Westgold Resources Nl v St Barbara Mines Ltd
[2003] WASC 29
•4 MARCH 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WESTGOLD RESOURCES NL -v- ST BARBARA MINES LTD & ORS [2003] WASC 29
CORAM: EM HEENAN J
HEARD: 29 JANUARY 2003
DELIVERED : 4 MARCH 2003
FILE NO/S: CIV 2427 of 2000
BETWEEN: WESTGOLD RESOURCES NL (ACN 009 260 306)
Plaintiff
AND
ST BARBARA MINES LTD (ACN 009 165 066)
First DefendantRONALD WARREN WOSS
Second DefendantTOTTLE CHRISTENSEN (A FIRM)
Third DefendantNORMAN THOMAS BEVAN
First Third PartyPETER VERNON JONES
Second Third PartyROBIN STEPHEN DEAN
Third Third PartyAMERICAN HOME ASSURANCE COMPANY
Fourth Third Party
Catchwords:
Interlocutory injunction - Application to discharge - Solicitors - Alleged conflict of interest - Confidential information - Duty of loyalty - Fiduciary obligation of limited character - Grounds upon which a solicitor may be restrained from acting
Legislation:
Nil
Result:
Interlocutory injunction discharged
Category: B
Representation:
Counsel:
Plaintiff: Mr A N Siopis SC & Mr C A de C Ryder
First Defendant : Mr M J McCusker QC & Dr J J Edelman
Second Defendant : No appearance
Third Defendant : Mr M J McCusker QC & Dr J J Edelman
First Third Party : No appearance
Second Third Party : No appearance
Third Third Party : No appearance
Fourth Third Party : No appearance
Solicitors:
Plaintiff: Corrs Chambers Westgarth
First Defendant : Tottle Christensen
Second Defendant : No appearance
Third Defendant : Tottle Christensen
First Third Party : No appearance
Second Third Party : No appearance
Third Third Party : No appearance
Fourth Third Party : No appearance
Case(s) referred to in judgment(s):
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Black v Taylor [1993] 3 NZLR 403
Boardman v Phipps [1967] 2 AC 46
Breen v Williams (1996) 186 CLR 71
Butt v Butt [1987] 1 WLR 1351
Commonwealth Scientific and Industrial Research Organisation v Perry (1988) 92 FLR 413
Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570
Geveran v Skjevesland [2003] 1 All ER 1
Grimwade v Meagher [1995] 1 VR 446
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Law Society of New South Wales v Harvey [1976] 2 NSWLR 154
Maguire v Makaronis (1997) 188 CLR 449
Moorgate Tobacco Co Ltd [No 2] v Philip Morris Ltd (1984) 156 CLR 414
Muschinski v Dodds (1985) 160 CLR 583
Newman v Phillips Fox (1999) 21 WAR 309
Pilmer v Duke Group Ltd (2001) 207 CLR 165
R D Harbottle (Mercantile) Ltd v National Westminster Bank Ltd [1977] QB 146
Regent Oil Co Ltd v J T Leavesley (Lichfield) Ltd [1966] 1 WLR 1210
Spincode Pty Ltd v Look Software Pty Ltd [2001] 4 VR 501
Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69
Case(s) also cited:
Nil
EM HEENAN J: In my reasons of 15 November 2002 for my decision to grant an interlocutory injunction restraining Tottle Christensen and Mr Paul Blackman from acting for St Barbara further in this action I observed, at [32], that the factors preventing Mr Blackman and Tottle Christensen from so acting might be of a temporary duration and could disappear if further enquiries were undertaken or other evidence adduced. Now, by chamber summons dated 6 December 2002, application is made by Tottle Christensen to discharge that injunction in the light of further evidence.
In the meantime there has been some change in the parties to the litigation. In order to facilitate an appeal from my earlier decision, Tottle Christensen sought to be joined as a party to the proceedings - an eventuality which was contemplated at the time. That order was made and the firm Tottle Christensen is now the third defendant in the proceedings. As the party enjoined it is the applicant for the discharge of the injunction.
In addition, further evidence has been adduced both by Tottle Christensen and by the plaintiff Westgold. This relates to efforts which have been made both before and since my earlier decision to try and find the missing file of confidential documents last known to be in the possession of Clayton Utz.
