PRACTICE AND PROCEDURE – LEGAL PRACTITIONERS – SOLICITORS
– CONFLICT OF INTEREST – CONFIDENTIAL INFORMATION
– PERMANENT
INJUNCTIONS – RESTRAINTS – where the second defendant was the
Source
Original judgment source is linked above.
Catchwords
PRACTICE AND PROCEDURE – LEGAL PRACTITIONERS – SOLICITORS– CONFLICT OF INTEREST – CONFIDENTIAL INFORMATION– PERMANENTINJUNCTIONS – RESTRAINTS – where the second defendant was thesolicitor for the plaintiff and associatedinterests for approximately 14 years– where the second defendant through the first defendant commenced actingfor the thirddefendant against the plaintiff – where the plaintiff bringsan application to restrain the first and second defendants fromacting for andadvising the third respondents – where solicitors for the first defendantprovided undertakings – whetherthere is a real and sensible risk thatconfidential information will be relevant to the adjudication process or otherdisputes andproceedings remaining under the contract between the plaintiff andthird defendant – whether undertakings given are reliableand sufficient– whether there is a real and sensible possibility of the confidential
information being used – whether
there was any delay in seeking injunctive
relief – whether restraint is necessary
Australian Solicitors
Conduct Rules 2012, r 21
Building Industry Fairness (Security of
Payment) Act 2017 (Qld), s88
Acciona Agua Australia Pty Ltd v
Monadelphous Engineering Pty Ltd [2020] QSC 133
(2020) 4 QR 410
Aveo Retirement Homes
Ltd v Springfield City Group Pty Ltd [2024] QCA 102
Babcock &
Brown DIF III Global v Babcock & Brown International Pty Ltd
[2015] VSC 453
Brodyn Pty Ltd t/as Time Coast and Quality v Davenport
(2004) 61 NSWLR 421
Carindale Country Club Estate Pty Ltd v Astill
[1993] FCA 218
(1993) 42 FCR 307
Dealer Support Services Pty Ltd v Motor Trades
Association of Australia Ltd [2014] FCA 1065
Department of Main Roads
v Davenport & Ors [2006] QSC 47
Farrow Mortgage Services Pty Ltd
(in liq) v Mendall Properties Pty Ltd [1995] VicRp 1
[1995] 1 VR 1
Grant v Downs
[1976] HCA 63
(1976) 135 CLR 674
Grimwade v Meagher [1995] VicRp 28
(1995) 1 VR
446
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64
(1984)
156 CLR 41
Kallinicos v Hunt (2005) 64 NSWLR 561
[2005[ NSWSC
1181
M v The Queen [1994] HCA 63
(1994) 181 CLR 487
Nash v Timbercorp Finance
Pty Ltd (in liq) (2019) 137 ACSR 189
[2019] FCA 957
Orr v Ford
[1989] HCA 4
Porter v Dyer & Anor [2022] FCAFC 116
(2022) 402 ALR
659
Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52
[1999] 2 AC 222
Sent v John Fairfax Publications Pty Ltd [2002] VSC
PRACTICE AND PROCEDURE - LEGAL PRACTITIONERS - SOLICITORS - CONFLICT OF INTEREST - CONFIDENTIAL INFORMATION - PERMANENT INJUNCTIONS - RESTRAINTS - where the second defendant was the solicitor for the plaintiff and associated interests for approximately 14 years - where the second defendant through the first defendant commenced acting for the third defendant against the plaintiff - where the plaintiff brings an application to restrain the first and second defendants from acting for and advising the third respondents - where solicitors for the first defendant provided undertakings - whether there is a real and sensible risk that confidential information will be relevant to the adjudication process or other disputes and proceedings remaining under the contract between the plaintiff and third defendant - whether undertakings given are reliable and sufficient - whether there is a real and sensible possibility of the confidential information being used - whether there was any delay in seeking injunctive relief - whether restraint is necessary
T Matthews MBE KC with S B Whitten for the first, second and third defendants
[23]
CDI Lawyers for the first, second and third defendants
[24]
[1] The plaintiff, Groupline, and another company, Civic, are part of a privately owned building and construction enterprise run by Scott Widdicombe and his son, David Widdicombe.[1] The second defendant, Mr Pyman, is a former partner of Holding Redlich Lawyers and is the founding principal and a current director of the first defendant law firm, CDI. Mr Pyman (first through Holding Redlich and later CDI) was the solicitor for these various Widdicombe interests (including Groupline and on occasions, Mr Widdicombe personally) for around 14 years, with the relationship ending in 2020. Shortly after, in late 2020, Mr Pyman (through CDI) commenced acting for the third defendant Chevron, first by assisting with a generic design and construct contract and then later acting for Chevron against Groupline in disputes arising from a Construction Contract for the construction of a residential apartment building known as the Greenwich Project, executed by those parties on 23 December 2021.
[2] By an originating application filed on 30 April 2024 and a subsequent statement of claimed filed 20 May 2024, Groupline sought permanent injunctions restraining CDI or alternatively Mr Pyman from acting for Chevron (against it) in the following matters:
[25]
(a) The first adjudication application filed by Groupline in the Queensland Building and Construction Commission on 6 March 2024;
(b) Supreme Court Proceedings BS 3920/24 filed by Groupline on 28 March 2024; and
(c) Any other future disputes or claims arising from, under or in relation to the Construction Contract.
[26]
[3] The Construction Contract was terminated by the parties in early May 2024 and on 5 June 2024 the adjudicator decided the first adjudication. But then, on 18 June 2024, Chevron (represented by CDI) filed originating application BS 7839/24 in the Supreme Court seeking to set aside the first adjudication determination as void. This application was heard by another judge of the Supreme Court on 7 August 2024 with the decision reserved. Also on 7 August 2024, Chevron engaged Hopgood Ganim Lawyers to act for it in defending Supreme Court Proceedings BS 3920/24. Alex Tuhtan, a current partner of Shand Taylor Lawyers (and a former principal of CDI) acted for Groupline in the first adjudication and continues to act for Groupline in Supreme Court Proceedings BS 3920/24 and in disputes arising from the Greenwich Project more generally.
