These proceedings have been anonymized because they concerned, among other things, an application by the defendants for the appointment of a manager of the estate of the plaintiff, under s 41(1)(b) of the NSW Trustee and Guardian Act 2009 (NSW). The defendants are members of the plaintiff's family.
On 7 May 2020, the Court made an order appointing a manager of the estate of the plaintiff in conjunction with orders that had the effect of settling other proceedings instituted by the plaintiff against members of her family and certain family companies.
The defendants made the decision to lodge a disciplinary complaint against a former solicitor of the plaintiff with the Office of the Legal Services Commissioner, in respect of his conduct of these and the related proceedings on behalf of the plaintiff. I will simply refer to the proposed respondent to the complaint as the solicitor. It is not necessary to describe the subject matter of the disciplinary complaint for the purpose of these reasons.
As it would be necessary for the defendants to make use of documents prepared for the purpose of use in these proceedings, and also possibly the related proceedings, for the purpose of making the disciplinary complaint, and for the purpose of its investigation and any subsequent disciplinary proceedings, the defendants had to face the restriction that arises out of the decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 308, as explained in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [96].
By amended notice of motion filed on 3 June 2020, the defendants sought by prayer 1 an order granting them leave to use (to the extent necessary) a list of documents brought into existence for the purpose of the proceedings in order to lodge a disciplinary complaint against the solicitor with the Office of the Legal Services Commissioner, and for the investigation of that complaint and for any subsequent disciplinary proceedings.
In due course, the solicitor responded by filing his own notice of motion on 20 August 2020, in which he sought an equivalent order for the same purpose in respect of a different list of documents brought into existence for the purpose of these proceedings.
Ultimately, the solicitor responded to the defendants' application by stating that he neither consented to nor opposed the Court making the orders sought. The Court has been informed by the solicitor for the plaintiff, who is the party with the primary right to confidence in the documents sought to be used by her former solicitor, that she also neither consented to nor opposed the making of the order sought by the solicitor.
The defendants' application was supported by an affidavit by one of the defendants, which contained an explanation of the nature of the disciplinary complaints that the defendants wish to make against the conduct of the solicitor while he was retained to act for the plaintiff. The solicitor responded by making an affidavit in which he explained the need to be released from the Harman restriction for the purpose of conducting his response to the disciplinary complaint.
The parties who had the primary right to oppose the Court making the orders sought by the two notices of motion have been given the right to make that opposition, but they have not done so, even though they have not consented to the orders being made.
In Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85; (2018) 19 BPR 38,547, Barrett AJA said, with the agreement of Beazley P and Ward JA, on the subject of when the Court should make an order granting leave for the use of documents the subject of the Harman restriction:
[30] ... That matter was considered by the Full Court of the Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283. It was there said (at [31]) that a party in the position here occupied by Aristotelis and Efthemia must show special circumstances in order to be released from the obligation. This does not mean that some extraordinary factors must bear on the question before the discretion will be exercised. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, (1992) 38 FCR 217, Wilcox J said (at 225) that for special circumstances to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. In other words, good reason must be shown why, contrary to the usual position, the constraint should not apply; and that reason must be found in all the circumstances of the case. If the court does find special circumstances, it then has a broad discretion as to whether or not to grant leave: James G Oberg (Sales) Pty Ltd v Oberg [2012] FCA 722; (2012) 292 ALR 673 at [27] (Edmonds J).
I am satisfied that, at least in cases where the party to proceedings, or a legal representative who has participated in proceedings, does not actively oppose a party involved in those proceedings seeking a release from the Harman restriction, for the purpose of using documents produced for the purpose of the proceedings to make or defend a disciplinary complaint against a lawyer arising out of the conduct of the proceedings, the Court should readily find that there is a good reason why the restriction should not apply. It is in the interests of the proper administration of justice that the Court should facilitate, and not in any way impede, the making of legitimate disciplinary complaints about the conduct of lawyers involved in proceedings before the Court, and in the pursuit of the investigation and prosecution of the complaints fully in accordance with the processes established by the legislation that creates the mechanism for the supervision of lawyers within this State.
Counsel for the defendants and the solicitor brought to the Court's attention certain statutory provisions that may impinge on the freedom of the Court to make the orders that have been sought. I agree with the submission of counsel that the provisions do not create an impediment to the making of the orders, and I do not consider that there is any need to consider the effect of the provisions in detail.
I will not set out the orders sought by the defendants and the solicitor because the description of the documents the subject of the orders would necessarily disclose confidential matters that the Court does not disclose in protective matters such as the present.
The defendants submit that the Court should order the solicitor to pay the defendants' costs of their notice of motion, or alternatively their costs on and from the first return date of their notice of motion. The defendants rely primarily on the principle that generally costs should follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. They submit that, although it was necessary for them to obtain a release of the Harman restriction, and that the Court was required to exercise its independent judgment in granting the release, there was no real basis for the solicitor to impede or resist the defendants' application, because the Court was not required to form any judgment about the solicitor's conduct on the application, and did not do so. Furthermore, the defendants' application was relatively uncontentious, given that the reason for the application was to facilitate scrutiny of the conduct of an officer of the Court.
The solicitor submits that the Court should order the defendants to pay his costs of the defendants' application, or alternatively that there should be no order as to costs, with the intent that the parties bear their own costs. He submits that there should also be no order as to costs of the solicitor's application.
I have had regard to all of the detailed submissions put by the solicitor in his submissions dated 24 August 2020. However, I am of the view that the proper order for costs in respect of the defendants' application is that the solicitor pay to the defendants their costs on and from the first return date of their notice of motion. First, I do not think that the solicitor should have to pay the defendants' costs before the return date, as he was entitled to consider his position and to satisfy himself that the defendants had formulated a proper case to be put to the Court to support their application for relief of the Harman restriction. However, the solicitor should have communicated to the defendants and to the Court the position that he neither consented to nor opposed the application before the first return date. It is clear that thereafter the solicitor opposed the release sought by the defendants and significantly prolonged the application, before he ultimately adopted the position of neither consenting to nor opposing the application. It is just in the circumstances that he should be ordered to pay the defendants' costs on and from the first return date of the notice of motion.
I agree that there should be no order for costs in respect of the solicitor's application, with the intent that all parties shall bear their own costs.
I make the following orders:
1. Order in terms of prayer 1 of the amended notice of motion filed by the defendants on 3 June 2020.
2. Order in terms of prayer 1 of the notice of motion filed by the applicant to that notice of motion on 20 August 2020.
3. Grant leave to the parties to the proceedings and the applicant to the notice of motion filed on 20 August 2020 to relist the proceedings by arrangement with the Associate to Robb J on three days' notice for the purpose of making any further application in respect of the use of documents produced for the purpose of these proceedings.
4. Order the respondent to the amended notice of motion filed by the defendants on 3 June 2020 to pay the costs of the notice of motion as amended on and from the first return date of the notice of motion.
5. Order that there be no order for the costs of the notice of motion filed on 20 August 2020 with the intent that the parties to that notice of motion shall bear their own costs.
[3]
Amendments
16 May 2023 - Anonymisation of parties
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Decision last updated: 16 May 2023