Supreme Court of WA|2005-01-05|Before: Smith J

Director of Public Prosecutions for Western Australia v Bennett & Co (A Firm) [2005] WASC 1 (5 January 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BENNETT & CO (A FIRM) [2005] WASC 1

BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law - Confiscation of property - Property freezing order and examination order made ex parte under Criminal Property Confiscation Act 2000 (WA) - Confidential affidavit in support of application - Inadvertently disclosed to solicitors for interested party - Confidentiality of information held protected by statute and public interest immunity - Application for injunction restraining solicitors from continuing to act

Commonwealth of Australia v Northern Land Council (1991) 103 ALR 267

D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118

Frankland River Olive Co Ltd v Charters Securities Pty Ltd (Receiver & Manager Appointed) & Anor [2004] WASC 88

Green v Crusader Oil NL (1985) 10 ACLR 120

Grimwade v Meagher & Ors [1995] VicRp 28; [1995] 1 VR 446

Mallesons Stephen Jacques v KMPG Peat Marwick (1990) 4 WAR 357

Mobil Oil Australia Ltd & Anor v Guina Developments Pty Ltd & Anor [1996] VicRp 54; (1996) 2 VR 34

Newman v Phillips Fox (a firm) (1999) 21 WAR 309

Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) [2004] WASC 145

Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147

Spector v Ageda [1973] Ch 30

Unioil International Pty Ltd & Ors v Deloitte Touche Tohmatsu (a firm) & Anor (1997) 17 WAR 98

Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648

1 ROBERTS-SMITH J: By notice of originating motion dated and filed 13 October 2004 the applicant seeks an injunction against the respondent pursuant to O 34 of the Rules of the Supreme Court 1971 ("the Rules").

"1. The Defendant be restrained from advising, acting as instructing solicitor or counsel, or appearing as solicitor on record on behalf of any person, including but not limited to Centurion Trust Company Limited in respect of the confiscation of property the subject of CIV 2382 of 2003 and any proceedings related to or arising there from.

2. The Defendant be restrained from providing any advice to any legal practitioner retained by any person, including but not limited to Centurion Trust Company Limited in respect of the confiscation of property the subject of CIV 2382 of 2003 and any proceedings related to or arising there from."

3 The application is supported by an affidavit of Fiona Anne Humphries sworn 12 October 2004, which, with attachments, runs to some 129 pages.

4 The substantive proceedings out of which this application arises are CIV 2382 of 2003 in which the Director of Public Prosecutions for Western Australia ("the DPP") filed an ex parte application for a freezing order against one Brian Millwood Smith.

5 That application was granted and the freezing order was made by Scott J on 14 November 2003.

6 The substantive proceedings have already resulted in a multiplicity of applications, the most pertinent of which for present purposes were an application by the DPP for what was described as "a confidentiality order" and an application by an interested party, Centurion Trust Co Ltd ("Centurion"), to set aside the freezing order.

7 The decision on the abovementioned DPP application was delivered on 30 June 2004 (Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 1) [2004] WASC 145).

8 The decision on the application by Centurion to set aside the freezing order was also delivered on 30 June 2004 (Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147).

9 The history of the proceedings insofar as it is relevant to the present application is set out at [5] - [36] of Re Smith (No 1) and [3] - [12] of Re Smith (No 2). I adopt without repeating what I said there.

10 To that broadly sketched background must be added the following further details.

11 The notice of originating motion for an examination order and freezing order was heard ex parte before Scott J on 14 November 2003 pursuant to s 43 and s 57 of the Criminal Property Confiscation Act 2000 ("the Criminal Confiscation Act").

12 The application was supported by an affidavit of KLP.

13 The freezing order stipulated that money standing to the credit of a particular Westpac account in the name of "ASIC Welcome Stranger Mining Company (NL Trust A/C)" and held for Centurion as trustee for the Gold Coast Trust and any and all interest payable on such money be frozen.

14 In compliance with s 46 of the Criminal Confiscation Act which requires service of a copy of the order and a notice be served personally on any person who is, or may be, or claims to be, an "interested party", the DPP sent by facsimile to Bennett & Co a letter dated 14 November 2003, together with a copy of the order and notice. In that letter the DPP sought advice whether Bennett & Co acted for Centurion and whether they would accept formal service on Centurion's behalf.

15 On 18 November 2003 Bennett & Co informed the DPP that they had instructions to act for Centurion in the matter and would seek further instructions regarding service. They also requested to be advised of the grounds upon which the freezing order and examination order applications were based.