[4] On 31 July 2024, Groupline lodged its final payment claim under the Construction Contract and therefore by the strict timeframes of the Building Industry Fairness (Security of Payment) Act2017, any application for a final adjudication will need to be made by 25 September 2024.
[5] Just prior to the trial commencing before me in late August 2024, Mr Pyman and CDI conceded (with the qualification that Mr Pyman has no independent conscious recollection of any such information), that during the lawyer-client relationship with the Widdicombe interests, Mr Pyman (and later CDI), came to know facts, matters and circumstances that were and continue to be, "Confidential Information" as pleaded in paragraph 18 and 19 of the statement of claim and set out later in these Reasons.
[6] Leading up to the trial and on the final day of hearing, Mr Pyman and CDI through another partner and principal, Mr Pungsornruk and a senior associate of CDI, Ms Kipps, offered various written undertakings to the court to the effect that:[2]
[27]
(a) Mr Pyman will not act for Chevron in Supreme Court Proceeding BS 3920/24, Application BS 7839/24, nor will he cause CDI to act for Chevron in any dispute or claim arising from, under or relation to the Construction Contract apart from any final adjudication; and
(b) CDI will not act for Chevron in Supreme Court Proceeding BS 3920/24 and any other contractual disputes or claims arising from, under or relation to the Construction Contract apart from any final adjudication and Application BS 7839/24; and
(c) Mr Pungsornruk and Mrs Kipps (and CDI) will act in any final adjudication with a CDI policy on an Information Barrier in place between them and Mr Pyman (in accordance with Queensland Law Society Guidelines).
[28]
[7] Given the Undertakings, the only remaining issue at trial might well have been whether CDI ought to be restrained from acting for Chevron in any final adjudication. But Groupline submitted that the court should reject the Undertakings as being unreliable, unsafe and unsound and make orders for permanent injunctions in terms of paragraphs 2 (b) and (c) of these Reasons. The need for such relief is said to be underpinned by the notion that there is a "real and sensible" possibility of the misuse of the Confidential Information; or that the continued representation of Chevron [by CDI or Mr Pyman] will adversely affect the appearance of the administration of justice in this court and the integrity of the judicial process, or both.
[8] Mr Pyman and CDI do not resile from the sufficiency and reliability of the Undertakings offered and otherwise oppose the granting of any injunctive relief on the basis that:
[29]
(a) there is no real risk of misuse of the Confidential Information because:
(i) the adjudication process is a "mere administrative task"; and
(ii) Mr Pyman does not recollect any of the Confidential Information but if he does happen to later recall any such information it will not be used by him or anyone else from CDI against Groupline;
(b) even if there is a real risk of misuse of the Confidential Information, the discretionary factors weigh against an injunction being granted in this case because:
(i) Groupline failed to act promptly or acquiesced in Mr Pyman and CDI acting for Chevron by not raising a complaint earlier; and
(ii) Chevron will suffer prejudice in having to engage new solicitors to act for it in any further adjudication.
[30]
[9] One matter that both sides did agree on is the urgent need for the court to determine the application given the looming deadline for the lodgment of any further adjudication application. This is an unsatisfactory situation. But judgment in this matter has been delivered quickly to address this.
[31]
[10] To determine whether any restraint is necessary (and if so, the appropriate form of any order) the following four issues emerge for the court's determination:
[32]
Issue One: Is there a real risk that the Confidential Information will be relevant to the adjudication process?
[33]
Issue Two: Are the Undertakings reliable and sufficient?
[34]
Issue Three: Is there a real and sensible possibility of the Confidential Information being used by CDI or Mr Pyman?
[35]
Issue Four: Did Groupline delay in seeking injunctive relief?
[36]
[11] These issues are necessarily informed by an understanding of the relevant facts and the legal principles governing a solicitor's obligation not to disclose confidential information.
[37]
[12] Mr Widdicombe and David Widdicombe are father and son builders who have operated a construction business variously through Civic and Groupline for about 20 years. Groupline was incorporated in February 2014 and at that time, Mr Widdicombe was appointed as its sole director - a position he held until 3 April 2018. David Widdicombe is currently the sole director and secretary of this company. He did not give evidence before me.
[38]
CDI acting for Groupline and the Widdicombe interests
[39]
[13] Mr Widdicombe swore two affidavits and was cross examined by senior counsel for Mr Pyman and CDI. Mr Widdicombe has been a commercial builder for over 40 years. He was the sole director and secretary of Civic from 21 January 2003 until 24 June 2021. He is also the sole director and shareholder of Markford who in turn is a shareholder of Groupline and Civic. Mr Widdicombe described his current position as the "Commercial Director" of both Civic and Groupline, although Civic does not have any active projects on its books at the present. Mr Widdicombe was planning to retire after April 2018 but he changed his mind and he continues to remain heavily involved in the day-to-day operation of the business. His day-to-day responsibilities include instructing solicitors if necessary and planning, developing and implementing commercial strategies to support the business development of the Widdicombe interests. The effect of his evidence, which I accept, is that he discusses business with David Widdicombe regularly, they have a good working relationship and that generally speaking, they are on the same page about the operation and direction of the Widdicombe interests.
[14] Mr Widdicombe's evidence was that over the period from 2006 to 2019, he did not instruct any other solicitors apart from Mr Pyman in building and construction matters for Civic and then Groupline. Mr Widdicombe understood that much of the legal work was undertaken by more junior solicitors at CDI, under Mr Pyman's supervision. His evidence was that he contacted Mr Pyman either by telephone, email or in person most days or every second day when there was an active matter. His recollection was that he spoke to Mr Pyman over the years about once a fortnight or, failing that, he communicated via email once a fortnight. The records in evidence do not necessarily support these general recollections and Mr Widdicombe's memory of the regularity of contact does not afford with Mr Pyman's. It is however unnecessary to resolve the minutiae of this factual discrepancy as nothing turns on it, given the concession about Confidential Information. What is clear is that Mr Pyman and Mr Widdicombe enjoyed a close solicitor and client relationship for a considerable period of time and, it is therefore reasonable to infer, that due to their long association, the two men were regularly in contact, at least on an intermittent basis, even if Mr Pyman was not actively running any particular files. Consistent with this finding, it is instructive that the file references for most of Groupline's matters with CDI appear to have been opened with Mr Pyman as the contact person.
