaintiffs filed their Further and Better Particulars of its claim and its Reply, both dated 22 November 2001.
10.Due to a number of factors including issues of privilege, relevance and attempts to locate documents going back a considerable period of time, the Plaintiffs were unable to complete discovery prior to me going on leave on or about 21 December 2001. I returned from leave on or about 15 January 2002.
11.The Defendants’ Affidavit of documents was filed and served on or about 30 January 2002.
12.In or about early March 2002, instructions were again sought from Mr Sent in relation to the retainer of Mr Sher QC.
13.The Plaintiffs’ Affidavit of documents was eventually filed and served on or about 14 March 2002.
14.On or about 14 March 2002, although I was not able to actually speak to Mr Sent, I received instructions from him via a third person in relation to Mr Sher’s retainer. I indicated to that person that further instructions would be required from Mr Sent in relation to some outstanding issues before a summons seeking orders to restrain the Defendants from engaging Mr Sher could be issued.
15.On or about 15 March 2002, there was a directions hearing in this matter in which Senior Counsel for the Plaintiffs informed the Court that the Defendants’ retainer of Mr Sher was still a live issue. Now produced and shown to me marked “LAW1” is a copy of the transcript of the hearing before the Honourable Justice Bongiorno on 15 March 2002.
16.During March and April 2002 I was involved in the capacity as solicitor and save for a few days, also in the capacity of Counsel, for a matter which was heard intermittently over 14 sitting days, and which involved approximately 2 weeks of preparation, including collating and reviewing documents for privilege in relation to a notice to produce. During those months, I also had a 9 day vacation.
17.In or about March 2002 I was informed by Sandi Porter, the deputy CEO of Primelife Corporation Ltd and believe that Mr Sent would be overseas for a 6 week period commencing from on or about the beginning of April 2002 until about 14 May 2002 and because he would be sailing in the Indian Ocean, although he could be contacted in an emergency by satellite phone, it would be difficult to obtain detailed instructions from him. I did not speak to him during that period.
18.After Mr Sent’s return from overseas in or about mid-May 2002, I obtained instructions from him in relation to the outstanding issues in respect of Mr Sher’s retainer, as a result of which on or about 19 June 2002, my firm sent a facsimile to Freehills. That facsimile is exhibit “LAW 6” to my Affidavit affirmed 3 September 2002.”
The defendants responded to the application with an affidavit sworn by Mr Sher on 13 September 2002 in which Mr Sher deposed that:
“3I have been shown a copy of the affidavit of Leonard Adrian Warren affirmed 3 September 2002 (Warren’s Affidavit) in which, at paragraph 8, Mr Warren sets out instructions from Ted Sent, the first named plaintiff in this proceeding.
4To the best of my recollection I have never met Ted Sent. But for having seen the picture of Mr Sent published with one of the articles of 26 July 2001, I would not recognise him.
5I do not recall ever advising anyone in connection with Allied Fisheries.
6I have reviewed my fee books from January 1983 to September 2001. In doing so I have searched for references to Ted Sent, Eduard Christiaan Sent, Brian Forshaw and Allied Fisheries. Only one entry appears in my fee book during that period which identifies any of those persons or matters. The entry is for 9 November 1988. For convenience I set out the entry here:
‘Date Solicitor Name of cause or matter Description Fee 9.11.88 Ridgeway Clements
Ref JCM:JM
Re E.C. Sent and B. Forshaw Advice in conference 500’ Now produced and shown to me and marked ‘JLS:1’ is a true copy of this entry in my fee book for 9 November 1988.
7In November 1988 I ordinarily charged $500 per hour for my time. That rate varied depending on the matter, but it was my usual charge out rate. My usual practice at all material times including November 1988 was to charge for preparation and reading time as well as for time spent in conference.
8In respect of the entry set out in paragraph 6 above I say:
(a)Given that my usual charge out rate is $500 I believe I was engaged in the matter relating to Messrs Sent and Forshaw for approximately 1 hour including preparation, reading and conferring.
(b)I deny that I was engaged either for at least 2 hours (as is alleged in paragraph 5(d) of Russell Kennedy’s letter dated 19 June 2002 – ‘Exhibit LAW6’ to Warren’s Affidavit) or approximately 2 hours as alleged in paragraph 8(i) of Warren’s Affidavit.
(c)Had I met Mr Sent for a period of approximately 2 hours I would recall it. As stated above, to the best of my recollection I have never met Mr Sent.
