Rodny v Stricke

Notice of Appeal and submissions

1. The Notice of Appeal was filed on 19 February 2018. It was filed in time, namely within 28 days from the date of the decision: see r 25(4)(2) of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules).
2. The Notice of Appeal seeks leave to appeal. In doing so, the Notice of Appeal incorrectly refers to s 80(2)(b) of the NCAT Act, which relates to appeals from decisions other than interlocutory decisions. The present decision is an interlocutory decision. Consequently, s 80(2)(a) rather than s 80(2)(b) applies and leave is required whether or not the issue raised is a question of law.
3. The appellants seek orders that leave be granted for the parties to be legally represented on terms that: 1. the appellants have leave to be represented by an Australian legal practitioner, including David Le Page; 2. the committee members have leave to be represented by an Australian legal practitioner other than Clyde & Co, which representation shall be separate unless: 1. each of the committee members provide their fully informed consent to the joint representation; and 2. the legal practitioner, in acting for more than one of the committee members, not thereby be placed in breach of his or her fiduciary duty to a client; and 1. the Owners Corporation have leave to be separately represented by an Australian legal practitioner, other than Clyde & Co.
4. The appellants raise numerous grounds of appeal.
5. In respect of the decision to prevent Mr Le Page from representing the appellants, the appellants' grounds can be summarised as follows: 1. the Tribunal was wrong to find Mr Le Page had a conflict of interest, having advised the Owners Corporation about matters referred to in the application; 2. the Tribunal was wrong to find there was a conflict of interest without any finding as to what confidential information Mr Le Page possessed which was at risk of being disclosed to the appellants; 3. there was no evidence of the existence of confidential information; 4. the Tribunal failed to give reasons for its "implicit" finding that a conflict of interest justified or required the Tribunal to make the orders it did; 5. the Tribunal erroneously gave weight to the possibility Mr Le Page might be called as a witness without any evidence as to his materiality as a witness; 6. the Tribunal failed to give reasons as to why the possibility of Mr Le Page being a witness justified or required the order made.
6. In relation to the representation of the respondents by Clyde & Co, the appellants' grounds included the following: 1. the Tribunal was wrong to conclude the committee members were obliged to appoint lawyers to represent them in the proceedings; 2. there was no evidence that the committee members were entitled to instruct lawyers on behalf of the Owners Corporation; 3. the Tribunal erroneously failed to "find a real and significant possibility that the interest of each of the (committee members), and/or that the interests of the (committee members) and of the (Owners Corporation), may be inconsistent"; 4. the Tribunal failed to find that, if the works referred to in the application which was the subject of the dispute were not authorised, then the interests of particular committee members and the Owners Corporation as between themselves would be "inconsistent, and that Clyde & Co would be in breach of their fiduciary duty to each of them in each case by acting for both of them"; 5. the Tribunal failed to find that there may be a breach of fiduciary duty by Clyde & Co; 6. the Tribunal incorrectly concluded that the consequence of the appellants' submission was that each of the respondents would require separate representation; 7. the Tribunal incorrectly found that representation of all the respondents by Clyde & Co was consistent with the "just resolution of the real issues in the proceedings"; 8. The Tribunal erred in failing to find that the insurer was not liable under the policy of insurance to represent the respondents and that representation by lawyers paid for by the insurer might be unfit to the appellants.
7. The respondents filed a Reply to Appeal dated 5 March 2018.
8. The respondents set out their response to each of the 6 grounds concerning the order in respect of Mr Le Page and the 12 grounds in respect of the order permitting the respondents to be represented by Clyde & Co.
9. In short, the respondents' position was that no appealable error was shown, such error being of a kind described in House v The King (1936) 55 CLR 499 (House).
10. The respondents submitted that Mr Le Page possessed confidential information having previously been the lawyer for the Owners Corporation over many years. This included information concerning the carrying out by the Owners Corporation of work to various lots in the strata scheme, now said by the appellants to be either unauthorised or inappropriately approved by the strata committee because the work conferred personal benefits on members of the strata committee being works which the Owners Corporation was not liable to pay. The respondents submitted that Mr Le Page had acted for the Owners Corporation in disputes with various lot owners which had been resolved through adjudication, tribunal and court proceedings, including settlement negotiations in respect of those matters.
11. Consequently, the respondents claimed that this gave rise to a conflict of interest or alternatively put Mr Le Page in possession of confidential information such that any order for representation made in favour of the appellants should be on terms that excluded Mr Le Page.
12. In relation to the representation of the respondents by Clyde & Co, the respondents submitted that the issues raised by the appellants, namely potential conflict and breach of fiduciary duty, were issues which arose between the respondents and had nothing to do with the appellants. Insofar as the Tribunal made findings said by the appellants to be erroneous, the respondents submitted that the conclusions of the Tribunal were open to it based on the evidence which the parties had provided.
13. In relation to the application for leave to appeal, the respondents referred to the decision of the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 (Champion Homes) and stated that the appellants "have not pointed to any 'substantial' or 'clear' injustice, issues of principle, a question of importance, factual error or unorthodox fact finding approach that would justify the grant of leave". The conclusion of the Tribunal that Mr Le Page had a conflict of interest was obvious and Mr Le Page should not be permitted to act against the Owners Corporation's interests on behalf of the appellants. Consequently, leave should be refused.
14. For the purpose of the appeal, the parties provided an agreed bundle of documents (AB) together with written submissions. In addition, the parties provided oral submissions at the hearing of the appeal and were permitted to provide supplementary written submissions after its conclusion.
15. We do not propose to recount in detail all of the submissions made by the parties nor to reference them against the multiple grounds of appeal. This is because the multiple grounds tend to overlap. Rather, the submissions made can be summarised under the following headings: 1. Representation by Mr Le Page: 1. Conflict of interest between Mr Le Page and Owners Corporation and confidential information held by Mr Le Page; 2. Mr Le Page as a potential witness; and 3. Administration of justice. 1. Representation by Clyde & Co: 1. Unauthorised appointment; 2. Fiduciary duty; 3. Conflict of interest between respondents.