[40]
(a) How Mr Widdicombe and companies controlled or managed by him (including Groupline and Civic):
(i) arranged their affairs;
(ii) set parameters in its building contracts including, but not limited to, such things as the amount of work or services to be provided, payment terms, deadlines, guarantees, termination clauses, and other important details that define each party's expectations and responsibilities;
(iii) set their profit margins;
(iv) assessed risk and took steps to limit and allocate risks;
(v) negotiated and settled payment claims;
(vi) was and is motivated;
(vii) approached litigation; and
(b) The tactics and strategies employed by Mr Widdicombe and companies controlled or managed by him (including Groupline and Civic) in litigation with principals, subcontractors and others who were opposed to Widdicombe, Groupline or Civic.
[41]
[22] This admission is made on the basis that Mr Pyman cannot recall any of the Confidential Information. His affidavit evidence is replete with efforts to play down and minimise his engagement with Groupline and attempts to explain why Mr Pyman "can't remember much". But the concession, however qualified, is a crucial one. It remains the case that CDI and Mr Pyman have a continuing obligation to preserve the confidentiality of the Confidential Information. In that sense, the specific hours or percentages of time expended to obtain that information do not really matter.
[23] After an appeal in 2020, Groupline stopped retaining My Pyman and continued to use Mr Tuhtan who was, by this time, at Shand Taylor. Mr Tuhtan acted for Groupline in the negotiations and drafting of the Construction Contract with Chevron. It appears from the front page of that contract, that it was produced and modified by CDI but otherwise on the face of the document, that Chevron were represented by OMB solicitors. Mr Widdicombe's evidence was that he was not otherwise aware of who acted for Chevron in these negotiations as he dealt directly with the director of Chevron, Mr Thoroughgood, or Mr Smith also from Chevron.
[24] Unbeknown to Mr Widdicombe, at that time, Chevron had engaged CDI to provide a generic design and contract that could be made project specific for use in Queensland. In March 2021, Mr Thoroughgood provided the draft contract for the Deessee Project on behalf of a related company of Chevron (World Cup) to David Widdicombe (at Groupline) for his review. This contact featured CDI branding and subsequently on 27 May 2021, Groupline executed a contract with World Cup. It is an agreed fact that Groupline knew that CDI acted as the solicitors for World Cup and Chevron, and that CDI prepared this contract and several other contracts such as the airspace licences for the Deessee Project on 29 October 2021 and 20 January 2022, the Construction Contract and a Deed of Variation between Chevron and Groupline on 13 September 2022.
[25] Mr Widdicombe saw that CDI was marked on all these contracts but was not concerned as he was familiar with the general form of CDI drafted contracts and was happy with their terms. He had a good working relationship with Mr Thoroughgood and he did not view CDI as acting "against" Groupline at this time. But Mr Widdicombe did take issue in October 2020 when he thought that Mr Pyman was acting for the Spyre Group against Groupline in an adjudication matter. This is evidenced by an email exchange where Mr Widdicombe requested confirmation from Mr Pyman about whether he was acting and suggested that he had a conflict of interest. The simple response from Mr Pyman (which put Mr Widdicombe's concern to bed) was "I am not acting".
[42]
[32] The initial thrust of Mr Pyman's evidence was that he was not "hands on" at all with the ongoing disputes between Groupline and Chevron. Rather, another CDI partner Mr Pungsornruk and senior associates Mr Thams and Ms Kipps acted on behalf of Chevron in relation to the first adjudication; and Ms Kipps had the carriage of the Supreme Court Proceeding BS 3920/24 [which has now been transferred to Hopgood Ganim].
[33] Moving forward, CDI (with an Information Barrier in place allowing Ms Kipps and Mr Pungsornruk to run the file) want to act for Chevron in any further adjudication.
[34] Ms Kipps commenced employment with CDI in 2023. She is a solicitor with over 12 years' litigation experience. Her evidence, which I accept, is that she did not know that CDI had previously acted for Civic or Groupline until the letter of 28 February 2024. Her evidence is that she has not viewed any of the earlier files maintained at the firm, nor has she discussed those earlier files with anyone at the firm (including Mr Pyman). I accept this evidence. There is no reason to think, or any evidence, that resort to those files was necessary.
[35] Ms Kipp's evidence was that she was involved in drafting the documents for the first adjudication response for Chevron under Mr Pungsornruk's supervision. Her concerns (as the person across the issues emerging from the Construction Contract) about the consequences of a restraint being granted on any further adjudication application, (as follows) are most instructive (and support my later finding that the adjudication application process is not the rubber stamp type application CDI seeks to portray it as):
[43]
"If CDI can no longer represent Chevron then a team of lawyers would incur significant costs in compiling a response, and even then there is unlikely to be sufficient time to get to know all of the information I have needed to understand and comprehend in order to protest Chevron's interest in drafting the material for an appropriate Adjudication response in the limited time available."
[44]
[36] There was some conflict in the evidence about Mr Pyman's involvement in acting for Chevron against Groupline and in relation to the preparation of the response for the first adjudication. Under cross examination Ms Kipps said that there were more people working on it than just she and Mr Pungsornruk. Others included a couple of junior lawyers and research clerks. Mr Pyman's "only" involvement was described by Ms Kipps as limited to "...we had file meetings around and we discussed where the matter was at". She explained these meeting occurred every Monday and were chaired by Mr Pyman and solicitors would "just go through all of our files" and "we'd just basically just give him an update on - on what - where the response was at and how progressed it was, but there was no real tick-tacking about it; it was just really to understand everyone's capacity". But later she accepted that Mr Pyman was involved in some strategising in these meetings; including, for example, the prospect of an application to vitiate the adjudication award was discussed. She also accepted more generally that she ran correspondence past Mr Pyman - for example, the letter of 19 June 2024 serving the application seeking to have the first adjudication declared void. Ms Kipps also said that whilst Mr Pyman was not involved "...obviously we sought instructions from him." These "instructions" included about correspondence being sent and pleadings being filed.
