Oceanic v HIH [1999] NSWSC 292 | Case summary

JUDGMENT Introduction 1 This case raises some important questions about solicitors' conflicts of interest. The Plaintiff ('Oceanic') seeks relief of various kinds in order to prevent the First Defendant ('HIH') from continuing to retain the Second Defendants ('McCabes' - a Sydney firm of solicitors) and the Third Defendants (Gunson Pickard & Hann - 'Gunson' - a Hobart firm of solicitors) in certain proceedings in the Supreme Court of Tasmania. The Plaintiff also seeks to prevent the Defendants from using documents allegedly obtained in breach of duty. The IRPS and HIH proceedings 2 HIH was the professional indemnity insurer of a company called Investment & Retirement Planning Services Pty Ltd ('IRPS'). IRPS was an insurance agent of Oceanic. In about 1991 a dispute arose between Oceanic and IRPS concerning the payment of commission. Oceanic claims that IRPS misrepresented the character of insurance premiums which it procured, falsely claiming that they were referable to new business rather than renewals in order to obtain commission for itself. Oceanic commenced proceedings against IRPS in the Supreme Court of Tasmania in May 1993 ('IRPS proceedings'). Since by that time IRPS was in liquidation, it was necessary for Oceanic to seek leave to institute the proceedings under s 500(2) of the Corporations Law. Zeeman J delivered a judgment on that application on 27 August 1993. His Honour granted leave to Oceanic to commence proceedings, upon its undertaking not to enforce any judgment it may obtain without the leave of the Court. 3 Initially Griffits and Jackson, Hobart solicitors, appeared for IRPS in the IRPS proceedings, as agent for Phillips Fox in Sydney, filing a defence on 3 May 1994. The evidence indicates that although nominally the defendant was IRPS, the defence was funded by HIH. 4 On 28 February 1992 IRPS (in liquidation) gave notice to HIH under the professional indemnity policy regarding Oceanic's claim for overpaid commission. HIH's solicitor, Phillips Fox, advised that HIH was not obliged to meet the claim under the policy. And so a second dispute arose, this time between the insurer and the insured as to whether the professional indemnity policy responded to the insured's claim. However, events took an unusual turn on 30 April 1993, when a deed was entered into between the liquidator, on behalf of IRPS, and Oceanic. By the deed, supplemented by a further deed dated 27 July 1993, IRPS assigned to Oceanic its interest in the chose in action comprising its right of recovery against HIH under the policy with respect to Oceanic's claim against IRPS. Notice of the assignment was duly given to HIH. 5 Although there is a dispute between Oceanic and HIH as to the validity of the assignment, that question was not contested before me. On their face the two deeds appear to constitute a valid written assignment of the chose in action comprising the policy claim, perfected by notice under the statutory provisions for such an assignment (Conveyancing Act 1919 (NSW), S 12; Conveyancing and Law of Property Act 1884 (Tas), s 86). I propose to assume that the assignment is valid for the purposes of the present proceedings, without deciding the point. 6 On 10 June 1993 Phillips Fox wrote to the liquidator of IRPS indicating their view that the claim was not covered by the policy and that the assignment was invalid. They also sought his consent to take over the conduct of the defence in the IRPS proceedings, without admissions, and sought copies of all relevant documents. They asked him to acknowledge that they were at liberty to inform HIH of all matters of which they may become aware, recognising that these matters would be available to be used by HIH in assessing the policy claim. Phillips Fox wrote a follow-up letter in similar terms on 22 June 1993. 7 By letter of the same day Butler McIntyre and Butler, a Hobart law firm, wrote to Phillips Fox on behalf of IRPS (in liquidation) confirming consent to HIH taking over and conducting the defence in the IRPS proceedings 'on the conditions set out in your letter dated 10th June'. I find that Butler McIntyre's letter constitutes or implies the acknowledgment sought by Phillips Fox, that they were at liberty to pass on information to HIH. 8 On 24 May 1994 Oceanic instituted proceedings against HIH in the Supreme Court of Tasmania for recovery under the policy ('HIH proceedings'), suing as assignee of the insured, IRPS. Griffits and Jackson appeared for HIH in those proceedings, acting as agents for Phillips Fox in Sydney. They filed a defence on 22 June 1994. 9 By mid 1994, therefore, there were two sets of proceedings in train in the Supreme Court of Tasmania - the IRPS proceedings, in which an external party (Oceanic) sought recovery from the insured (IRPS), and the HIH proceedings which asserted the insured's claim against the insurer under a policy which was alleged to cover the external party's claim. As the external party had acquired the insured's claim under the policy, the external party (Oceanic) was the plaintiff in both suits. Griffits and Jackson were the Tasmanian solicitors for the defendant in each case (that is, IRPS and HIH respectively), acting as Tasmanian agent for Phillips Fox in Sydney. Applications for the proceedings to be heard together, and consolidated 10 Not surprisingly, Oceanic applied to the Supreme Court of Tasmania seeking orders that the two proceedings be heard at the same time. On 13 June 1995 Zeeman J ordered that the two proceedings be heard together. 11 The move to hear the proceedings together seems to have been the catalyst for the events which have led to the present application. On 12 May 1995, shortly before the hearing date for the application to hear the two proceedings together, Oceanic's Sydney solicitors, Clayton Utz, were contacted by a partner of McCabes, who said that he had just received instructions for his firm to act for IRPS 'because of a conflict'. He said that Gunson would be acting for IRPS in Tasmania. A Notice of Change of Solicitor from Griffits and Jackson to Gunson was subsequently filed in the IRPS proceedings. At that stage HIH continued to be represented by Phillips Fox in Sydney and Griffits and Jackson in Hobart. 12 Although Zeeman J had ordered that the two proceedings be heard together, the cases remained separately constituted, each with a different defendant. However, it was obvious that the substantial contest was between Oceanic and HIH. It would have been natural for HIH to explore whether, in those circumstances, it was necessary to continue separate legal representation for each defendant, given that all of the defence costs were to be funded by HIH. It appears that HIH did so. On about 25 November 1996 McCabes contacted Clayton Utz to ask whether the plaintiff would consent to the proceedings being consolidated, IRPS thereafter being unrepresented. By letter of 25 November 1996 Clayton Utz responded, indicating that if the proceedings were consolidated, their client would not object to IRPS no longer being represented, but would object to HIH taking over the conduct of the proceedings on behalf of IRPS. The reason given was that there would be a conflict of interest if the same solicitors acted for both HIH and IRPS, since they would be arguing on behalf of IRPS that it was not guilty of misleading and deceptive conduct, while defending the claim against HIH on the ground that the claim was not covered by the policy because (inter alia) IRPS was guilty of fraudulent non-disclosure. 