16 On 26 November 2003 the DPP informed Bennett & Co that s 70(1) of the Criminal Confiscation Act prohibits disclosure of such information.

17 On 15 December 2003 Centurion filed a motion to set aside the freezing order.

18 On 13 January 2004 Heenan J gave directions regarding the determination of the jurisdictional issues raised by Centurion's notice of motion. Those directions included that Centurion enter a conditional appearance and directions as to the filing and service of affidavits by Centurion and the DPP.

19 On 15 January 2004 Bennett & Co requested from the DPP copies of the ex parte application and affidavits in support, claiming they were required to finalise their submissions to be filed in accordance with the directions of Heenan J. The DPP responded by advising Bennett & Co that the documents requested could not, and therefore would not, be provided.

20 On the same day, an officer of the Court Registry spoke to a member of the office of the DPP by telephone and indicated that although court documents filed in proceedings under the Criminal Confiscation Act were not normally provided to the public, they were provided to persons connected with the proceedings. The DPP officer informed the Registry officer that the application and the examination order should not be disclosed because of s 70 of the Act. The Registry officer requested the DPP send a letter to that effect.

21 On 16 January 2004 the DPP wrote to the Supreme Court Registry as requested, referring to s 70 of the Act and requesting that there be no disclosure in relation to the examination order, the application, or the affidavits in support and that they be kept secure and not provided to any person.

22 However, on the same day, a member of the firm of Bennett & Co went to the Registry and was permitted to inspect the documents on file.

23 Following that, on 20 January 2004, Bennett & Co requested and obtained from the Registry (upon payment of a fee) a copy of the KLP affidavit.

24 By letter also dated 20 January 2004, Bennett & Co informed the DPP of this. The author of the letter revealed that he had read the affidavit and noted that it may contain sensitive information that ought not be disclosed to Centurion. Bennett & Co invited the DPP to make an urgent application protecting the contents of the affidavit, but advised they did not consent to such orders.

25 On 21 January 2004 the DPP wrote to the Acting Principal Registrar informing him of the situation. On 23 January 2004 the Acting Principal Registrar wrote to Bennett & Co advising that the document had been supplied to the firm in error and in contravention of the Act and requesting its immediate return.

26 That same day, Bennett & Co informed the DPP that the document had been returned to the Court subject to certain conditions. Bennett & Co gave the DPP certain undertakings with respect to the disclosure of the information contained in the document.

27 On 30 January 2004 the DPP filed his chamber summons seeking, inter alia, a declaration that the affidavit was confidential.

28 That application was heard by me on 23 March 2004 and as I have indicated, my reasons for decision were delivered on 30 June. My findings included that:

(a) Bennett & Co did not seek leave from the Registrar to inspect or copy the affidavit and even if their request for it could be so construed, it is clear no Registrar gave leave. The production of the affidavit to Bennett & Co was inadvertent. When the situation was brought to the attention of the Acting Registrar, he immediately required the return of the copied document.

(b) Disclosure of any information or material concerning the examination order would be a breach of s 70 of the Act.

(c) The confidential information contained in the KLP affidavit and provided to the Court in support of the freezing order should be kept confidential due to the adverse impact disclosure of the content of the affidavit would be likely to have on the continuing conduct of the investigation. Such disclosure would be contrary to the public interest.

(d) Non-disclosure of the material to Centurion would not impair the proper administration of justice having regard to Centurion's position as an "interested party" under the Act, its contest to the jurisdiction, or to the forensic options open to it under the Criminal Confiscation Act.

(e) Those parts of the affidavit going to matters relating to the freezing order, as distinct from those parts relating to the examination order, should remain confidential on the basis of public interest immunity.

(f) Centurion was not, and is not, entitled to production of the affidavit or to any of the evidentiary material filed in support of the application for either the freezing order or the examination order.

29 On behalf of the DPP it is submitted in support of his application for an injunction, that Bennett & Co is plainly privy to confidential information to which it ought not to have had access. It is submitted that Bennett & Co is in that way in possession of confidential material which it is statutorily barred from disclosing to its client, notwithstanding its duty to use all information which is material to the client's case. In that way it is said there is a conflict of interest - there is a real and sensible possibility that Bennett & Co's duty to advance Centurion's case will conflict with their duty to keep the information to which it is privy, confidential.