[37] Ms Kipps emphatically denied that Mr Pyman was involved in the preparation of the adjudication response. So did Mr Pyman. But this evidence is in stark contrast to what CDI said in paragraph 104 of the written adjudication response of 22 April 2024 (about the tactics of Groupline in bringing the application to restrain CDI being yet another tactic to distract Chevron from finalising its response) as follows:
[45]
"In other words, similarly to the futility of the court proceedings commenced on 28 March 2024, the orders sought by Groupline are inconsequential in circumstances where Mr Pyman and CDI will have completed the preparation of Chevron's adjudication response before a decision in respect of the originating application is made by the Court". [underlining added]
[46]
[38] Ms Kipps was initially adamant in her refusal to accept that this written submission was inconsistent with the effect of her earlier evidence that Mr Pyman was not involved in the preparation of the adjudication response. But when she was taken carefully to paragraph [104] and read it properly, she agreed but could not explain "why Mr Pyman's name was put on there because he wasn't involved". Ms Kipps evidence about this submission needs to be seen in the context that she was part of a group of people working on the response (although she was charged with managing or overseeing the many people who were working on it); and she was not the person from CDI who reviewed and signed off on the adjudication response. Consistent with there being many people involved, and by way of example, the evidence of Ms Kipps (which I accept) was that she did not find out about the admission to paragraphs [18] and [19] of the statement of claim until the Saturday morning after it was made.
[39] On this issue, the most reliable evidence is that of the contemporaneous submissions of 22 April 2024, I therefore find that Mr Pyman was more than just peripherally involved in CDI preparing Chevron's response to the first adjudication application.
[47]
[40] The statement of claim alleges that CDI and Mr Pyman owed a duty of loyalty to Groupline and Civic. There is conflicting authority about whether such a duty exits in Australia once a solicitor's retainer ends.[3] But the parties agree it is unnecessary for me to resolve this quandary because it is accepted on the facts that there remains a duty on CDI and Mr Pyman to preserve the Confidential Information.
[41] There are two alternative grounds on which the court might restrain a legal practitioner in the circumstances arising in this proceeding:
[48]
(a) First, if a reasonable person, informed of the relevant facts, might reasonably anticipate a danger of misuse of confidential communications made to Mr Pyman in the context of the lawyer-client relationship between him and the Groupline interests, and there is a real and sensible possibility that the interests of Mr Pyman in advancing Chevron's case, might conflict with his duty to keep the information confidential and refrain from using that information to the Groupline interests' detriment;[4] and
(b) Second, where the proper administration of justice requires the court to prevent Mr Pyman from acting, to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice.[5]
[49]
[42] Relevant to both grounds and as pleaded in the statement of claim [at 21] is r 9 of the Australian Solicitors Conduct Rules which states as follows:
[50]
"9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client's engagement to any person who is not:
[51]
9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor's law practice; or
[52]
9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor's law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client,
[53]
[43] A well-recognised category of fiduciary relationship exists between legal practitioner and client.[7] In Hospital Products, Mason CJ relevantly observed that the fiduciary maintains "a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position".[8] The duty of confidentiality is not an incident of the fiduciary relationship between a lawyer and a client, but rather a contractual or (as in this case) equitable duty owed by the lawyer to preserve the client's confidential information.[9] It is unqualified and survives the termination of the fiduciary relationship.[10]
[44] The context in which information comes to be shared during a lawyer-client relationship carries even broader protections. It is essential to the administration of justice that clients not only trust their lawyer but remain free and unconstrained in the information they share with their lawyer.[11]
[45] The usual basis to restrain a solicitor from acting against a former client is where there is a "real and sensible" possibility of the misuse of confidential information.[12] The test for restraining a legal practitioner based on the possible misuse of confidential information may be dissected, and then applied, in several ways, but is conveniently addressed by the following six short form questions drawn from Timbercorp Finance:[13]
[54]
Q.3 Does the legal practitioner have possession of that information?
[55]
Q.4 Is the legal practitioner proposing to act "against" the former client in the requisite sense?
[56]
Q.5 Is there a real risk that the confidential information will be relevant?
[57]
Q.6 Is there no real risk of misuse of the confidential information?
[58]
[46] These questions are not a replacement for the test but are useful as an analytical framework.
[47] It is therefore incumbent on Groupline to identify the relevant information with specificity Q.1 and to obtain an affirmative answer to the next four questions. If and when that happens, the burden of establishing that there was no real risk of misuse Q.6 is on CDI and Mr Pyman.[14]
[59]
[48] It is convenient to deal with the first four questions at this point.
[60]
Possession of relevant Confidential Information [Q.1] - [Q.3]
[61]
[49] CDI and My Pyman focused on the relevant Confidential Information being what has been described as the "getting to know you" information about Mr Widdicombe's personality, character, honesty, strengths, weaknesses and attitudes to litigation.[15] I do not accept that it is so confined. The Confidential Information which was imparted in the context of a longstanding client-lawyer relationship in this case also extends to specific items of information communicated to Mr Pyman in confidence, easily inferred from the nature and extent of the lawyer-client relationship and grounded in contemporaneous records.
[50] It has also long been recognised that a solicitor who, with the best will in the world, is determined not to make use of a client's confidential information for the benefit of another, may subconsciously do so.[16] This principle is exemplified in the cross-examination of Mr Pyman when he conceded that he had more recently examined, and in the course of doing so, had revived his memory about parts of the Confidential Information. Regardless, by his admission Mr Pyman accepts that he remains relevantly "in possession" of that Confidential Information and that is the case, even if he cannot presently consciously recall all of it.
[51] I am therefore satisfied that CDI and Mr Pyman have possession of the Confidential Information:
[62]
(a) in the mind of Mr Pyman;
(b) in business records kept on a document management system operated by CDI that was, until the undertakings were given, accessible by all employees at CDI; and
[63]
(c) in the mind of Ms Kipps and others, including Mr Pyman's personal assistant, who assisted Mr Pyman to examine the Confidential Lewis Affidavit and CDI's business records.
