1. These reasons concern an interlocutory application brought by the plaintiff seeking orders to restrain the law practice which presently acts for the defendant in this defamation action, from continuing to so act. The background to the action is set out in my earlier reasons: Souraki Azad v Jose [2023] WASC 160.[[1

1. On 12 April 2023, the plaintiff filed a summons seeking to restrain the law practice which represents the defendant from (among other things) acting in the present proceedings. The application was filed pursuant to O 8 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC).[3] That is obviously not a rule which has application in this context. Further, the summons initially sought orders and relief which travelled beyond the jurisdiction of this court.
2. Nonetheless, I indicated to the parties that I was prepared to allow the summons to proceed on the basis that I understood the plaintiff's application sought to restrain the defendant's solicitors from acting, which of course is an application this court has jurisdiction to entertain. The summons was argued on this basis.
3. The present application was heard on 2 May 2023, with the plaintiff representing himself. The legal practitioner discussed in these reasons appeared for the defendant. As explained below, additional affidavit material was filed following the hearing (on 8 May 2023 and 19 May 2023), with further objections received on 22 May 2023.
4. In support of his application, the plaintiff relies upon:

(a) his affidavit sworn on 1 April 2023 (which includes Attachments A1 to A10) (First Azad Affidavit);
>
> (b) a letter sent by the plaintiff to the court dated 12 April 2023 (which is entitled 'Letter of explanation to the Chamber') (Azad Letter);
>
> (c) his affidavit sworn on 12 April 2023 (marked 'Affidavit Verifying List of Documents') (Second Azad Affidavit); and
>
> (d) his further affidavit sworn on 19 April 2023 (Third Azad Affidavit).

5. In opposition, no direct affidavit evidence was adduced from the law practice partner or the legal practitioner. Rather, the defendant relied upon the following affidavits which contained evidence on information and belief:

(a) the affidavit sworn by Patrick Connor McCarthy on 18 April 2023 (First McCarthy Affidavit);
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> (b) the affidavit sworn by Mr McCarthy on 1 May 2023 (Second McCarthy Affidavit); and
>
> (c) a clarifying affidavit sworn by Charmaine Su Ting Kwok on 8 May 2023 (Kwok Affidavit).[4]

6. The defendant raised several objections to the affidavit and other material adduced by the plaintiff. Those objections are set out in the submissions filed by the defendant on 1 May 2023 and in a letter to the court dated 22 May 2023. I have addressed these objections in the table in Attachment A to those reasons. In large part, as will be apparent from the table, I propose to uphold the defendant's objections to the plaintiff's material.
7. Against the foregoing brief overview of the issues arising on this application and the materials relied upon by the parties, I propose to next summarise the relevant principles, following which I will set out the factual findings I propose to make. On the basis of those findings, and having regard to the submissions advanced by the parties, I will then explain how I intend to dispose of the plaintiff's application.

1. This court undoubtedly has inherent power to control and deal with members of the legal profession and to ensure that the administration of justice is not brought into disrepute.
2. In the exercise of that inherent power, the court may restrain practitioners from acting for clients on three well‑established grounds, as explained by Steytler J (as his Honour then was), in Newman v Phillips Fox (a firm) [1999] WASC 171; (1999) 21 WAR 309 [18] (and subsequently addressed in Ismail‑Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379 [19] (Steytler P), [62] ‑ [74] (E M Heenan J); and Director of Public Prosecutions (Cth) v A Legal Practitioner [2012] WASC 459 [48] ‑ [69] (E M Heenan J)):

(a) First, to ensure the protection of confidential information that has been provided by the client to the lawyer in the course of the lawyer/client relationship.
>
> (b) Second, to prevent a breach of a supposed fiduciary duty of loyalty owed by the lawyer to the former client notwithstanding the termination of the retainer (that is, in general terms, to intervene in cases of conflicts of interest).
>
> (c) Third, when the court considers it necessary to do so in order to ensure the due administration of justice, and to control the conduct of practitioners as its officers.