30 The DPP submits that Bennett & Co must be restrained from acting for Centurion in this matter and related proceedings, to protect the confidential information and to ensure that the administration of justice is not brought into disrepute.

31 Mr Bennett (appearing for Bennett & Co) submits first that an order requiring solicitors and counsel to keep information contained in the course of proceedings confidential from their client, does not give rise to any conflict of interest. Indeed, it is submitted that far from creating such a conflict, disclosure restricted to legal representatives is ordered by courts from time to time in circumstances in which confidentiality issues are to be balanced with the requirements of justice and fairness to the parties to litigation.

32 In the course of the hearing, Mr Mischin for the DPP, made it clear that the substance of the DPP's concern was as to the risk of the derivative use that might be made by the defendant firm in representing Centurion. He contended that the court has power to control the behaviour of its officers in order to ensure not only the proper administration of justice, but that a reasonable person, properly informed, would perceive that justice is being properly administered.

33 The DPP relies in particular upon the analysis and application of the relevant legal principles articulated by Pullin J in Frankland River Olive Co Ltd v Charters Securities Pty Ltd (Receiver & Manager Appointed) & Anor [2004] WASC 88. Frankland River was a case which turned on the perception which a fair-minded, reasonably informed member of the public would have had that the solicitors in one case were acting for one party in conflict with their duty towards the other party, an earlier client, and potential disclosure to the second party of information confidential to the first party. Clearly, that is a quite different situation to the present. Nonetheless, I accept that the fundamental principles upon which that case turned are apposite here, namely, whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Bennett & Co should be restrained from continuing to act for Centurion in these proceedings. I shall return to Frankland River below.

34 In the present case it is not just a matter of protecting information which is confidential as between solicitor and client. Cases such as Newman v Phillips Fox (a firm) (1999) 21 WAR 309 are distinguishable in that respect.

35 The injunction is sought to protect information which I have already held to have statutory protection from disclosure and otherwise by way of public interest immunity.

36 Mr Mischin submits this adds even greater force to the DPP's argument. It was on that point he submitted that in circumstances in which the information is not only confidential, but also privileged, the case for a strict approach is unanswerable - and he reiterates the instant case goes beyond mere privilege and into the ambit of statutorily protected information.

37 Mr Mischin submits that the danger is not simply as disclosure of information to the client but that the solicitors have derivative knowledge of the contents of the affidavit and the evidential material that was available to the investigating authorities at that point. There is knowledge of the persons in whom the authorities were interested for the purposes of examinations, what evidence was available to the authorities at that point and the lines of inquiry that might still need to be explored.

38 Mr Bennett on the other hand, submits first that this is not a case of conflict between the interests of the solicitors and their client, or between their duties to a present and former client, but is rather one of a duty to maintain confidentiality as to certain information and not disclose that to, nor rely upon it for the benefit of, their client. As a matter of factual analysis that is clearly correct.

39 From that point, Mr Bennett argues that there is extensive authority for the proposition that a party's legal advisors may properly continue to act for the party notwithstanding they are under a professional and legal duty not to disclose to, nor use to the party's advantage, particular confidential information.

41 Writing in respect of the duty of full disclosure on an ex parte application, the learned author of "Seaman (Civil Procedure in Western Australia - Supreme Court") observes at [52.1.13]:

"... but the plaintiff cannot put before the court material which is so confidential that he or she wishes to withhold it from the defendant. If such information is placed before the court it should be revealed to the defendant's counsel and solicitors who as officers of the court may be trusted not to breach the confidence, what may be revealed to the defendant being decided by the judge: WEA Records Ltd v Visions Channel 4 Ltd [1983] 2 All ER 589 at 593, 594 ..."

42 In Mobil Oil Australia Ltd & Anor v Guina Developments Pty Ltd & Anor [1996] VicRp 54; (1996) 2 VR 34, Hayne JA noted at 40 that it is now commonplace in the courts for material to be made available only to the legal advisors of the parties and nominated experts, although his Honour observed that such arrangements bring with them their own difficulties and should be adopted only where there is a need to do so. Nonetheless, his Honour said, such arrangements are made and should be made when doing so would strike a fair balance between the competing interests of the party seeking inspection and the party claiming confidentiality.

43 Where disclosure is limited to counsel and solicitors, they are obliged to honour the restrictions imposed by the court. That obligation overrides their duty to their clients (see Commonwealth of Australia v Northern Land Council (1991) 103 ALR 267, per curiam at 305).