[64]
[52] There is no real issue, and I am also satisfied from the undertakings proffered by Mr Pyman, Ms Kipps and Mr Pungsornruk that CDI are obviously proposing to act against Groupline in a relevant sense.
[65]
[53] This leaves Q.5 and Q.6 which deal with the issue of risk and are discussed in more detail under Issues one and two below.
[54] The following observations of Lee J in Porter are most useful in considering the issue of risk:[17]
[66]
"It is a duty to keep the information confidential_,_ not to take reasonable steps to do so. The issue of risk of misuse cannot be approached narrowly. To do so would be incongruent with the breadth of the duty, which encompasses "all communications made by the client about his affairs, and information learned directly or indirectly about the client, in the course of the professional relationship": Unioil International Pty Ltd v Deloitte Touche Tohmatsu (a firm)(1997) 17 WAR 98 (at 108 per Ipp J). It is not good enough to adopt some form of "wait and see" approach as to whether confidential material will be disclosed though the ordinary incident of future document or information disclosure procedures."
[67]
[55] The threshold of the risk is extremely low. In Sent v JohnFairfax Publications Pty Ltd,[18] Nettle J (as his Honour then was), found that there was a "real and sensible possibility" of a barrister's recollection being revived of what were said to be long-lost memories of events that occurred 14 years earlier during one conference.
[68]
Issue One: Is there a real risk that the Confidential Information will be relevant to the adjudication process? [Q.5]
[69]
[56] Mr Widdicombe described the Confidential Information as information he would not share with any person he did not trust and certainly not with an opponent. He remained generally concerned that the Confidential Information might assist CDI and Mr Pyman in acting for Chevron against Groupline in respect of any adjudication application and any remaining disputes under the Construction Contract. He was extensively challenged under cross-examination about the basis for this concern and particularly how any such information could be used against Groupline in an adjudication. He was criticised in the written submissions as being vague, general, and unable to point to any real, as opposed to theoretical, way the information could be misused. To the very limited extent that Mr Widdicombe's evidence about this is relevant to any of the issues for my determination, I accept his evidence of being concerned (although vague and general), was genuine, justified and understandable.
[57] The central pillar of Mr Pyman and CDI's case is that an adjudication under the Payments Act is restricted to making an administrative interim decision to value work claimed to be performed in a progress claim and therefore presents no possible opportunity for the misuse of the Confidential Information.
[58] This pillar falls and crumbles with the slightest push.
[59] For a start, an adjudicator must determine the "adjudicated amount" [s 88 of the Payments Act]. To do this, it is necessary for the adjudicator to resolve conflicting questions of fact and law.[19] Facts are material to the adjudication and usually proved by sworn testimony. Possible facts in issue in this case may include the existence and terms of the Construction Contract; whether it was varied and if so how; the scope of works to be carried out; whether directions were given to undertake construction work and, if so, the direction so made; pricing; quality; standards and specifications. Where there are factual controversies, the adjudicator must resolve all differences that are relevant to arrive at the adjudicated amount. The way the adjudicator does so must be procedurally fair.[20] In doing so, an adjudicator may hold conferences with witnesses. Where there are competing facts (and as Mr Pyman conceded) an adjudicator must resolve such conflicts in evidence by preferring one version over the other. This finding is exemplified for example in the adjudication decision of 5 June 2024.
[70]
Issue Two: Are the Undertakings reliable and sufficient?
[71]
[65] It is well established that honest witnesses often make errors about details of events and that "discrepancies and inconsistencies in the witnesses account may make it impossible to accept that persons evidence no matter how honest he or she appears to be."[21]
[66] Mr Pyman swore two affidavits and was cross examined at length by senior counsel for Groupline. Mr Pyman was heavily criticised for not searching his own Law Master files earlier and for the late concession about the Confidential Information. It was submitted on behalf of Groupline that at no time had Mr Pyman genuinely tried to ascertain what the truth was in respect of the core allegations in the case. Mr Pyman's explanation is that he had no independent conscious recollection of the Confidential Information. But, after viewing the confidential documents from the 2,455-page affidavit of Mr Lewis (delivered a week before the trial), the admissions of paragraphs [18] and [19] of the statement of claim were properly made, as this affidavit contained documents from which his recollection of the matters pleaded could be revived. It was also submitted on his behalf that his conduct must be viewed in the context of how fast this proceeding was brought to trial, and that Mr Pyman, a busy practitioner, explained that he doesn't know why certain amendments were not made earlier except to say that he did not turn his mind to it.
[67] I found many of Mr Pyman's explanations about his lack of involvement with any of Chevron's matters and his lack of memory about his dealings with Mr Widdicombe and the Groupline interests (when they were his clients) conflicting, and at times, most unsatisfactory. But I do not accept that Mr Pyman was a dishonest witness. Rather, his evidence and overall approach to the issues is more reflective of a person who has lost objectivity; and displayed a lack of insight and judgment about this matter. His evidence exemplifies the problems and oversights that can arise when solicitors choose to have themselves as a client.
[68] Ms Kipps also swore two affidavits, and she too was cross examined at length by senior counsel for Groupline and criticised for many of her responses under cross examination. I accept that there were a number of occasions where she said she did not "understand" questions fairly put to her. But I am satisfied in the end that she did her best to answer questions to the best of her recollection.
[72]
(a) CDI is not a particularly large firm, and the facts reveal that many solicitors and others have already worked on the Chevron dispute with Groupline, including as I have found, Mr Pyman himself; and
(b) as discussed earlier in these Reasons, there were a number of instances in the evidence before me where there were obvious discrepancies and inconsistencies about who saw and did what (another example is the conflict between the evidence of Mr Pyman and Ms Kipps about who viewed the Confidential Lewis affidavit the Friday before the trial); and
(c) there remains a real risk that given Mr Pyman's involvement in the first adjudication - that there may already have been some unconscious spread of the Confidential Information that will potentially infect the conduct of the further adjudication application.
[73]
[75] I therefore find that (apart from the issue of the further adjudication) the Undertakings are reliable but not sufficient.
