Case: Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404
Outcome: cited
The Court's jurisdiction to restrain a legal practitioner from acting in proceedings is an exceptional one and discretionary. It must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause: Grimwade v Meagher &amp; Ors [1995] 1 VR 446 at 452; Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [35] and [51]. The cost, inconvenience or impracticality of requiring a legal practitioner to cease to act may provide a reason for refusing to grant relief: Geelong School [2006] FCA 1404 at [51] ; Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561; Black v Taylor [1993] 3 NZLR 403 and Bowen v Stott [2004] WASC 94. 4 Justice Young in Geelong School [2006] FCA 1404 recently set out the relevant legal principles to be applied when considering whether to restrain a legal practitioner from acting for a particular party to litigation, there being three possible grounds for so restraining a legal practitioner: (a) the danger of misuse of confidential information: Geelong School [2006] FCA 1404 at [24] ; (b) breach of a fiduciary duty of loyalty not to act against a client or against a former client in the same matter or a closely related matter: Geelong School [2006] FCA 1404 at [24] ; and (c) the inherent jurisdiction of the court to control the conduct of legal practitioners as officers of the court: Geelong School [2006] FCA 1404 at [24] , [32] and [33]. 5 In relation to both Ms Saunders and Russell Kennedy, the determination of the questions of whether there is a danger of misuse of confidential information and whether there is a breach of any fiduciary duty can be readily dealt with by me. It would appear that the applicant is concerned that Ms Saunders was a member of the Public Interest Law Clearing House ('PILCH') in 2004 when PILCH refused to assist the applicant to bring proceedings against the first respondent, and in the process of considering the applicant's request to PILCH Ms Saunders obtained "confidential documents" from the applicant. 6 The only evidential basis of the applicant's complaint derives from [25] of her affidavit affirmed on 31 October 2006: Mrs D. Saunders was on PILCH in 2004 and PILCH refused to assist me against the [first respondent] and instead collected many confidential documents from me which then were liked [sic] to Mrs Saunders. I have circumstantial evidence of that. 11 I now turn to consider the issue of the Court's inherent jurisdiction to restrain legal practitioners 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, where such a course is required in the interests of justice: Geelong School [2006] FCA 1404 at [24] , [32] and [33]. The crucial question is whether, on the evidence before the Court, a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be restrained from acting for its client in the proceedings: Geelong School [2006] FCA 1404 at [35] . 12 I deal first with the position of Ms Saunders. Serious criminal allegations have been made against Ms Saunders by the applicant. They are denied by Ms Saunders. For the purposes of this application I do not regard it as necessary or appropriate to rehearse in these reasons the details or merits of the allegations. I have, however, come to the view that there is a real likelihood that in these proceedings, assuming the matter proceeds to trial, the conduct of Ms Saunders will require evaluation and assessment and she may well feel compelled to justify or defend her conduct.