The injunction which I granted was expressly stated to be until further order (see par 2 of the order of 20 November 2002). As such, it contemplated that there may be a later application to vary or to discharge that injunction. Although no point has been taken by any of the parties on this present application it is, perhaps, necessary to consider whether or not the court is empowered to vary or discharge such an injunction which was made after a full inter partes hearing, either in the light of changed circumstances occurring since the injunction was granted or otherwise. There is general authority to the effect that any interlocutory order may be reviewed by a court at any time before the final disposal of the action - Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 per Jacobs J at 96 ‑ 97. More particularly, it is accepted that perpetual, interlocutory and interim injunctions may at any time be dissolved by the court by which they were granted, should it subsequently become appropriate to do so - Commonwealth Scientific and Industrial Research Organisation v Perry (1988) 92 FLR 413, whether on the application of the parties, or by some third party affected by the restraints imposed by the injunction, or by the court on its own motion: R D Harbottle (Mercantile) Ltd v National Westminster Bank Ltd [1977] QB 146. Equally, however, there are authorities to the effect that an interlocutory injunction may be discharged should it emerge that it was granted upon an erroneous legal basis or if founded on a decision which was wrong in law: Regent Oil Co Ltd v J T Leavesley (Lichfield) Ltd [1966] 1 WLR 1210. These have held that, whilst it lasts, a court will not, except perhaps in the most exceptional circumstances, entertain an application to dissolve an interlocutory injunction (Meagher, Gummow and Lehane's "Equity Doctrines and Remedies" 4th ed par [21‑405], but the emphasis is upon "whilst the injunction lasts".
In a case such as this where the injunction was granted, until further order, and where it was expressly recognised that the situation giving rise to the grant of the injunction may only be of temporary duration, I see no reason why the court should hesitate in allowing an application to vary or discharge the injunction to be heard upon its merits. That this can be done in such circumstances seems to have been expressly recognised by the English Court of Appeal in Butt v Butt [1987] 1 WLR 1351. Moreover, I consider that this approach is consistent with the principle that any conclusion reached by a court about particular facts or matters in dispute, in an interlocutory order, is entirely provisional and may differ from the determination of those facts or issues at a trial. There will be circumstances, as appear to have arisen in this case, where the parties for one reason or another, were unable to present at the original interlocutory hearing all the evidence which may bear on the interlocutory resolution of contested issues and where further hearing throws into greater significance facts which were not fully investigated or explored at an early stage. So long as the interlocutory order was intended by the court to be provisional, pending further developments or investigations of differing kinds, I do not see why the grounds upon which it was granted should not be re‑examined on an application such as the present. As with all interlocutory matters the degree to which a court will be prepared to allow the parties to review issues which arose at an earlier hearing, will be a matter for discretionary decision to be exercised recognising the need to maintain consistency of approach and to discourage repeated applications arising out of the same circumstances. In the present instance I am satisfied that it is appropriate to allow the third defendant this opportunity to apply to discharge the injunction notwithstanding that it involves, at least in part, presentation of evidence which could have been, but which was not, adduced at the original hearing of the application for the interlocutory injunction.
The additional evidence filed comprises of an affidavit of Mr D J Bishop sworn 29 November 2002, an affidavit of Mr A D Rule sworn 2 December 2002 and two affidavits of Mr C A deC Ryder sworn respectively 10 December 2002 and 28 January 2003. Reference was also made to the affidavit of Mr A D Chapman sworn 16 August 2002 which had been read on the earlier application. These affidavits address the question of what became of the file of materials assembled by Mr Roderick Smith and delivered by him to Mr Paul Blackman of Clayton Utz for advice as to whether or not these could be disclosed to Mr Woss or St Barbara or be discovered for inspection in the proceedings.