13 On 28 November 1996 McCabes informed Clayton Utz that they had taken over the conduct of the HIH proceedings on behalf of HIH and that they would cease acting for IRPS. A Notice of Change of Solicitor from Griffits and Jackson to Gunson was filed in the HIH proceedings on 9 December 1996. An application for consolidation of the two proceedings was filed on 11 December 1996 and on 10 December 1996 Zeeman J ordered that the two proceedings be consolidated. Subsequently a consolidated statement of claim was filed and a defence was filed on behalf of HIH. Default judgment was entered against IRPS on 29 October 1997. Damages against IRPS have not yet been assessed. 14 The liquidator of IRPS wrote to McCabes on 13 July 1998 stating that he had no objection to McCabes acting for HIH in the consolidated proceedings and that he did not oppose McCabes seeking access to any documents of IRPS which they may find of assistance. The issues in the consolidated proceedings 15 Oceanic's further amended statement of claim in the consolidated proceedings alleges that the IRPS engaged in misleading and deceptive conduct by misrepresenting the nature of payments made by two superannuation funds, in order to secure a higher rate of commission. Oceanic also alleges that IRPS owed Oceanic a duty of care which it failed to discharge during the preparation of proposal forms and its analysis of payments by the superannuation funds in order to identify commissionable new money. The statement of claim alleges that HIH has wrongfully refused to indemnify IRPS under the policy, and that the right of recovery against HIH under the policy has been validly assigned by IRPS (in liquidation) to Oceanic. Oceanic claims damages and interest against IRPS and orders that HIH is liable to indemnify IRPS under the policy or is liable to pay damages to IRPS for breach of the policy. 16 In its defence HIH does not admit the allegations of misleading conduct and negligence against IRPS. It denies that it was liable to indemnify IRPS in respect of Oceanic's claim. It says that the assignment of the right of recovery contravened IRPS's duty of good faith under the policy. It alleges contributory negligence by Oceanic on a number of grounds, including alleged failure by Oceanic to establish a proper system to identify the nature of the payments made by the superannuation fund. Further, HIH's defence asserts that for various reasons the policy does not cover the claim. It says that to the extent that the claim is based on misleading conduct which is deliberate and fraudulent, some specific policy exclusions apply. Additionally, it alleges that IRPS breached its duty of disclosure by failing to inform HIH that it was insolvent, and by failing to disclose that it was engaging in deliberately fraudulent and misleading conduct. It is alleged that IRPS's conduct, if proved, would not constitute a breach of professional duty within the terms of the policy. Finally, the defence alleges that IRPS has breached the policy by admitting liability for the claim. The plaintiff's claims to privilege and as to conflicts of interest 17 The defendant provided particulars of its defence on 11 February 1998. The particulars specified that IRPS's admissions in breach of the policy were made in four letters written in October 1991. It appears that copies of those letters had come into the possession of HIH, though the evidence does not indicate whether they were supplied by IRPS, McCabes or Gunson, or someone else. The letters were also listed in the plaintiff's consolidated list of discovered documents, where three of them were designated as privileged documents. Paragraph 2 of the verified consolidated list states: 'The Plaintiff objects to producing the documents enumerated in Part II of the First Schedule hereto [which refers to the original of one of the three documents and copies of the other two] on the ground that they are privileged documents or communications in that they consist of: (a) correspondence between solicitor and client or of documents that were brought into existence for the sole purpose of submission to legal advisers for advice or use in legal proceedings either contemplated or already commenced. (b) records of 'without prejudice' discussions between the solicitors for the parties.' 18 By a letter of 30 March 1998 Gunson indicated that HIH had instructed them to make an application for production of the three documents for which privilege was claimed. Subsequently the solicitors for Oceanic and HIH corresponded on the question of privilege and on the question whether the Sydney and Hobart solicitors for HIH were excluded from acting because of a conflict of interest. It emerged from the letter of Clayton Utz to McCabes dated 10 June 1998 that the claim to privilege was confined to three of the four documents, namely IRPS's letters to Oceanic of 21 and 28 October 1991 and a letter by Andrew Cox to John Fitzgerald of 28 October 1991, and that the basis of the claim is that those letters are 'without prejudice' documents passing between Oceanic and IRPS in the course of genuine negotiations to settle the dispute between them. 19 The solicitors' correspondence shows that there are disputes as to whether • the three specified documents are privileged under the 'without prejudice' rule; • other documents in the hands of HIH or its solicitors are protected by the common law of legal professional privilege or the 'without prejudice' rule or the law relating to wrongful disclosure of confidential information, and • McCabes and Gunson should be restrained from continuing to act for HIH in view of their past association with IRPS. The present proceedings 20 These disputes between the parties are reflected in Oceanic's summons in the present proceedings, filed on 7 May 1998 and subsequently amended. Oceanic seeks, first, orders (paragraphs 1, 2 & 3 of the summons) against HIH, McCabes and Gunson respectively which are designed to prevent McCabes and Gunson from continuing to act for HIH. Second, orders are sought that HIH 'shall not be entitled' to rely on any documents protected by the common law of legal professional privilege and the 'without prejudice' rule of privilege (paragraphs 4 and 6), and that any documents in the possession of HIH, McCabes or Gunson falling within these descriptions be delivered up (paragraph 7). Third, Oceanic seeks an injunction to restrain McCabes and Gunson from disclosing to HIH information which they obtained while they were retained by IRPS (paragraph 5), and an order that any documents obtained in this way be delivered up (paragraph 7). Finally, Oceanic seeks an injunction to restrain HIH from disclosing the contents of the three without prejudice letters referred to above (paragraph 5A). 21 In addition to these matters, at the hearing HIH contended the Supreme Court of New South Wales is the wrong forum for determining Oceanic's entitlement to relief, and that Oceanic ought to have proceeded by notice of motion in the Tasmanian proceedings. Since I have concluded that this is partly correct, I propose to deal with the question of the appropriate forum first, and then turn to the issues which, in my opinion, should be dealt with by this Court. The appropriate forum 22 HIH's principal submission is that the present proceedings are an abuse of the process of the Court to which Part 13 Rule 5 of the Supreme Court Rules applies. HIH relies upon McHenry v Lewis (1882) 22 ChD 397, at 399. This case is cited in Ritchie's Supreme Court Procedure NSW (Looseleaf) paragraph 13.5.4 as authority for the proposition that 'where proceedings have been started in one court, it may constitute an abuse of process of the court to engage in multiple proceedings where there is a complete remedy available in the court in which the proceedings were first started'. However, multiple proceedings are not necessarily an abuse of process. In McHenry v Lewis there were two sets of English proceedings and proceedings in the United States of America concerning the same subject matter. There had been no application to consolidate the two English proceedings. There were different parties to the English and American proceedings, some amenable to the jurisdiction of the English court and others amenable to the jurisdiction of the American court. In the exercise of its discretion, the English court declined to order a stay of the English proceedings, and the Court of Appeal agreed. 