9Mr Sent alleges, via Mr Warren’s Affidavit, that I:
(a)read the papers in the brief (a copy of which he does not produce);
(b)asked a series of questions of Mr Sent, to which he presumably gave answers;
(c)listened to Sent as he discussed and told me about:
§ the commercial structural arrangements in relation to Allied Fisheries;
§ the involvement of outside syndicate promoters; and
§ Mr Sent’s negotiations with the Commonwealth Government and the Tasmanian Government in relation to Allied Fisheries.
In paragraph 8(k) of Warren’s Affidavit it is stated in relation to all of these topics Mr Sent informed me in great detail of his involvement at each level of the business and in respect of each of these matters.
10To the best of my recollection I have never met Mr Sent. Further, I do not recall advising anyone in connection with Allied Fisheries. I have a faint recollection of acting in some matter in respect of which Mr Sent was involved. I cannot now name the matter. I certainly have no recollection of any privileged information. By reason of the fact that I charged for only 1 hour of my time, it is highly improbable that I read and analysed a detailed brief, and received detailed and confidential instructions in relation to a potential prosecution of Mr Sent for his involvement in Allied Fisheries.
11Responding to other matters alleged by Mr Sent, via Warren’s Affidavit or Mr Warren’s letter marked as exhibit ‘LAW6’, I state as follows:
(a)In respect of paragraph 8(c) of Warren’s Affidavit, I was briefed by Ridgeway Clements, not Gadens Ridgeway. The reference is to ‘JCM:JN’, which is a reference to Jonathan Mott.
(b)In paragraph 5(c) of the letter of 19 June 2002 Mr Warren records that he is instructed that I had been to school with Mr Forshaw and it was that initial connection that led to my retainer. In paragraph 8(f) of Warren’s Affidavit, Mr Sent appears to withdraw the statement concerning my common education with Mr Forshaw. To the best of my recollection I have never been to the same school as Brian Forshaw. To the best of my recollection I have never met Brian Forshaw. I have met Brian Forshaw’s brother, Phillip Forshaw.
(c)In paragraph 5(d) of the letter dated 19 June 2002 Mr Warren sets out his instructions that I said words to the effect, ‘What a load of rubbish, how can two little Jewish boys get into a mess like this?’. I did not and do not know that Mr Sent was Jewish (if that is the case). Further, the comment is so out of character for me that I deny making it, even if it was found that I did meet with either Mr Sent or Mr Forshaw (of which I have no recollection).
(d)I have no recollection of reading any papers in connection with Allied Fisheries, or acting in respect of Allied Fisheries. I am therefore unable to confirm that I was briefed with any documents as alleged in paragraphs 8(g) and (h) or Warren’s Affidavit. In paragraph 8(1) it is alleged that I declined to act further for Mr Sent in relation to Allied Fisheries due to its time consuming nature and due to my other activities at the time, which I explained generally to Mr Forshaw and Mr Mott at the conference. This allegation is elaborated upon in paragraph 5(f) of exhibit ‘LAW6’ where it is said that I explained generally my private interests to Messrs Mott, Sent and Forshaw as a basis for declining to act further. I did not know Messrs Sent or Forshaw and if it were to be held that I met with them or either of them, I consider it so improbable that I would have explained my private interests to them as to deny that any such discussion to that effect took place.”
The plaintiffs replied on 24 September 2002 with an affidavit of Brian Forshaw, in which Mr Forshaw deposed that:
“3.Insofar as the article refers to me, it is incorrect when it states that I was charged by the National Crime Authority in relation to the “Allied Fisheries operation”. In fact, I was never charged in respect of that matter. I have since received a retraction and apology from the Firstnamed Defendant. Now produced and shown to me and marked with the letters “BF-2” is a true copy of the said retraction and apology.
4.I have also been shown and have read a copy of an Affidavit by Leonard Warren in support of an application by Ted Sent to restrain the Defendants in the abovenamed proceeding from retaining Jeffrey Sher QC as their Senior Counsel. I have also been shown and have read a copy of an Affidavit sworn 13 September 2002 in opposition to the application by Jeffrey Sher QC.
5.Jeffrey Sher QC is incorrect in his recollection on at least two counts. First, I can say that I was certainly present in Jeffrey Sher QC’s chambers in late 1988 at a conference organised by Jonathon Mott, solicitor, where Ted Sent, Jonathon Mott and myself were present together with Jeffrey Sher QC. I am unable now to recall the specifics of that conference but I can say emphatically that Ted Sent attended at Jeffrey Sher QC’s chambers with myself and Jonathon Mott for the purposes of a conference and obtaining advice from Jeffrey Sher QC.