Mr Blackman has confirmed that when he left Clayton Utz in June 2002 he did not take with him the folder of documents sent to that firm by Mr Roderick Smith on or about 30 April 2002 (the "Westgold documents") and did not then know where those were to be found. He had two telephone conversations with his former partner, Mr D Bishop of Clayton Utz, on 25 and 26 July 2002 in which Mr Bishop enquired if Blackman knew where those documents might be located. Blackman advised Bishop that he did not know where the documents were located because they had been misplaced shortly after receipt, but that it was likely that the Westgold documents had been placed with copies of documents which Mr Smith had discovered in the other proceedings between Westgold Resources NL, Precious Metals Australia Limited, Mr Smith and others (the "PMA proceedings"). Mr Blackman confirmed that, on his departure from Clayton Utz, he left 38 archived boxes of documents relating to the PMA proceedings in, or immediately outside, his former office, pending arrangements being made for their storage.
Mr Bishop deposes that in late July 2002 he reviewed the contents of those archived boxes but was unable to identify any materials matching the description given by Mr Blackman of the Westgold documents. Mr Bishop made another search for these documents after 7 August 2002, spending about three hours reviewing the contents of all the archived boxes in Mr Blackman's former office and also the correspondence file held by his firm in relation to the PMA proceedings. Again, on 8 August 2002 Mr Bishop spent between six and seven hours reviewing the materials in all the archive boxes in Mr Blackman's former office, as well as in the correspondence file in the PMA proceedings. He obtained the assistance of secretarial and clerical staff. All the cupboards, drawers and filing cabinets in Mr Blackman's former office were searched and the staff double checked the archive boxes which had previously been reviewed by Bishop. They also searched an area of the Clayton Utz office used to store documents of this kind, spending at least another three hours in the search but without success. Further enquiries and searches were made by Clayton Utz staff at the direction of Mr Bishop between 25 July and 8 August 2002.
On or about 22 August 2002, at the request of other solicitors, Mr Bishop arranged for the archive boxes in Mr Blackman's former office to be collected by a director of PMA. That was done and the contents of those archive boxes are now believed to be either with PMA or with its solicitors. As already described, numerous searches of the archive boxes before they left Clayton Utz failed to locate the Westgold documents.
Following my decision of the 15 November 2002, Mr Bishop circulated an email to all legal staff and secretaries in the Perth office of Clayton Utz requesting them to assist in the location of the manila folder of documents provided by Mr Roderick Smith to Mr Blackman in late April or early May 2002. All staff were asked to search their offices and work areas but there have been no documents found as a result of this initiative. Mr Bishop has deposed to his belief that the Westgold documents are no longer in the possession of Clayton Utz or have been lost.
The affidavits of Mr Ryder, relied upon by Westgold, disclose correspondence passing between Westgold's solicitors, Tottle Christensen and Clayton Utz since the decision of 15 November last addressing the foreshadowed application by Tottle Christensen to apply to discharge the injunction and the efforts then being made to conduct further searches for the missing documents. Essentially, this correspondence challenges the adequacy of the searches that were conducted in the past and which were then to be undertaken. In addition, the solicitors for Westgold demanded further evidence from each of the partners and employees of Clayton Utz who were in any way involved in acting for Mr Smith or PMA "describing their review of files of documents, the production of all relevant time‑keeping and other office records in order to consider the adequacy of the search for the missing documents". Although Clayton Utz have not provided the extensive documentary detail sought by the solicitors for Westgold, I am satisfied that assiduous searches have been conducted for the missing documents, both before and after my decision of 15 November 2002, and that despite this they cannot be found. I am also satisfied that there is no evidence to suggest that at any time since July 2002 the documents have been in the possession or control of Mr Blackman. Equally there is no suggestion that they have ever been in the possession or control of Tottle Christensen.
Accordingly, I conclude that the confidential Westgold documents delivered by Mr Smith to Mr Blackman at Clayton Utz in March 2002 have been lost within Clayton Utz at some time between March and June 2002. I also conclude that, despite extensive searches having been made at Clayton Utz for the missing documents on numerous occasions, they cannot now be found. As with any property which has been lost or mislaid it is not possible to say whether the documents have been destroyed or will never be found again. However, I do find that the probabilities are that the lost documents, if still in existence at all, are probably misplaced somewhere within the offices of Clayton Utz at Perth. I accept that the evidence shows that they are not within any of the 38 boxes of materials left at his office at Clayton Utz by Mr Blackman, and since delivered by Clayton Utz (after several searches) to PMA. I also accept that they are not in the possession of Mr Blackman or Tottle Christensen and that, if by any chance they should be found by Clayton Utz, they will not be delivered or shown to Mr Blackman to any other person at Tottle Christensen nor, through them, to St Barbara, Mr Woss or any associated interest adverse to Westgold.