23 The central claim in the present proceedings is that McCabes should no longer represent HIH because of their conflict of interest. The claim against Gunson is, in a sense, derivative. This is because Gunson, while the solicitors on the record in the Tasmanian proceedings, are acting as agents for McCabes. The claims with respect to privilege and confidentiality of documents arise, according to Oceanic's contention, because McCabes and Gunson have made available to HIH some privileged and confidential documents which they acquired while acting for IRPS, and may make further such documents available in future. Therefore the proceedings have a practical and logical connection with the State where McCabes carries on business, namely New South Wales. While, therefore, the relief sought in the proceedings in this Court might have been sought by application in the consolidated Tasmanian proceedings, there is no basis for characterising the New South Wales proceedings as an abuse of process. 24 There being, in my opinion, no abuse of process involved in the present circumstances, the question is whether I ought to decline to exercise jurisdiction on discretionary grounds. To adapt the language of Gummow J in National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 87 ALR 539, 561, the present case is one where the Court has jurisdiction to entertain the proceedings but may choose to decline to do so because the suit is one which in justice should be tried elsewhere. 25 HIH referred to the following passage in the judgment of Gummow J in the National Mutual case (at 563-4): 'In my view, prima facie there is an interference with the conduct of litigation in this court where, as in the present case, one party seeks in the courts of another country to enjoin its former solicitors from acting as solicitors for an opposing party in the litigation in this court. It is a procedure apt to bring about a situation whereby that other party changes his solicitor, a step of primary and paramount concern to this court. And it has a tendency to interfere with the procedures of this court, of a character and degree quite above that of the United States pretrial discovery procedures with which the House of Lords was concerned in the South Carolina case [ South Carolina Insurance Co v Assurantie Maatschappij 'De Zeven Provincien' NV [1987] AC 24]'. 26 In the National Mutual case the collateral proceedings had been brought in another country, the United States of America, rather than merely in another State, but his Honour's observations are nevertheless highly relevant. If it were not for the fact that HIH's solicitors in the Tasmanian proceedings are the agents for New South Wales solicitors, I would think it inappropriate for this Court to interfere with the conduct of litigation in Tasmania by making orders which would cause a party to the Tasmanian proceedings to change its solicitor, were I otherwise disposed to do so. However, in the present case the plaintiff's primary complaint is about the conduct of the New South Wales solicitors for HIH, which is said to be in breach of fiduciary duties, and that is a matter with which it is appropriate for this Court to deal. 27 I have therefore formed the view that it is appropriate to entertain and dispose of the proceedings before this Court so far as they relate to whether McCabes are in breach of any fiduciary duty by accepting a retainer from HIH in the Tasmanian proceedings and continuing to act in relation to those proceedings. That being so, I believe it is also appropriate for me to deal with the application for an order against Gunson, as far as it relates to an allegation of breach of fiduciary duty by them, even though Gunson is the solicitor on the record for a party in proceedings in the court of another State. If I were to conclude that an order should be made against McCabes for breach of their fiduciary duty as the solicitors for HIH, it would be illogical not to make a similar order against their agent Gunson, since the order against Gunson would be consequential upon my decision with respect to McCabes. 28 If I were to conclude that there has been no breach of any fiduciary duty by McCabes or Gunson, an important question would remain for decision. This is the question whether Gunson or McCabes have breached a duty which they or either of them may owe to the Supreme Court of Tasmania by virtue of their responsibilities for the conduct of the Tasmanian proceedings. As I shall explain, in addition to the fiduciary duty which the solicitor owes to the client, a solicitor who acts in litigation owes to the court of which he or she is an officer a duty to provide independent assistance to the court by (inter alia) avoiding conflicts of interest and conflicts of duty. Gunson thus owes a duty to the Supreme Court of Tasmania arising out of acting in the Tasmanian proceedings. In my opinion this Court should not presume to deal with the duty owed by interstate solicitors to the Supreme Court of their State. Since McCabes are the principals of Gunson, it is probable that they owe a similar duty to the Supreme Court of Tasmania, upon which, again, this Court should not adjudicate. 29 It appears to me that there is no justification for my making orders which go to the admissibility of evidence in the Tasmanian proceedings. To the extent, therefore, that Oceanic seeks orders that specific documents, or documents in a general class of documents, be excluded from evidence because of the principles dealing with legal professional privilege or the privilege attached to 'without prejudice' communications, I do not believe that it would be appropriate for me to deal with those matters in the present proceedings. 30 As far as legal professional privilege is concerned, the claim to privilege arises out of the plaintiff's list of discovered documents in the Tasmanian proceedings. Many documents are listed as subject to a claim to privilege. The court in the Tasmanian proceedings will be able to assess the claims to legal professional privilege in the context of the whole of the facts of the case, which will assist the court to determine whether the documents in question are confidential communications created for the sole purpose of providing legal advice or in relation to legal proceedings. The artificiality of my purporting to resolve such issues in collateral proceedings divorced from the substantive trial is underlined by the fact that I would have to apply the common law of legal professional privilege rather than the statutory law which applies, under the Evidence Act 1995 (NSW), where proceedings are commenced in New South Wales. 31 To the extent that the claim to privilege is based on the fact that the three specific letters in question were written without prejudice, again it appears to be inappropriate to deal with that question separately from the trial of the Tasmanian proceedings. The correspondence before me indicates that there are significant factual disputes about the status of the three documents. The parties disagree as to whether there was a dispute between Oceanic and IRPS at the time when the three letters were written, and if there was, whether the letters were written in the course of genuine negotiations for settlement of such a dispute. There are also questions as to whether IRPS waived privilege, in a manner binding on Oceanic, by disclosing the documents to HIH in connection with its policy claim, and whether Oceanic's solicitors waived privilege in a letter which they wrote to McCabes on 6 August 1996. 