Representation by Mr Le Page

1. On this topic, the parties seemed in agreement that Mr Le Page had provided advice and legal services to the Owners Corporation for a number of years. This included advice concerning work required to common property affecting lots 1 and 8 in the strata scheme and applications that had been made under the Strata Schemes Management legislation against the Owners Corporation by the lot owners concerning this work.
2. In the appellants' submissions to the Tribunal at first instance dated 14 December 2017, prepared by Mr Le Page, he stated at 6(iv)(b)- (vi): (b) The [appellants'] solicitors acted for the [Owners Corporation] in some 23 matters from 2004 to 2014. In all those matters, except three brief matters in 2014 (in which the [appellants'] solicitors received instructions from … Ms Stoianoff), the [appellants'] solicitors received instructions from and communicated with the [Owners Corporation] via its chairman Mr Rodny, the present [appellant]. Those three matters were: to advise whether the Owners Corporation was bound to apply the proceeds of the insurance claim from FTAC to the repair of the defects identified in the claim (specifically, Ms Stoianoff's bathroom tiles), and whether the Owners Corporation was responsible to repair damage to bathroom tiles caused by defects in the common property; … (c) As for the other Respondents, Mr Le Page does not believe that he has met or communicated with Mr Kallaway or Mr Sofreski; his contact with Mrs Meddings is limited to the exchange of a few words at a mediation in late 2016; his knowledge of Ms Stricke is defined by his having represented the Owners Corporation in proceedings against it by Ms Stricke and conversation in the mediation; his contact with Ms Stoianoff is defined by his meeting and corresponding with her for the purposes of the three matters in 2014 referred to above. … (v) None of the matters to which the Respondents refer, or the issues in dispute in those matters, are claims by the Owners Corporation or by the [appellants] against the other. Accordingly, none of the documents created in or for the purposes of those matters, or the information contained in them, is confidential or attracts legal professional privilege as against the [appellants]… The disclosure to, or the use by, the [appellants] of those documents or information would not be a disclosure or use of confidential information. (vi) In a number of matters to which the Respondents refer, the [appellants'] solicitors corresponded with the [Owners Corporation] through Mr Rodny, then the chairman of the [Owners Corporation]. Were any information imparted to the solicitors to have been confidential as against the [appellants] (which in fact it was not: refer paragraph (v) above), it had been previously disclosed to the [appellants]. (Mr Rodny … is the sole director of the [second appellant] and holds 99.9% of the shares in it, the remaining share being registered in the name of Mr Rodny's mother, who has died).
3. In relation to lot 8, an order had been made by the Tribunal on 24 July 2012 requiring the carrying out of various works to this lot, described as unit 14, then owned by a Mr Mountstephens; (AB 220 and following). The order was in the following terms: (to) … carry out the necessary renovation or replacement of the common property tiling within the main bathroom of unit 14, to a satisfactory and permanent condition as to sanitary requirements, finish and colour in accordance with expert opinions of Fred Gray in his report of 7 May 2012, by not later than 30 September 2012.
4. The report of Mr Gray became MFI 1 in the present appeal.
5. Apparently, not all of this work had been completed, Mr Mountstephens having denied access to the premises which prevented this occurring. Lot 8 was then purchased by Ms Stoianoff, one of the respondent committee members, and further work was apparently approved. The appellants' contention in the application is that the works subsequently carried out or proposed to be carried out to Lot 1 were beyond those originally contemplated by the Tribunal's orders made in 2012 and that the strata committee wrongly or inappropriately approved work for which Ms Stoianoff was responsible and liable to pay.
6. In relation to Lot 1, this lot was, at all material times, owned by another present member of the strata committee, Ms Stricke.
7. In this case, there had been an adjudication application lodged, an appeal from the adjudicator's order to the Tribunal pursuant to the Strata Schemes Management Act 1996 (NSW) (now repealed) (1996 Act) and an appeal to the District Court of New South Wales. These proceedings were ultimately settled, the parties filing Short Minutes of Order on 4 July 2013 (District Court orders - AB 187). The District Court orders were signed by Mr Le Page on behalf of the Owners Corporation, and included order 4 which was in the following terms: Order that the [Owners Corporation], in respect of the ensuite bathroom of each of Bedroom 1 and Bedroom 2 of [Ms Stricke's] lot, rectify: (a) the drainage from the shower recess (including drainage into the general floor area) ("water penetration issues"); (b) the deteriorated surface of the floor tiles; and (c) the drummy or detached tiling on the common property walls. Note that in satisfaction of this Order 4: (i) the [Owners Corporation] will engage Coastline Remedial Building Services Pty Limited to remove and replace floor and wall tiles in the shower recess (including non-common property tiles), and undertake related works in accordance with the scope of works dated 2 March 2013 of Coastline Remedial Building Services Pty Limited and warranted by it; (ii) the [Owners Corporation] will engage Marble Renewal to: prepare a scope of works to restore the surface of the floor tiles and, as required, the wall tiles; undertake the works and the scope and obtain from Marble Renewal a warranty in respect of those completed works; (iii) the [Owners Corporation] will rectify the detached or drummy skirting tiles; (iv) within 7 days of the completion of any part of the works referred to in order 4 (including any works undertaken pursuant to a warranty in respect of works) the [Owners Corporation] will provide [Ms Stricke] with a detailed schedule of the works undertaken.
8. Again, in relation to this work, the appellants allege in the application that funds were authorised to be paid for work carried out to Lot 8 that did not fall within the terms of the consent orders and was work for which Ms Stricke was liable. Consequently, the strata committee had acted inappropriately in approving any payment or undertaking such work at the cost of the Owners Corporation.
9. In this context, the respondents, in their submissions, referred to minutes of meetings of the (then) executive committee of the Owners Corporation (now known as the strata committee), where advice from Mr Le Page was reported upon or discussed. This advice was said to be in connection with the raising of special levies to pay obligations of the Owners Corporation, the subject of the District Court orders: see eg Executive Committee Meeting Minutes 4 February 2014, item 6-AB 56 and Executive Committee Meeting Minutes 5 June 2014, item 6-AB 58. Ms Stricke and Ms Stoianoff were in attendance at the meeting on 4 February 2014. There is no record of Mr Rodny, the first appellant, attending that meeting. At the meeting on 5 June, Mr Rodny was in attendance as was Ms Stricke and Ms Stoianoff.

Conflict of interest between Mr Le Page and Owners Corporation and confidential information held by Mr Le Page and the administration of justice

