Slaveski v State of Victoria & Ors [2009] VSC 540

3 The form in which the application comes before me is "for an injunction restraining Ronald Gipp from further acting for the Second to Twentieth Defendants in" the proceedings before Kyrou J. The application in those terms was, I assume, made orally to his Honour and seeks an order to restrain counsel from appearing rather than to restrain the parties from retaining him to appear. Mr Gipp did not appear as a party in the application before me but gave evidence and was cross- examined by Mr Slaveski. The second to twenty-first defendants appeared on the application by other counsel to controvert the application by Mr Slaveski.

4 The principles upon which a lawyer may be restrained from acting against a former client have been stated several times recently.[1] In Commonwealth Bank of Australia v Kyriackou Judd J said:

The grounds upon which a solicitor may be restrained from acting for a party were helpfully summarised by Whelan J in Pinnacle Living Pty Ltd v Elusive Image Pty Ltd. In that case Whelan J accepted the correctness of the tests laid down by Brooking JA in Spincode Pty Ltd v Look Software Pty Ltd & Ors, as discussed and applied by Nettle J in Sent and Anor v John Fairfax Publications Pty Ltd and Anor. The grounds are summarised by Whelan J in the following terms:

(1) The Court will restrain a legal practitioner from continuing to act for a party to litigation if a reasonable person informed of the facts might reasonably anticipate danger of misuse of confidential information of a former client, and that there is a real and sensible possibility that the interest of the practitioner in advancing the case in litigation might conflict with the practitioner's duty to keep the information confidential and to refrain from using that information to the detriment of the former client.

(2) The danger of misuse of confidential information is not the sole touchstone for curial intervention where a solicitor acts against a former client. There is also an independent equitable obligation of loyalty which forbids a solicitor acting against a former client in the same or a closely related matter. Intervention may also be justified on this ground in the exercise of a Court's supervisory jurisdiction over its own officers.

(3) There is an overriding jurisdiction to intervene so as to protect the due administration of justice arising where a reasonable informed member of the public would conclude that solicitors should be prevented from acting.[2]

In Grimwade v Meagher[3] Mandie J said:

In my view it cannot be doubted that this court [...] has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.[4]

In that case his Honour restrained counsel from appearing against a party because of "the unique, extraordinary and highly exceptional circumstances" of that case.[5] In Bhaghat v Global Custodians Ltd (No 1),[6] however, Young CJ cautioned against an overly strict application of the principle because it might otherwise disqualify lawyers who knew anything about a case "by a simple device".[7] In Kallinicos v Hunt[8] Brereton J recalled when summarising the principles to be derived from the authorities that the jurisdiction is "to be regarded as exceptional and is to be exercised with caution".[9]

5 The outcome of the present application depends upon a consideration of competing principles. Mr Slaveski has an undoubted right to ensure that confidential information given by him to a legal practitioner is not misused against him. The public has an interest in maintaining that right so as to ensure the continued confidence in the administration of justice. The defendants have a countervailing right to be represented by counsel of their choice, although that right may have to give way to the plaintiff's right to ensure that confidential information is not misused.[10] The public also has an interest to ensure that conflicts of interest are not too readily imagined where none exist. An independent bar is fundamental to the administration of justice. An aspect of that independence is a litigant's right of access to skilled practitioners of their choice. The law must guard against insufficiently founded assertions of conflicts of interest in part because it could otherwise deny litigants access to the best representation for their disputes and in part because it could encourage immeritorious assertions and contentions. This could, in turn, deny to the courts the proper assistance that they need to achieve the correct outcome as between disputing parties. In extreme cases it could encourage the wholly undesirable practice of manufacturing conflicts by a litigant retaining counsel on some minor, or unrelated, aspect of a matter to prevent a barrister from acting against that party in the future by the possibility or suggestion of conflicts without substance. The administration of justice must be more robust than that. A conflict is not made out by mere assertion or merely by having previously acted for someone. To have received a retainer by a client once is not to disqualify counsel from ever accepting a brief against the former client in the future.[11] The conclusion that a reasonable person informed of the facts might reasonably anticipate danger of misuse of confidential information requires a sufficient identification of the confidential information which is said to be capable of misuse, and a sufficient identification of how the anticipated danger of misuse is said to arise. At least two inquiries are called for: what confidential information could be misused and what is the basis upon which a reasonable person would apprehend a danger of misuse.

