JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SOURAKI AZAD -v- JOSE [No 2] [2023] WASC 218
CORAM: LUNDBERG J
HEARD: 2 MAY 2023
DELIVERED : 20 JUNE 2023
FILE NO/S: CIV 1065 of 2023
BETWEEN: MOHAMMAD AMIN SOURAKI AZAD
Plaintiff
AND
ROSS JOSE
Defendant
Catchwords:
Legal practitioners - Application to restrain law practice from acting - Law practice presently representing the defendant - Conflict checking process - Plaintiff made enquiry of the law practice to assess whether it could represent him - Law practice then made enquiry of an external entity without plaintiff's consent - Law practice thereafter accepted instructions to act for the defendant - Asserted conflict of interest - Consideration as to whether confidential information imparted to law practice - Consideration as to whether the due administration of justice requires that the law practice be restrained
Legislation:
Rules of the Supreme Court 1971 (WA), O 8 r 6, O 9A r 2(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Ms J A Sims |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Steedman Stagg Lawyers |
Case(s) referred to in decision(s):
Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307
Director of Public Prosecutions (Cth) v A Legal Practitioner [2012] WASC 459
Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Newman v Phillips Fox (a firm) [1999] WASC 171; (1999) 21 WAR 309
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222
Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429
Souraki Azad v Jose [2023] WASC 160
Uon Pty Ltd v Hoascar [2017] WASC 79
Table of Contents
A. Introduction and summary
B. Background
C. Relevant principles
D. Factual findings
The plaintiff approaches the law practice on Tuesday, 21 March 2023
Contact is made with MDA National
Instructions are declined on Wednesday, 22 March 2023
No written engagement
No information barrier
Memorandum of appearance and Order 9A notice were then filed
Plaintiff offers to consent to the law practice acting
Findings as to the information imparted on 21 March 2023
E. Submissions
F. Disposition - protection of confidential information
G. Disposition - due administration of justice
Overview
Relevance of the third party enquiry
Features relevant to the third ground
Overall assessment
H. Orders
ATTACHMENT A
LUNDBERG J:
A. Introduction and summary
These reasons concern an interlocutory application brought by the plaintiff seeking orders to restrain the law practice which presently acts for the defendant in this defamation action, from continuing to so act. The background to the action is set out in my earlier reasons: Souraki Azad v Jose [2023] WASC 160.[1]
[1] Those earlier reasons specifically…
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- Case
- [2023] WASC 218
- Decision Date
CaseChat Overview and Summary
In determining the confidentiality of the information, the court examined the nature of the information shared by the plaintiff. The plaintiff had made an initial telephone call to the law practice, followed by a more detailed 17-minute conversation. The court found that the information discussed during these interactions was limited and did not rise to the level of confidentiality. The plaintiff's email to the law practice also contained minimal sensitive information. Additionally, evidence showed that the plaintiff had shared similar information with various other parties before and after contacting the law practice, which further undermined the claim of confidentiality. The court concluded that the plaintiff had not clearly defined the confidential information, and what was shared was not of a confidential nature. The court also noted that the plaintiff had already commenced litigation and had publicised the case widely, which further negated the claim of confidentiality.
The Supreme Court of New South Wales held that the plaintiff had failed to demonstrate that the information imparted to the law practice was confidential. Consequently, the plaintiff's application for costs was dismissed. The court emphasised that for an information to be considered confidential, it must be clearly defined and not already in the public domain. The plaintiff's inability to clearly articulate the confidential information and the fact that similar information had already been shared widely, meant that the duty of confidentiality was not breached.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
As the present litigation had already been commenced and was a matter of public record by the time the plaintiff approached the law practice, I do not consider it can reasonably be concluded that the approach made by the plaintiff was confidential per se. The true question is whether the information imparted was confidential. In this regard, the plaintiff was not able to clearly describe to the court, either in his affidavit material or by way of submissions, the nature of the confidential information about which he was concerned. I recognise that, as an unrepresented litigant, the task of doing so may present difficulties. Further, I recognise that less precision in the description of such information may on occasions be required where a more fulsome explanation 'would annihilate the confidence sought to be protected'.[23] Nonetheless, the plaintiff's descriptions were very general and of limited assistance. [23] Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429 [69] (Nettle J). In any event, it is not in dispute that the avenues and opportunities by which the plaintiff was able to impart information to the law practice were limited. There was an introductory telephone call which involved the plaintiff leaving a message for the law practice partner to return his call. The brief description given by the plaintiff at this time was not confidential and need not be further discussed. Next, there was a 17-minute telephone call in respect of which a file note was prepared by the legal practitioner involved. That file note records that limited matters were discussed. My findings as to the substance of the information disclosed by the plaintiff during this telephone call are at [46] above, and are to the effect that no confidential information was imparted. The reference to the bringing of a default judgment application is not confidential in my view. It was an obvious potential application a litigant might consider in the face of a failure by a defendant party to file an appearance. The other information imparted by the plaintiff was similarly benign, on my assessment. I also note the legal practitioner cautioned the plaintiff against providing additional documents, which lends support to the conclusion that the discussion was narrow in scope and designed to obtain only such information as was necessary to allow a conflict check to be undertaken. I also have before me the email which was subsequently dispatched to the law practice by the plaintiff. This written communication also contains very little in the way of sensitive information, as further described at [26] above. My overall assessment of the admissible evidence adduced on this application is that the information imparted by the plaintiff to the law practice was extremely limited and not such as to rise to the requisite level to be characterised as confidential in some way. Further, and importantly, there is material before me which indicates that the plaintiff had conveyed the substance of the same information he imparted to the law practice to various other parties, either prior to the discussion with the law practice or thereafter. I refer to the following matters in this regard:(a)the plaintiff deposes that he had 'discussed the current matter with around 10-12 legal firms in Perth' up to 1 April 2023;[24](b)the plaintiff stated within a defamation concerns notice he issued to another person in December 2022 that he 'will definitely sue [the defendant] in the Supreme Court of WA for repulsive act of defamation of my character';[25] (c)the plaintiff had sent a copy of the writ of summons in the current action to various third parties;[26] (d)the plaintiff had already informed the present defendant of his desire to seek default judgment;[27] (e)the plaintiff had sent a text message to a third person to notify them that he had commenced the current action;[28] and (f)the plaintiff has already commenced proceedings in the Magistrates Court against the defendant with respect to the commercial deal between them.[29][24] First Azad Affidavit, page 7.[25] Kwok Affidavit, Attachment CSK-1, page 5.[26] Kwok Affidavit, Attachment CSK-3, page 9.[27] Kwok Affidavit, Attachment CSK-4, page 11.[28] Kwok Affidavit, Attachment CSK-5, page 12.[29] For example, see the letter from the plaintiff to the court and defendant dated 9 March 2023 (Folio 7).