6.The second matter in respect of which Jeffrey Sher QC is incorrect in his recollection is that he says in paragraph 11(b) of his Affidavit that to the best of his recollection, he has never met myself. Whilst I certainly state that Jeffrey Sher QC and I are not friends.
7.I certainly recall that in the late-1980s, Ted Sent and I were concerned about the ongoing NCA investigation into Allied Fisheries and the fact that charges may be laid against us. I can also recall that legal advice was taken in relation to that matter as well as one other matter at or about that time, but I am unable to specifically recall the subject matter of the particular conference that I recall attending in Jeffrey Sher QC’s chambers with Ted Sent. It is quite possible that it was about Allied Fisheries, but then as I was never charged over that matter, I do not find it surprising that I now no longer recall the precise subject matter of the particular conference.”
A mistake was made in paragraph 6 of that affidavit which was subsequently corrected by an affidavit sworn by Mr Forshaw on 25 September 2002.
Finally, in an affidavit of 1 October 2002, Mr Sher rejoined that he had no recollection of having participated in any conference with Mr Forshaw.
Some other affidavits have been filed on behalf of the plaintiffs but, of those, I think I need only mention that in one of them it is made plain that the plaintiffs’ instructions as set out in Mr Warren's affidavit of 3 September 2002 were given to Mr Warren before the plaintiffs had any knowledge of the existence of the fee note which is referred to in paragraph 6 of Mr Sher's affidavit of 13 September 2002.
The Application
The application to restrain the continued retention of Mr Sher is put on three bases:
§ First, as necessary to prevent the disclosure of confidences of a former client.
§ Secondly, to ensure counsel's duties of loyalty to a former client is respected, notwithstanding the termination of any formal retainer.
§ Thirdly, to uphold as a matter of public policy, the special relationship of counsel and client.
But in a root and branch attack upon the application, the defendants contend that there is no real and sensible possibility of disclosure of confidential information concerning Allied Fisheries because, they say, the evidence does not establish a real possibility that the Allied Fisheries matter was the subject of conference with Mr Sher.
The defendants further contend that, once the authorities are properly understood, there is no duty of loyalty otherwise than to maintain confidence and, if there is, it is not a duty that extends to barristers as opposed to solicitors.
The defendants also submit that although the court has inherent power to enjoin the retention of particular counsel where that is necessary to protect the integrity of the administration of justice, it is a power to be exercised only in exceptional circumstances of a kind which do not obtain in this case.
I will deal with each of the three grounds of the application and the defendants’ contentions in turn.
(1) Possibility of disclosure of confidential information
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 practitioner’s duty to keep the information confidential, and to refrain from using that information to the detriment of the former client[1].
[1]see Farrow Mortgage v Mendel Properties Pty Ltd (1995) 1 VR at p. 5 per Hayne J; Yunghanns v Elfic Pty Ltd (1998) Butterworth Cases 9803497 per Gillard J; Bolkiah v KPMG [1999] 2 AC 222 especially at 237 in the speech of Millet L; and World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick (2000) VSC 196 per Gillard J.
The plaintiffs contend that those principles are engaged by the facts of this case, in that the matters disclosed by Sent to Mr Sher in conference in 1998 go to the heart of the matters in issue in the proceeding and that, notwithstanding Mr Sher's lack of recall, there can be no assurance that recollection will not revive; perhaps as a result of something seen or done in the lead-up to trial.
The defendants do not dispute the effect of the authorities, at least as I have set them out above, but they say that the whole of the plaintiffs’ application is founded on a factual premise that the subject of Mr Sher's advice was the Allied Fisheries matter and, once that presumption goes, as they say it does for want of proof, the application fails in limine.
Alternatively, it is said that if the factual premise of the application is established by the evidence, the application should be held to fail, because they say that the alleged confidential information has not been defined with sufficient precision.
In the further alternative, it is said that, if the factual premise is made out, and if the confidential information is defined with sufficient precision, the application should still be held to fail, because the subject matter of the confidence will not be in issue at trial and thus is not likely to be disclosed or otherwise made use of.
I have earlier set out the evidence upon which the plaintiffs rely to establish that confidential information concerning the Allied Fisheries matter was disclosed to Mr Sher, and formed the subject matter of advice which he gave in conference.