1. The appellants submit that there was no relevant conflict of interest or confidence so as to justify the imposition of the condition which the Tribunal imposed in granting leave to the appellants to be legally represented.
2. The appellants highlight that the Tribunal's determination that a condition should be imposed preventing Mr Le Page from representing the appellants arose from findings in connection with the claims at paragraphs 12, 13 and 16 of their application.
3. In relation to those paragraphs, the appellants say as follows: 1. Paragraph 12 concerns the refurbishment of Ms Stoianoff's apartment. There was no evidence Mr Le Page gave advice to the Owners Corporation in connection with the refurbishment referred to in para 12: appellants' submissions para 3 - AB 172; 2. Paragraph 13 concerns the employment of a solicitor by the strata committee to recover monies from a building contract. Mr Le Page was not employed for this purpose and there is no evidence to the contrary; 3. Paragraph 16 concerns legal proceedings between Ms Stricke and the Owners Corporation which were settled. While Mr Le Page was employed in respect of those proceedings, there is no evidence that he advised the Owners Corporation about the works subsequently undertaken. In this regard, the appellants also rely on the fact that Clyde & Co now act for both Ms Sticke and the Owners Corporation, a matter which they say "belies" the respondent's claim and the Tribunal's finding that there was a conflict or relevant confidence which was required to be protected.
4. The appellants further say that it was for the Owners Corporation to establish a risk of breach of confidence. This, the appellants say, required the specific identification of the confidential information, and they rely on the decision of Bryson JA in Mancini v Mancini [1999] NSWSC 800. The appellants highlight that the Tribunal's findings in this regard are recorded in [10] of the reasons and submit that these findings are either non-specific or inadequate. Further, the reasons do not identify the material said to be confidential.
5. Similarly, in relation to the alleged conflict of interest, the appellants submitted there is no evidence of a conflict and "nothing more than the unsubstantiated contention that the application raises matters about which Mr Le Page has previously advised the Owners Corporation". In addition, the appellants contend that a conflict of interest is irrelevant to the restraint of a lawyer at the suit of a former client, and relied on the principles in Kallinicos & anor v Hunt & ors (2005) 64 NSWLR 561; NSWSC 1181 (Kalliconis).
6. On this topic, the appellants also raised s 182 of the SSMA and submitted that they were, in any event, entitled to access the confidential information, being advice which Mr Le Page had provided. Consequently, there was no relevant confidence to be protected.
7. Additionally, to the extent the decision of first instance might be said to be supported on the basis that the order to restrain Mr Le Page was to protect the integrity or interest of the administration of justice, the appellants contended that this was a high hurdle that could not be satisfied here.
8. In relation to the miscarriage of discretion and the principles permitting intervention on appeal, the appellants submitted that the matters identified by them were matters which the Tribunal did not take into account or properly consider. Further, as the Tribunal was bound to act judicially, the failure to consider whether there were proper grounds to prevent an Australian legal practitioner from acting, constitute a relevant appealable error.
9. In response, the respondents submitted that the Tribunal made the following findings at [10]: 1. Mr Le Page should not continue to act for the applicants. 2. There was evidence that Mr Le Page formerly acted for the Owners Corporation. 3. The application raises issues regarding unauthorised works that were carried out in 2014, when Mr Le Page was advising the Owners Corporation in relation to matters referred to in the relevant paragraphs of the application. 4. The Tribunal was satisfied that this gave rise to a conflict of interest for Mr Le Page in relation to the present proceedings. 5. Mr Le Page could potentially be called as a witness by the Owners Corporation in support of a defence that the works referred to in those paragraphs of the application were authorised or required.
10. The respondents submitted that r 32 set out matters which the Tribunal must have regard to when dealing with an application for leave to be represented and that these were considered. The respondent submitted that the discretions are very broad, and that the appellants bore the onus - which they had not discharged - of persuading the Tribunal that leave should be granted to be represented by Mr Le Page.
11. In relation to the application of the principles in Kalliconis, it was submitted that they are subject to some modification in the context of s 45. This is because the nature and extent of the discretion must be considered in the context of the power given to the Tribunal to permit representation and, if so, on what conditions. In this regard, the respondents submitted that it would be sufficient to refuse leave to be represented by a particular Australian legal practitioner if circumstances of the type identified in Kalliconis were found to exist. However, while such circumstances might be sufficient, they are not necessarily the only circumstances in which a grant of leave to be legally represented might be made on the condition that a particular Australian legal practitioner must not represent a party.
12. Lastly, the respondents contended that the principles in House apply and that the appellants must demonstrate relevant error.
13. Dealing with the particular allegations of the appellants, and why, in respect of particular matters, the Tribunal was correct to impose the condition preventing Mr Le Page from acting, the respondents did not rely on any matter arising from paragraph 13 of the appellants' original application as supporting a condition that Mr Le Page be prevented from representing the appellants. Rather, the respondents focused upon the allegations made in paragraph 12 (which relates to Lot 8) and paragraph 16 (which relates to Lot 1) of the appellants' original application.
14. In this regard, the respondents contended that Mr Le Page had represented the Owners Corporation in a dispute concerning works necessary for these lots which were the subject of orders to which we have referred above. The respondents point to the nature of the claims made by the appellants, being one of authority to carry out particular works to each of Lots 1 and 8 and whether or not work approved by the strata committee was properly authorised having regard to the content of the earlier orders. The respondents submitted, at para 33 of the submissions (AB199) that the Tribunal was "fully justified … in being satisfied that 'a reasonable observer, aware of all the material facts, would think that there is a real, as opposed to a theoretical possibility' that confidential information might be misused". The respondents referred to the decision of Drummond J in Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 312.
15. The respondents also submitted that the present situation was analogous to Connell v Pistorino [2009] VSC 289 at [29], where Byrne J disqualified a lawyer from acting against the former client because of the commonality of issues between the matters, making it undesirable that the lawyer should act against the former client. The respondents also relied on the decision of Spender J in Murray v Macquarie Bank Ltd (1991) 33 FCR 46 to the effect that the Tribunal was entitled to have regard to whether the "conduct of a legal practitioner … has a tendency to jeopardise (the) perception of faithful commitment" in circumstances where they might "readily change sides": submissions para 37 at AB 201.
16. The respondents submitted that the Tribunal was able to consider whether the Australian legal practitioner would deal fairly with other parties in the proceedings. The respondents also pointed to what they styled "problematic submissions". In this regard the respondents contended that any entitlement to access documents based on common interest can be overridden in circumstances of legal professional privilege. They also contended that the effect of the appellants' submissions is an admission that some information "may be confidential", a matter demonstrative of the "unfitness" of Mr Le Page to represent the appellants. Lastly, the respondents contended, on this topic, that it is the applicant for leave to be represented who bears the onus in respect of any issue concerning the grant of leave.

Mr Le Page as a potential witness

1. In relation to the possibility of Mr Le Page being a witness, the appellants contended that the respondents were required to establish "that the possibility of conflict is real and sensible". The appellants highlight that there was no finding to this effect and, in any event, if there is jurisdiction to exclude Mr Le Page representing the appellants "in the interests of the due administration of justice", such steps should be regarded as "exceptional, to be exercised with caution, and only with due cause". The appellants rely on what was said in Kallinicos at [76] to support this submission.
2. In relation to the particular Lot disputes, the appellants accepted that Mr Le Page gave advice regarding the application of insurance proceeds but submitted that he had no role in advising about the content and scope of the orders and obligations or what work should be performed after the orders had been made.
3. In relation to the topic of Mr Le Page as a potential witness, the respondents contended that the "authorities plainly established that the potentiality for a lawyer to be a witness creates a conflict" and the fact that Mr Le Page has contended to the contrary again demonstrates his "unsuitability" to represent the appellants. On the first aspect of this submission, the respondents rely on decisions such as Yamaji v Westpac Banking Corp (No 1) (1993) 42 FCR 431.

Representation by Clyde & Co

1. Clyde & Co are the lawyers for Chubb Insurance Company of Australia Limited (Chubb). Chubb had issued to the Owners Corporation a policy of insurance in respect of "Management Committee Liability". A copy of the policy is found at AB 80 and following. The policy indemnifies against "Wrongful Acts" of the insured, in this case the Owners Corporation, and of a committee member: see definition of Wrongful Act - AB 85 and cover provided - AB 82. Loss includes "cost and Defence Costs" - AB 85.
2. The strata committee lodged a claim in respect of the present application with Chubb. The minutes of the strata committee approving the lodgement of the claim are at AB 88. They record the lodging of a claim "for the strata, strata committee and members in relation to the application for mediation dated SP56911 File No: SM17/0029DR". Subsequently, Chubb agreed to provide representation on behalf of all respondents and when the application the subject of the present appeal was lodged, Clyde and Co commenced acting on behalf of the Owners Corporation.

Unauthorised appointment

1. The appellants asserted that the appointment of Clyde & Co on behalf of the Owners Corporation was not authorised. This appears to be a challenge to the retainer between Clyde & Co and the Owners Corporation. The assertions concerning the appointment appeared, in part, to relate to the appellants' claim that the policy, to which we have referred above, does not respond to the claim made and/or that there had been some failure in the formal process by which the lawyers were appointed.
2. There has been no challenge, by way of application to the Tribunal, to any resolution of the strata committee to lodge a claim with Chubb. There is no evidence of any resolution of the Owners Corporation in general meeting that might affect the resolution of the strata committee to lodge a claim. In these circumstances, it is not the task of the Tribunal to examine the underlying authority by which the lawyer was appointed for all respondents in circumstances where the party represented by that lawyer accepted their representation. Any dispute in this regard is a dispute between the particular clients and lawyers, not the protagonists in the litigation against whom the clients are seeking to engage lawyers to act on their behalf.
3. Consequently, it is unnecessary in the present case to deal with this issue any further.

Fiduciary duty

1. The proposition that there has, in some way, been a breach of fiduciary duty appears to be asserted in the context that the "Tribunal may and should concern itself with the duty owed to it by the lawyers appearing before it": appellants' submissions at [65], AB 184.
2. Here, again, there appears no relevant error of the Tribunal or more particularly any breach of fiduciary duty in so far as that expression is used to describe the obligation of lawyers, as officers of the court, to comply with the duties to the Tribunal.
3. Any issue, which arises is in connection with the lawyers for Chubb acting on behalf those committee members who are said to have received an inappropriate benefit in respect of their lots (Ms Stricke and Ms Stoianoff), the Owners Corporation, and the other committee members who are respondents, must be considered in the context of conflict of interest or breach of confidence. These issues, which we will deal with below, involve identifying what that conflict or confidential information may be and the persons who may have standing to assert any relevant rights in relation to such matters.
4. Otherwise, it is unnecessary to consider the issue of breach of any fiduciary obligation any further.