3. While there may in some cases be overlap in relation to these grounds, they must not be conflated, as each ground is separate from the other: Uon Pty Ltd v Hoascar [2017] WASC 79 [8] (Master Sanderson).
4. As to the protection of confidential information, the court may intervene if a practitioner is in possession of information which is confidential to a former client, and that information is or might be relevant to a matter on which the practitioner is instructed by a second client. The basis for the court's jurisdiction is not on a perception of any possible impropriety, but on the protection of relevant information: Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52; [1999] 2 AC 222, 234 (Lord Millett).
5. The confidential information which is in issue must be identified with precision and not merely in global terms: Hayes v Doran [2012] WASC 91 [38] (Kenneth Martin J). Ultimately, whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case: Newman v Phillips Fox (a firm) [32] ‑ [33] (Steytler J). The onus is on the party who is seeking to establish that the solicitor is in possession of the confidential information: Zalfen v Gates [2006] WASC 296 [69] (Master Newnes, as his Honour then was); and Zani v Lawfirst Pty Ltd [2014] WASC 75 [31] (Chaney J).
6. In relation to the court's supervisory jurisdiction to exercise control over legal practitioners, a useful summary of the applicable principles is found in Brereton J's decision in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 [76], as follows:

(a) 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 processes in aid of the administration of justice;
>
> (b) the test to be applied is whether a fair‑minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a lawyer should be prevented from acting, in the interest of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice;
>
> (c) the jurisdiction is exceptional and is to be exercised with caution;
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> (d) due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without good cause; and
>
> (e) the timing of the application may be relevant, in that the cost, inconvenience and impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.

7. As to this ground for intervention, being the third ground mentioned at [16] above, it has long been recognised that there is a public element in the work a solicitor performs, being officers of the court and, in performing their professional functions, solicitors play an integral part in the administration of justice: Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; (1993) 42 FCR 307, 311 (Drummond J).

1. On the affidavit evidence adduced by the parties, on which there was no cross‑examination, and in light of my rulings on the objections made by the defendant, I consider the following factual findings can be made for the purposes of the present application.

The plaintiff approaches the law practice on Tuesday, 21 March 2023

1. On Tuesday, 21 March 2023, during the afternoon, the plaintiff attempted to contact the law practice partner, having been referred to him by another lawyer. The plaintiff left a message with the firm's receptionist for the law practice partner to call him back. The message was communicated to that partner by an internal email which noted that the plaintiff had a 'defamation matter' and that he 'had also asked about an employment la[w] matter [sic]'.[5]
2. Prior to this, the plaintiff had contacted around 10 to 12 law firms to investigate whether those firms could represent him, to no avail.[6]
3. Later that afternoon, the legal practitioner from the law practice telephoned the plaintiff on behalf of the law practice partner. Their telephone call lasted for no more than 20 minutes and most likely for around 17 minutes. The legal practitioner made a contemporaneous file note of the call.[7] The file note is very brief and records that only limited information was discussed. I will summarise later in these reasons my factual findings as to the matters discussed during the telephone call on 21 March 2023.
4. Following the telephone call, the plaintiff sent an email to the legal practitioner, at 6.05 pm. In that email, the plaintiff confirmed he wished the law practice to represent him in this action and he confirmed the name of the defendant for the purposes of a conflict check. The plaintiff also identified the names of nine other persons, business names and companies which he intended to sue in due course, again for the purposes of a conflict check.
5. The legal practitioner responded by email at 6.35 pm, stating that she would arrange for conflict checks to be run the following day.[8]

1. The law practice partner had previously and for a number of years acted for the medical indemnity insurer, MDA National Insurance Pty Ltd (MDA National) in relation to its insured members concerning defamation matters.[9] MDA National had also continued to instruct the law practice partner at the law practice when he established that firm after retiring from his former firm in March 2021.[10]
2. On the morning of Wednesday, 22 March 2023, as part of the 'internal conflict check'[11] procedure at the law practice, the law practice partner contacted a representative of MDA National to 'inquire whether MDA National foresaw any possibility of SSL being retained in relation to the litigation matters the plaintiff had indicated to Ms Sims that he had on foot, or intended to purs[u]e [sic]'.[12]
3. The communication produced a response from MDA National that it was likely it would engage the law practice to act for the defendant in the current matter.[13] I infer that MDA National did not in fact instruct the law practice to act in the matter until some days after this communication.

Instructions are declined on Wednesday, 22 March 2023

1. At 9.41 am on Wednesday, 22 March 2023, the legal practitioner emailed the plaintiff and stated that the law practice would be unable to act for the plaintiff in the current and proposed matters.[14]

1. No written engagement instrument was provided by the law practice to the plaintiff and, self‑evidently, there was no written engagement signed by the plaintiff. The law practice did not indicate its consent or willingness to act for the plaintiff in the present action, or in respect of any other matters.

1. No information barrier was put in place within the law practice in relation to the legal practitioner. Indeed, the legal practitioner continues to appear as counsel for the defendant in this matter and has day to day carriage of the proceedings on his behalf.

Memorandum of appearance and Order 9A notice were then filed

1. On 29 March 2023, the defendant entered an appearance in the action, which was filed on his behalf by the law practice.
2. On 5 April 2023, the defendant filed a notice under O 9A r 2(1) RSC to notify the court that MDA National was an interested non‑party in relation to the defendant.

