Lincoln v Holmesglen Institute of TAFE

EX TEMPORE REASONS FOR JUDGMENT (No 1) HIS HONOUR: 1 In this matter, the applicant, Mr Lincoln has filed an application against Holmesglen Institute of TAFE ("the Institute") seeking an order for the enforcement of an interim determination made by the President of the Human Rights and Equal Opportunity Commission ("the Commission"), Alice Tay, on 9 December 1998 in relation to the results of his studies at the Institute. The determination is in the following terms: "PENDING THE RESOLUTION OF THIS COMPLAINT, THE RESPONDENT, HOLMESGLEN INSTITUTE OF TAFE, IS TO REFRAIN FROM RECORDING A FAIL MARK AGAINST THOSE SUBJECTS FOR WHICH THE APPLICANT WAS ENROLLED IN THE SECOND SEMESTER OF 1998". 2 The applicant alleges that the determination was not observed by the Institute. For present purposes, I do not need to go into the details of the matter which gave rise to the applicant's application to the Commission. The issue presently before me arises because the respondent has appeared in this proceeding and is represented by the firm of solicitors, Mallesons Stephen Jaques ("Mallesons"). 3 By notice of motion filed on 4 May 1999 foreshadowed at a directions hearing on 10 March 1999, the applicant seeks an interim order preventing Mallesons acting for the respondent until the application is heard and before the matter proceeds further. 4 The applicant puts the application for that relief against the solicitors on the basis that they have a conflict of interest. An affidavit has been filed by Fiona Elizabeth Blackmore who is a solicitor employed by Mallesons who says that she opened the file in this matter on 20 January 1999. She arranged for searches to be made from the Mallesons conflicts database and caused other searches to be made under a number of names relating to the applicant. Ms Blackmore said that according to the searches, Mallesons have not previously acted for the applicant. 5 The applicant said, in substance, in an affidavit affirmed by him on 4 May 1999 that Mallesons had acted in relation to a matter that was heard in New South Wales in the Industrial Commission of New South Wales in or about November 1982 when proceedings were brought by Valerie Parish against himself and other persons for an order under s 88F of the Industrial Arbitration Act 1940 (NSW), seeking to declare a particular contract void. The only documentary evidence I have in relation to that matter is a copy of one page of transcript before Judge Macken on 18 November 1982 which the applicant received from the Industrial Relations Commission of New South Wales. 6 According to that document a firm of solicitors, Tress Cocks and Maddox were acting for the applicant in that proceeding and a firm of solicitors, F G Packer & Co were acting for Mr Lincoln and the other persons with whom he was associated at the time. Mr Lincoln also informed me from the bar table - because he is appearing for himself at this stage - that there was another member of Mallesons, a Mr Gooch, to whom he spoke in 1990 or 1991 about the transcript of the 1982 proceeding. As I understand the evidence and as I understand what Mr Lincoln has informed the Court, Mallesons only acted for him in relation to that 1982 matter. He alleges, again from the bar table, that Mallesons have been aware of other activities of his, and as I understand him, have obtained - although this is not verified - material about him. But it is not suggested that that knowledge or material was obtained as a result of the solicitor-client relationship. 7 The 1982 proceeding to which I have already referred, occurred approximately sixteen and a half years ago. Although it does not appear from the copy of the transcript produced that Mallesons were appearing, Mr Lincoln said that Mallesons were retained to advise or to act on appeal in relation to that matter. What is clear from such information as I have about the 1982 matter is that it has nothing to do with the issues in any shape or form which are before the Court in the substantive application presently before the Court. The issue before the Court on this occasion is, speaking generally and somewhat loosely, the conduct of the Institute not the conduct of the applicant. 8 The applicant is alleging that the Institute has not obeyed or abided by a determination of the Commission and he seeks an order for its enforcement in this Court. It is therefore the activities of the Institute that I must investigate, not the activities, the conduct or the probity of the applicant. 9 The Court always reserves to itself the right to determine whether, in an appropriate case, parties should appear and be represented by legal advisers and practitioners who are entitled to appear before the Court. There have been occasions where the Court has had to consider whether or not injunctions should be granted preventing certain practitioners appearing for certain parties because of conflicts of interest which have arisen which impinge upon the due administration of justice and the integrity of the judicial process. 10 As a matter of general principle, the authorities establish that the Court has the inherent jurisdiction to ensure that the due administration of justice occurs and to protect the integrity of the judicial process and that as a part of that inherent jurisdiction it is entitled in an appropriate case to prevent practitioners appearing for a particular party in order that justice should not only be done but should be seen to be done: see Grimwade v Meagher [1995] 1 VR 446. In that case, the test applied by Mandie J was an objective test and was expressed in these terms (452): "whether a fair‑minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause." 11 In the earlier decision of the Western Australian Supreme Court, Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357, the court accepted and adopted the principle (at 362‑363) that: " … if, by a solicitor acting for a new client, there is a real and sensible possibility that his interest in advancing the case of the new client might conflict with his duty to keep information given to him by the former client confidential, or to refrain from using that information to the detriment of the former client, then an injunction will lie." 12 More recently, a Full Court of the Federal Court, (Hill, Branson and Sundberg JJ) in Western Australia v Ward (1997) 76 FCR 492, made these observations at page 498: "Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information and a real risk of lack of objectivity and of conflict of interest and duty: Grimwade v Meagher. The present case is only another example of situations in which the 'integrity of the judicial process', the 'interests of justice', and 'the need to preserve confidence in the judicial system', to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is an 'important value': Black v Taylor [[1993] 3 NZLR 403] at 408." 13 In the circumstances before me, I am not satisfied that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that Mallesons be prevented from acting for the Institute in this proceeding. I am not satisfied on the material that there is a real or sensible possibility that Mallesons' interest in advancing the case of the Institute might conflict with any duty that firm may have to keep information given to them by the applicant confidential and to refrain from using that information to the detriment of the applicant. 14 I am assuming for present purposes that Mallesons acted in relation to the 1982 matter. I make that assumption because the documentary evidence shows that F G Packer & Co were acting for the applicant. But for the purpose of the submissions I am prepared to assume that Mallesons in Sydney acted in relation either to an appeal or the possibility of appeal in relation to that subject matter. Having regard to the nature of those proceedings and having regard to the nature of the proceedings before me, it seems to me that on the face of the material there is no conflict of interest nor any circumstances that should preclude Mallesons from acting for the Institute in this proceeding. 15 The proceeding is concerned with the conduct of the Institute, not the conduct of the applicant. The 1982 proceedings were quite different proceedings from the proceeding before me and there is no evidence before me from which I can be satisfied that there is a real and sensible possibility of any conflict of interest of the type referred to in the authorities to which I have referred. I also take into account the evidence given by Ms Blackmore as to what her searches disclosed. 16 I therefore refuse the application for interim relief restraining Mallesons from acting for the Institute.