Conflict of interest between respondents

1. There are a number of aspects to this item of challenge.
2. First, the appellants submit that there needs to be informed consent between the various respondents before they can be represented by the same lawyer.
3. Next, the appellants point to the differing interests of the Owners Corporation, Ms Stricke and Ms Stoianoff on whom improper benefits are alleged to have been conferred and the other committee member respondents who may be active or passive participants in the conferral of such benefits. The appellants point to the fact that the Owners Corporation has been involved in litigation concerning the works necessary to be done to the lots of Ms Stricke and Ms Stoianoff. The appellants say this conflict is not hypothetical and that the interests of the Owners Corporation are not consistent with those of the other respondents.
4. The appellants then contend at AB 181 that they "do not see how, in those circumstances, Clyde & Co can properly advise all of the clients, while preserving the confidentiality of the advice given to each of them by the others.
5. The appellants asserted that the same reasoning as the Tribunal applied to the position between Mr Le Page and the Owners Corporation should apply to the position of Clyde & Co acting for both the Owners Corporation and Ms Stricke. The appellants contend that Clyde & Co have an obligation to disclose to each of those respondents information which is confidential to the other, by reason of Clyde & Co acting for each party.
6. In reply, the respondents made the following submissions.
7. The respondents contend that the assertion that there were inconsistent interests between the respondents did not engage with the principles in House. The respondents submitted that the potential conflict "arises only if the appellants succeed in their application" and "until such a finding is made, there is no conflict or possibility of conflict". In any event, so it is submitted, this issue was not raised in the hearing at first instance and so cannot be raised in the appeal. Further, and in any event, the respondents rely on the finding of the Tribunal at [15] "that it is not unusual for insured parties to be represented in legal proceedings by lawyers instructed by their insurer".
8. In relation to this last point, the appellant indicates that there was no appeal against the Tribunal's finding at [16] that there would be considerable further expense in respect of the Tribunal's financial resources if there was to be a multiplicity of representation.
9. In relation to the alleged breach of fiduciary duty said to arise by Clyde & Co acting for all of the respondents, again this allegation was not particularised by the appellants and, in any event, they have no standing to make such a suggestion. The respondents say that this submission is dependent upon the appellants succeeding in respect of the allegations made in the claims, matters denied by the respondents, and that the respondents are entitled to representation of their own choice in defending these allegations. Consequently, the respondents submit that until the allegations are proved "the [Owners Corporation] has no free-standing interest in their removal" as committee members.
10. Lastly, the respondents rely on the decision of McDougall J in The Owners - Strata Plan 58068 v Fair Trading Administration Corporation [2009] NSWSC 850 to contend that it is "clear that the knowledge of the executive committee or the strata managing agent, as to the matters within their respective areas of responsibility, would be knowledge of the Owners Corporation". The committee members have determined that their interests and those of the Owners Corporation are aligned and therefore the Owners Corporation "does not have any interest in the subject matter of the proceedings that is separate from the individuals who comprise its Strata Committee unless adverse findings are made, at which point the (committee members) may lose their indemnity anyway": submissions para [62] AB 207.
11. In relation to the issue of fully informed consent, as there is no basis to conclude that this has not been obtained, the respondents submitted that there is no evidence to suggest there has been a breach of fiduciary duty and that the Tribunal was correct to conclude at [15] that there was no reason to impose conditions on the respondents' legal representation.
12. Lastly, in respect of the submission that an insurer has voluntarily undertaken to pay legal costs, the respondents described the submission as both "ridiculous and irrelevant". The suggestion that the involvement of the insurer will adversely affect the quick and cheap resolution of the proceedings, or otherwise "savours of maintenance", has no merit and should be rejected. In any event, these matters are again new arguments which should not be permitted.

Leave to Appeal

1. This is an appeal from an interlocutory decision of the Tribunal concerning the grant of leave pursuant to s 45 of the NCAT Act for the parties to be represented by Australian legal practitioners. Each party opposes the other's choice of lawyer. Consequently, leave to appeal is required on any question: s 82(2)(a) of the NCAT Act.
2. Although the appeal relates to proceedings in the Consumer and Commercial Division, cl 12 of Sch 4 does not apply to the determination of the grant of leave. That clause only applies to appeals from decisions of the Division under s 82(2)(b), not being interlocutory decisions.
3. The principles for the grant of leave to appeal an interlocutory decision were considered by the Appeal Panel in Champion Homes. At [35] the Appeal Panel said: As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.
4. The parties do not appear to challenge the statement of principles. However, leave is opposed by the respondents.
5. In our view, leave should be granted. As far as we are aware, the appeal raises matters of principle on issues not previously considered by the Appeal Panel in respect of leave for legal representation in proceedings at first instance. Further, for the reasons that follow, we are also satisfied there is a relevant injustice which should be corrected.

Relevant principles regarding representation

1. Section 45 of the NCAT Act provides as follows: 45 Representation of parties (1) A party to proceedings in the Tribunal: (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave: (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party. (2) However, a party to an internal appeal (or in an application for leave to make an internal appeal) may be represented by a person without requiring the leave of an Appeal Panel if the party was entitled to be represented by such a person without the leave of Tribunal in the proceedings in which the decision under appeal was made. (3) The Tribunal may at its discretion: (a) grant or refuse leave under subsection (1) (b), and (b) revoke any leave that it has granted.
2. The other subsections of s 45 are not presently relevant.
3. The section does not define the circumstances when leave may be granted. Rather, there is a general discretion to grant or refuse leave and/or to revoke leave if it has been granted. That grant can be on conditions: see r 31 of the Rules.
4. Some assistance in determining what matters are relevant in deciding whether or not leave should be granted is to be found in Div 2 of the Rules. This Division contains rr 31-33. It is appropriate to set out the Division in full. Division 2 Representation of parties 31 Application for leave to represent a party (1) An application by a person under section 45 of the Act for leave to represent a party to proceedings may be made orally or in writing at any stage in the proceedings. (2) In making an order granting leave to a person to represent a party to proceedings, the Tribunal may impose such conditions in relation to the representation as the Tribunal thinks fit. 32 Granting and revocation of leave for a person to represent party (1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to: (a) such of the following circumstances as it considers are relevant to the proceedings: (i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal, (ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings, (iii) whether the proposed representative is vested with sufficient authority to bind the party, and (b) any other circumstances that it considers relevant. (2) The Tribunal may revoke leave granted to a person to represent a party to proceedings only if the Tribunal is satisfied that: (a) the party no longer consents to the person representing the party, or (b) the person applied for leave to represent that party without the consent of the party, or (c) the person does not have the qualities referred to in subrule (1) (a) (i) or (ii) to act as the party's representative, or (d) the party is, or has become, incapable of instructing the representative, or (e) any other grounds are present that the Tribunal considers sufficient to justify the revocation. 33 Costs of representation may be disclosed Without limiting rule 31 (2), the Tribunal may, as a condition of an order granting leave to a person (including an Australian legal practitioner) to represent a party to proceedings, require the person to disclose the estimated cost of representation by the person.
5. In addition to these matters, and without seeking to define all factors that might be relevant to consider in an application to be represented, s 3 (Objects of Act), s 36 (Guiding principle to be applied to practice and procedure) and s 38 (Procedure of the Tribunal generally) are also relevant.
6. In this regard, the Tribunal: 1. may determine its own procedures for which the NCAT Act and the Rules does not otherwise make provision: (s 38(1)); 2. is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (s 38(2)); and 3. is to take such measures as are reasonably practicable to ensure that the parties to the proceedings understand the nature of the proceedings and have a reasonable opportunity to be heard or otherwise to have their submissions considered (s 38(5)).
7. Overarching these considerations is the obligation on the Tribunal to implement the guiding principle, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings (ss 3 and 36(1)), a matter about which all parties and their representatives have a duty of co-operation (s 36(3)).
8. As can be seen from the above, in respect of an application for representation, the Tribunal is to consider whether an order for representation should be made, who should be appointed and what, if any, conditions should be imposed.
9. The starting point is that there is no right to representation generally in the Consumer and Commercial Division. While there was previously a right of appearance for lawyers under the 1996 Act, these provisions were repealed so that the general requirements of s 45 of the NCAT Act apply to proceedings under the SSMA. This is different to the position which applies to legal practitioners in respect of court proceedings. Rather, a party seeking leave must demonstrate that there are circumstances which justify the grant of leave and the Tribunal must be satisfied that it is appropriate to do so.
10. In connection with an application to be represented by an Australian legal practitioner, it is not mandatory on the Tribunal to have regard to the circumstances prescribed in r 32(1) in determining whether or not to grant leave: see introductory words to r 32(1) - "other than an Australian legal practitioner". This is hardly surprising having regard to the obligations of an Australian legal practitioner arising from the duty to the court or tribunal and the fact that potential representatives who are not lawyers are not bound by similar obligations. However, those circumstances, if raised by the parties and relevant to a determination of an application for leave to be represented by an Australian Legal practitioner, may still be considered in exercising a discretion about whether or not to grant leave.
11. Other considerations that may be relevant include: 1. the complexity of the issues raised for determination; 2. the capacity of the individual seeking leave to be represented to understand and effectively participate in the proceedings in a manner which allows them a reasonable opportunity to be heard; 3. the need to ensure that there is no material imbalance between the parties, 4. the need to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and 5. whether it is appropriate in all the circumstances to give leave to a particular person, including an Australian legal practitioner.
12. In the present case, the Tribunal was satisfied that the proceedings before it were appropriate proceedings in which the party should be given leave to be legally represented, despite s 45(1). This finding was not challenged on appeal.
13. Also not the subject of this appeal was the meaning of the word "representation". Both parties accepted that the expression referred to representation during hearings before the Tribunal, although there was discussion as to whether or not a solicitor instructing Counsel would be relevantly "representing" a party within the meaning of s 45. In this regard, it was clear that the intention of the leave sought was to ensure both Mr Le Page and representatives from Clyde & Co could appear as advocates before the Tribunal on behalf of their respective clients during the course of interlocutory hearings or at the final hearing. Neither party suggested s 45 generally regulated a solicitor client relationship whereby a party might seek independent legal advice concerning proceedings before the Tribunal.
14. It is the conditions imposed in respect of particular legal practitioners and/or law firms that is the subject of challenge in this appeal.