It follows from these conclusions that I do not consider that there is any risk of disclosure of confidential information by Mr Blackman if Tottle Christensen act for St Barbara in these proceedings. In my earlier reasons for decision I concluded that Mr Blackman had no personal knowledge of the contents of the written documents and that neither did any other partner or person at Tottle Christensen. The question which therefore arises is whether, there being no risk of disclosure of confidential information of Westgold through the firm of Tottle Christensen acting for St Barbara, this is sufficient to dissolve the injunction. In other words, are there any other reasons which would prevent Tottle Christensen, with Mr Blackman as the partner conducting this litigation, from acting for St Barbara?
In support of the continuation of the injunction, Westgold submits that Blackman owes it a fiduciary duty to account for and return the Woss documents and that as he has not, and evidently cannot, return the documents or account for them, Blackman is in breach of that duty. The submission goes on to contend that, as a fiduciary, Blackman cannot act against Westgold in this litigation without discharging that duty and even then without the consent of Westgold. This latter submission is said to derive from the principle that only by first making a full disclosure and obtaining the informed consent of a beneficiary, can a fiduciary be relieved for the prohibition of acting in a conflict of interest situation - Boardman v Phipps [1967] 2 AC 46 at 93 and Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 at 170. Westgold maintains that it has received no adequate account of the fate of the documents from Blackman and is not willing to give its consent to him as a person, under a fiduciary obligation to it, to act against it in a manner which conflicts with that duty. In response, the submissions for Tottle Christensen are that Blackman does not owe a fiduciary duty to Westgold to account for and return the lost documents. Tottle Christensen submits that even where there is a situation where certain fiduciary duties may be owed, these are distinguishable from less onerous duties arising at law (for example, to pay damages for conversion or breach of contract) and do not extend to positive legal obligations to act in the best interests of the person to whom the duty may be owed - Pilmer v Duke Group Ltd (2001) 207 CLR 165 at 195 ‑ 197 and Breen v Williams (1996) 186 CLR 71 at 113 where it was held that a fiduciary duty owed by a doctor to a patient did not extend to any obligation to provide the patient with copies of medical records held by the doctor.
In a situation such as has arisen in this case where one is in the realm of concurrent duties arising at law and in equity, whether from the existence of a fiduciary relationship or otherwise, and particularly where a party is under a duty to several persons, it is wrong to assume that all the elements of the duties differently arising, and owed to different parties, can be assimilated into one uniform obligation which, in its measure, comprises the sum of them all. This much is apparent from Maguire v Makaronis (1997) 188 CLR 449; Moorgate Tobacco Co Ltd [No 2] v Philip Morris Ltd (1984) 156 CLR 414 and Pilmer v Duke Group Ltd (supra) at 199. In the present case it must be remembered that neither Mr Blackman nor Clayton Utz ever acted as solicitors in this, or in any related cause, for Westgold and, consequently, never accepted an obligation to advise Westgold or to advance its interests in this litigation or generally. It follows, in my opinion, that whatever the extent of the obligation which Mr Blackman and Clayton Utz have to Westgold it should not be equated with the full extent of the obligations of a solicitor towards a client. On the other hand, there can be no doubt that, through the receipt of the confidential documents, Blackman and Clayton Utz came under obligations towards Westgold to preserve the confidentiality of those documents and the information which they contained and also owed the orthodox common law duty to return or deliver up those documents to the owner or person entitled to their possession. Breen v Williams (supra) is a good example of a situation where a fiduciary relationship exists with corresponding duties to provide disinterested and confidential, independent advice, but which did not extend to the doctor being obliged to provide a patient with his own medical notes made by the doctor for the purposes of conducting the treatment. There it was acknowledged that fiduciary relationships can be of different types, carrying different obligations and that a test which might seem appropriate to determine whether a fiduciary obligation existed for one purpose might be quite inappropriate for another purpose - per Brennan CJ at 83, citing Gibbs CJ in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 69.