44 For the respondent it is submitted that the DPP has no legitimate interest to protect because the confidentiality orders made by me on 30 June 2004 and s 70 of the Criminal Confiscation Act combine to prevent disclosure to Centurion.

45 So it is said that because Bennett & Co are already bound as a matter of law (by reason of public interest immunity and s 70 of the Act), not to disclose to Centurion (or to anyone else) any information of which they have become aware from the KLP affidavit, the only possible mischief to which the injunction sought could go, is inadvertent disclosure or derivative use of that information.

46 Mr Bennett submits courts are prepared to accept that practitioners have the ability not to use information inadvertently. Furthermore, he submits that if there was a real fear about that, it must have been a fear present in the mind of the applicant from January 2004 and yet it was not sufficient to cause the Director to make this application until 13 October 2004.

47 Finally, Mr Bennett submits there can be no "sensible possibility" that the information in the affidavit will be used.

48 I return now to what Pullin J said about the general principles of law applicable to the inherent jurisdiction of the court to make orders restraining solicitors from acting, in Frankland River (at [25] - [27]):

"25 I now turn to the law which governs this application. It is undoubtedly a serious step to deprive a party of counsel or solicitors of that party's choice: see, for example, Emanuele v Emanuel Investments (1996) 21 ACSR 83 at 107. There is no dispute that the court has jurisdiction to exercise authority over its officers: see Newman v Phillips Fox (1999) 21 WAR 309. Nor is it in dispute that where orders are sought against solicitors who are not parties to proceedings, the court has jurisdiction to direct them to cease acting where they are solicitors on the record: see, for example, Clay v Karlson (1997) 17 WAR 493 and Murcia & Associates v Grey [2001] WASCA 240.

26 While it is a serious step to deprive a party of counsel and solicitor of choice, the Court will do so, if necessary. The justification for intervention by the Court in an application to restrain solicitors from acting for a litigating party is founded usually on one or more of three bases. These are the protection of confidential information, the restraint of a conflict of interest, and the Court's control over the conduct of solicitors as its officers: see Newman v Phillips Fox (supra) at 314. In that case, Steytler J referred to what was said by Sir Lancelot Shadwell, Vice-Chancellor, in Davies v Clough (1837) 8 Sim 262 at 267, where the Vice-Chancellor said, in referring to other cases, that they appeared to afford a general principle, namely, that all Courts may exercise an authority over their own officers as to the propriety of their behaviour. The Vice-Chancellor said:

'Applications have been repeatedly made to restrain solicitors who had acted on one side, from acting on the other, and those applications have failed or succeeded upon their own particular grounds, but never because the court had no jurisdiction.'

27 Steytler J went on to say in the Newman case:

'In Australia the courts have, on a number of occasions, shown a willingness to intervene on this third basis. So, for example, in Yunghanns ... Gillard J affirmed that the court has an 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 by the conduct of those members.'"

49 Notwithstanding that counsel for the DPP characterised it as such, in my view the present case is not one of conflict of interest in the sense usually used in the authorities (such as Spector v Ageda [1973] Ch 30; Unioil International Pty Ltd & Ors v Deloitte Touche Tohmatsu (a firm) & Anor (1997) 17 WAR 98 and Mallesons Stephen Jacques v KMPG Peat Marwick (1990) 4 WAR 357.)

50 Those aspects of the inherent jurisdiction which are relevant here are the protection of confidential information and the court's control over the conduct of solicitors as officers of the court. I consider the application should be dealt with on the basis the real concern is that there may be unwitting or inadvertent disclosure, or at least that the solicitors' knowledge may (the applicant says in effect "inevitably will") subconsciously colour their approach to Centurion and influence the performance of their duty to Centurion.

51 Such an apprehension, if reasonably founded, is a legitimate basis going in favour of making an order of the kind sought (D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118; Mallesons Stephen Jacques v KPMG Peat Marwick, s_upra_).

52 I have read again the KLP affidavit. For obvious reasons I shall not discuss the contents of it, other than to note in broad terms that it describes the nature of the investigation being undertaken, the suspected offences being investigated, steps taken in the investigation to that date, the property said to have been unlawfully acquired, the circumstances in and manner by which that is believed to have been done, the factual basis of such belief (in detail), the various persons and corporate entities said to be involved and details of their alleged involvement, together with references to transcripts of interviews with a number of named individuals, as well as various operational matters.

