• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Cases Cited: Dealer Support Services Pty Limited v Motor Trades Association of Australia Limited (2014) 228 FCR 252
In the Matter of Edgecliff Car Rentals Pty Limited (Deregistered) [2017] NSWSC 244
Kallinicos v Hunt (2005) 64 NSWLR 561
Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475
Porter v Dyer (2022) 402 ALR 659
Re Timbercorp Finance Ltd (in liq) and Others (2019) 137 ACSR 189
Sacca v El Saafin [2021] FCA 383
Sent v John Fairfax Publications Pty Limited [2002] VSC 429

Texts Cited: n/a

Category: Consequential orders

Parties: Mohammad Alamin (Plaintiff)
Hamidul Islam (Defendant)

Representation: Counsel:
M R Elliott SC (Defendant)
No other appearances
Solicitors:
T Hall/D Accoto (Plaintiff)
McCabes (Defendant)

File Number(s): 2023/152391

Publication restriction: n/a

Judgment (amended from transcript)

1. HIS HONOUR: By Notice of Motion filed on 6 February 2025, the Plaintiff seeks an order restraining the Defendants from continuing to instruct the firm of solicitors known as McCabes of Sydney, or any legal practitioner that has been retained by that firm to act, or to appear, or to advise in these proceedings. The focus of the application concerns Mr Dewan, who has conducted these proceedings for the Defendants. However, the application extends to all of the Defendants’ legal representatives, including counsel.

2. The relevant background can be summarised briefly.

3. The Plaintiff, Mr Alamin, and Mr Dewan came to know each other in 2008. They became friends. They share a cultural and religious background.

4. Mr Alamin introduced Mr Dewan to the First Defendant, Mr Islam, in 2015. At the time, Mr Alamin and Mr Islam were business associates. They conducted business activities through companies in what has been called the MH Affordable Group. The business activities concerned the development of broad acre suburban property estates in Western Sydney.

5. As an employed solicitor, Mr Dewan acted as solicitor in various matters for companies in the MH Affordable Group prior to 2021. Mr Dewan was never the solicitor for Mr Alamin personally. He acted for various companies in circumstances where both Mr Alamin and Mr Islam were directors. He took instructions from them, although not always from them both at the same time.

6. The relationship between Mr Alamin and Mr Islam broke down in about the middle of 2021.

7. In 2021, Mr Islam sued Mr Alamin, alleging that Mr Alamin had made a secret profit and misapplied funds. Those proceedings were settled during the course of the hearing. By deed dated 22 November 2022, Mr Alamin promised to pay Mr Islam $3.25 million, by way of tranches. I will refer to those proceedings as the 2021 proceedings.

8. McCabes acted for Mr Islam in the 2021 proceedings. Mr Dewan was the solicitor. Mr Elliott was Senior Counsel.

9. Mr Alamin did not make any payments under the 22 November 2022 deed. He commenced fresh proceedings in May 2023, which are the proceedings before me, seeking orders that the settlement deed be rectified, or a declaration that it is void by reason of mistake. All of the steps required for hearing have been taken, and the matter is ready to take a hearing date. I am told that a trial may take around four days. I will refer to these proceedings as the 2023 proceedings. Once again, McCabes and Mr Dewan have, to date, acted for Mr Islam in those proceedings, as has Mr Elliott.

10. There has been obvious delay in making this application. Mr Alamin sought to explain that delay. After the 2021 proceedings were commenced, there was correspondence in August and September 2021 between Mr Alamin’s then solicitors, Origin Lawyers, and McCabes, about whether McCabes and Mr Dewan should be acting for Mr Islam. McCabes consistently took the position that it possessed no relevant confidential information and that there was no impropriety in the firm, or Mr Dewan, acting for Mr Islam.

11. By early 2022, the law firm, Mills Oakley, had taken carriage of the 2021 proceedings for Mr Alamin. There is evidence that Mr Alamin raised the “conflict issue” with Mills Oakley and that Mills Oakley advised Mr Alamin not to pursue the issue. The issue was not pursued at that time.

12. Mr Alamin gave evidence that he instructed Professor Accoto in December 2024, and that Professor Accoto advised him that he could bring this application against McCabes and counsel. That advice, it would seem, led to this application being made in February 2025.