In my view, the duties which devolved upon Blackman and Clayton Utz through the delivery to them by Mr Roderick Smith of documents containing confidential information of Westgold, required the recipients to preserve the confidentiality of the documents and the information which they contained and to return the documents, or account for their absence, to Westgold once it had been shown that Westgold was entitled to their possession. It is a nice question whether such obligations are fiduciary in nature or are imposed in the absence of a special contractual or fiduciary obligation, as mentioned in [20] of my earlier reasons for decision - see also Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570. It is not necessary to make any decision about the nature of this distinction in the present case because, in either alternative, I am satisfied that the measure of the duty is the protection and preservation of the confidentiality of the information contained in the documents. It is also true that a failure to deliver up the documents upon demand being made by the person rightfully entitled to their possession, may generate a liability at law in damages for conversion or detinue sounding in money terms, but such a liability is no reason to prevent a solicitor acting for another client anymore than would an undischarged debt between the same parties produce such an effect. I am prepared to assume, without deciding, that the obligations of Clayton Utz and Blackman to Westgold to preserve the confidentiality of the documents at least partakes of a fiduciary character, although that may well be a questionable conclusion, but even so I do not consider that the obligation in its fiduciary character extends beyond the preservation of the confidentiality of the documents and the information which they contain. If, in the present case, the confidentiality of those documents is neither threatened nor impaired by Mr Blackman and Tottle Christensen acting for St Barbara in the present litigation, some other basis for the continuation of the injunction must be identified.
Similarly, the reliance by Westgold on the submission that before a fiduciary can act in the position of a conflict of interest he must obtain the informed consent of his beneficiary and in the process make full disclosure, while undoubtedly true when applied to the position of a trustee, as in Boardman v Phipps (supra), or to a solicitor who has accepted the obligation to act for and advise a client generally - Law Society of NSW v Harvey (supra), rather begs the question of whether, in the present situation, Blackman and Clayton Utz have duties analogous to those of a trustee or to a solicitor in a full relationship with a client and are to be treated as having fiduciary obligations of the more ample kind. For reasons which I have already canvassed, I am satisfied that the direct analogy with the duties and responsibilities of a trustee or solicitor cannot be sustained in this present case.
Again relying upon the amalgam of duties said to be owed by Blackman and Clayton Utz through the delivery to them of confidential documents, Westgold submits that it would infringe the solicitor's duty of loyalty to a former client if Blackman and Tottle Christensen were to be permitted to act for St Barbara in this action. This submission immediately reveals the premise that Mr Blackman's position is, in material respects, the same as a solicitor who had accepted the obligations of advising and acting for Westgold in this or an associated dispute rather than him being in a position of a more restricted obligation as I have described. It also assumes that the so‑called duty of loyalty by a solicitor towards a former client can be invoked to prevent the former solicitor from acting in any way adverse to the interests of the former client regardless of whether, by doing so, no improper advantage is taken or derived from the previous professional relationship. Both these assumptions require examination.
As explained in my previous reasons for decision, the court undoubtedly possesses a jurisdiction over solicitors to ensure that the administration of justice is not brought into disrepute by their conduct and to ensure the preservation of the objectivity and integrity of the trial process: Newman v Phillips Fox (1999) 21 WAR 309 at 315 ‑ 316; Grimwade v Meagher [1995] 1 VR 446 and Black v Taylor [1993] 3 NZLR 403. What is not entirely clear from the authorities is whether this acknowledged jurisdiction allows restraints to be imposed upon the solicitors where there is no actual or threatened breach of confidentiality, or of a fiduciary responsibility nor of any contractual, tortious or other legal obligation. I include within that range of duties the full scope of the restrictions applying to a person owing fiduciary obligations to avoid any conflict of interest, conflict of duty, conflict of interest or duty, lack of independence or personal interest, actual or perceived, in the issues at stake.