[74]
Issue Three: Is there a real and a sensible risk of the misuse of Confidential Information
[75]
[76] The only way to sufficiently reduce this risk is to permanently restrain CDI and Mr Pyman from continuing to act for Chevron in any further adjudication under the Construction Contract. CDI and Mr Pyman suggest a permanent injunction is too wide and as stated earlier, initially sought to categorise the Confidential Information as what is commonly known as "getting to know you" information associated only with Mr Widdicombe. They eventually conceded that the Confidential Information may be imbued in Groupline "at the moment" but maintained that when Mr Widdicombe retires it does not follow that David Widdicombe will make any decisions with that Confidential Information in mind. But as I have determined above, it is more than that.
[77] Mr Widdicombe is now 66 years of age and originally, he was looking at retiring some six years ago but there is no evidence of Mr Widdicombe slowing down in the foreseeable future. CDI submitted Mr Widdicombe's "influence" over David Widdicombe's decisions will wane with time. But there was no evidence that the father and son have any particularly different approach to how Groupline operates or that the relevance of the Confidential Information will dissipate at least in the short term. Regardless, the restraints sought only relate to matters arising from the Construction Contract which even allowing for the final adjudication process and any common law proceedings, have a finite ending and are not an overreach.
[78] Given my findings under Issue Two it follows that there is a real and a sensible risk of the misuse of the Confidential Information in this case. It also follows that CDI and Mr Pyman have not satisfied me that there is no real risk of misuse of the Confidential Information.
[79] The answer to Q.6 is therefore "no".
[76]
Issue Four: Did Groupline delay in seeking injunctive relief?
[77]
The timing of the current application is a relevant consideration. The cost (in this case around $71,000 according to Ms Kipps), inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.[22] CDI and Mr Pyman also call delay in aid of "acquiescence", apparently deployed (in conjunction with Groupline's alleged knowledge) as a form of laches.[23] Acquiescence has been described as the contemporaneous and informed ("knowing") acceptance or standing by which is treated by equity as "assent" (i.e. consent) to what would otherwise be an infringement of rights.[24]
[78]
[81] I am not satisfied that any of the other matters raised by CDI and Mr Pyman justify this court refraining from exercising its power to restrain CDI and Mr Pyman from acting in any further adjudication for the following reasons.
[82] First, there was no reason for Groupline to suspect that CDI would act against it for Chevron in any dispute by reason of the earlier dealings. The Construction Contract and variation deed are not said to have been "negotiated" or the subject of any contested issue. Without more, the fact a copy of an AS4902-2000 contract, or other contract document bore markings - "[CDI] - reproduced and modified with the permission of Standards Australia under Licence ..." is not a clear indication that CDI was acting, as opposed to being the source of the document. None of those documents, including the deeds, were sent by CDI or Mr Pyman; rather, Chevron sent them to Groupline. None are said to have resulted in negotiations which were undertaken by CDI or Mr Pyman. Nor is the "notice of dispute" said to have resulted in any material controversy or negotiation. Rather, Groupline's complaint was resolved on terms favourable to it.
[83] Second_,_ there is no evidence that Chevron was aware of CDI and Mr Pyman's earlier relationship with the Widdicombe interests. Nor is there any evidence that Mr Pyman knew of the communications between Groupline and Chevron, aside from the response CDI sent to the "notice of dispute", which Chevron ultimately resiled from. It follows that any silence or inaction by Groupline is of little weight.
[84] Third, CDI and Mr Pyman knew that Groupline objected to them acting against their interests from an exchange in October 2020 when Mr Widdicombe suspected something in an adjudication involving another developer and Mr Pyman responded simply by stating that "I am not acting". Whatever he intended to convey by that response, Mr Pyman did not contend that he could act against Groupline whenever he wished to, nor did he convey that Groupline had no reason to object. Those are (as Groupline emphasised) the positions he now takes.
[85] Fourth_,_ as Morrison JA recently observed in Aveo Retirement Homes Ltd v Springfield City Group Pty Ltd[2024] QCA 102, once a party is aware that the other side objects to the state of affairs (there being the continuation of an expert determination), that party proceeds at its own peril - the objecting party is not to be penalised for any delay henceforth.
[79]
Alternative ground: court's inherent jurisdiction to grant the restraint
[80]
[87] I am also satisfied on the facts of this case and bearing in mind that such a power should only be used exceptionally,[25] that this is an appropriate case for the exercise of the court's inherent jurisdiction to restrain CDI and Mr Pyman from acting for Chevron in any further adjudications or disputes arising from the Construction Contract. Such an order is obviously necessary, in my view, to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain solicitors from acting in a particular case as part of its supervisory jurisdiction.
[88] Having considered the public interest that a litigant should not be deprived of his or her choice of solicitor without good cause, I am satisfied that a "fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that the solicitor in question [CDI and Mr Pyman] be so restrained."[26]
[81]
[89] The real issue in this case was whether CDI should be retrained from continuing to act in any further adjudication. I have found that there is real and a sensible risk of the misuse of Confidential Information by CDI if that is allowed to happen. The Undertakings this court would have otherwise accepted are infected by this finding (as they are premised on CDI continuing to act for Chevron with an Information Barrier in place). The most efficient and cleanest way to address this issue is for the court to reject the Undertakings (as it does) so that the makers are not bound by them; and that being done, to make the permanent injunctions sought.
[82]
[90] I direct that by 4.00pm 10 September 2024, the parties are to bring in orders consistent with these Reasons that permanent injunctions restraining CDI and Mr Pyman from acting for Chevron in terms of paragraphs 1(b) and (c) and 2(b) and (c) of the originating application are granted, together with any costs order as agreed.
[91] If costs cannot be agreed, I direct that the parties exchange written outlines (of no more than 2 pages), by 4.00pm 30 September 2024, with a copy to be emailed to my Associate at the same time. I will then decide the issue of costs on the papers.
[83]
[1] For ease, Scott Widdicombe will be referred to as Mr Widdicombe.