Relevant principles regarding restraining a practitioner from representing a party

1. Neither party contended in the appeal that the Tribunal lacked power to impose a condition preventing a particular legal practitioner or law firm from representing a party in circumstances where the proposed Australian legal practitioner or law firm had a conflict of interest or possessed confidential information or where circumstances otherwise existed which might permit the Supreme Court of New South Wales to make orders or grant an injunction to restrain such action. However, there was a difference between the parties concerning the approach to be taken in circumstances where the starting position was that a party to proceedings has the carriage of their own matter.
2. In relation to the principles concerning whether it was inappropriate for a particular Australian legal practitioner to act by reason of a conflict of interest or by reason that they possessed confidential information, both parties referred to the decision of Kallinicos. In that case, Brereton J reviewed the authorities relevant to whether or not a court would restrain a lawyer from acting for a different party, including the decision of Prince Jefri Bolkiak v KPMG [1999] 2 AC 222. At [76], his Honour summarised the principles as follows: 76 The foregoing authorities establish the following:· During the subsistence of a retainer, where the court's intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court's jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests [Prince Jefri]. · Once the retainer is at an end, however, the court's jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure) [Prince Jefri]. · After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court's intervention, such duty having come to an end with the retainer [Prince Jefri; Belan v Casey; Photocure; British American Tobacco; Asia Pacific Telecommunications; contra Spincode; McVeigh; Sent]. · However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v Pattern Holdings; Spincode; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt]. Prince Jefri does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications appears to acknowledge its continued existence. · The test to be applied in this inherent jurisdiction is whether a fair-minded, 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]. · 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].
3. This statement has been approved by the Court of Appeal of the Supreme Court of New South Wales: see eg Cooper v Winter [2013] NSWCA 261 at [96]-[97].
4. In Cleveland Investments Global Ltd v Evans [2010] NSW 567 (Cleveland), Ward J applied Kallinicos and noted that the court's jurisdiction to intervene is not only to protect client confidences, but also in order to assist the administration of justice: at [3]. Her Honour noted further: [5] The test to be applied in the exercise of the court's inherent jurisdiction, as articulated by Brereton J in Kallinicos v Hunt is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting for his or her former client, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice (at [76]). [6] The jurisdiction is regarded as exceptional and is to be exercised with caution. Nevertheless, as observed by Bryson J (as his Honour then was) in D & J Constructions Pty Ltd v Head & Ors t/as Clayton Utz (1987) 9 NSWLR 118, at 123, when noting that cautious conduct by the court is appropriate, this is: because the spectacle or the appearance that a lawyer can readily change sides is very subversive of the appearance that justice is being done. (my emphasis) [7] His Honour went on to note that the appearance which matters is the appearance presented to a reasonable observer who knows and is prepared to understand the facts (at 123).
5. While it is correct that the Tribunal (including the Appeal Panel) has no general power to restrain an Australian legal practitioner from acting for a particular party, and has no inherent jurisdiction to regulate the conduct of an Australian legal practitioner, nonetheless the Tribunal is entitled to have regard to these factors in considering whether, in all the circumstances, a particular Australian legal practitioner should be permitted to represent a party. This is because it is required to ensure the just, quick and cheap resolution of the real issues in dispute and in doing so is entitled to ensure that its processes are not used in a manner which deprives a particular party of the lawful entitlements in the conduct of the case or protection of their legal rights in so far as they might be adversely affected in an inappropriate way by what occurs in Tribunal proceedings. Again, this was not a matter in dispute in this appeal.
6. Finally, there appears to be no dispute in this appeal that s 182 of the SSMA (formerly s 108 of the 1996 Act) provides a mechanism by which a lot owner might seek access to documents in possession of the Owners Corporation, including documents that might be privileged or confidential: see Eastmark Holdings Pty Ltd Limited v Kabraji (No 3) [2012] NSWSC 1463 (Eastmark). However, its application and the rights of a lot owner in circumstances where there is a dispute between the Owners Corporation and that lot owner is a matter to which we will return below. In this regard the observations of the Court of Appeal in The Owners - Strata Plan No. 74602 v Eastmark Holdings Pty Limited [2013] NSWCA 221 (The Owners - Strata Plan No. 74602) are relevant.
7. It is against this background that the appellants' appeal is to be determined.
8. We will deal with this appeal under the following headings: 1. Representation of the appellants by Mr Le Page; and 2. Representation of the respondent by Clyde & Co.