In those cases where such issues have arisen the examination has often resulted in a dichotomy being drawn between the situations involving an actual or potential disclosure or misuse of confidential information, and other situations where a breach of confidence does not arise. While cases dealing with an actual or threatened breach of confidence now fall into a clearly established category where a court will intervene to protect the confidence, it does not seem to me that the other instances where the court may also intervene are entirely homogeneous nor, more significantly, do they fall outside the scope of the protection which any court will provide for the preservation of contractual, trust and fiduciary obligations. While the obligations on solicitors are necessarily high, it seems at least doubtful that there can be any justification for a court to intervene to prohibit proposed activity by a solicitor which does not involve any unlawful, or tortious conduct or other activity involving the breach of some contractual, trust, equitable or fiduciary obligation.
In this area, as in others, the warning of Deane J is cautionary, that undefined notions of "trust" and what is "fair" must give way in the law of equity to the rule of ordered principle which is the essence of any coherent system of rational law (Muschinski v Dodds (1985) 160 CLR 583 at 616) and that decisions of this kind should not be based on some mixture of judicial discretion, subjective views or the formless void of individual moral opinion (at 615 ‑ 616). This seems to be well appreciated in the cases where, courts have shown great facility in protecting against the actual or potential infringement of established rights or obligations by solicitors, beyond the mere protection of confidential information. But they have been careful to do so in a manner which is ancillary to the application of established principles and recognised obligations. Such a recent example is the decision of the English Court of Appeal in Geveran v Skjevesland [2003] 1 All ER 1 where a debtor, against whom a bankruptcy petition had been presented, attempted to have counsel for the petitioner prohibited from acting because that counsel had some past social acquaintance with the debtor's wife which could give rise, so the litigant argued, to an impression that some special advantage had been obtained by counsel to the prejudice of the debtor. In dismissing the appeal by the debtor Arden LJ, speaking for the Court, said:
"It is also well established that an advocate or other legal adviser who has acted for one party and has relevant confidential information may commit a breach of confidence, and be liable for an order restraining him from so acting, if he acts for another party against his former client unless he can show that there is no risk of disclosure (see the Prince Jefri case [1999] 2 AC 222).
We accept that the circumstances (other than those where he has relevant confidential information) where an advocate may be restrained by the court from acting as an advocate in litigation are likely to be very exceptional. However, such circumstances have occurred in the past. Thus in R v Smith (Winston) (1975) 61 Cr App R 128, a pupil barrister met the accused and discussed his case with him and then subsequently appeared behind prosecuting counsel at the accused's trial. The Court of Appeal assumed that no information which the pupil had obtained from the accused was divulged to the prosecution. Nevertheless, this Court held that it was impossible to say that in the circumstances justice had been seen to be done. Accordingly, the conviction was set aside. Likewise in R v Batt [1996] Crim LR 910 ... the reason why the Court of Appeal considered that it was generally undesirable for a husband or wife or other co‑habiting partners to appear as advocates against each other in a contested criminal matter was because -
'To do so may give rise to an apprehension, however unjustified that may be in any given case, such as the present, that the proper conduct of the case may have been in some way affected by that person or relationship'."
In Spincode Pty Ltd v Look Software Pty Ltd [2001] 4 VR 501 the Court of Appeal of Victoria granted an injunction restraining solicitors from acting or continuing to act in a dispute between a company and its shareholders, where the solicitors had acted and advised on the issues in the past both for the company and the shareholders. In this case there was a clear basis for the court to intervene in order to prevent the misuse of confidential information and the decision to restrain the solicitors was upheld in the Court of Appeal on that basis by Ormiston and Chernov JJA as well as by Brooking JA. However, Brooking JA was prepared to go further and undertook what, with respect, is undoubtedly a very comprehensive review of the authorities and non‑judicial writings on the subject focusing on the developments in recognition of the solicitor's duty of loyalty. His Honour concluded that the danger of misuse of confidential information is not the sole touchstone for intervention where a solicitor acts against a former client. That danger can and usually will warrant intervention but it is not the only ground. There are two other possible bases for an interdict. In the first place, it may be said to be a breach of the fiduciary duty of loyalty for a solicitor to take up the cudgels against a former client in the same or a closely related matter. But even if there was no breach of this negative equitable obligation in this particular case, the solicitors' conduct was so offensive to common notions of fairness and justice that they should, as officers of the court, be brought to heel notwithstanding that they had not infringed any legal or equitable right. In agreeing that the appeal should be dismissed, Ormiston and Chernov JJA reserved the question of how far a court may intervene if there was no actual or threatened breach of an established duty, right or obligation.