Plaintiff offers to consent to the law practice acting

1. On 11 April 2023, the plaintiff corresponded with the law practice.[15] In that letter, the plaintiff indicated he would consent to the law practice acting for the defendant (and any other possible defendants related to the matter) if the defendant gave his consent to allowing one particular firm (which I will refer to as 'Law Firm A') to act for the plaintiff in the present action and all other matters in the future.
2. The plaintiff noted that Law Firm A had acted for the defendant in previous matters, but the plaintiff had also been involved in some of those matters in a cooperative role with the defendant (concerning property disputes and disputes with the Medical Board).
3. This bargain, as proposed by the plaintiff, is an issue I will address when dealing with the third recognised ground on which the court has jurisdiction to restrain lawyers from acting.
4. It is clear enough from the correspondence dated 11 April 2023 that the plaintiff has a high regard for Law Firm A and wished to engage them in the present matter, but could not do so without the defendant's consent. The plaintiff thus proposed a series of consent orders which he attached to the letter dated 11 April 2023. Those proposed consent orders are in the following terms:
   1. By 3.00 pm on 11 April 2023, the defendant and his representatives at Steedman Stagg Lawyers, sign and return this Memorandum of Consent Orders to the plaintiff, so the plaintiff could file it as an application to be submitted for the review of the Honourable Justice Lundberg for the issuance of the relevant order.
   2. By 3.00 pm on 11 April 2023, the defendant provide through his solicitors at Steedman Stagg Lawyers to the plaintiff, an official Letter of Consent drafted in a standard format by the Steedman Stagg Lawyers, reflecting the defendant's informed consent in relation to [Law Firm A], in particular, [name of practitioner] to be subject to the issuance of an Order by the Honourable Justice Lundberg to allow them to act for the plaintiff in his litigations against the defendant in this matter or any other matters within any other jurisdictions, including but not limited to the Supreme Court of WA, Federal Court of Australia and Magistrates Court of WA. Defendant's Letter of Consent will also be submitted for His Honour's review.
   3. In case the above two conditions are met, and should in his Honour's opinion the requested orders are appropriate and his Honour decided to Order Accordingly, the plaintiff would withdraw his objection and refrain from lodgment of any application to restrain the defendant's solicitors from representing him or any other parties related to the totality of the mentioned dispute.
5. The defendant did not provide the requested consent and so, on 12 April 2023, the plaintiff filed the present interlocutory application seeking orders to restrain the law practice from acting.

Findings as to the information imparted on 21 March 2023

1. As foreshadowed at [25] above, let me now return to further consider the information which was provided to the law practice by the plaintiff during the telephone call.
2. The first matter to consider is the file note of the telephone call which was prepared by the legal practitioner. It is not a verbatim record of the word-by-word discussion between the participants but rather a series of short notes and abbreviated references. In essence, the file note refers to the following matters:

(a) that proceedings for defamation had been commenced by the plaintiff and the matter was allocated to my chambers;
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> (b) that the defendant is a doctor with whom the plaintiff formerly practised;
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> (c) there is a reference to 'def J' accompanied by the words 'low threshold to s/aside', which I infer[16] is a reference to the possibility of the plaintiff obtaining default judgment against the defendant for failure to enter an appearance and the indication (presumably made by the legal practitioner) that the threshold to set aside a default judgment is low;
>
> (d) there is a reference to no other lawyers being able to assist and Law Firm A is identified;
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> (e) there is a reference to 'other proceedings to commence against others'; and
>
> (f) finally, the file note includes the words 'JS - list of party names for c. check No o/ docs Email', which I infer is a record that the legal practitioner indicated to the plaintiff he should provide a list of relevant party names for the purposes of a conflict check, that he should not provide any other documents to the law practice, and that the legal practitioner provided her email address to the plaintiff.

3. The plaintiff deposes (in very general terms) that he imparted additional information to the legal practitioner during the telephone call, including information concerning his proceedings in the Federal Court and his planned litigation strategy. He variously deposes as follows:

Later the same afternoon, I received a call from Ms Jasmine Sims, and we talked around 20 minutes. While she was already had some information about my Defamation case and general descriptions of my opponents, I did provide to her more detailed information around the totality of the existing legal disputes, including my related General Protection matter in front of the Honourable Justice Jackson at the Federal Court of Australia. I have also provided her with further written information including the precise information about any possible parties in my matters, so Steedman Stagg would have the opportunity to run 'a more complete conflict check' (A9). After obtaining those thorough information from me, including my planned litigation strategy against the various involved persons from the other party ....[17]

