Case: Lincoln v Holmesglen Institute of TAFE [1999] FCA 601
Outcome: considered
the purposes of this case, the controversy concerning the duty of loyalty, and whether it extends beyond termination of the retainer, can be put to one side. Counsel for the Dean interests does not contend that his clients were formerly clients of Vogrig or WVL. No question arises of confidential information or its potential misuse. As I have already mentioned, the sole ground for injunctive relief is the third ground identified in Spincode , namely the inherent power of the court to restrain its officers from acting for a particular client in litigation when such a restraint is required by the interests of justice. There is, accordingly, no need for me to consider whether the weight of authority in the Federal Court supports the Victorian approach rather than that adopted in New South Wales: see Wan v McDonald (1992) 33 FCR 491 at 512-513; PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86 ( 'PhotoCure' ); Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98 at [10] ; Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588 at [18] ; and Lincoln v Holmesglen Institute of TAFE [1999] FCA 601 ( 'Lincoln' ). In this Court, there is unambiguous authority that the Federal Court has the inherent power to restrain solicitors or counsel acting in a particular matter for a particular client where such a course is required by the interests of justice. In the Full Court's decision in Western Australia v Ward (1997) 76 FCR 492, Hill and Sundberg JJ said at 498: 'Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information and a real risk of lack of objectivity and of conflict of interest and duty: Grimwade v Meagher . The present case is only another example of situations in which the "integrity of the judicial process", the "interests of justice", and the "need to preserve confidence in the judicial system", to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is "an important value": Black v Taylor at 408.' In Lincoln , Goldberg J referred to this passage with approval and applied the test stated by Mandie J in Grimwade : at [10]. His Honour did not doubt that this Court has inherent jurisdiction in an appropriate case to prevent practitioners appearing for a particular party in order that justice should not only be done but should be seen to be done. In PhotoCure , Goldberg J did not refer to his earlier decision in Lincoln . This is not surprising because there is no conflict between the two decisions. PhotoCure concerned an application by a former client based primarily on the risk of misuse of confidential information. His Honour's discussion of Bolkiah , Belan v Casey and Spincode was directed to the question whether a former client was confined to the ground of misuse of confidential information, or whether the client could also rely upon the ground of breach of a duty of loyalty as suggested by Brooking JA in Spincode . Goldberg J did not express any concluded views concerning the Court's supervisory jurisdiction. At 98 [57], his Honour said that: 'Even if the basis of loyalty to the client or supervision by the court of solicitors as officers of the court is relevant, there is no room for the operation of those principles in the present circumstances as none of the persons who were involved in the receipt of instructions from, and the giving of advice to, PhotoCure between November 1999 and May 2000 are involved in acting for Dusa in relation to the present proceeding.' His Honour also said at 98 [58] that he was troubled because an initial reaction to the issue was that it was inappropriate for a solicitor to act against a former client where the subject matter of the retainer is the same as the retainer by the former client. In my opinion, nothing in PhotoCure should be read as foreclosing this Court's power to exercise inherent jurisdiction over the conduct of solicitors and counsel in litigation in this Court.