53 In my opinion, having regard to the extensive, detailed and significant information contained in the affidavit and the purpose for which it was obtained and read by the solicitors of the respondent firm, there must be a legitimate concern that there is "a real and sensible risk" to use the expression of Mandie J in Grimwade v Meagher & Ors [1995] VicRp 28; [1995] 1 VR 446 (at 454) that in the course of communications between the solicitors and Centurion, the solicitors may unwittingly or inadvertently (and quite possibly even without appreciating) disclose information had by them as a result of having read the affidavit. Furthermore, there must be a realistic possibility, if not likelihood, that knowledge of the content of the affidavit will colour and influence the conduct of their client's case. Whilst I do not for one moment doubt the intention of the solicitors to comply with their undertaking to the court and not to act in breach of s 70 of the Act, to my mind these risks cannot be obviated by that. It is also relevant that the disclosure or use of the confidential information in these circumstances might not be appreciated by the solicitors concerned, nor otherwise come to the notice of the DPP or the court.

54 In its essence, the situation is not dissimilar to the problem identified by Hayne JA in Mobil Oil (supra) at 38:

"Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed."

55 Of course, Hayne JA was talking about the quite different factual situation of confidential information of a party being inspected by a trade rival, not by the trade rival's solicitors under an obligation to maintain confidentiality as against their client, but the salient point I think is, that the information once revealed cannot be forgotten and the obligation to maintain the confidentiality of it, may, depending upon the circumstances, be one impossible of performance.

56 In my view the need to protect the confidential information from inadvertent disclosure or use in the way I have described, militates in favour of making the order.

57 There is also the question of the public perception should the solicitors be permitted to continue acting in these circumstances. I accept the submission of the applicant that in the circumstances, a fair-minded, reasonably informed, member of the public would conclude that the proper administration of justice required that Bennett &Co should be restrained from continuing to act for Centurion.

58 I come now to the question of delay and the balance of convenience.

59 The respondent submits that even if there was any basis in law for the proposition there was a conflict of interest sufficient to found the application for injunction, the delay of the applicant in bringing the application (between 20 January 2004 and 15 October 2004) during which time Bennett & Co has continued to act for Centurion without objection from the applicant, would be sufficient to deprive the applicant of the proposed injunction in the exercise of discretion.

60 The applicant's response to this is first that the DPP considered it presumptuous to seek an order before I had decided the question whether the information was protected from disclosure to the solicitors, particularly when they had given undertakings to maintain confidentiality pending my determination.

61 My reasons for decision were given on 30 June 2004. I am told that thereafter, the point was raised by the DPP in correspondence with Bennett & Co as a matter of courtesy in the first instance. That being unproductive, the application was made.

62 The question of delay is more likely to be accorded weight in matters of purely private or commercial litigation. It will not weigh so much (nor perhaps at all) where the matter is one which goes to the protection of a public interest. This case falls into the latter category. The confidentiality of the information in the KLP affidavit sworn 13 November 2003 is protected in part by public interest immunity and in part by s 70 of the Act.

63 The point was made (albeit in relation to the public interest in respect of trade practices) in Green v Crusader Oil NL (1985) 10 ACLR 120 at 127, where Young J said:

"It is said in relation to trade practices legislation in cases such as World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 that because public interest is involved questions such as clean hands and other factors which are personal to the applicant will not automatically preclude the grant of an injunction where such right is given by statute to protect the public. However, at p 190 of that case Bowen CJ quoted the judgment of the Privy Council in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538, 560, that the injury to a public interest must be weighed against any loss which the defendant may have sustained by the plaintiffs standing by while the defendant incurs expense and that the fact of delay will differ from case to case. Thus there is no absolute rule that one disregards things like delay, but merely one gives them less weight in this type of case than one in purely private litigation. See also the approach taken by McPherson J in Adsteam Building Industries Pty Ltd & Anor v The Queensland Cement and Lime Co Ltd & Ors (1984) 8 ACLR 956 at 959 to 960."

64 I think the question of delay is one which carries some weight in this case, but have come to the conclusion that in the end it ought not to preclude the making of an order directed to the protection in the public interest of the confidential information which goes to the conduct of this investigation. I acknowledge that an order restraining solicitors from continuing to act for a client is not to be lightly made. I have considered the possible or likely prejudice to the public interest if the order is not made, weighed against the possible prejudice to Centurion should Bennett & Co be restrained from acting for it.