32 While some of the evidence concerning these matters is before me, I am not in a position to make findings on all of the facts which are disputed, although the judge hearing the Tasmanian proceedings will be in a position to do so. For example, the facts before me do not enable me to determine whether the letters written in October 1991 were written after a dispute had arisen between Oceanic and IRPS and whether they were in the course of genuine negotiations for settlement of the dispute. Again, the inappropriateness of my making a determination as to 'without prejudice' privilege is underlined by the fact that in the Tasmanian proceedings, the issue arises under the common law of evidence whereas if the Tasmanian proceedings had been proceedings in this State to which the Evidence Act applies, the question would be governed by s 131. 33 To the extent that Oceanic seeks in the present proceedings to protect documents, either specifically or by class, by reference to the law of wrongful disclosure of confidential information, it appears to me that the claim is fairly closely related to the respective positions of McCabes and Phillips Fox. It therefore appears to me appropriate that this aspect of the claim be dealt with in the present proceedings. 34 In the result, therefore, Oceanic fails to the extent that the summons seeks • relief against Gunson or McCabes for breach of their duty to the Supreme Court of Tasmania, as opposed to their fiduciary duties to their client; and • relief with respect to documents on the basis of legal professional privilege or 'without prejudice' privilege. I turn to consider Oceanic's claims with respect to solicitors' conflict of interest, the duty of loyalty and wrongful disclosure of confidential information. The law 35 Where it is alleged that a solicitor has acted improperly in representing more than one client in litigation, a surprisingly large number of principles may be brought into play. The relevant principles may include the law of contract, the law of fiduciary duty, the law which protects confidential information, the law with respect to legal professional privilege, the law with respect to the solicitor's duty to the court and the Court's discretion to supervise the conduct of its officers, and ethical principles developed and applied by a professional disciplinary body. If the solicitor benefits from a gift by the client or through some improvident transaction entered into by the client, principles with respect to undue influence and unconscionable bargains will be relevant, but that is not the case here. 36 Cases which deal with the solicitor's duty seem to me at times to combine the various elements of principle into an amalgam which is a little difficult to understand. Following the lead given by Ipp J in Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357 and Hayne J in Farrow Mortgage Services Pty Ltd (In liq) v Mendall Properties Pty Ltd [1995] 1 VR 1, I believe it is helpful to identify separately the elements of principle which are the ingredients of the amalgamated statements in the leading solicitor-client cases. Doing so should assist the Court to decide, in an uncertain case such as the present one, the scope and content of the solicitor's duty. I therefore propose briefly to identify the ingredients of principle which make up the present law, and then to consider the cases which deal specifically with the solicitor's duty. Contract 37 Usually, though not necessarily, the solicitor and client are parties to a contract for the provision of legal professional services for a fee. It is rare for the contract to articulate the solicitor's basic duty of loyalty and the duty to avoid conflicts of interest. However, the terms of the contract may assume significance if they purport to remove or attenuate the fiduciary duties. In both the Mallesons and Farrow Mortgage Services cases it was contended that the firm's contract of retainer with their new client exonerated them from using confidential information received from their former client. However, it was held in both cases that the solicitor's basic duty remained to avoid a real sensible possibility of conflict between the solicitor's duty to keep the former client's information confidential, and his or her interest in advancing the second client's case, and the contractual provision did not overcome the risk that the solicitor might subconsciously use the former client's information in the preparation of the new client's case. 38 In the present case, there is evidence that it was a term of Phillips Fox's retainer by IRPS that they would be at liberty to represent and act in the interests of HIH and pass on to HIH any information received by them in the course of acting for IRPS (see esp. the letter of Butler McIntyre and Butler of 22 June 1993). Given that IRPS had no remaining substantive interest in the litigation having regard to its liquidation and the assignment, and that the liquidator had legal advice at the time, I conclude that this term of the retainer was effective as a matter of contract to attenuate the duty of Phillips Fox. It is a reasonable inference that McCabes and Gunson replaced Phillips Fox on the same attenuated contractual basis, and I so find. Fiduciary Duties 39 The solicitor-client relationship is undoubtedly a fiduciary relationship. Indeed it has been described as one of the most important fiduciary relationships known to the law: Mallesons case, at 361. The relationship is fiduciary not only where the solicitor and the client are parties to a contract for the provision of legal services for a fee, but also where the solicitor is engaged by a third party to represent the client, for a fee paid by the third party - for example where a solicitor is engaged by an insurer at the insurer's expense to act for the insured in defending a claim by a third party: C I Industries Pty Ltd v Keeling (Abadee J, Supreme Court of New South Wales, 26 March 1997, unreported). 40 One consequence of the solicitor/client relationship being fiduciary is that a solicitor has a duty not to misuse his or her position to gain a profit without the client's fully informed consent: Boardman v Phipps [1967] 2 AC 46. That duty is not in issue here. Another consequence, more germane to the present facts, is that the solicitor must avoid • any real sensible possibility of conflict between the duty to serve the interests of the client and personal interest: Mallesons case, at 362, and • any actual conflict between the duty to serve the interests of one client, and the duty to serve the interests of another client: Farrington v Rowe McBride & Partners [1985] 1 NZLR 83, unless the solicitor obtains the unfettered consent of all relevant clients after fully disclosing all of the material facts, or the duty is attenuated by contract, with the relevant client's fully informed consent. 41 It is now common to refer to conflicts of the first kind as 'conflicts of interest', and to designate the duty to avoid conflicts of the second kind as the solicitor's 'duty of loyalty': see P D Finn, 'Conflicts of Interest and Professional', in Professional Responsibility (Legal Research Foundation Inc, New Zealand, 1987) p.24ff. As Finn J points out in that paper, it has also become common, at least in the United States, further to subdivide consideration of the duty of loyalty into consideration of 'same matter' conflicts, where the fiduciary undertakes conflicting duties with respect to one matter (such as acting for the vendor and purchaser of land), and of 'separate matter' conflicts, where the conflict arises out of the fiduciary undertaking a duty to one client in a matter and a duty to another client in a separate matter. Though the classification is not entirely clear, I presume that the conflict which arises when a solicitor acts for the insured to defend a claim brought by an external party, and for the insurer with respect to the insured's claim on the policy, is a separate matter conflict. 