The defendants, however, contend that the evidence is insufficient to establish that the subject matter of conference was the Allied Fisheries matter. They point to the fact that Sent has not gone on oath and submit that, given the nature of this application, I should effectively discount to nil or at least to very little, the weight to be placed upon the contents of paragraph 8 of Mr Warren's affidavit of 3 September 2002.
The defendants submit that once that has been done, the only direct evidence on the point is in Mr Forshaw's affidavit, and it makes it just as probable as not that the subject matter of discussion was a matter other than the Allied Fisheries matter.
The defendants also criticise what they say is the inadequacy of the explanation for the delay which occurred between October 2001 and June of this year, to which I have already referred, and they submit that the fact of unexplained delay or of inadequately explained delay is further reason to conclude that the defendants expressions of concern about breach of confidence are either disingenuous or at least overstated.
Dealing first with the absence of any sworn evidence from Sent, I accept that the defendants are hampered to a significant extent in having to deal with Sent's evidence in the form of an affidavit sworn by Mr Warren.
Plainly, they cannot cross-examine Mr Warren with any effect because he has no knowledge of the truth of his instructions. Thus, they must take Mr Warren's evidence as it is, and confine themselves to criticisms of what they say are its substantive and textual inadequacies.
I also accept that although it has been held that an application such as this one is interlocutory, so that evidence on the basis of information and belief is admissible, the application is final in effect because, if successful, it will preclude the retainer of Mr Sher for the balance of the proceeding and the court should thus be slow to act on the basis of evidence which lacks the sort of rigour that would be demanded at trial.
That having been said, however, I think it would be unrealistic to expect the plaintiffs’ counsel to expose Sent to cross-examination upon this application in advance of the trial, on matters that may well bear upon the outcome of the trial.
No doubt it may be said that such a cross-examination would be limited and likely to be controlled by the court. It may also be that many questions upon the facts on which Mr Sher's advice was taken would be ruled inadmissible. But it is hard to envisage that cross-examination upon the confidential information disclosed to Mr Sher could be effective if it were not permitted to enter to some extent upon the facts on which the advice was based.
In large part, the facts and the confidential information may be one in the same and thus an excursus into the facts of the matter would be probable if indeed not inevitable.
The point can perhaps be demonstrated by reference to the defendants’ criticism of the imprecision with which they say Sent has chosen to describe the confidential information which he imparted to Mr Sher.
It may readily be supposed that if Sent had exposed himself to cross-examination, he could and would have been permitted to be asked to explain in precise terms what he told Mr Sher during the course of conference. Questions of that kind would be directly relevant to the scope and quality of the confidence claimed in respect of the instructions and they would be admissible.
Yet such an exercise would almost certainly deliver to the defendants the very result which the confidentiality of the instructions was designed to protect.
In my view that should not be permitted to occur. It makes no sense that Sent should have to expose himself to the prospect of the destruction of the confidence to establish that it once existed, and thus I consider that the method Sent has chosen of giving evidence, in effect through Warren, should not be viewed with disfavour.
I also consider that it would be a mistake to reason that, because Sent has not gone on oath, the evidence which he has given, in effect through Warren, should be treated as devoid of the sort of credit which an oath would have given it.
Granted that giving false instructions to Mr Warren might not render Sent liable to conviction for perjury, if Sent gave false instructions to Mr Warren with the intent that they be placed before the court on Mr Warren's oath and acted upon, Sent could well be liable for attempting to pervert the course of justice; as doubtless he has been told.
I turn now to the probability of the Allied Fisheries matter being the subject on which advice was taken.
Once it is accepted that weight may be given to the evidence Sent has offered through Warren, the problem answers itself.
On that basis, there is evidence of Sent through Warren that Allied Fisheries was the subject of conference. There is evidence from Forshaw that it may have been. Forshaw has not been cross-examined, as perhaps he might have been, to establish that the subject of discussion was more likely to have been something other than Allied Fisheries. And there is no evidence from Mr Sher that the conference was not about Allied Fisheries, because Mr Sher is devoid of any recollection of the conference.
The defendants have criticised the fact that the plaintiffs did not call Mr Mott when it is possible that he may know something of the matter. The defendants ask me to draw the inference that anything which Mr Mott might have been able to say would not have assisted the plaintiffs.
I am of course prepared to do that, consistently with the authorities: Jones v Dunkell[2]. But in the state of the evidence which otherwise exists, it seems to me that such an inference really takes the matter no further. If the defendants wanted any evidence that Mr Mott maybe able to give positively to count in their favour, they needed to call Mr Mott themselves, and that they have not done.