65 The factual matters involved in the proceedings are not complex, although the legal issues are novel to a considerable extent. Nonetheless, in my view, other solicitors would be quite capable of properly continuing the conduct of the matter on Centurion's behalf. Furthermore, there is no way the court could enforce any undertaking of the solicitors because neither the court nor the DPP would know whether, nor to what extent, derivative use had been made of the information.

66 I have accordingly come to the conclusion that the application should be granted.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BENNETT & CO (A FIRM) [2005] WASC 1 (S)

BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Practice and procedure - Application for stay of execution pending appeal - Solicitors injuncted from acting - Imminent hearings of appeals against previous decisions - Balance of convenience

Ardrey v Bartlett & Ors [2004] WASCA 256

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

1 ROBERTS-SMITH J: In relation to the respondent's application for an order staying the execution of judgment following the delivery of my reasons for decision this afternoon in this matter, I accept the broad statement of principles applicable to such an application as set out by Murray J in Ardrey v Bartlett & Ors [2004] WASCA 256 specifically at [21] where his Honour there refers to the way in which the principles were distilled by Parker J in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 at [9].

2 What does appear from that distillation is that a stay of execution pending appeal will ordinarily not be readily granted, the first principle being that the successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal. In similar vein, the second bullet point there sets out notes that it is for the applicant for a stay to move the Court to a favourable exercise of its discretion, and I emphasise that it is a discretionary order which is sought.

3 The difficulty upon which the respondent relies in this application as being sufficient either by itself or in the context of the matter generally as sufficient to justify a stay is the imminence first of all and primarily of the appeals against decisions made by me in matters numbered FUL 137 of 2004 and FUL 136 of 2004 which are presently listed for hearing before the Court of Appeal on 7 February 2005. I understand from Mr Bennett's submissions that the respondent would be prepared today to give an undertaking to use its best endeavours at least to have an appeal against my decision today lodged and listed for hearing so as to be heard together with those extant appeals.

4 The problem therefore, as I say, upon which the respondent principally relies, is that if my order stands and operates with effect from today, then the likelihood (as I apprehend it to have been put to me) that other solicitors can be adequately briefed to appear on the appeals would not be one which would be readily met.

5 As against that, Mr Mischin submits that the situation arises out of the circumstances in which the respondents became aware of the confidential information the subject of the reasons for decision and the consequent conduct of the solicitors continuing to act in those circumstances. He submits that in the circumstances any adjournment of the appeals, were that to be sought, would first of all not be opposed by the DPP and, secondly and in any event, would be merely the result of the position taken by the respondent solicitors.

6 So far as the question whether or not the effectiveness or implementation of the judgment would create practical difficulties in respect of the relief which might be granted on appeal is concerned and whether or not, looked at in a particular way, a stay is necessary to preserve the integrity of the litigation pending appeal and enable the respondent solicitors to conduct the extant appeals on behalf of Centurion, is concerned, it is perhaps not surprisingly the case that no particular ground of appeal against my decision today has been foreshadowed.

7 Nonetheless, in relation to that, as Mr Bennett points out, my reasons today are to some extent based upon earlier findings in judgments which are the subject of the appeals listed for 7 February.

8 It seems to me the situation is one of some difficulty but the ultimate consideration as I apprehend it, is that having regard to the principles referred to by Murray J, the making of a stay order in the present circumstances would defeat the rationale and purpose of the reasons for my reaching the conclusion I did in the judgment delivered today.

9 On the other hand, so far as the position of the parties and the balance of convenience - or perhaps to put it more accurately - the balance of disadvantage or detriment is concerned, the interests of both Centurion and the respondent solicitors can be accommodated should they consider it necessary by an application for an adjournment of the appeals, which adjournment or which application, as I have said, I am told would not be opposed by the Director.

10 Under those circumstances and having regard to the considerations which I have briefly mentioned, albeit in no detail, I am not disposed to exercise my discretion to order a stay of the judgment today.

11 Mr Bennett has further submitted, however, that if there not be a stay there should be some modification of the orders sought in the applicant's notice of originating motion and I am prepared to accommodate his submissions in relation to that and I will hear counsel further on the specific wording to be added.

Property Confiscation Act 2000

Director of Public Prosecutions for Western Australia v Bennett & Co

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (115 paragraphs)

Director of Public Prosecutions for Western Australia v Bennett & Co (A Firm) [2005] WASC 1 (5 January 2005)

Parties

Legislation Cited (1)

Cases Cited (10)