[3] For example: Nash v Timbercorp Finance Pty Ltd (in liq), in the matter of the bankrupt estate of Nash[2019] FCA 957, at [121]-[122] per Anderson J; Dealer Support Services Pty Ltd v Motor Trades Association Australia Limited[2014] FCA 1065 at [40]- [91] per Beach J; Spincode Pty Ltd v Look Software Pty Ltd[2001] VSCA 248 at [59]- [60] per Brooking JA; see also at [63] per Chernov JA; Flanaganv Pioneer Permanent Building Society Ltd & Anor[2002] QSC 346 at [9] per Dutney J.
[6] None of the exceptions in rule 9.2 apply in this case.
[88]
[7]Hospital Products Ltd v United States Surgical Corporation[1984] HCA 64; (1984) 156 CLR 41 at 96-97 per Mason CJ; Sent v JohnFairfax Publications Pty Ltd[2002] VSC 429 at [33], [105]-[106] per Nettle J; TimbercorpFinance at [63].
[89]
[9]Porterv Dyer & Anor (2022) 402 ALR 659 at 677-678, [104] per Lee J, with whom Besanko and Abraham JJ agreed; Dealer Support Services at [35].
[90]
[10]Porter at [104]; Dealer Support Services at [35].
[13]Porter at 672, [74] per Lee J, with whom Besanko and Abraham JJ agreed.
[94]
[15]Yunghanns v Elflc Ltd (formerly known as Elders Finance & Investment Co Ltd) (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998) at pp 10-11 per Gillard J.
[95]
[16]Carindale Country Club Estate Ply Ltd v Astill[1993] FCA 218; (1993) 42 FCR 307 at p 313 per Drummond J; Sent at [93] per Nettle J_; Farrow Mortgage Services Ply Ltd (in liq_) v Mendall Properties Pty Ltd[1995] VicRp 1; [1995] 1 VR 1 at p 8 per Hayne J.
[26] _Grimwad_e vMeagher[1995] VicRp 28; [1995] 1 VR 446 at 452 per Mandie J; Spincode at [32] - [44], [48] and [60] per Brooking JA; see also Babcock & Brown DIF III Globalv Babcock & Brown International Pty Ltd[2015] VSC 453 at [83] per Riordan J.
Parties
Applicant/Plaintiff:
Groupline Constructions Pty Ltd
Respondent/Defendant:
CDI Lawyers Pty Ltd [2024] QSC 209
Legislation Cited (2)
Solicitors Conduct Rules 2012
Industry Fairness (Security of Payment) Act 2017
Cases Cited (10)
(2004) 61 NSWLR 421
(1993) 42 FCR 307
(1976) 135 CLR 674
(1995) 1 VR 446
(1984) 156 CLR 41
(2005) 64 NSWLR 561
(1994) 181 CLR 487
(2022) 402 ALR 659
(2001) 4 VR 501
(1997) 17 WAR 98
[15] I accept that over the years when Mr Pyman acted for the Widdicombe interests, he and Mr Widdicombe discussed strategic approaches and the best possible outcomes for the case at hand. Mr Widdicombe placed a great deal of trust in Mr Pyman and accepted his advice. That is hardly surprising. Mr Pyman is a well-known, well-educated, and experienced solicitor having over 35 years' experience in the areas of construction, development and infrastructure law. He has written several texts on construction law and has been retained by the Queensland Government to train registered adjudicators and to produce annotated versions of relevant building industry payment legislation.
[16] Between 2006 and 2020, Mr Pyman acted as the solicitor for Civic and Groupline, first while employed at Holding Redlich until December 2014 and later at CDI, after he set it up. At CDI, Mr Pyman opened an average of approximately 200 files a year, and then delegated the work to an appropriate partner or senior associate specialising in the work the file required. Approximately 50 percent of his work was front end, contract drafting. In addition to acting in court proceedings and adjudications, Mr Pyman performed general legal services including drafting and advising on contractual terms and conditions; advising on offers and counteroffers; preparing contractual notices for Civic and Groupline; preparing payment claims for Civic and Groupline; responding to subcontractors' payment claims for Civic and Groupline; drafting and advising on payment schedules to subcontractors; and drafting head contracts and subcontracts.
[17] Over the 14 or so years he acted, Mr Pyman worked on or was the partner responsible for approximately 15 Supreme or District Court proceedings for Civic, 13 adjudications for Civic; and a number of Court of Appeal, Supreme, District, and Magistrate Court matters for Groupline. He also acted for both companies in several adjudication applications under the various iterations for the Payments Act.
[18] From about 2016, Mr Tuhtan had the day-to-day carriage of the Civic and Groupline files. Although Mr Pyman often took the initial instructions and then delegated the matter, he still retained some oversight and supervision by attending meetings to discuss strategy and evidence for impending adjudication applications and court proceedings. Mr Pyman can only recall about two face-to-face meetings with Mr Widdicombe from 2015 to 2020 and the last time they spoke on the telephone appears to have been on 5 December 2019. Although by his pleading [Further Amended Defence at 23(a)], Mr Pyman accepts that he "may" have had some meetings with Mr Widdicombe and or David Widdicombe about the "Groupline Matter" in December 2019, but he has no recollection of these meetings.
[19] Overall, Mr Pyman performed hundreds of hours of legal work for the Widdicombe interests which, as set out in the Annexure to Groupline's Amended Closing Submissions, included: 162.7 hours of work between 2006 and 2010 whilst at Holding Redlich and about 116.0 hours whilst at CDI. Mr Pyman carried out about 6.52 hours of work in total in 2018 and 1.5 hours in total work for Civic in 2020. In cross examination Mr Pyman accepted that between 2015 and 2020, he spent around 100 hours on the Widdicombe interests: 27.1 hours of which related to the regulatory dispute with the Queensland Building and Construction Commission; and a matter wholly unrelated to any adjudication or contract dispute. Of the 25 matters opened, Mr Pyman was only directly involved in 16, and his total billing during that period was 6.66 percent of the total WIP units billed, and 9.27 percent of the total fees billed.
[20] But this mathematical analysis and the focus by Mr Pyman and CDI on apparently how little time Mr Pyman's personally spent undertaking legal work for the Widdicombe interests is a distraction considering the following concession.