13. Thus, the explanation for the delay that is advanced is that Mr Alamin has always been of the view that Mr Dewan should not be acting for Mr Islam against Mr Alamin, and while the matter was canvassed with former solicitors, it was only after Professor Accoto was retained in December 2024 that he was advised that he could bring this application.

14. It was contended for Mr Alamin that in the absence of evidence of prejudice, the Court cannot conclude that there would be any prejudice to Mr Islam if his lawyers were restrained. It was submitted that given the case is ready for trial, this is a good time for new representatives to take over the case, and that Mr Islam may even benefit from having fresh eyes on the case. It was also submitted that I should take into account that McCabes should have known all along that it is improper for them to act for Mr Islam.

15. The principal basis advanced to support the application is the real and sensible possibility of the misuse of confidential information. Mr Alamin relied on statements of principle set out in Sent v John Fairfax Publications Pty Limited [2002] VSC 429 per Nettle J at [66] and Dealer Support Services Pty Limited v Motor Trades Association of Australia Limited (2014) 228 FCR 252 at [34]-[35]. He submitted that in Porter v Dyer (2022) 402 ALR 659, Lee J accepted that the test for restraining a legal practitioner on the basis of the possible misuse of confidential information may be dissected in various ways, including by reference to the following set of questions identified by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 at [38]:

(a) An injunction may be granted if there is a real and sensible possibility of the misuse of confidential information by a legal practitioner (Farrow Mortgage Services Pty Ltd (In liq) v Mendall Properties Pty Ltd [1995] 1 VR 1 at 5 per Hayne J).

(b) The moving party must identify with precision both the confidential information which is in the possession of the legal practitioner and the reason why that information is or may be relevant to the issues in dispute (Smirke on behalf of the Jurruru People v Western Australia [2017] FCA 825 at [13] per Barker J).

(c) It is not necessary to demonstrate some particular quality of confidentiality in relation to the material – any information received by a legal practitioner in relation to a client’s affairs is prima facie confidential (Re Nash v Timbercorp Finance Ltd (In liq) [2019] FCA 957; 137 ACSR 189 at [73]-[77] per Anderson J).

16. I note that the summary of principles set out by Griffiths J included the following additional matters at [38]:

(d) A structured approach to the issue whether a legal practitioner should be restrained on the basis of the possible misuse of confidential information is as follows:

(i) What is the relevant information?

(ii) Is that information confidential?

(iii) Does the legal practitioner have possession of that information?

(iv) Is the legal practitioner proposing to act “against” the former client or a person as good as a client in the requisite sense?

(v) Is there a real risk that the confidential information will be relevant?

(vi) Is there no real risk of misuse of the confidential information? (Timbercorp at [64] per Anderson J).

(e) The party moving for an injunction bears the onus of identifying the relevant information with sufficient particularity (question (i) immediately above), as well as demonstrating that the Court should answer the balance of questions (ii) to (v) described immediately above in its favour. However, once these matters are sufficiently demonstrated, the evidential onus shifts to the respondent to address the last question (Timbercorp at [65] per Anderson J).

(f) Most significantly, it is common ground that each case necessarily turns on its own particular facts and circumstances as is illustrated, for example, by cases such as Smirke and Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) [2019] FCA 2115 at [25] ff per Reeves J).

17. Mr Alamin relied on what have been called the “getting to know you” factors. He relied on the following passage from Sent at [67]:

In some cases, the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information. In this regard, the relationship between solicitor and client may be such the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the getting to know you factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client.

18. Mr Alamin also relied on a passage from the decision of Anderson J in Re Timbercorp Finance Ltd (in liq) and Others (2019) 137 ACSR 189 at [79], applying the principles in Sent:

Information in the nature of the “getting to know you factors” requires a particular approach to the analysis of confidentiality in a document. Although the confidentiality of this information can be established through direct evidence to that effect from the client and the legal practitioners, it may also be inferred from the nature and extent of work undertaken by the legal practitioner for the client: Sent at [69]–[70].

19. Mr Alamin further relied on the decision of Stevenson J in In the Matter of Edgecliff Car Rentals Pty Limited (Deregistered) [2017] NSWSC 244. In that case, Stevenson J observed that a powerful factor favouring restraint of the former solicitors was the solicitor’s knowledge of the former client’s “litigious character and tendencies”.