...Steedman Stagg had already been in possession of some sensitive information about my legal arguments and disputes in the upcoming proceedings.[18]

... as the mentioned firm is already in possession of sensitive information and action plans that I described to them, in relation to the steps that I wish to take in my legal path in the upcoming months.[19]

1. I should emphasise that the plaintiff's references to 'litigation strategy' and 'sensitive information' are very general and lack detail. I sought to engage the plaintiff on these matters during the course of the hearing on 2 May 2023, in order to better understand the nature of the information he contends was imparted to the law practice (recognising that the plaintiff would of course wish to ensure any truly confidential information remained so).[20]
2. No direct evidence as to the substance of the telephone call was adduced from the legal practitioner, for the purposes of this application. This absence was not explained and plainly such evidence could have been adduced (given the legal practitioner appeared as counsel in the matter). Given the state of the plaintiff's evidence as to the telephone call and the presence of the contemporaneous file note, I do not consider it appropriate to draw any adverse inferences in a Jones v Dunkel sense, in this regard.[21]
3. In assessing the matter, I give weight to the contents of the contemporaneous note prepared by the legal practitioner and, conversely, find it difficult to draw much from the generalised assertions made by the plaintiff. Further, the nature of the telephone call, being a short introductory call which was initiated for a conflict checking purpose, tends to support the conclusion that deeply sensitive information was not discussed by the participants. In the circumstances, I find that the information communicated by the plaintiff to the legal practitioner during the telephone call on 21 March 2023 consisted of the following matters only:

(a) the plaintiff had commenced a defamation action against the defendant, and was seeking legal representation in that proceeding;
>
> (b) the defendant had not yet entered an appearance in the action, the plaintiff was considering whether to bring an application for default judgment, and the legal practitioner observed that the threshold for setting aside default judgment (if obtained) was low;
>
> (c) the plaintiff was considering whether to initiate other proceedings against various other parties, including for defamation and for matters connected to a cancelled commercial deal; and
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> (d) the plaintiff described the other parties he wished to sue, most likely in general terms (which he later confirmed by the email sent to the law practice following the telephone call).

1. I have had regard to the submissions made by the plaintiff, both in his written material and orally. As the plaintiff is not represented, it is understandable that some of those submissions are not correct as a matter of law and descend into matters which are not relevant to the present application.
2. In essence, though, I understand the plaintiff asserts that the law practice in question has acted in breach of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (Uniform Rules), specifically Rule 10. This rule concerns conflicts with former clients. The rule provides:
   1. Conflicts concerning former clients

10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients.

10.2 A solicitor or law practice who or which is in possession of information which is confidential to a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS -

10.2.1 the former client has given informed consent to the disclosure and use of that information, or

10.2.2 an effective information barrier has been established.

1. The plaintiff submits that he falls within the definition of 'former client' under the Uniform Rules. The plaintiff relies on the final portion of the definition of that term in the Uniform Rules, which captures a person that has previously instructed the solicitor and provided 'confidential information' to them. The definition is in the following terms:

former client for the purposes of Rule 10.1, may include a person or entity that has previously instructed -

(a) the solicitor,

(b) the solicitor's current law practice,

(c) the solicitor's former law practice, while the solicitor was at the former law practice,

(d) the former law practice of a partner, co-director or employee of the solicitor, while the partner, co-director or employee was at the former law practice,

or, has provided confidential information to a solicitor, notwithstanding that the solicitor was not formally retained and did not render an account. (underlining added)

1. The defendant accepts that the plaintiff may be characterised as a former client of the law practice, save that he disputes any confidential information was provided to the law practice.
2. The foregoing aspects of the plaintiff's complaints fall to be dealt with as part of the first ground of restraint mentioned at [16] above.
3. The plaintiff also draws attention to the inherent jurisdiction of the court to exercise its supervisory jurisdiction over legal practitioners (in effect, the third ground described at [16] above) and rhetor[22]ally asks:22

Is SSL's approach in my matter, using the provided information by me to them to chase my wealthy and influential opponents with the hope of having a part in their representation, an approach that the court of law wishes to promote, and the justice system would like to see it more often?

1. The defendant, through his present solicitors, filed written submissions which accurately summarised the court's jurisdiction to restrain lawyers from acting in matters. As to the application of the relevant principles, the defendant submitted that no confidential information was imparted to the law practice by the plaintiff and, even if such a characterisation was available, the plaintiff had imparted the same information to a number of third parties. The defendant fundamentally rejects the allegation that the law practice breached the Uniform Rules in the manner asserted by the plaintiff.
2. The defendant further submitted that no fair‑minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the law practice should be restrained from continuing to act for the defendant, which is the firm of solicitors of choice of the defendant.
3. In all of the circumstances, the defendant submitted that appropriate weight should be given to the public interest in the defendant not being deprived of his choice of defamation specialist law firm to represent him in these proceedings.