Factual Consideration

1. Prior to doing so, it is appropriate to set out factual considerations relevant to the disposition of this appeal.
2. As is evident from the principles identified in Kallinicos, a central issue to resolving the present dispute concerns the nature of the information which is said to give rise to a conflict or be confidential.
3. The information relates to each of Lot 8 and Lot 1.
4. In relation to Lot 8, it is evident from the material provided to be the Appeal Panel that there was originally a dispute in 2012 concerning the obligations of the Owners Corporation to carry out repairs to the common property of the strata scheme and make good any consequential damage to the lot owner's property while carrying out that work. The form of the orders made is set out above. The orders were made in connection with a strata adjudication under the 1996 Act, final orders being made on appeal by the Consumer Trader and Tenancy Tribunal (CTTT), the predecessor of this Tribunal.
5. Significantly, the dispute was between Mr Mountstephens, the former owner of Lot 8 and the Owners Corporation. The dispute was not between the present owner, Ms Stoianoff and the Owners Corporation. However, upon acquiring the property, Ms Stoianoff became entitled to the benefit of the orders insofar as the works had not been completed. This is not because she was a party to the proceedings but because the Owners Corporation remained obliged to carry out the work in accordance with the adjudicator's determination (subject to any limitation which operated in connection with that order by reason of the 1996 Act, which limited the operation of any order for two years).
6. As we outlined above, the works were apparently not completed because access was denied by the former owner. However, with the change of ownership, this barrier was removed. Subsequently, the strata committee (previously called the executive committee) met and passed resolutions to complete this work. It is the extent of work done and whether it arose in consequence of the Tribunal's orders made 24 July 2012 in favour of Mr Mountstephens that is the subject of the appellants' application.
7. In these circumstances, any privilege or confidence that attached to legal advice in relation to those proceedings was a privilege which operated as between Mr Mountstephens on the one hand and the Owners Corporation and the remaining Lot owners on the other. However, as between the Owners Corporation and the Lot owners other than Mr Mountstephens, the Lot owners were entitled to those documents and they were not protected by any relevant privilege or confidence: see Eastmark at [103]. The advice given in relation to the settlement agreement was, at least, for the benefit of all lot owners other than Mr Mountstephens.
8. The respondents relied on the decision of the Court of Appeal in The Owners - Strata Plan No. 74602 being an appeal from the Eastmark decision. They submit that the decision in Eastmark was overruled in relation to the question of legal professional privilege. In their supplementary submissions filed at the conclusion of the appeal dated 4 April 2018 the respondents refer to the comments of the Court of Appeal at [26].
9. The problem with this submission is that it takes out of context what the Court of Appeal said in its reasons.
10. At [22] and following, the Court of Appeal was considering circumstances where there had been earlier disputes between the same parties. In this regard, the Court drew a distinction between advice given in connection with an agreement between that Owners Corporation and hendersenhayes Pty Ltd (hendersenhayes) which was the subject of the "first lis" and the disputes concerning the "other lites or prospect lites as between Eastmark and the Owners Corporation". In relation to the agreement with hendersenhayes, the Court of Appeal concluded that the interests of Eastmark and the Owners Corporation were "identical, in so far as Eastmark seeks to enforce the rights of the Owners Corporation": at [22]. In the second situation, the Court said the interests of the parties were divergent and that the disputes between Eastmark and the Owners Corporation "were in existence prior to the Agreement Retainer and, therefore, prior to the seeking and giving of advice that is the subject of the subpoena": at [23].
11. In relation to the first matter, where there was no divergent interest, the Court of Appeal permitted access to the information. This was because the parties "at the time when the documents were created, were not adverse to each other since they were not adversaries": at [24]. Here, the Court of Appeal accepted the conclusions of the judge at first instance.
12. However, in the second matter, Eastmark was a potential defendant in proceedings to be brought by the Owners Corporation against it. Consequently, this difference, which had existed at all relevant times, protected confidential information of the Owners Corporation in respect of this dispute from disclosure to Eastmark.
13. In the present case, at no time could the advice given by Mr Le Page in connection with Lot 8 have been confidential as between the Owners Corporation and Ms Stoianoff. She was not a party to the dispute. The implementation of the orders predated her ownership of Lot 8. Any advice arose from a pre-existing obligation the Owners Corporation had to comply with the orders of the CTTT.
14. There is no evidence to suggest there was a dispute at any relevant time with Ms Stoianoff about these matters. Rather, the evidence to which we have been referred suggests that until the present proceedings were commenced by the appellants, the only dispute arose between the Owners Corporation and the predecessor in title, Mr Mountstephens; the Owners Corporation apparently taking steps to comply with this agreement.
15. Similarly, as between Mr Rodny and his company on the one hand (as Lot owners), and the Owners Corporation on the other, again there was no diversity of interest such as to render advice given by Mr Le Page, in connection with the dispute with Mr Mountstephens about Lot 8, confidential between the Owners Corporation and the appellants.
16. Because the information was not originally confidential as between the relevant parties, the subsequent commencement of proceedings cannot change its character: O'Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1, 25 (Mason J) (the principle being that once disclosure is made, privilege is therefore lost).
17. The position in connection with Lot 1 is different. There, at all times, Ms Stricke was the Lot owner in dispute with the Owners Corporation. Accordingly, the position as between Ms Stricke and the Owners Corporation would, in accordance with the statements of the Court of Appeal in The Owners - Strata Plan No. 74602, prevent Ms Stricke from accessing advice given in connection with the settlement agreement, and the litigation between the Owners Corporation and herself, and therefore give rise to a potential that any loss of confidentiality should be protected against, as part of making appropriate orders for representation.
18. However, it appears from the evidence to which we have been referred that any confidence or privilege which attached to those documents or communications was waived in consequence of the meetings of the strata committee following settlement of the District Court proceedings and the entry into the District Court orders. We are otherwise unaware of any communications or documents which remained confidential.
19. In this regard, we note that settlement of the District Court proceedings occurred on 4 July 2013. After this time, there were at least two meetings of the strata committee of the Owners Corporation concerning the carrying out of work to the property of Ms Stricke. These were the meetings of 4 February 2014 and 5 June 2014 to which we have referred above. At both of these meetings, Ms Stricke was in attendance.
20. In relation to the meeting on 4 February, the minutes record the following under the heading "CHAIRMAN'S REPORT": The Chairman (the Ms Stoianoff) addressed the meeting advising she had held meetings with: The Strata Manager, David Le Page solicitors and fortnightly with the Building Manager and treasurer. (Natalie Stoianoff) and (Gerald Healy) met with Graham Eather (previous building manager) for clarification of outstanding repairs and ongoing works. A quotation for LED lights and energy-saving fittings will be obtained with a view to taking advantage of any available Government Rebates. The Chairman informed the meeting that legal advice from David Le Page solicitors stated that a Special Levy was required by order of the District Court for the purpose of finalising the agreed legal costs payable to the Owner of Lot 1. An EGM is required to raise such a Special Levy, and the levy would be payable by all owners with the exclusion of Lot 1. With the agreement of Lot one the following resolution was passed. RESOLVED that the Executive Committee call an Extraordinary General Meeting within the next 3 months in order to raise a Special Levy to comply with the orders.
21. At the meeting on 5 June 2014, the minutes record the following under the heading "CHAIRMAN'S REPORT": The Chairman addressed the meeting and advised the following: Mr David Le Page has written regarding the Short Minutes in the legal matter over Lot 1's bathrooms. This letter has been circulated among the EC members and a contractor, Marble Renewal, has been chosen from the 3 tenders for the work to be undertaken. The building manager, Luke Perrin, is to liaise with Miss Stricke to arrange for the work to be done and finalise the matter. …
22. Having regard to what was discussed at these meetings and who was in attendance, it is difficult to see what confidential information Mr Le Page possessed that might prevent him from acting for the appellants in the present circumstances. The District Court proceedings had been settled and works were being undertaken. There were no continuing disputes between the parties to the District Court proceedings. To the contrary, the documents record open discussion in meetings of the executive committee and/or at general meetings where special levies were to be raised about how to complete any necessary work and what work was required to be funded. More particularly, insofar as any advice was given by Mr Le Page concerning the District Court orders, this was the subject of discussion in open meetings at which Ms Stricke attended on at least two occasions and Mr Rodny on at least one occasion.
23. Further, Ms Stricke is now a committee member and there is no evidence that she has been prevented from accessing any confidential documents or advice, a matter that might have led to a conclusion that any confidence has been maintained.

