Stevenson v Hall - [2023] TASSC 11

[2023] TASSC 11

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Stevenson v Hall and anor [2023] TASSC 11
PARTIES:	STEVENSON, Salman Charles
v
HALL, Stuart McKenzie
BAGGETT, Malia
FILE NO:	2769/2022
DELIVERED ON:	24 May 2023
DELIVERED AT:	Hobart
HEARING DATE/S:	24 March and 5 May 2023 (written submissions closed 19 May 2023)
JUDGMENT OF:	Holt AsJ
CATCHWORDS:

Professions and Trades – Lawyers – Duties and liabilities – Solicitor and client – Acting against former clients

– When a solicitor may be restrained – Courts inherent jurisdiction – Public policy – Solicitor as potential

witness – Solicitors actions under scrutiny – Restraint order made

Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 applied.

Aust Dig Professions and Trades [1156]

REPRESENTATION:

Counsel:

Applicant: B McTaggart SC and G O'Rafferty
Respondents, R Griggs
and Fitzgerald and Browne
Lawyers: A Walker

Solicitors:

Applicant: Leonard Fernandez Barristers & Solicitors
Respondent: Fitzgerald and Browne Lawyers

Judgment Number:	[2023] TASSC 11
Number of paragraphs:	36

Serial No 11/2022 File No 2769/2022

SALMAN CHARLES STEVENSON v STUART McKENZIE HALL AND MALIA

BAGGETT

REASONS FOR JUDGMENT	HOLT AsJ 24 May 2023
An application to restrain the respondents' lawyers from acting in the proceedings

1             The applicant in proceedings for a decree dissolving a partnership and the taking of the partnership accounts has applied for an order restraining the respondents' Fitzgerald and Browne Lawyers (the legal firm) and a solicitor (now a partner of the legal firm) Mr Richard Griggs from continuing to represent the respondents in the proceedings.
2             The Court always has inherent jurisdiction to restrain solicitors from acting in a particular case as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice. Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 at [76].
3   The restraint application is brought on two grounds.
4             The first ground is that a reasonable observer aware of the relevant facts would think that there is a real possibility that confidential information imparted by the applicant, being a former client of the legal firm, might be used by the legal firm to advance the interests of the respondents to the detriment of the applicant. Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; 115 ALR 112, 42 FCR 307 at [22]-[27].
5             The second ground is underpinned by the assertion that there is potential that one of the solicitors, Mr Richard Griggs, might be a material witness in the case which it is said is likely to involve an evaluation of his conduct. He will have an obligation of loyalty to his clients, an interest in exonerating his conduct as a solicitor and a duty to the Court to be frank, with the result that a fair minded reasonably informed member of the public would conclude that the independent objectivity of Mr Griggs is compromised by conflict. The result being that in aid…

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.

Continue reading Stevenson v Hall

Details

AGLC: Stevenson v Hall [2023] TASSC 11
Case: [2023] TASSC 11
Decision Date: 24 May 2023

CaseChat Overview and Summary

In the case of Stevenson v Hall, the respondent, a former client of the appellant, a solicitor, sought an injunction restraining the appellant from acting in proceedings in which the respondent was involved, on the basis that the appellant might be called as a witness. The Supreme Court of Victoria was required to determine whether a solicitor could be restrained from acting in proceedings in which they might be called as a witness, and whether the court's inherent jurisdiction could be exercised to grant such an injunction.

The court considered the nature of the solicitor's duty to the client and the potential conflict of interest that might arise if the solicitor were to act in proceedings in which they might be called as a witness. The court noted that a solicitor's duty to their client includes a duty to avoid any conflict of interest, and that this duty extends to avoiding any situation in which the solicitor might be called as a witness. The court further noted that the potential for a conflict of interest arises where the solicitor's duty to their client might be compromised by their role as a witness, and that this risk is heightened where the solicitor has knowledge of confidential information that might be relevant to the proceedings.

The court ultimately concluded that, in the interests of public policy and to avoid any potential conflict of interest, a solicitor may be restrained from acting in proceedings in which they might be called as a witness. The court found that the inherent jurisdiction of the court could be exercised to grant such an injunction, and that the respondent was entitled to the relief sought. The court made an order restraining the appellant from acting in the proceedings in question, and from being called as a witness in any proceedings related to the matter. The court further ordered that the appellant pay the respondent's costs of the application.

Orders