F. Disposition - protection of confidential information

1. The plaintiff's application requires a consideration of the first and third grounds referred to at [16] above, but not the second ground. No question arises on the present facts as to whether there has been, or may be, a breach of a supposed fiduciary duty of loyalty owed by the lawyers in question to the plaintiff.
2. As to the first ground, the essential focus of this ground is to ensure the protection of confidential information that has been provided by the client to the lawyer during the lawyer/client relationship. The central feature of this ground is the identification and assessment of the confidential information which was provided to the lawyer. Perceptions of impropriety are not relevant to this ground.
3. As the present litigation had already been commenced and was a matter of public record by the time the plaintiff approached the law practice, I do not consider it can reasonably be concluded that the approach made by the plaintiff was confidential per se. The true question is whether the information imparted was confidential. In this regard, the plaintiff was not able to clearly describe to the court, either in his affidavit material or by way of submissions, the nature of the confidential information about which he was concerned. I recognise that, as an unrepresented litigant, the task of doing so may present difficulties. Further, I recognise that less precision in the description of such information may on occasions be required where a more fulsome explanation 'would annihilate the confidence sought to be protected'.[23] Nonetheless, the plaintiff's descriptions were very general and of limited assistance.
4. In any event, it is not in dispute that the avenues and opportunities by which the plaintiff was able to impart information to the law practice were limited.
5. There was an introductory telephone call which involved the plaintiff leaving a message for the law practice partner to return his call. The brief description given by the plaintiff at this time was not confidential and need not be further discussed.
6. Next, there was a 17-minute telephone call in respect of which a file note was prepared by the legal practitioner involved. That file note records that limited matters were discussed. My findings as to the substance of the information disclosed by the plaintiff during this telephone call are at [46] above, and are to the effect that no confidential information was imparted. The reference to the bringing of a default judgment application is not confidential in my view. It was an obvious potential application a litigant might consider in the face of a failure by a defendant party to file an appearance. The other information imparted by the plaintiff was similarly benign, on my assessment. I also note the legal practitioner cautioned the plaintiff against providing additional documents, which lends support to the conclusion that the discussion was narrow in scope and designed to obtain only such information as was necessary to allow a conflict check to be undertaken.
7. I also have before me the email which was subsequently dispatched to the law practice by the plaintiff. This written communication also contains very little in the way of sensitive information, as further described at [26] above.
8. My overall assessment of the admissible evidence adduced on this application is that the information imparted by the plaintiff to the law practice was extremely limited and not such as to rise to the requisite level to be characterised as confidential in some way.
9. Further, and importantly, there is material before me which indicates that the plaintiff had conveyed the substance of the same information he imparted to the law practice to various other parties, either prior to the discussion with the law practice or thereafter. I refer to the following matters in this regard:

(a) the plaintiff deposes that he had 'discussed the current matter with around 10-12 legal firms in Perth' up to 1 April 2023;[24]
>
> (b) the plaintiff stated within a defamation concerns notice he issued to another person in December 2022 that he 'will definitely sue [the defendant] in the Supreme Court of WA for repulsive act of defamation of my character';[25]
>
> (c) the plaintiff had sent a copy of the writ of summons in the current action to various third parties;[26]
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> (d) the plaintiff had already informed the present defendant of his desire to seek default judgment;[27]
>
> (e) the plaintiff had sent a text message to a third person to notify them that he had commenced the current action;[28] and
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> (f) the plaintiff has already commenced proceedings in the Magistrates Court against the defendant with respect to the commercial deal between them.[29]

10. The fact and manner of these disclosures tends to demonstrate two things. The first is that the information in question was not confidential. The second is that, in the event the information may be susceptible of that characterisation (contrary to my conclusion), the information ceased to be confidential following these disclosures.
11. I therefore do not consider the application based on the first recognised ground has been made out by the plaintiff.

G. Disposition - due administration of justice Overview

1. I turn now to consider the third recognised ground. This is a broader ground than the first. This ground may be satisfied, and the restraint power invoked, where the court considers it necessary to do so in order to ensure the due administration of justice, and to control the conduct of practitioners as its officers.
2. I have been unable to identify direct authority dealing with the specific circumstances which arise on this application (i.e. a restraint application arising from a conflict checking process undertaken by an Australian law firm). Similarly, counsel for the defendant could not identify any such authority. Approaching the matter on a first principles basis, then, I intend to have regard to the matters I have summarised at [20] above, including in particular that this jurisdiction should be exercised exceptionally and with caution.