[2](1959) 101 CLR 298; Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1991) 22 NSWLR 389 at 418; and see the article, Scales of Justice, Probability and the Proof of Fact Finding, 1995 69 ALJ 731 in which many of the authorities are discussed.
Accepting Mr Warren's evidence as to what he has been told by Sent as having weight, as I do, I am satisfied it is more likely than not, that Allied Fisheries was the subject of the conference with Mr Sher.
This leaves the issue of delay. Despite Mr Wilson's submissions to the contrary, I regard the explanation of the delay offered in Mr Warren's affidavit of 4 October 2002 as in some respects less than satisfactory. It suggests a degree of insouciance on the part of Sent which is unacceptable in the conduct of a Supreme Court proceeding.
It is said by the defendants also to reflect a degree of indecision on Sent's part, as to whether what he disclosed to Mr Sher was truly confidential and as to how likely it is that it may be revealed at trial[3].
[3]Compare the observations of Mr Justice Batt in the Uncle Toby's Co Pty Ltd v Trevor Jones Steel Fabrications Pty Ltd (In liquidation) (Unreported 12 October 1995) Butterworth's Cases 9502460 at p. 27.
But I am not prepared to reason from delay to disingenuousness. No doubt in the matter with which Batt J was concerned, the circumstances were enough to reveal to his Honour a connection between the two, but the facts of that matter were different to this case, and in this case I see no logical or other compelling link between the delay and the strength of the claim of apprehension of breach of confidence. Here, the first complaint was made promptly and it was followed up promptly for a time. It was only subsequently, when further particulars of the complaint were sought for a second time, after particulars had been provided in response to a first request, that delay set in, and even that delay was punctuated at about the halfway mark by the announcement made by Mr Wilson at the Directions Hearing on 15 March to which I earlier referred.
The defendants point to the fact that Mr Warren was evidently able to obtain instructions on other aspects of the matter throughout the period of delay, such as further and better particulars, pleadings and discovery, and they suggest that Mr Warren's professed inability to obtain instructions concerning this application rings hollow in those circumstances. But I am not prepared to take that view. Mr Warren is a solicitor of the court. He has sworn, or at least affirmed, that he was unable to obtain instructions for the reasons he has set out. He has not been cross-examined on that evidence. I accept the truth of what he says.
Finally, I should say that the defendants do not suggest that the delay has any significant effect apart from forensic effect. It is not contended that the delay amounts to laches and, given the absence of any apparent prejudice, it is difficult to suppose that it could: see the analysis of Deane J in Orr v Ford[4].
[4](1989) 167 CLR 316 at p.341.
Precision of Description
The next matter is the precision with which the confidential information is described in Mr Warren's affidavit. I have already set out the description which is given in Warren's affidavit, and I will not repeat it.
In Carindale Country Club Estate Pty Ltd v Astill[5], Drummond J of the Federal Court defined the degree of precision demanded in an application such as this in the following terms:
“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 Pavey Whiting & Byrne 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 preserve 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, p 122 and s 50 of the Federal Court of Australia Act 1976 (Cth). 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.
See also Mancini v Mancini[6] and Belan v Casey[7]. I approach the question in accordance with those principles.
[5](1993) 42 FCR at pp. 314-315.
[6](1999) NSWSC 800.
[7](2002) NSWSC 58 per Young CJ in Equity.
That said, it is important to bear in mind that what Drummond J said in Carindale was in the nature of a statement of principle and that, when it comes to the facts of a particular case, the principles which his Honour adumbrated need to be applied with a degree of flexibility. Thus, as was explained by Gillard J in Elfic[8]:
“The degree of particularity of the confidential information must depend upon all the circumstances. 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 solicitor and client may be such 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.”
[8]supra at p. 10.
Plainly, not everything which Gillard J said in Elfic is of direct application here. This is not a case about a solicitor, and because there was only one conference with Mr Sher, there may not be much here in the way of what Gillard J described as the “getting to know you factors”.
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; that the nature of legal work itself sometimes is sufficient to establish the nature of the confidential information sought to be protected; and that there is confidentiality in the revelations which a client may subconsciously convey to counsel in conference.