The Decision at First Instance and Issues on Appeal

1. The Tribunal said at [10] of its reasons: As regards the (appellants') representation, the Tribunal accepts the respondents' submission that Mr Le Page and/or his firm should not continue to act for the (appellants). There is evidence that Mr Le Page formally acted for the Owners Corporation. The (appellants') application lodged on 20 October 2017 raises issues (see, for example, at paragraphs 12, 13 and 16) regarding unauthorised works which were carried out in 2014. During 2014, Mr Le Page was advising the Owners Corporation (i.e. the 6 respondent in these proceedings) in relation to the matters referred to in those paragraphs of the application. The Tribunal is satisfied that this gives rise to a conflict of interest for Mr Le Page in the present proceedings. Indeed, Mr Le Page could potentially be called as a witness by the Owners Corporation in support of a defence that the works referred to in those paragraphs of the application were authorised or required.
2. The Tribunal then considered, at [14] and following, the position of Clyde & Co acting for the respondents. The Tribunal said: 14. The Tribunal does not accept the (appellants') submissions as regards representation of the respondents. Unlike the question of the (appellants') representation which involved a lawyer (Mr Le Page) proposing to act against his former client, the Tribunal finds that the respondents' selection of the legal representatives is entirely a matter for them. There is no evidence to suggest that the (committee members) are acting otherwise than in accordance with their obligations under the SSMA, or that they are not entitled to instruct lawyers on behalf of the Owners Corporation in the manner that they did. 15. The (appellants') submissions regarding the insurance position of the respondent do not assist the Tribunal. The scope of cover provided by the policy of insurance issued by Chubb affecting the strata scheme and/or the scope of the Clyde & Co's retainer are matters for the respondents. The Tribunal sees no reason to impose conditions on the respondents' legal representation. It is not unusual for insured parties to be represented in legal proceedings by lawyers who are instructed by their insurer. 16. Moreover, the consequence of the (appellants') submissions about legal representation of the respondents, even if accepted by the Tribunal, would require each respondent to engage separate representation. Clearly this would be at considerable further expense to the parties. It would also make significant inroads into the Tribunal's finite resources; i.e. in providing sufficient hearing time for all parties and their legal representatives to have a reasonable opportunity to be heard and otherwise have their submissions considered in the proceedings: see, generally, s 36 of the NCAT Act. 17. For the foregoing reasons the Tribunal grants leave to the respondents to be legally represented in the proceedings by Clyde & Co.
3. As was made clear in Kallinicos, once a retainer is at an end, any jurisdiction of the court to restrain a solicitor from acting is not based on conflict of duty or interest arising from the solicitor's fiduciary obligation to their client, but the protection of confidences of the former client. In this situation, there may also be a consideration of whether the proper administration of justice requires that a particular legal practitioner should be prevented from acting, which might concern conflicts of interest arising from the solicitor's duty to the court or tribunal. Lastly, there may be a question arising from the possibility that Mr Le Page may be a witness in the proceedings.
4. In the present case, there is no suggestion that Mr Le Page is currently retained by the Owners Corporation or any of the committee members. Therefore there is no question of breach of fiduciary obligation. Rather, the matter is to be dealt with having regard to an analysis of the information said to be confidential and/or any requirements arising from the proper administration of justice.

Representation of the appellants by Mr Le Page

1. In our opinion, the facts to which we have referred disclose that there is no information which is confidential and which needs to be protected by the imposition of a condition preventing Mr Le Page from acting.
2. The findings of the Tribunal do not identify particular information that was and remains confidential. Rather, the evidence suggests that all those who might be protagonists in the present dispute have, at one time or another, had access to the information about which a confidence is now claimed.
3. In these circumstances, we do not accept there is any confidence which needs to be protected by the imposition of the condition imposed by the Tribunal in its original decision.
4. The next question is whether, having regard to the proper administration of justice, Mr Le Page should be prevented from acting in the present circumstances.
5. In Kallinicos, Brereton J referred to the decision of Bowen v Stott [2004] WASC 94 (Bowen). At [70]-[71] his Honour said (citations omitted): 70. In Bowen v Stott, Hasluck J granted an injunction at the suit of the plaintiff restraining the defendants from engaging any solicitor associated with Minter Ellison from acting for them, and requiring that Minter Ellison be removed from the record as solicitors for the defendants, finding that there were circumstances which might suggest to a fair-minded, reasonably informed member of the public that, if evidence were given of the kind likely to be given by the legal practitioners involved in the negotiations, a conflict of interest might arise which could interfere with the proper administration of justice, because the practitioners might not be able to conduct themselves with proper objectivity. His Honour recorded that while counsel for the plaintiffs submitted that there were three recognised grounds for intervention, reliance on the first two was eschewed - the first being protection of confidential information of a former client, where that information might be relevant to a matter in which the solicitor is instructed by a later client; and the second being where a solicitor in possession of a client's confidential information subsequently becomes employed or engaged in a second firm which is acting against the solicitor's former client, in circumstances in which that information is or might be relevant to the conduct of those proceedings, and there is a risk that the information will be disclosed to those having the conduct of the proceedings. The plaintiff relied only on the third basis for relief, namely that "the court may intervene where restraining the solicitor is in the interests of the court exercising proper control over the conduct of an officer of the court". 71. After reference to Williamson v Nilant, Hasluck J focussed the test on the independence and objectivity of the solicitor [at [53]]:- The most obvious case in that regard would be a situation in which a solicitor had some direct pecuniary interest in the outcome. It might seem to an independent observer that a solicitor, notwithstanding his best efforts to be impartial and objective, might adjust his evidence in some way to procure a result that suited his interest. The decided cases suggest also that the same principles apply in circumstances where a solicitor might feel impelled to justify or defend his conduct in representing a client, notwithstanding that the solicitor did not have any specific pecuniary interest in the outcome other than the obtaining of his professional fees. 72 His Honour added observations to the effect that the exercise of the power must be regarded as exceptional; that it was generally undesirable for a practitioner aware that he was likely to be called as a witness other than in relation to formal or non-contentious issues to continue to represent the client; that a clear case should be required that the practitioner in question is fixed with an interest conflicting with his duty to the court, but that if a practitioner's credibility is at stake as a witness so that his or her personal integrity may be put in issue, that may constitute a personal interest inconsistent with the practitioner's duty to the court or to the client; and that the cost, inconvenience or even impracticality of a firm ceasing to act may provide a reason for refusing to grant relief, due weight being required to be given the public interest that a litigant should not without good cause be deprived of his or her choice of counsel.
6. In Cleveland, Ward J restrained a practitioner, Mr Oliveri, in circumstances where (at [7]-[8]) her Honour said: [7] Mr Evans was the sole director in charge of the cross-defendant, Ficaro, at the time Mr Oliveri was instructed to act for the company and throughout the period in which Mr Oliveri so acted; Mr Oliveri was instructed to act for Ficaro after a cross-claim had been served on Ficaro by Mr Evans (and acknowledged that this caused him difficulties in taking any step for Ficaro not only in relation to the cross-claim but also in relation to the preparation of a defence in the main proceedings); in his capacity as sole director of Ficaro (and while there was on foot a cross-claim by him against Ficaro), Mr Evans gave instructions to Mr Oliveri in relation to the proceedings (the precise content of which instructions not being known by Ficaro and attempts to ascertain this, by way of a notice to produce issued to Mr Evans, having been opposed by Mr Oliveri in his capacity as solicitor for Mr Evans); there is some evidence to suggest that, while acting for Ficaro, Mr Oliveri corresponded with the plaintiff's solicitors in accordance with instructions given by Mr Evans in relation to Mr Evans' own personal position (at least in responding to a notice to produce served on him); Mr Oliveri has refused to disclose to a costs assessor the purpose of a conference for which a particular charge was rendered to Ficaro, on the basis that there are still proceedings on foot between Ficaro/Cleveland and Mr Evans; Mr Oliveri considers that he has no duty to appraise his former client of the content of instructions given to him by its sole director in relation to the matter at a time when Mr Oliveri was acting for the company (and not for Mr Evans); and Mr Oliveri is now in a position to use the knowledge gained from Mr Evans during that period to the forensic advantage of Mr Evans in prosecuting the cross-claim against Ficaro and/or defending the claim by Cleveland against Mr Evans. Ficaro, by reason of the above, is largely in the dark as to what Mr Oliveri's knowledge derived from its former director might be. [8] In my opinion, to adopt the words of Bryson J in D & J Constructions, the readiness with which Mr Oliveri has changed sides on the very same claim in the very same proceedings is something very subversive of the appearance to a reasonable and fair-minded observer that justice is being done. Given that the present application has been brought promptly after the change of instructions was effected, and the proceedings are at a relatively early stage, so that the prejudice to Mr Evans of being required to retain new solicitors is relatively minor, I consider it to be in the interests of the due administration of justice (and the appearance of justice) that Mr Oliveri (and his firm) be restrained from continuing to act for Mr Evans.
7. In the present case, the matters in dispute relate to whether or not the works undertaken were required by order of the Tribunal (in the case of Lot 8) or by order of the District Court (in the case of Lot 1). This is a matter of construing the orders made by the Tribunal and the Court and the settlement agreement to which the orders relate. Otherwise, the dispute concerned whether or not the strata committee properly authorised works within the terms of these orders.
8. In relation to the orders sought under s 238 of the SSMA, the issues to be resolved are whether the members of the strata committee acted in accordance with the duties owed to the Owners Corporation as members of the committee or made decisions which benefitted some of the members of that committee. No suggestion has been made that Mr Le Page gave advice about the duties of the strata committee members in voting in connection with implementing the orders.
9. In that context, it is difficult to see how any evidence which Mr Le Page might give on this issue (namely committee member duties) may be relevant to a disposition of the real issues in dispute.
10. However, it seems clear that Mr Le Page was formerly engaged to advise in relation to the proceedings in which the work orders were made. This advice would have related to the duties of the Owners Corporation, its liability to rectify lot property damaged in consequence of its breach of duty to repair and maintain common property and, in connection with the District Court orders, the terms of any compromise.
11. Now, it would appear, he is advocating for a lot owner to the effect that strata committee members have acted other than in accordance with their duties to the Owners Corporation and have agreed to undertake work to particular lot property that was not otherwise authorised by the strata legislation, the orders made or, in respect of the District Court orders, the agreement reached.
12. While any information Mr Le Page possessed may no longer be confidential, it seems to us that there is a reasonable perception that Mr Le Page, having previously provided advice to the strata committee and/or Owners Corporation concerning the Owners Corporation's liability for breach of duty, has now "changed sides" and is supporting the position of a protagonist who claims that the actions of the strata committee members were other than in accordance with their duties to the Owners Corporation and beyond the terms of any agreement reached in settlement of the District Court proceedings. A perception might arise that he "might feel impelled to justify or defend his conduct" notwithstanding no pecuniary interest in the outcome (see Bowen, [53], adopted by Kallinicos [71]). Alternatively, it might be perceived that Mr Le Page has an interest in ensuring any settlement agreement about which he advised is not interpreted in a manner that might bring into question advice he originally gave the Owners Corporation.
13. While we are certainly not suggesting that Mr Le Page would act otherwise than honestly and in accordance with his duties as an Australian legal practitioner, it seems to us in the present circumstances that the fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner should be prevented from acting on the dispute brought by a lot owner in relation to the scope of the duties of the strata committee in implementing orders made against the Owners Corporation, where he had previously acted for the Owners Corporation (by appointment of the strata committee) in the proceedings in which those orders were made. A fair-minded observer would conclude that it is in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice, to restrain the practitioner from 'switching sides'.
14. Even though the jurisdiction is exceptional and to be exercised with caution, the "appearance that a lawyer can readily change sides is very subversive of the appearance that justice is being done" (D & J Construction Pty Ltd v Head (1987) 9 NSWLR 118, 123; Cleveland at [8]).
15. It follows that the appeal in connection with the condition imposed preventing Mr Le Page and his firm from acting on behalf of the appellants should be dismissed.