1. I will address below the factors I consider to be relevant to this enquiry, in the present circumstances. One feature of the case emphasised by the plaintiff is the conduct of the law practice in speaking with a third party without the plaintiff's consent. Is this a matter of relevance to the third recognised ground for restraining lawyers from acting? As explained below, I consider it is relevant.
2. In my view, the plaintiff's enquiry on 21 March 2023 explicitly authorised the law practice to undertake sufficient enquiries to assess its conflict position. The extent of those enquiries would depend on the particular circumstances. The enquiries would typically be internal in nature, involving an interrogation of the firm's databases and its personnel to assess whether the parties and issues identified presented any difficulties from a conflict perspective.
3. Whether external enquiries, extending to third parties beyond the law practice, were also authorised by the circumstances of the plaintiff's enquiry, is a significant issue in the context of the plaintiff's present application. It is, after all, the core asserted vice which has been the catalyst for the plaintiff's application. It is also the particular aspect of this matter which has given me some pause in considering the relief sought by the plaintiff.
4. Where the fact of the putative client's enquiry is itself confidential, or involves the provision of confidential information to the law practice, in the absence of consent, a law practice will be precluded from making enquiries of third parties (outside the law practice) as part of the conflict checking process, where to do so would divulge the confidential information. On the application of orthodox principles, such a third party enquiry, without consent, would otherwise amount to an unauthorised use of the putative client's confidential information.
5. In the absence of circumstances of confidentiality, and in the absence of evidence that a putative client has expressly imposed a limitation on the law practice against third party communications, the propriety of a third party enquiry by the law practice, without consent, may well depend on the particular circumstances. I should emphasise that there has not been detailed argument before me on this issue and I have not been able to identify a specific obligation or prohibition in this regard, as a matter of law, other than of course the general ethical and fiduciary duties which bind solicitors. It would also be wrong, in the absence of evidence and detailed argument, to simply rely on my own personal experiences in practice, and on the basis of those experiences, to assert an absolute standard which prohibits a law practice, in dealing with conflict checks from making enquires of third parties (outside the law practice), without first seeking the consent of the putative client.
6. I therefore propose to approach the current application on the basis that the law practice's failure to seek the plaintiff's consent before speaking with MDA National is a factor which is relevant to the assessment whether the third recognised ground has been established by the plaintiff in all the circumstances. I consider it is a relevant feature of the analysis in this regard because:

(a) it is safe to conclude that the due administration of justice, including the appearance of justice, requires that solicitors treat conflict checking processes from members of the public with a proper degree of solemnity and importance;
>
> (b) members of the public who are in need of legal representation are entitled to assume the information they provide to their prospective lawyers will be treated in this manner, and will not be provided to third parties beyond the law practice, unless they first give their consent to this course; and
>
> (c) the interests of the administration of justice are not consonant with conduct which might discourage members of the public from actively seeking legal representation, perhaps out of apprehension or concern their legal affairs may be disseminated beyond the legal practitioner with whom they speak.

7. Putting this another way, members of the public who contact a law practice to assess whether the law practice can accept an engagement to act must be entitled to assume the law practice will not use any information provided by the putative client for extraneous or foreign purposes. I would accept as being tolerably clear the proposition that a law practice cannot use information gained through a conflict checking process for such a purpose. Conduct in breach of this limitation would be highly relevant in considering whether the court should restrain a legal practitioner from acting, in order to ensure the due administration of justice is protected.
8. Of course, if the information imparted to the law practice is confidential, or the enquiry itself is confidential, protection of the client's interests may be sought under the first recognised ground to ensure the protection of that information.

1. On my assessment, then, the following matters thus loom as being of particular relevance to this ground of restraint in the present circumstances:

(a) the nature, circumstances and purpose of the enquiry made by the plaintiff (as a prospective client) to the law practice;
>
> (b) whether the law practice's approach to an external party, without the plaintiff's consent, was foreign or extraneous to the purpose of the plaintiff's enquiry;
>
> (c) the protective measures (if any) the law practice put in place to minimise any risks of disclosure of confidential information it received, or to address any administration of justice concerns;
>
> (d) the administration of justice considerations arising where a legal practitioner acts against a party following a conflict checking process; and
>
> (e) the public interest in permitting the defendant in this case to be represented by his chosen lawyers, and not to deprive him of that opportunity without good cause.

