Case: Belan v Casey [2002] NSWSC 58
Outcome: considered
Belan v Casey [2002] NSWSC 58 ( 'Belan' ) at [15]-[21], Young CJ in Eq held that since the House of Lords decision in Bolkiah the overwhelming weight of authority establishes that the jurisdiction of the court to intervene at the suit of a former client to restrain a solicitor from acting is founded solely on the real risk of disclosure of confidential information, and is not connected with some principle of conflict of interest. The decision in Belan has been followed and applied in New South Wales: British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70 (Young CJ in Eq) at [97]-[104]; Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 (Bergin J) at [51]-[55]. Brereton J concluded his discussion of the authorities by enunciating the following principles (at 582-583 [76]): '... 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 ( Everingham v Ontario ; Black v Taylor ; Grimwade v Meagher ; Newman v Phillips Fox ; Mitchell v Pattern Holdings ; Spincode Pty Ltd ; Holborow ; Williamson v Nilant ; Bowen v Stott ; Law Society v Holt ). Prince Jefri Bolkiah does not address this jurisdiction at all. Belan v Casey and British American Tobacco Australia Services Ltd are not to be read as supposing that Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications Ltd appears to acknowledge its continued existence. &#8226; The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice ( Everingham v Ontario ; Black v Taylor ; Grimwade v Meagher ; Holborow ; Bowen v Stott ; Asia Pacific Telecommunications Ltd ). &#8226; The jurisdiction is to be regarded as exceptional and is to be exercised with caution ( Black v Taylor ; Grimwade v Meagher ; Bowen v Stott ). &#8226; Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause ( Black v Taylor ; Grimwade v Meagher ; Williamson v Nilant ; Bowen v Stott ). &#8226; The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief ( Black v Taylor ; Bowen v Stott ) . ' 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.