[21] Mr Pyman and CDI admit (albeit belatedly) that in instructing Mr Pyman in the court proceedings, adjudications and in the provision of both general and specific legal services, Mr Pyman came to know matters and circumstances that were, and continue to be, the subject of his obligations to preserve the confidentiality of his former clients. That Confidential Information is conceded to include the following matters:
[26] In late March 2023, Groupline and Chevron fell into dispute about the actions of the Superintendent appointed for the Greenwich Project. On 24 March 2023, Mr Widdicombe instructed Shand Taylor to send Chevron a notice of breach. On 30 March 2023, CDI sent a response on behalf of Chevron at which point Mr Widdicombe knew that CDI was acting for Chevron in that dispute. The dispute was resolved in less than three weeks through settlement discussions and the Superintendent was replaced. At first it is difficult to understand why Mr Widdicombe did not say something at the time about CDI's involvement with Chevron. Mr Widdicombe's explanation was that he thought it positive that there had only been one issue between Groupline and Chevron in over 18 months and that the issue had resolved quickly. In that case, he did not expect any further disputes because he remained of the view that the relationship between the parties was a good and workable one. In the overall circumstances, that may be accepted as plausible and understandable.
[27] In October 2023, the rumblings of another dispute started to bubble. Several resolution meetings were held in late November 2023, early February 2024 and 6 March 2024 attended by the Superintendent and representatives from Groupline and Chevron. No lawyers were present, and the issues were not resolved. Around the time of the second meeting, Mr Thoroughgood told Mr Widdicombe that CDI acted for Chevron and had provided advice as to how to defend any adjudication application and would prepare a response to any adjudication on behalf of Chevron.
[28] On 28 February 2024, Groupline's solicitors in the current restraint proceedings wrote to CDI requesting that the firm cease acting for Chevron in the disputes under the Construction Contract and threatened to bring restraint proceedings if they did not do so.
[29] The first adjudication was then lodged by Groupline on 6 March 2024.
[30] On 14 March 2024, Shand Taylor received an email from Ms Kipps (a senior associate at CDI) attaching a letter from CDI (copying in Mr Pyman) advising that they acted for Chevron as the respondent to that adjudication application.
[31] On 28 March 2024, Groupline commenced Supreme Court proceedings 3920/24 against Chevron and the Superintendent claiming $3,313,814.36 in damages for breach of the Construction Contract.
[60] CDI and Mr Pyman also submitted that, regardless, the risk of the Confidential Information being relevant to the adjudication is only a theoretical given that Mr Pyman has no conscious recollection of the confidential information - and given how many files he has opened over the years - he can't be expected to remember it all. But it is no answer that Mr Pyman may have forgotten (some) things (at this point).
[61] When assessing the "risk" of misuse, the nature of the confidential information is also relevant. Here the array of Confidential Information concerns the business, personal and litigation characteristics of the Widdicombe interests gathered over more than a decade and in respect to a whole gamut of building and construction matters: from front-end negotiation and drafting, to superior court proceedings, regulatory and licensing issue and general "advice". It also includes collateral information which is also confidential, in the form of impressions and judgments which CDI and Mr Pyman can make about the people in, and business undertaken by, the Widdicombe interests that is not available to any solicitor who has not acquired the Confidential Information.
[62] I am satisfied that the nature of the Confidential Information is such that the court cannot exclude the real risk that the Confidential Information, either consciously or subconsciously, may inform the actions which CDI and Mr Pyman take in performance of their retainer with Chevron to act in any further adjudication. For example: strategies to be engaged or positions to be advanced in preparation for any adjudication, whether to engage in and if so the conduct of any settlement negotiations before or during the adjudication process and the preparation of submissions and evidence to challenge the payment claim, the subject of the adjudication.
[63] Groupline submitted that a Jones v Dunkel inference ought to be drawn on the basis that Mr Pungsornruk was not called to give evidence on this issue - an issue central to the resolution of this case. But given my ultimate findings, it is unnecessary for me to decide whether such an inference ought to be drawn.
[64] The answer to the five questions posed in paragraph [45] of these Reasons are all "yes". It follows that the onus rests on CDI and Mr Pyman to satisfy me that there is no real and sensible risk of the misuse of the Confidential Information. Much of this issue is dependent upon whether I am satisfied that the Undertakings tendered are reliable and sufficient.
[69] Having viewed Ms Kipps demeanour in the witness box, I did not get the impression that she was being deliberately evasive or that she is a dishonest witness; rather that her responses were borne more of nerves; the fact she was one of many hands working on Chevron's various disputes with Groupline (and this application for restraint); and the overall hustle and bustle of cross examination by Senior Counsel (including some very lengthy questions) which was fast moving, robust but certainly fair.
[70] As set out in paragraph [63] of these Reasons, Groupline also criticised the fact that CDI sought to rely on the undertaking of Mr Pungsornruk (the apparent "guru of adjudication") but did not call him, without explanation, with Groupline unable to test his undertaking. But this submission overlooks that his undertaking was tendered without objection.
[71] The fact that I have not accepted all the evidence of Mr Pyman and Ms Kipps does not mean that I consider the undertakings offered in this proceeding are worthless or unreliable. I am satisfied that CDI and Mr Pyman acted sensibly and correctly in offering Undertakings which effectively confined the issues. I am also satisfied that Mr Pyman, Ms Kipps and Mr Pungsornruk are experienced solicitors and officers of the court and can be relied upon to adhere to the Undertakings they offered.
[72] But I am not satisfied that it is appropriate for CDI to continue to act for Chevron in any matters arising from the Construction Contract. Nor am I satisfied as CDI and Mr Pyman submitted and proposed by the Undertakings, that the Information Barrier will sufficiently reduce the risk of the misuse of the Confidential Information in CDI acting in any further adjudication.
[73] The main problem with this proposal is an obvious one, in my respectful view. That is, and as the evidence emerged, whilst I am satisfied that Mr Pyman believes he knows what he does not know, it is more likely that he does not know what he knows.
[74] Overall, I am not satisfied that the proposed Information Barrier could effectively be implemented or that it would work to sufficiently reduce the risk because:
[86] Fifth, no inaction on the part of Groupline before March 2024 is said to have occasioned any relevant prejudice. There was no relevant delay after March 2024.