2. As to the nature, circumstances and purpose of the enquiry, it is clear that it involved a preparatory check to assess whether the law practice could act for the plaintiff, in the sense of establishing whether it had any relevant conflicts (and, I would add, whether the law practice was prepared to act, even in the absence of conflicts).
3. The enquiry consisted of two telephone calls (one of which was relatively perfunctory) and three emails (two of which were relatively perfunctory). Very limited information was provided by the plaintiff, and no confidential information was imparted, as earlier explained. The legal practitioner also cautioned the plaintiff during their single telephone call that the plaintiff should not provide further documents to the law practice. This caution emphasises the limited nature of the enquiry.
4. I turn next to my assessment of the enquiry made by the law practice to MDA National. That was made without consent and was not implicitly authorised by the plaintiff. However, this enquiry was not extraneous or foreign to the purposes of the plaintiff's enquiry. It was not foreign to the proper purposes of the enquiry because it was an enquiry designed to assess whether a long‑standing client of the law practice partner would present a conflict issue if the engagement was accepted, and the potential role of that insurer could be deduced from the fact both litigants in the present matter were medical practitioners. The fact the law practice secured the present instructions through this process is one of the factors to be taken into account in considering the relief sought by the plaintiff - it is not determinative.
5. As earlier noted, another relevant feature of the assessment of this ground, is whether the law firm has put in place protective measures to ensure the risks of inadvertent disclosure of confidential information are minimised (or to address any administration of justice concerns). I note, for example, the extensive evidence led in Zani v Lawfirst Pty Ltd, explaining the information barriers and other steps taken by the law firm in that case, albeit in the context of a consideration of the first recognised ground of restraint, rather than the third recognised ground. Nonetheless, the presence or absence of such steps is germane to this broad third ground, as it may inform the ultimate question whether a restraint is necessary in order to ensure the due administration of justice, and to control the conduct of practitioners as its officers.
6. No evidence was adduced by the law practice in opposing the present application as to any steps or information barriers which were taken or put in place. I raised this issue during the course of the hearing.[30] Indeed, the legal practitioner who spoke with the plaintiff on 21 March 2023 has an active role in the proceedings for the defendant. I apprehend the approach adopted by the law practice in this case is explicable because the law practice maintains that no confidential information was imparted by the plaintiff during the conflict checking process, and this is a circumstance quite different from that which arose in Zani v Lawfirst Pty Ltd, where the plaintiff's former solicitor joined the law practice representing another party in the litigation in this court.
7. The sense of grievance of the plaintiff, arising from the present circumstances, may have been assuaged had the firm put in place an information barrier which prevented the legal practitioner who spoke with the plaintiff having any role in the matter for the defendant. It is perhaps idle to speculate further on this issue.

1. For my part, in all of the circumstances of the case, including the matters outlined at [77] above, I recognise the possibility that a fair‑minded, reasonably informed member of the public could conclude that the proper administration of justice requires that the law practice in question should be prevented from acting, in the interest of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
2. Such a member of the public, may feel a sense of grievance if a lawyer with whom he or she makes contact in order to enquire whether they may act on his or her behalf, then subsequently accepts instructions to act against them in the particular matter the subject of the same enquiry. This grievance is likely to be heightened where the law practice was not already acting for a party in the litigation or in the dispute, but has acquired its instructions solely by reason of, and following on from, the enquiry made by the member of the public (and has made contact with a third party without the consent of the putative client).
3. The possibility that such a member of the public could reach this view is, of course, not sufficient on the accepted test as stated in the authorities. A higher standard is required.
4. It must be found that the member of the public would reach the relevant conclusion. There are several important indicia which preclude that conclusion being reached in this case, and which weigh against the restraint of the law practice (and outweigh both the fact the law practice did not seek consent before making its third party inquiry and the fact the law firm has not put in place information barriers or the like). In summary:

(a) the enquiry made by the plaintiff was limited in nature, and resulted in a prompt decision by the law practice that it could not act for him;
>
> (b) the law practice made no representations or commitments to the plaintiff that it could represent his interests in the matter, and sought no extraneous information from the plaintiff other than sufficient information to undertake the conflict checking process;
>
> (c) the communication with the insurer was not extraneous or foreign to the purposes of the plaintiff's enquiry in circumstances where medical practitioners were involved in the dispute and the law practice partner had a long‑standing history with that insurer, although it was noticeably undertaken without the plaintiff's consent; and
>
> (d) the interests of the plaintiff must be balanced against the interests of the defendant in allowing him to be represented by a firm of his choice.