In my view, in the circumstances of this case it is likely that any more precision of description than has been employed in Mr Warren's affidavit would tend to disclose the information which it is sought to keep confidential. I consider that the nature of the legal work which Mr Sher was asked to perform (namely, advise on the Allied Fisheries matter and anticipated charges to be laid by the National Crime Authority) bespeaks the confidentiality of the information which must have been imparted. And notwithstanding that Mr Sher has no present recollection of them, I think there is likely to have been disclosure of “getting to know you factors” which on any analysis are highly confidential.
In my opinion, the information which is sought to be protected is sufficiently precisely described.
Matters in Issue at Trial
There remains the question of whether there is any likelihood of the confidence of the information being abused if Mr Sher remains as counsel for the defendants.
The defendants contend that there is not for two reasons. First, they say there is no issue in this proceeding about any of the matters upon which Mr Sher may have advised. Secondly, they say that, even if there were an issue about those matters, Mr Sher has sworn that he has no recollection of them and thus he could not make any use of them on behalf of the defendants.
As to the first of those matters, the defendants submit that because they have not advanced a defence of truth, otherwise than to the extent of their Hore-Lacy meaning, the falsity of the alleged defamatory meanings of the article must be presumed[9], and hence it follows that there will be no issue (and correspondingly, no basis for evidence or cross-examination) as to whether Sent did commit any of the offences with which he was charged.
[9]see Australian Consolidated Press v Uren (1966) 117 CLR 185 at pp.204-5.
I reject that submission. To begin with, I think it ignores or at least does not give due weight to the plea of malice which is made in paragraph 28 of the plaintiffs’ reply. As will be recalled, the plaintiffs expressly aver in Particular (b) under paragraph 28 of the reply, that the defendants publish the articles either knowing that the defamatory imputations were false or with reckless indifference as to whether they were true or false. Thus it seems to me that there is a significant probability of matters going to the truth of the alleged defamatory meanings being investigated at trial.
Of course, that is not to say that the plaintiffs will need to prove falsity in order to succeed in their plea of malice. They will have the benefit of the presumption of falsity as much for that purpose as in establishing that they were defamed. But it is to say that once an inquiry is opened up into what the defendants should have known or discovered about the falsity of the alleged defamatory meanings, evidence-in-chief and cross-examination on both sides may well be directed to the facts surrounding and touching upon the subject of the NCA charges.
In the second place, as the plaintiffs’ point out, one option open to them at trial will be to seek to nail the lie[10] and thereby to attempt to swell the amount of general damages recoverable by the plaintiffs. In that event, falsity of the alleged defamatory meanings would be squarely in issue (in the sense that it would be next to impossible to separate cross-examination properly directed to assertions of hurt and damaged feelings from cross-examination directed to the alleged falsity of the defamatory meanings contended to give rise to the hurt and damaged feelings).
[10]see Carson v John Fairfax (1993) 178 CLR 44 at p. 76; Rigby v Associated Newspapers (No.2) (1969) 1 NSWR 729 at pp. 738-743; Galooley, the Law of Defamation in Australia and New Zealand at p. 284; and Tobin, Australian Defamation Law and Practice at paragraphs 21 and 125.
The defendants suggest that it would not be possible for the plaintiffs to lead evidence of falsity as the pleadings stand, because the plaintiffs have not expressly averred falsity in their statement of claim and the defendants submit that it is not open to recover aggravated damages for falsity unless the same is expressly alleged.
But the authorities which are relied upon in support of that contention are in large part limited to decisions about the effects of the substantive and procedural law in New South Wales[11].
[11]see the decision of Hunt CJ in Common Law in Aldrige v John Fairfax & Sons [1984] 2 NSWLR 544 at p. 549; Tabe v Amalgamated TV Service (1987) NSWCA; Vasta v Queensland Newspapers, 1991 2 QR 354 at 357; Humphries v TWT (1993) 120 ALR 693 at pp. 701-703.
It appears to me that whatever be the requirement in New South Wales, where both the practice and substantive law of defamation are significantly different to that which applies in Victoria, in Victoria the practice has long been to allow a plaintiff to give evidence of falsity despite the absence of express averment, and I think that I should approach the matter on the basis that it will remain so at the trial of this proceeding.
In the third place, the defendants may well seek to interrogate as to facts which go to increase general damages or which might go in mitigation of damages[12].
[12]see Herald & Weekly Times v Hawke [1984] VR 587 at 592; cf Glare v John Fairfax, Butterworth Cases 9906722 at paragraphs 19, 20 per Beach J; and contrast the decision of Hunt J in Aldridge supra at 551-552 where his Honour identifies differences which result from the common law of defamation as it applies in this State and the statutory law of defamation which applies in New South Wales.