42 The duty not to profit out of the fiduciary position and the duties to avoid conflicts of both kinds very largely overlap with one another, though there may be cases where the 'conflict rules' apply and the 'profit rule' does not and vice versa: Ford's Principles of Corporations Law (looseleaf), para 9.020. Additionally, the same facts may raise questions about both kinds of conflicts - that is, conflicts of interest and conflicts between duties giving rise to a fiduciary duty of loyalty. Where a solicitor accepts retainers to act for two or more clients whose interests may diverge, the potential arises for a conflict between the duty to one client and the duty to another. Additionally, the decision to accept the offer of retainer by the second client may create a possibility of conflict between the solicitor's personal interest in the fee from the second client, and the duty to the first client for whom the solicitor already acts. For the most part, cases about solicitor and client tend to concentrate on the conflict of duty which arises when the solicitor, having a duty to the first client which includes a duty to preserve the confidentiality of information imparted to the solicitor by that client, agrees to act for the second client in circumstances where either the interests of the clients are generally inconsistent, or where (more particularly) the undertaking to act for the second client may create a duty to disclose the information provided by the first client. However, in the Mallesons case, Ipp J emphasised the personal interest of the solicitor rather than the conflicting duty (at 362). Confidential information and legal professional privilege 43 The law concerning wrongful disclosure of confidential information overlaps with these fiduciary principles. According to Gummow J in Corrs Pavey Whiting & Byrne v Collective Customs (1987) 14 FCR 434, 443 it is now settled in order to make out a case for protection in equity of alleged confidential information, a plaintiff must satisfy the following criteria: 'The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information.' As his Honour pointed out in the National Mutual case at 560, 'unconscious plagiarism' can constitute a breach of the equitable duty. 44 In comparison, the fiduciary principles may apply where there is no misuse of confidential information, as in Green v Bestobell Industries Pty Ltd [1982] WAR 1, and possibly Canadian Aero Services Ltd v O'Malley 91973) 40 DLR (3d) 371; and a misuse of confidential information may occur where the parties do not stand in a fiduciary relationship, provided that the information is communicated in such circumstances as to import an obligation of confidence: see generally, Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. 45 In the solicitor/client context, information provided by the client to the solicitor is necessarily subject to an obligation of confidence satisfying the third criterion set out above. This is because of the substantive legal principle which underlies the law of legal professional privilege. In Grant v Downs (1976) 135 CLR 675, 685, Stephen, Mason and Murphy JJ said: 'The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This is does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.' 46 Similarly in the Baker v Campbell (1983) 153 CLR 52 Deane J said (at 115-6) 'The principle underlying legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications…'. 47 The absolute nature of the solicitor's duty of confidentiality was reinforced in R v Derby Magistrate's Court [1996] AC 487, where Lord Taylor of Gosforth CJ said (at 505) that once the privilege is established, the lawyer's mouth is 'shut for ever'. Duty to the court 48 In addition to fiduciary duties and the duty not to misuse confidential information, a solicitor who acts in litigation owes a relevant legal duty to the court, as well as an ethical duty. The duty to the court arises from the court's concern that it should have the assistance of independent legal representation for the litigating parties: see D A Ipp, 'Lawyers' Duties to the Court' (1998) 114 LQR 63, 93. In the realm of conflicts of interest and conflicts of duty, the solicitor's duty to the court may not be much different from his or her fiduciary duties to former and present clients. However, the duty to the court tends to be expressed in such a way as to emphasise the public interest in preserving confidence in the administration of justice, and therefore in the appearance as well as the reality of independence, and the court's practical approach to its supervisory discretions: Freuhauf Finance Corporation Pty Ltd v Feez Ruthning (1991) 1 QdR 558; Murray v Macquarie Bank Ltd (1991) 33 FCR 46; Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307; Macquarie Bank Ltd v Myer [1994] VR 350; Kooky Garments Ltd v Charlton [1994] 1 NZLR 587; Watson v Watson (Supreme Court of New South Wales, Equity Division (Santow J), unreported, 25 May 1998). Ethical duties expressed in self-regulatory rules 49 Finally, barristers and solicitors are subject to ethical duties which find expression in rules of the professional bodies to which they are required to belong. Those rules tend to reflect the fiduciary standards, though they are enforced by self-regulatory bodies through the sanctions available to such bodies, and the rules tend to articulate professional duties in more specific terms than the general law. For example, rule 87 of the Rules of the New South Wales Bar Association states that a barrister must refuse a brief for instructions to appear before a court if the barrister has information which is confidential to any other party in the case and the information may, as a real possibility, be helpful to the prospective client's case. In some States, these rules have been reinforced by statute (eg Legal Profession Act, 1987 (NSW)), thereby outgrowing their self-regulatory origins. 50 No issue has been raised with respect to such rules in the present proceedings, and I say no more about them, except to remark that such rules were clearly at issue in some of the reported cases: for example, O ' Reilly v Law Society of New South Wales (1988) 24 NSWLR 204; Watson v Watson¸ cited above. The case law on solicitor and client conflicts 51 The Australian law on solicitor/client conflicts now begins with Rakusen v Ellis Munday & Clark [1912] 1 Ch 831 and critiques of that case. In Rakusen's case the English Court of Appeal held that there was no general rule that a solicitor who had acted for a person on one side of litigation could never act on the other side; and that in the case before the court there was no danger of breach of confidence if one partner in the defendant firm acted for a company in an arbitration, after another partner had advised the claimant against the company in respect of the claim which was the subject of the arbitration. Cozens-Hardy MR said (at 835) that before the court would allow the 'special jurisdiction over solicitors' to be invoked, it must be satisfied that 'real mischief and real prejudice will in all human probability result if the solicitor is allowed to act'. Fletcher Moulton LJ said (at 841) that the court would not interfere unless the case was one where 'mischief is rightly anticipated'. In his Lordship's view, the question for the court was whether there was such a probability of mischief that the court should conclude, in the performance of its duty as holding the balance between the high standard of behaviour which it requires of its officers and the practical necessities of life, that it ought to interfere and say that the solicitor must not act. 52 If one examines the submissions put to the Court of Appeal as well as the reasons given by their Lordships, it is far from evident that the case was argued in terms of fiduciary principles. Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461, then the leading authority on fiduciary duties, was not cited. Indeed, lawyers of that time - well prior to the development of modern scholarship on the law of fiduciary relationships - may not have regarded it as relevant: see L S Sealy, 'Fiduciary Obligations, Forty Years On', (1995) 9 JCL 37. In part, counsels' submissions addressed questions about wrongful disclosure of secrets. Part of their Lordships' reasoning appears to be directed to the proposition that there was no basis on the facts for apprehending that the defendants would wrongfully misuse the confidential information which one of them possessed. Part of the reasoning seems to relate to the defendants' duty to the court as its officers, and consequently the court's duty in holding the balance between the standard of behaviour which it requires of its officers and the practical necessities of life. 53 In the Mallesons case at 361-2, Ipp J identified two approaches to the law, one taken by the Court of Appeal in Rakusen and another taken by Lilley CJ in Mills v Day Dawn Block Gold Mining Co Ltd [1882] 1 QLJ 62. In the latter case Lilley CJ said (at 63) that it was the duty of an attorney not to place himself in such a relation as might lead to there being even an unwitting breach of duty. Ipp J preferred the latter approach to the former, concluding (at 362) that 'public interest considerations require that a solicitor be restrained from acting for a former client where there is real and sensible possibility that the solicitor's duty and interest might conflict.' Another way of getting to Ipp J's conclusion would be to say that Rakusen should not be treated as a case about fiduciary principles at all, but rather as a case confined to the duty of solicitors to the court, which appears to be more practical and discretionary than modern fiduciary law, and to the law of misuse of confidential information. 54 Bryson J's discussion of the law in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 also appears to me to be directed to the solicitor's duty to the court. He declined to adopt a rigid rule, saying (at 123) that 'in deciding the degree of control which it should adopt, each court must to some extent interpret its own times and manners and the conduct which it should expect or even fear from its practitioners'. That would explain his Honour's view that a particularly careful approach should be taken in family law matters, as family litigation tends to be about highly confidential facts and a very wide range of circumstances can conceivably be relevant. Similarly, his Honour's reference to the 'cautious approach' that the court should take to any proposal that it should allow the solicitor to act against a client (at 122) and his concern about the appearance of the matter to a reasonable observer (at 123) - distinctly not a characteristic consideration in the application of equitable doctrines. When his Honour turned (at 124) to examine whether there was a case for protection of confidential information, he appears to have applied the law of confidential information rather than the fiduciary principles. 55 If this analysis is correct, then the Mallesons and Farrow Mortgage Services cases do not signify judicial disagreement with the law stated in Rakusen and D & J Constructions , but rather a judicial insistence upon the supervening importance of a different legal doctrine, namely the broad modern law of fiduciary duties. Theoretically, there may still be cases where a solicitor's duty to the court would prevent him or her from acting though no breach of fiduciary duty is involved - especially given that fiduciary principles emphasise the real possibility of conflict in the subjective circumstances, while the duty to the court takes into account the objective appearance of independence as well. Again, theoretically, there may be cases where information in the hands of a solicitor is subject to a duty arising out of the law of confidential information but its use falls outside fiduciary principles - perhaps, where the solicitor receives the information in confidential circumstances from a third party, while acting in the former client's interest. But in almost all real situations, one would expect that the modern fiduciary principles would be at least as restrictive upon the solicitor's freedom to act as either the duty to the court or the law of confidential information, and probably more restrictive. 56 The injection of fiduciary principles may also explain Gummow J's remarks in the National Mutual case. His Honour quoted with approval Finn J's critique of Rakusen in the article cited above. One of Finn J's points of criticism was that the Rakusen rule conflicts with the solicitor's duty of loyalty. Finn J also considered whether it would be preferable for the law to apply a rebuttable or irrebuttable presumption that a prior retainer has resulted in the acquisition by the solicitor of confidential information which prevents him or her from acting for an interest adverse to the former client without the former client's consent. To the extent that the law presumes, rebuttably or irrebuttably, that the prior retainer has caused the solicitor to acquire confidential information which prevents him or her from acting, one reaches substantially the same result as through the application of the broader fiduciary principles. If that is so, it seems to me preferable not to rely on the artificiality of presumptions, but instead to approach the problem by analysing the interests and duties involved and assessing in a practical way the extent of the risk of conflict. 57 In Rakusen's case it was held that a solicitor may act for a new client while keeping secret some information obtained from a former client which is relevant to the new client's case. As indicated earlier, that holding may relate to the practical duty of the solicitor to the court rather than to the modern law of fiduciary duties. But if it is taken as a statement of the law of fiduciary duties, it must now be regarded as incorrect. In Spector v Ageda [1973] Ch 30, 32 Megarry J said: 'A solicitor must put at his client's disposal not only his skill but also his knowledge, so far as is relevant; and if he is unwilling to reveal his knowledge to his client, he should not act for him. What he cannot do is to not act for him. What he cannot do is to act for the client and at the same time withhold from him any relevant knowledge that he has.' 58 That proposition appears to have been accepted by Gummow J in the National Mutual case, at 560, and by Ipp J in the Mallesons case at 370, which was in turn followed by Hayne J in the Farrow Mortgage Services case (at 5). Therefore, the potential conflict between the duties to the former and new clients cannot be avoided by asserting, as a proposition of law, that the duty to the new client is qualified by performance of the duty to the former client. However, it is open to the parties to attenuate the fiduciary duty or for the client to waive any non-compliance, provided in each case that the client gives informed consent. Solicitor acting for insurer and insured 59 I turn now to consider the application of these various legal principles to the insurance context. It is not uncommon for the same firm of solicitors to act for both the insured and the insurer, representing the insured with respect to the external claim which has led the insured to invoke the policy, and advising the insurer as to whether it should respond under the policy. Nor is the solicitor necessarily open to criticism in doing so. As the Hon John Brownie QC recently remarked ('Traps Involved When Solicitors Act for the Insured as well as the Insurer', a paper presented for the Australian Insurance Law Association, Spotlight on Insurance Issues , 4 June 1998), 'the mere fact that the insurer is still investigating whether or not to grant indemnity does not mean that the insurer may not choose to instruct solicitors to represent the insured in the meantime'. He continued, however, that 'there comes a time when, having investigated, the insurer must elect whether or not to continue to fund the defence of the insured'. He referred to ACN 007 838 584 Pty Ltd v Zurich Australian Insurance Ltd (unreported, Supreme Court of South Australia (Olsson J), 28 August 1997). Other cases in which similar issues have been explored are Kennedy v Cynstock Pty Ltd (1993) 3 NTLR 108; C I Industries Pty Ltd v Keeling (Supreme Court of new South Wales, Abadee J, unreported, 26 march 1997); Mytton's Ltd v Phillips Fox (Supreme Court of Victoria, Coldrey J, unreported, 23 September 1997); Y unghanns v Elfic Ltd (Supreme Court of Victoria), Gillard J, unreported, 3 July 1998). 