5. Finally, it is highly relevant to note that the plaintiff was prepared to withdraw his objection to the law practice continuing to represent the defendant. He was prepared to do so provided the defendant gave his reciprocal consent to another law firm acting for the plaintiff (which I have earlier referred to as Law Firm A).[31] This bargain, which was proposed by the plaintiff immediately prior to the present application being filed, has a strong tendency to undermine the legitimacy of the plaintiff's insistence that the law practice should be precluded 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. The plaintiff was prepared to trade his position, and withdraw his opposition to the law practice acting. The important notions to which I have just referred should not be regarded as mere bargaining chips to be traded by a litigant.
6. Ultimately, I am unable to conclude, in the circumstances of the present application, that the administration of justice requires that the law practice be restrained from acting for the defendant on the basis of the plaintiff's conflict enquiry which was made on 21 March 2023. The administration of justice and the integrity of the judicial process are sufficiently robust that they do not require protection in the present circumstances through an order which restrains this law practice from acting.

1. For the foregoing reasons, I will order that the plaintiff's application filed on 12 April 2023, seeking orders to restrain the law practice engaged by the defendant from acting, be dismissed. I will hear from the parties on the issue of costs.

[1], [2], [2(a)], [2(b)], [2(c)], [3], [4], [5], [6], [7], [8], [9], [10], [11], [12], [16], [18], [19], [20], [20(a)]

These paragraphs are objected to by the defendant on several grounds, but all of the objections include the ground of relevance.

These paragraphs contain information which is irrelevant to the interlocutory application and merely provide a form of background narrative or explanation of the plaintiff's perceived duty to the court, the filing of certain court and other documents, and his desire to follow court process.

These paragraphs are insufficiently relevant to the interlocutory application and will be struck out on that basis.

The paragraphs are also, in some respects, little more than bare submissions without any proper foundation for the statements. Unless otherwise struck out on another basis, I will receive these paragraphs as merely submissions.

These rulings leave the following paragraphs as the remaining paragraphs of the affidavit:

[13], [14], [15], [17], [20(b)], [20(c)] and [21]

These paragraphs overlap with the above ground. These paragraphs are also challenged on the basis they contain scandalous allegations.

I consider parts of these paragraphs should be struck out on the basis they contain scandalous and irrelevant material.

As to [6], the words 'he again ignored his duty towards the court and' should be struck out on these grounds.

As to [7], the whole paragraph should be struck out on these grounds.

As to [11], the final sentence should be struck out on these grounds.

These paragraphs are objected to on the basis they are irrelevant to the interlocutory application, represents submissions and are also not responsive to the Kwok Affidavit (being the basis on which the affidavit was permitted to be filed).

These paragraphs contain material in the nature of submissions and are, in any event, not responsive to the matters dealt with in Ms Kwok's affidavit.

Each of these paragraphs should be struck out on these grounds, and I will receive the paragraphs as mere submissions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Those earlier reasons specifically dealt with an application brought by the plaintiff, which was heard on 16 May 2023. That application sought to join an additional defendant to the proceedings and sought various restraints against that party.

[2] For convenience, in these reasons I will refer to the relevant law firm as the law practice, the relevant partner of the law firm as the law practice partner, and the relevant solicitor who dealt with the plaintiff as the legal practitioner.

[3] O 8 r 6(2) RSC has operation in circumstances where the solicitor for a party has died, become bankrupt or is unable to be found.

[4] This affidavit was filed in order to correct a misapprehension the defendant's solicitors were under that certain documents had been appended to the writ of summons as filed. The Kwok Affidavit thus attaches documents referred to in the defendant's submissions at [26.2] to [26.5], which were not in evidence at the hearing on 2 May 2023.

[5] First McCarthy Affidavit, Attachment PCM-1. I infer this was a typographical error and was intended to refer to an 'employment law matter'.

[7] First McCarthy Affidavit, Attachment PCM-2.

[8] First McCarthy Affidavit, Attachment PCM-4.

[11] The approach to MDA National is described in the Second McCarthy Affidavit as being part of the law practice's 'internal conflict check', but the use of the term 'internal' is a misnomer in this context.

[14] First McCarthy Affidavit, Attachment PCM-4.

[15] Second Azad Affidavit, Attachment 3.

[16] I draw this inference from the status of the proceedings and the fact the defendant had not entered an appearance at that stage, as a result of which the plaintiff had communicated with the court his desire to bring a default judgment application (Folio 7).

[17] First Azad Affidavit, page 7. The reference to A9 is to an attachment.

[21] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[22] Third Azad Affidavit, page 7, [16].

[23] Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429 [69] (Nettle J).

[25] Kwok Affidavit, Attachment CSK-1, page 5.

[26] Kwok Affidavit, Attachment CSK-3, page 9.

[27] Kwok Affidavit, Attachment CSK-4, page 11.

[28] Kwok Affidavit, Attachment CSK-5, page 12.

[29] For example, see the letter from the plaintiff to the court and defendant dated 9 March 2023 (Folio 7).

[31] As explained at [36] above.