It is true that the plaintiffs might avoid the problem by choosing not to adduce evidence of falsity. But I do not consider that to be an adequate response to the predicament which Mr Sher's involvement as counsel may create.
The plaintiffs should not be required to conduct their case according to whether counsel previously consulted on a matter in issue is now to appear against them. Sent 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.
In my opinion there is a real and sensible possibility that matters upon which Mr Sher advised in 1988 will be in issue and even if not in issue will be examined during the course of trial.
Mr Sher’s Recollection
I turn to the question of Mr Sher's recollection and whether, given its paucity, there is any chance of his making use of information imparted to him in conference.
It will be recalled that Mr Sher has sworn that he has no recollection of advising Sent in conference, let alone any recollection of the content of the advice.
It also goes without saying that Mr Sher's integrity is beyond question, and I add, lest there be any doubt about it, the plaintiffs do not suggest that it is otherwise.
Logically, it may seem to follow that there could not be a real and sensible possibility of the misuse by the defendants of anything disclosed. But I do not think that should be the end of the matter. Recollections are liable to be revived, even as long after the event as 14 years, and that process may well be facilitated by what is said and done in the preparation which will be undertaken in the lead-up to trial and during the trial itself.
One knows as a matter of experience that when he has advised on documents and transactions, recollections of them, although long faded, may revive in the course of the sort of close and careful study which precedes the trial of an action. And when one has conferred with a client, recollection of things said and done in conference may be revived long after the event when the same or similar things are said or done in another place.
This is not to say that something of the same sort is bound to occur in this case. For one thing, the evidence shows that the conference with Mr Sher was no more than two hours and may have been less than one. For another, although my experience of recollection and that of some others may be as I have described, Mr Sher's experience may be somewhat different.
I do not suggest even that the sort of revival of recollection I have described is in this case more likely than not to occur. But I do consider that, probabilities being what they are, there is a real and sensible possibility of a revival of recollection, and in my view that is enough.
Perhaps one way of dealing with the problem would be to allow matters to progress and see if recollections do revive, and only then intervene if necessary to prevent Mr Sher's involvement. But I do not regard that as an acceptable way of proceeding. It would not be convenient, because it could result in a late change of counsel and possibly even the trial having to be aborted. It would also not be fair to the plaintiffs, because whilst I have no doubt that Mr Sher would cease to act immediately if he did experience any recollection, it is just as possible that his recollection and thus his use of confidential information would be subconscious and therefore not revealed.
As was observed by Drummond J in Carindale[13], it has long been recognised that a solicitor, and I would add, counsel also, who, with the best will in the world, is determined not to make use of one client's confidential information for the benefit of another, may subconsciously do so[14].
[13]supra at p. 313.
[14]see also the observations of Hayne J in Farrow v Mendel supra at p. 8 and the authorities there cited.
Conclusions on Confidential Information
The conclusion to which I have come is that, despite Mr Sher's present state of recollection, if he were to continue as counsel for the defendants there is a real and sensible possibility of confidential information being used to the detriment of the plaintiffs.
It follows from what I have said that I consider that the plaintiffs succeed in the first way in which they have put this application and that, if it be necessary, injunction should go to restrain the defendants continuing to retain Mr Sher as their counsel in this proceeding.
It also follows that it is unnecessary that I say anything in detail about the other two ways in which the application has been put.
I have, however, had the benefit of extensive submissions on all aspects of the matter and in case the matter goes further, and in deference to the quality of the submissions which have been made, I will say something briefly on each.
Duty of Loyalty
In Spincode Pty Ltd v Look Software Pty Ltd[15], Brooking JA observed that the law in Australia had diverged from that in England to the extent that the danger of misuse of confidential information is no longer the sole touchstone for curial intervention where a solicitor acts against a former client. His Honour held that there is also an independent equitable obligation of loyalty which forbids a solicitor acting against a former client in the same matter or in a closely related matter.
[15](2001) VSCA 248.
The plaintiffs have invoked those observations as support for their contention that the defendants should be enjoined from continuing to retain Mr Sher. The plaintiffs contend that this proceeding should be regarded as closely related to the matter on which Sent took advice from Mr Sher.
The defendants have responded that Brooking JA's observations were obiter, and were not supported by other members of the court, and should not be followed because they are inconsistent with decisions of the highest authority in England and decisions in New South Wales.
It must be accepted that Brooking JA's observations appear to take the law further than it has thus far been held to go in England or New South Wales[16].