60 In the present case Phillips Fox in Sydney and Griffits and Jackson in Hobart acted for the insured as defendant to the external claim and for the insurer as defendant to the insured's claim on the policy with respect to the external claim. In the case of Phillips Fox, this conduct occurred after the firm had advised the insurer not to indemnify the insured under the policy with respect to the external claim. 61 If IRPS had remained a solvent, active protagonist, a point would have been reached, probably before the commencement of proceedings by IRPS to enforce the policy against HIH, at which HIH would have been required to elect whether to continue to fund IRPS's defence to Oceanic's claim. Once that point had been reached, the same solicitors could no longer continue to act for both the insured on the external claim and the insurer on the insured's claim under the policy. The present case is made complicated by the fact that IRPS went into liquidation very early, before any relevant legal proceedings were instituted in Tasmania, and then its liquidator assigned the right of recovery under the policy to the external claimant Oceanic, and in due course IRPS ceased to be represented in the Tasmanian proceedings and default judgment was entered against it. In those circumstances, do any of the legal principles concerning fiduciary duties, the solicitor's duty to the court, and the duty not to misuse confidential information, require that McCabes and Gunson must cease to act, or that they must deliver up confidential information? 62 As far as conflict of interest, the duty of loyalty and the duty with respect to confidential information are concerned, it seems to me that Gunson are in no different position from McCabes, and therefore I propose to analyse the position of McCabes on the assumption that my conclusions will apply to Gunson as well. For the reasons already given, I do not propose in this case to deal with the duty of Gunson or McCabes to the court. The conflict of interest principle, and the duty not to misuse confidential information, in the present case 63 According to the Mallesons case, the conflict of interest principle requires that a solicitor be restrained from acting for a new client (in this case HIH), if there is a real and sensible possibility that the solicitor's interest in advancing the case of the new client might conflict with his or her duty to keep information given to him or her by the former client (in this case, IRPS (In liq)) confidential, or with the duty to refrain from using that information to the detriment of the former client (at 362-3). In the Mallesons case the potential conflict arose because the solicitors had obtained information from a partner in an accounting firm in the course of advising him with respect to some transactions, and subsequently the solicitors were retained by the Commissioner of Corporate Affairs to act on the criminal prosecution of the former client in respect of some of those transactions. Ipp J found that although similar information had been obtained by the Commissioner independently, the information in the solicitor's hands was likely to be valuable to the Commissioner in preparing for the trial, and the accused would be prejudiced because of the incalculable effect upon his state of mind and demeanour caused by knowing that his former solicitor was now acting for the prosecution . In Marriage of A and B (1990) FLC para 92-126 was a similar case of real practical possibility of conflict. 64 The present circumstances are very different from the facts of Mallesons case, but the case shows that the court must make a practical assessment of the risk of conflict, while being very alert to the possibility that it may arise where a solicitor ceases to act for one client and begins to act for another in the same or a related matter. 65 Assume for the time being that there had been no assignment. Then the question would have been whether the commencement of the liquidation of IRPS and ultimately the default judgment against it removed any real sensible possibility of conflict between the duty of McCabes to IRPS and its interest in advancing the case of HIH. McCabes' duty to IRPS arose when it replaced Phillips Fox as the solicitors for IRPS in May 1995. 66 A real sensible possibility of conflict may have arisen out of McCabes' acting for IRPS in any of several ways. First, if IRPS provided information to McCabes by a communication protected by legal professional privilege, that information would be confidential and McCabes would be under a duty not to disclose it to HIH. There would be at least a possibility that this duty of confidentiality would conflict with McCabes' interest in advancing the case of HIH. 67 In the present case IRPS claimed against HIH under the policy in respect of the external claim made against it by Oceanic. In those circumstances IRPS was under a duty of utmost good faith to disclose to HIH all material facts relevant to the assessment of the policy claim: see E R Hardy Ivamy, General Principles of Insurance Law (5th ed., 1986), p.408. That obligation of disclosure extended, to the extent that they were material (and therefore capable of giving rise to a real sensible possibility of conflict) to all information relevant to any aspect of the consolidated Tasmanian proceedings, since all of the issues in the Tasmanian proceedings going to whether IRPS is liable to Oceanic, Oceanic is guilty of contributory negligence and IRPS's liability falls within the policy, are relevant to the assessment of the insurance claim. 