1 This is an application by Mr Grammer for injunctive relief on a final basis.
2 The natural personal defendants are Mr Johnson and Mr Booby. Each is a solicitor practising in Narrabri. The corporate defendant, Bell & Johnson Solicitors Pty Ltd (which I shall call "Bell & Johnson"), is an incorporated law practice of which Mr Johnson and Mr Booby are the principals. It is the successor in practice to a partnership of like name of which Mr Johnson and Mr Booby were the members.
3 Mr Grammer seeks, in terms of the summons, to have all three defendants restrained from "acting in the capacity of legal practitioners in proceedings 2008/55 in the Mining Warden's Court of New South Wales" and from "acting in the capacity of legal practitioners for either Dean Von Harten or Ronald Von Harten in any matter touching upon or concerning Steven Charles Grammer, or any company of which Mr Grammer is a director, or any trust in which Mr Grammer has any beneficial interest in".
4 The emphasis is really, however, on the remaining aspect of the particular Mining Warden's Court proceedings in which, following an appeal to the Common Law Division of this court, there are outstanding questions of costs to be determined at first instance.
5 Mr Grammer apparently commenced the proceedings in the Mining Warden's Court in December 2008 in which Namoi Valley Aqua Farming Pty Ltd (which I shall call "Namoi") sought an assessment of compensation under the Petroleum (Onshore) Act 1991 against another company. Mr Grammer is, or was, one of three directors of Namoi and the holder of two out of the four issued shares in Namoi, as well as being the holder of 55 per cent of the units of a unit trust of which Namoi is the trustee.
6 Mr Dean Von Harten and Mr Ronald Von Harten are, or were, the other directors of Namoi, the holders of the other units of the unit trust and the holders, as to one each, of the remaining shares in Namoi.
7 It appears that the Messrs Von Harten had misgivings about the commencement in the Mining Warden's Court by Namoi at the instigation of Mr Grammer. On 30 June 2009, Mr Bailey, mining warden, granted leave to the Messrs Von Harten to be joined as defendants to the proceedings brought by Namoi. That order was made on a notice of motion by which the Messrs Von Harten also sought an order that the proceedings brought by Namoi be dismissed or permanently stayed as an abuse of process and an order that, if any costs order were made against Namoi in those proceedings, then either or both of Mr Grammer and Namoi's solicitor should indemnify Namoi and the Messrs Von Harten against all liability for those costs; also an order that Namoi or its solicitor or both pay the costs of the Messrs Von Harten.
8 Following the appeal to which I have referred, it is these costs questions outstanding on the application of the Messrs Van Harten that remain for determination by the Mining Warden's Court.
9 Bell & Johnson are the solicitors for the Messrs Von Harten in the Mining Warden's Court proceedings. Mr Booby appeared for them on the hearing of the notice of motion to which I have referred.
10 Mr Grammer considers himself to have an equitable right to have Bell & Johnson and its principals restrained not only from continuing to act for the Messrs Von Harten in the residue of the particular proceedings in the Mining Warden's Court but also on the much wider basis stated in the summons, that is, in any matter touching upon or concerning Mr Grammer, or a company of which he is a director or a trust in which he has a beneficial interest, so that neither Bell & Johnson nor either of the individual solicitors would be free to act for one of the Messrs Von Harten in, for example, drawing a will leaving a generous legacy to Mr Grammer.
11 The equity Mr Grammer asserts is said to come from past associations. He does not claim to be a current client of Bell & Johnson, or either of the individual solicitors. He refers in his affidavit to a number of occasions on which the predecessor partnership, and Mr Johnson in particular, acted for him, his wife and companies of his.
12 The most recent matter about which Mr Grammer gives evidence was in 2005 when the partnership acted for Mr Grammer's wife in a dispute with the local council over rates. A number of other matters going back to 1991 are also detailed by Mr Grammer.
13 Mr Grammer further says that for many years, up to July this year when they were uplifted, his will and that of his wife, plus certificates of title, were held in safe custody first by the predecessor partnership and later by Bell & Johnson.
14 Mr Grammer was cross-examined about the matters in which the partnership acted for him and his associates on various occasions up to 2005. He confirmed instructions were last given by him, as distinct from his wife, in relation to a proposed sale of shares in Namoi by a Mr Fenner. This was in 2003 or perhaps late 2002. Mr Johnson prepared some form of draft document on Mr Grammer's instructions but did not progress beyond that when Mr Grammer chose to instruct another Narrabri solicitor, Mr McHugh.
15 Mr Grammer also confirmed in cross-examination that he never sought to instruct Bell & Johnson in relation to the Mining Warden's Court proceedings and that he gave the defendants no information concerning that matter. He confirmed that disputes with the Messrs Von Harten had emerged before the Mining Warden's Court proceedings were instituted and that he did not seek to retain Bell & Johnson in that connection then, or at any later stage, and gave them no relevant information.
16 Mr Johnson confirmed that the predecessor partnership acted for Mr Grammer and his wife in a number of matters in earlier years. He referred in his affidavit to matters between 1991 and 1997 for which files have since been destroyed, no doubt in the ordinary course of records management.
17 There is a question about the preparation of the trust deed for the unit trust of which Namoi is the trustee. I am satisfied on the evidence that the predecessor firm prepared that trust deed in 1995. The "Bell & Johnson" name appears on the cover sheet. On the balance of probabilities, I find that it was Mr Bell, Mr Johnson's former partner who has since died, who acted in that matter. I say this because there is a letter of February 1995 bearing Mr Bell's reference to Mr Grammer's accountants reporting that the deed had been sent for stamping. Also, Mr Johnson gave evidence that he has no recollection of having dealt himself with the preparation of the trust deed .
18 The bases on which a court may intervene to restrain a lawyer from acting against a former client are well established. There is a useful discussion of the matter in the judgment of Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561. In Victoria, the principles were succinctly stated by Whelan J in Pinnacle Living Pty Ltd v Elusive Image Pty Limited [2006] VSC 202 in terms subsequently approved by Judd J in Commonwealth Bank of Australia v Kyriackou [2008] VSC 146 and, in just the last few days, by Pagone J in Slaveski v State of Victoria [2009] VSC 540 (27 November 2009).
19 Whelan J put the matter in terms contained in numbered propositions 1, 2 and 3 at paragraph 14 of his judgment:
"(1) The Court will restrain a legal practitioner from continuing to act for a party to litigation if a reasonable person informed of the facts might reasonably anticipate danger of misuse of confidential information of a former client, and that there is a real and sensible possibility that the interest of the practitioner in advancing the case in litigation might conflict with the practitioner's duty to keep the information confidential and to refrain from using that information to the detriment of the former client.