[16]see Bolkiah v KPMG supra; World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick supra; Belan v Casey supra; and see also the decision of Goldberg J of the Federal Court in PhotoCure ASA v Queen's University of Kingston (2002) FCA 905, where his Honour refused to follow what Brooking JA had said.
But that does not mean that Brooking JA was wrong. Nor is it altogether correct to say that Brooking JA was unsupported by other members of the court. Certainly Ormiston JA expressed no view on the point but Chernov JA, although noting that it was unnecessary to decide, considered that Brooking JA had made a compelling case for the view which he expressed.
In my respectful view too, Brooking JA's analysis makes a compelling case for the view which he expressed. It accords with the weight of authority in Canada and New Zealand, and it accords with equitable principle, and none of the judges' that have refused to follow Brooking JA's observations have directed themselves to an analysis of principle of the kind which his Honour undertook.
If it were necessary to make a choice about the matter, I would respectfully choose to follow Brooking JA’s analysis in Spincode[17].
[17]see also Australian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd 2002 VSC 324 and Westend Entertainment Centres Pty Ltd v Equity Trustees Ltd (1999) VSC 514.
The defendants contend that even if there be an equitable duty of loyalty of the kind identified by Brooking JA, it is a duty owed by solicitors and it cannot extend to barristers, because of the nature of the Bar and its precepts. They submit that according to both the nature of the Bar and its precepts, barristers must always be free to act for and against the same party in different proceedings.
I do not consider that to be so. Of course members of the Bar must be free to act for and against the same party in different proceedings, subject to duties of confidence[18]. But barristers are not free and they never were to act against the same party in the same matter or in a closely related matter.
[18]see, for example, Mintel International Group v Mintel (Australia) Pty Ltd (2000) 181, ALR 78, paragraph 44, per Heerey J.
The trust which a party to litigation reposes in their counsel is more often than not complete. It is and must remain beyond question that the trust is never abused, and accordingly the trust must not only be preserved but must be seen to be preserved. To sanction the prospect of counsel acting against a former client in a matter upon which there is a commonality of issue or inquiry would not be preservative of either.
Questions of “the same matter” and “closely related matter” may sometimes be problematic. But in the end they are questions of fact and degree. In litigation, at least, there can be no doubt about what constitutes the same matter, and I do not think that there should be much doubt about what constitutes a closely related matter. If there are significant issues in one matter that arise in another, or factors which are significant to one matter which will be significant to another, the matters are likely to be closely related.
Here, for the reasons I have already given, I consider that the issues, or at least the facts the subject of Mr Sher's advice in the earlier matter, are likely to arise for consideration in this proceeding.
In the result, if I had not been satisfied of the existence of a real and sensible possibility of misuse of confidential information, I would have been prepared to hold that the defendants’ continued retention of Mr Sher in this proceeding would give rise to a breach of an equitable obligation of loyalty owed by Mr Sher to Sent.
Public Policy
I turn finally to the question of public policy and the third way in which the application was put.
In Grimwade v Meagher[19], Mandie J held that the court has inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and, as part of that jurisdiction, to prevent a member of counsel appearing for a particular party in order that the jurisdiction should not only be done but be seen to be done.
[19][1995] 1 VR 446.
The objective test to be applied, his Honour held, is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that counsel be prevented from acting; giving due weight to the public interest that litigants should not be deprived of their choice of counsel without good cause.
The decision has been followed and applied by other judges of this court, by judges of the Federal Court, and by a judge of the Western Australian District Court[20]. If it were necessary in order to decide this application, I would, with respect, also follow the decision.
[20]see Caruso v Tartaglia (2002) VSC 91; Uncle Toby's supra; Lincoln v Holmesglen Institute of TAFE (1999) FCA 601; Grey v Alexander (2000) Australian and New Zealand Conveyancing Reports 386. The decision was also referred to with evident approval by Brooking JA in Spincode, above at paragraph 40.
That being so, I ask then, what would a fair minded reasonably informed member of the public say of the requirements of the administration of justice in this case if told that some 14 years ago Mr Sher advised a client in conference on the Allied Fisheries matter, albeit that he has no present recollection of so doing, and now is to act for John Fairfax against the former client in a defamation proceeding concerning articles, inter alia, about the Allied Fisheries matter, published of and concerning the former client.
My conclusion is that the fair minded reasonably informed member of the public would say that should not occur.
I will hear counsel on the form of orders.
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