68 The existence of a duty upon IRPS to disclose material information to HIH would not extinguish or qualify the duty of confidentiality which the law imposed upon McCabes in respect of information disclosed to them by IRPS. As its solicitor, McCabes should have (and presumably did) advise IRPS that it must disclose to HIH any material information in the possession of McCabes. But McCabes was not at liberty to usurp IRPS's role and make direct disclosure itself, unless it was specifically authorised to do so. 69 The evidence does not identify the information provided by IRPS to McCabes, nor the information which IRPS provided directly to HIH. However, given that in all probability the information which McCabes received while acting for IRPS was wholly information which IRPS was obliged to disclose to HIH, that the liquidator consented in 1993 to HIH's then solicitors passing the information on to HIH, and that the liquidator of IRPS acquiesced in McCabes no longer acting for that company without making any arrangements to protect information which had been disclosed to McCabes, it is appropriate to infer that IRPS consented to McCabes passing on any such information to HIH in discharge of its duty of disclosure. In fact, there is no evidence to suggest that IRPS failed to discharge its contractual duty of disclosure to HIH, and therefore no evidence to suggest that there was any information in the hands of McCabes as the solicitor of IRPS which was not supplied by or with the authority of IRPS to HIH. In all these circumstances, I conclude that there is no real sensible possibility of conflict between the duty of McCabes not to disclose information supplied to it by IRPS and the interest of McCabes in advancing the case of HIH. 70 It also follows from this conclusion that there is no evidentiary basis for concluding that McCabes have wrongfully disclosed confidential information or that there is a ground for apprehension that they may do so. 71 A conflict of interest may arise even if the solicitor possesses no confidential information of the former client. A conflict may arise simply because the advancement of the case of the new client prejudices an interest of the former client which the solicitor has accepted a continuing duty to protect, notwithstanding ceasing to act for that client. In the present case, even if there were some continuing duty of McCabes to protect the interests of IRPS, my opinion is that there is no real sensible possibility of conflict of interest in the events which have happened. Since IRPS is in liquidation, only its creditors and contributories have a real interest in the outcome of the Tasmanian proceedings. As a practical matter, their interest would potentially arise if Oceanic is successful in obtaining a judgment for damages against IRPS, but unsuccessful in establishing liability of HIH under the policy. But in that event, the verdict against IRPS ought not to affect the interests of the creditors of IRPS, since Oceanic's claim to recover unliquidated damages would rank below them in any distribution upon winding up: see Page v Commonwealth Life Assurance Society Ltd (1935) 36 SR(NSW) 85, 101; and the judgment of Zeeman J on the application under s 500(2) of the Corporations Law for leave to proceed against IRPS in liquidation, 27 August 1993 page 4. The interests of the contributories in IRPS rather than the creditors could be at stake, if there are surplus assets in the winding up, though there is no evidence before me on this matter. Enforcement of Oceanic's judgment against IRPS would deplete any such surplus. But the leave granted by Zeeman J on 27 August 1993 was granted upon Oceanic's undertaking not to enforce a judgment against IRPS without leave, the purpose of the leave evidently being to permit Oceanic to seek recovery from HIH under the policy. Given Zeeman J's reasons for judgment, it appears to me unlikely that leave would be granted to permit enforcement of a judgment against IRPS. 72 Having regard to those considerations, my opinion is that there is no real sensible possibility of conflict between any duty of McCabes to act in the interests of the contributories of IRPS and its interest in advancing the case of HIH. Moreover, even if there were any such possibility of conflict prior to October 1997, that possibility effectively came to an end when default judgment was entered against IRPS, which was by that time unrepresented. 73 My conclusion, therefore, is that there would have been no real sensible possibility of conflict between McCabes' duty to IRPS and their personal interest in advancing the case of HIH, even if there had been no assignment of the right to claim under the policy by IRPS to Oceanic. 74 However, the assignment provides an independent ground for concluding that there is no real sensible possibility of conflict of interest in this case. A fiduciary relationship is a personal relationship which arises out of one party's power over another's affairs, and that party's undertaking to act in the other's interests: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 96-7 (Mason J); Lac Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 14, 61ff (Sopinka J). It is hard to see how the benefit of the fiduciary duties which arise out of the personal relationship of solicitor and client can be assigned to a stranger to that relationship, for whom the solicitor has at no stage acted. Even if the benefit of fiduciary relationship were inherently assignable, there is nothing in the deed of assignment dated 30 April 1993 and the supplementary deed dated 27 July 1993 which suggests the slightest intention to assign that benefit. IRPS, to whom any relevant fiduciary duty is owed, is not a party to the present proceedings, and Oceanic is a stranger to the fiduciary relationship of McCabes as solicitor to IRPS as its client. It follows that even if McCabes were under a duty to avoid a conflict of interest which they had not discharged, Oceanic would not be in a position to enforce that duty. The duty of loyalty in the present case 75 My factual conclusions with respect to the duty to avoid conflicts of interest are also sufficient to dispose of any complaint based upon the duty of loyalty. It appears to me, however, that in cases such as the present, a conflict between duties will not arise unless there is also a real sensible possibility of conflict between duty and interest. This is because, according to the reasoning of Ipp J in the Mallesons case, a solicitor has an interest in advancing the case of the new client as well as a duty to do so. 76 Since, therefore, I have concluded that there is no real sensible possibility of conflict between McCabes' interest in advancing HIH's case and its duty to IRPS, it follows that there is also no conflict between McCabes' duty to HIH and its duty to IRPS. Additionally, just as the assignment of the right to claim under the policy was not effective to give Oceanic any right to complain about a conflict of interest on the part of McCabes, so also was the assignment ineffective to give Oceanic any right to claim that McCabes breached its fiduciary duty of loyalty to IRPS. Conclusions 77 For these reasons, my opinion is that Oceanic has not made out any entitlement arising out of the law of fiduciary duties which would support injunctions to restrain HIH from retaining McCabes and Gunson, or to restrain McCabes and Gunson from acting for HIH. Therefore the claims to the relief in paragraphs 1-3 of the summons are unsuccessful. Whether there is a basis for the Supreme Court of Tasmania to enforce the direct duty of Gunson to that court and the indirect duty of McCabes as principal solicitor, is a matter which should not be dealt with in proceedings in this Court. 78 Oceanic is not entitled an order to restrain McCabes and Gunson from disclosing to HIH information which they obtained whilst acting for IRPS (paragraph 5), since the principles of the law of fiduciary relationships and wrongful disclosure of confidential information which might support such relief are not attracted in the present case. 79 Paragraphs 4, 5A and 6 of the summons seek relief with respect to documents protected by legal professional privilege and the 'without prejudice' rule of privilege. For the reasons which I have given, my opinion is that it is inappropriate for these matters to be dealt with in the present proceedings, as opposed to a motion in the consolidated Tasmanian proceedings. Paragraph 7 in the summons seeks consequential relief for the delivery up of documents, and it follows from what I have said that this relief will not be granted. 80 I therefore propose to dismiss the summons. While I shall hear the parties on the question of costs, I am disposed to order that costs should follow the event in the normal way.

Oceanic v HIH

At a glance

Court

Decision date

Before

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Judgment (8 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (14)

Cited By (4)