Representation of the respondent by Clyde & Co.

1. In relation to the appeal concerning the representation of the committee members by Clyde & Co, we are not satisfied that the ground relating to "informed consent" has any merit.
2. As between the committee members, they are aware of the allegations that have been made against them, they are aware that an insurance claim has been made, and that the insurer has nominated its lawyer to represent their interests, and there is no basis to conclude that they have not consented to Clyde & Co acting on behalf of all strata committee members.
3. On the other hand, it seems to us conceivable that, in circumstances where the committee members are being sued for misconduct, the appointment of the same lawyer to act on behalf of the Owners Corporation should not have been approved by the committee members alone. As we said above, there is no evidence that the Owners Corporation, in general meeting, gave approval.
4. It was open to the Owners Corporation in general meeting to conclude that the allegations made by the appellants had no merit and, in the absence of any reasons to the contrary, to appoint the lawyers of Chubb to act on behalf of the Owners Corporation, as well as on behalf of the committee members. Alternatively, if the general meeting thought appropriate, separate lawyers could be appointed for the Owners Corporation. In this way the interests of all lot owners, including the protagonists in the present dispute, could be reasonably protected as would the Owners Corporation who may otherwise be faced with the possibility of paying for individual lot owner renovations.
5. The respondents submitted that the claims made against the committee members have not been proven. Consequently, the respondents say the allegations of the appellants are hypothetical and there is no basis to exclude them from acting until those allegations are proved.
6. In our view, this approach diverts attention from the issue of whether or not the Owners Corporation should have separate representation because its interest might diverge from those of its strata committee. In this regard, as is made clear by s 9 of the SSMA, the Owners Corporation is responsible for the management and use of common property and the administration of the strata scheme "for the benefit of the owners of the lots in the strata scheme", not the committee members or individual lot owners: see s 9(2).
7. The fact remains that the Owners Corporation has not, in general meeting, approved the appointment of common lawyers to those appointed by the strata committee.
8. Balancing these matters, and having regard to the fact that the present dispute has a long history which is indicative of particular Lot owners being at "loggerheads" with each other, we think that the Tribunal was in error in not considering this matter and in failing to impose a relevant condition in respect of Clyde & Co acting for the Owners Corporation. In our view, the Tribunal ought to have permitted the respondents to be legally represented on the following terms: The respondents have leave to be legally represented. The preceding order is conditional on the Owners Corporation not being represented by the same Australian legal practitioner or law firm as the other respondents unless the Owners Corporation in general meeting approves such an appointment.
9. In this way, the Owners Corporation in general meeting can determine whether there is any relevant divergence of interest that warrants the extra cost incurred by the appointment of separate lawyers.
10. In this regard, we should note the comments of the Tribunal at [16] that additional representation may have the consequence of utilising the "finite resources" of the Tribunal.
11. In our view, the issues of proportionality and the cost to the Tribunal are subsidiary to the issues of justice which arise in consideration of whether legal representation should be permitted. The primary consideration in this case is whether or not a particular lawyer is appropriate to be appointed having regard to the interests of the parties and what is required for the just resolution of the real issues in dispute. Where parties may have divergent interests, unless there is informed consent, there is clearly a need for separate representation or for each of the parties to have the carriage of their own cases, in the manner contemplated by s 45. In this way, the possibility that any hearing might be aborted due to unforeseen events is minimised and, more particularly, each party is afforded a reasonable opportunity to be heard in respect of their own position.
12. Lastly, we note that each party made submissions about who carried the onus of proof. While unnecessary to decide, in our view an applicant seeking leave must prove those matters necessary for the grant of leave and a party contending a condition should be imposed bears the onus of any factual matter to support that contention. Having said that, the proper administration of justice requires the Tribunal to review all matters relevant to determining what orders should be made.

Orders

1. Having regard to the above, the Appeal Panel makes the following orders: 1. The appellants are granted leave to appeal the interlocutory decision made on 29 January 2018. 2. In respect of the appeal against the condition imposed in respect of representation of the appellants by an Australian legal practitioner other than Mr Le Page and his firm, the appeal is dismissed. 3. In respect of the appeal against the grant of leave for the respondents to be legally represented, the appeal is allowed in part and the order is varied to read as follows: a) Leave is given to the respondents to be legally represented. b) The preceding order is conditional on the Owners Corporation not being represented by the same Australian legal practitioner or law firm as the other respondents unless the Owners Corporation in general meeting approves such an appointment.
2. In relation to the question of costs, the appellants have only been partly successful.
3. If either party seeks a costs order, they should file an application for costs, supported by any relevant evidence and submissions within 7 days from the date these reasons are published. In this case, the submissions in reply by the respondent to the application will be due 7 days thereafter and the costs applicant will be entitled to reply to those submissions in a further 7 days.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2018