On the other hand, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 the High Court was called upon to consider whether or not an interlocutory injunction could be granted to restrain the Australian Broadcasting Corporation from televising a programme which included film of the respondent's business operations obtained by a third person trespassing on the respondent's land and which had been given to the ABC by an animal welfare group to be broadcast as part of a programme concerning the respondent's activities as a processor of brush tailed possums. In the Full Court of the Supreme Court of Tasmania, by a majority, it had been held that profiting from the fruits of trespass by a third party was a sufficient ground for injunctive relief and that where there was unconscionable conduct the Court's exclusive equitable jurisdiction could be invoked. On the appeal in the High Court one issue was whether the Supreme Court had jurisdiction to grant an injunction to restrain media publication based on unconscionability in the absence of claims in trespass or defamation or breach of contract against the broadcaster. The appeal succeeded and the injunction was discharged on the basis that there can be no justification, in principle, for granting an interlocutory injunction other than to preserve the subject matter of a dispute and to maintain the status quo pending the determination of the rights of the parties. The Court also decided that the Supreme Court of Tasmania did not have power to grant an interlocutory injunction on the application of a party unless in the protection of some legal or equitable right of that party which the Court may enforce by final judgment. With respect, this decision appears to establish the principle that unless a recognised right, obligation or duty is actually or potentially infringed, a court should not grant an interlocutory injunction unless in aid of a recognised right which the court can protect by final order.
For solicitors and counsel who are under fiduciary obligations to their clients to conduct their professional roles independently and free of any conflict of duty or interest, whether in favour of the adversary in the cause, of some other third party or even where their own personal interests arise, there is ample scope for an injunction to be granted if any actual or threatened conduct by the solicitor or counsel can be seen to involve a conflict with that duty. The duty which the solicitor or counsel owes to the court and to former clients, or for that matter to any person or body to whom the solicitor or counsel may owe a personal duty (whether as a trustee, executor, director, stakeholder, guarantor or otherwise) may give rise to an actual or potential conflict of duty or an interest or of duty and interest, so as to provide scope for intervention by the court by injunction. However, where no such identifiable obligation can be seen to be imperilled or infringed, I doubt very much whether there is any scope for a court to act even if it were to entertain a sense of disapproval of the conduct proposed. It seems to me that it would be rare that a sense of disapproval would be evoked unless some recognised right, obligation or interest was actually or potentially infringed. It also seems to be preferable to recognise that, in this area as elsewhere, the jurisdiction of the court to intervene by way of injunction should only be in the aid of recognised rights, duties, obligations or interests.
The engagement of Tottle Christensen by St Barbara in this case does not, in my view, pose any threat to Westgold of the disclosure to St Barbara or to any other adverse interest of the confidential information contained in the documents delivered by Mr Smith to Mr Blackman at Clayton Utz in March 2002. Accepting, as I have, that Mr Blackman and Clayton Utz have now shown that they have done all that is reasonably practical to do, in an attempt to find the missing documents without success, and that in all probability the documents are lost somewhere within Clayton Utz in circumstances where, if they are found, it is improbable that their confidentiality will be divulged, I have decided that the court should accept that nothing further can usefully be done by Mr Blackman in an attempt to locate them. To the extent which Blackman, along with his former partners at Clayton Utz, is under a duty to attempt to retrieve the missing documents I consider that all due efforts have been made to discharge that duty. The consequences of having lost the documents are of a different nature and, although potentially involving some pecuniary liability, do not seem to me to threaten or impair the interests of Westgold in the present litigation in any way through Mr Blackman and Tottle Christensen acting for St Barbara. Put more simply, there does not seem to be any scope for harm to come to Westgold by Mr Blackman and Tottle Christensen acting for the first defendant in this litigation now that it can be seen that they are unable to disclose any confidential information, or to make any unwitting use of it. On the evidence, if the missing documents were ever found, the overwhelming probabilities are that they would be returned to Westgold without any disclosure of the confidential information. For these reasons, and in the light of the further evidence adduced to the court on this application, I consider that the third defendant has made out a case for the interlocutory injunction granted by the order of 20 November 2002 to be discharged.
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