20. I understand that Mr Alamin also relies on the inherent jurisdiction of the Court to restrain legal practitioners from acting in a particular case as an incident of the inherent jurisdiction over its officers and to control its processes in aid of the administration of justice. In Kallinicos v Hunt (2005) 64 NSWLR 561, Brereton J set out the following relevant principles at [76]:

…

The test to be applied in this inherent jurisdiction is whether a fairminded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications Ltd).

The jurisdiction is to be regarded as exceptional and is to be exercised with caution (Black v Taylor; Grimwade v Meagher; Bowen v Stott).

Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause (Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott).

The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief (Black v Taylor; Bowen v Stott).

21. On the issue of delay in making an application to restrain a solicitor, in Sacca v El Saafin [2021] FCA 383, Anastassiou J observed at [34]:

The authorities emphasise that the timeliness of the application to restrain a solicitor, and any delay in that process, is a significant matter which tends against an order restraining the solicitor from continuing to act: Colonial Portfolio Services Ltd v Nissen [2000] NSWSC 1047; 35 ACSR 673 at [174] (Rolfe J); Re IPM Group at [63]-[66] (Black J); Turner v Turner [2018] NSWSC 1140 at [91] (Sackar J). Indeed, it has been observed that “this is an area in which a litigant should act promptly” (H Stanke & Sons Pty Ltd v Von Stanke [2006] SASC 308; 95 SASR 425 at [81] (White J)) and that a party “must take the point at the earliest opportunity” (Frigger v Kitay (No 10) [2016] WASC 63 at [31] (Le Miere J).

22. In this case, I do not conclude that there is a proper basis for the Court to restrain McCabes or counsel.

23. As to the alleged confidential information, it does not seem to me that Mr Alamin has established a sufficient basis to restrain McCabes or counsel. It may be that Mr Dewan learned things about Mr Alamin’s personality, character, honesty, strengths, weaknesses and attitudes to litigation while acting for companies in the MH Affordable Group. However, those matters have been put at a high level of generality. Moreover, it was information of the corporate clients; it was not confidential as between Mr Alamin and Mr Islam. Mr Alamin has not been able to point to any kind of information of any ongoing currency that was conveyed to Mr Dewan that was confidential as against Mr Islam or which could be misused by Mr Dewan. Mr Islam and Mr Dewan had detailed information about Mr Alamin’s character quite apart from any professional legal relationship between Mr Dewan and Mr Alamin as a director of companies in the MH Affordable Group. I am not satisfied that there are any relevant confidential “getting to know you” factors.

24. As to the inherent jurisdiction of the Court to ensure the due administration of justice and to protect the integrity of the judicial process, I do not think that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that McCabes or counsel should be restrained in this case. The fact that Mr Dewan and Mr Alamin were once friends would not lead to that conclusion. They have not been friends for some years now, and there is no general prohibition against a solicitor acting for a client who is in litigation against a person who is a former friend of the solicitor.

25. In this case, the delay in bringing the application is also fatal. I would decline in the exercise of discretion to grant relief.

26. The issue of Mr Dewan acting for Mr Islam in proceedings against Mr Alamin was raised in correspondence in 2021 in connection with the 2021 proceedings. But no steps were taken to restrain Mr Dewan, and those proceedings continued until the hearing of the case and the settlement of the proceedings during the trial. The 2023 proceedings have been running for some 20 months, and now, just when the parties are ready to take a date for trial, this application has been made.

27. I do not consider that it is a reasonable explanation that Mr Alamin has always believed that Mr Dewan should not be acting against him, but the first time a lawyer told him he could or should bring an application was when he retained Professor Accoto in December 2024. That does not justify the delay. Mr Alamin is bound by the legal strategies that have been pursued by him and his lawyers, whether or not he thought they were appropriate at the time. If he wished to take steps to prevent Mr Dewan from acting for Mr Islam, he should have done so in 2021. It is now far too late to do so.

28. While it is true that there is no evidence of prejudice to Mr Islam, it is obvious that he would suffer prejudice if he was compelled to retain fresh solicitors and counsel at this stage. Evidence is not required to establish that form of prejudice. A litigant deprived of his or her chosen legal representatives is prejudiced. I do not think that the prejudice is eased in any relevant way because the matter has been prepared for hearing. There would be prejudice to any litigant who was compelled to secure fresh legal representation after a matter has been prepared to the point that the parties are ready to take a date for the hearing.

29. The order of the Court is that the Notice of Motion filed 6 February 2025 is dismissed with costs.

**********