6 The evidence given by Mr Slaveski of Mr Gipp having a conflict of interest by reason of access to confidential information was that in June 2006 Mr Gipp was given a file concerning what is described as the Economakis matter and had been told about a matter known as the Commonwealth Bank matter. There was also evidence about payment of $100 to Mr Kotsifas and to Mr Gipp to which I will refer later, but for present purposes it is important to focus upon what is said to be the basis of the confidential information said to have been given. Mr Slaveski's evidence was, as I have said, that Mr Gipp "had been given the file from the Economacis matter" and that at a meeting Mr Slaveski began to talk about "the CBA Bank" to Mr Gipp telling him "how one of the Bank Managers father in law [was] a Police Chief/Inspector in Broadmeadows and then [Mr Slaveski] started to tell [Mr Gipp] what the Police did to [Mr Slaveski] in 2000 and still [were] hassling [him]". Mr Slaveski said that he gave Mr Gipp a chronology about "the Police Case" because he was looking for a lawyer to prepare a writ regarding the police. The reference to a case about the police is a reference to the proceeding which Mr Slaveski did commence and in which the current application arose before Kyrou J in its seventeenth day of hearing. The allegation of Mr Slaveski is that confidential information was given to Mr Gipp which is relevant to the current proceeding and which arose in the proceeding. There is no doubt that something about the Economakis matter is relevant to the proceeding but, assuming total acceptance of the evidence of Mr Slaveski, there is an absence of particularity and detail of what confidential information in the Economakis matter was conveyed to Mr Gipp that he is potentially misusing in the proceeding before Kyrou J. The ease with which such allegations can be made, and the potential damage which they may cause if accepted, requires more precision of detail than supplied by Mr Slaveski, and requires greater confidence in the accuracy of the facts asserted than I can have on the evidence and submissions put by Mr Slaveski.

7 In his first affidavit Mr Slaveski said he had told Mr Gipp about the problems with the Commonwealth Bank and the police, and in the affidavit he expressed his view that the reason Mr Gipp brought up the Commonwealth Bank matter and the Economakis matter in the current proceedings was because Mr Gipp "was well aware of them because [he] told him" about them in 2006. In a second affidavit Mr Slaveski said much the same in general terms in response to affidavits sworn by Mr Gipp and Mr Kotsifas. Mr Slaveski's wife also made two affidavits to much the same general effect in support of her husband's claim. The claims about the Commonwealth Bank matter are in the same general terms as the Economakis matter. It is not that the Commonwealth Bank matter does not arise in the present proceeding, but that what Mr Gipp was supposed to have been told by Mr Slaveski is described so broadly as to be incapable of maintaining a claim for a conflict or a possible misuse of confidential information.

8 As against the evidence of Mr Slaveski and his wife, there is the contrary evidence of Mr Gipp and Mr Kotsifas. At any point of conflict of evidence I prefer that of Mr Kotsifas because he is not involved in the present proceeding, was the solicitor who apparently introduced Mr Slaveski to Mr Gipp and because he was largely able to support his version of events by contemporaneous documents and independent events. Mr Kotsifas had previously briefed Mr Gipp in unrelated matters from time to time. He also acted for Mr Slaveski in relation to the Commonwealth Bank matter and had initially briefed counsel (not Mr Gipp) to advise, prepare pleadings and appear at interlocutory hearings. The Commonwealth Bank matter was apparently the only matter, which according to Mr Kotsifas, he had been retained to act on behalf of Mr Slaveski. Mr Slaveski had apparently thought that Mr Kotsifas should also handle the Economakis matter but upon Mr Kotsifas discovering that his firm had been nominated as solicitors on record in that matter, he filed a notice by solicitor of ceasing to act on 14 June 2006.

9 Mr Kotsifas, and his firm, continued to act for Mr Slaveski in relation to the Commonwealth Bank matter. On 26 June 2006 he briefed Mr Hay to draft a defence and counter claim in that matter. On 29 June 2006 he arranged a conference with Mr Hay at his chambers on Level 1, Owen Dixon Chambers West, 525 Lonsdale Street Melbourne. The purpose of this conference was to discuss the defence and counter claim in the Commonwealth Bank matter. At the end of the conference Mr Slaveski raised with him another matter, which he believed was the Economakis matter. The issue in the Economakis matter upon which Mr Kotsifas thought that Mr Slaveski was seeking advice concerned appeal rights from a default judgment in the Victorian Civil and Administrative Tribunal ("VCAT"). The proceeding appeared to involve a contractual dispute in relation to a truck and the issue about which, according to Mr Kotsifas, advice was sought was about a right to appeal. Mr Kotsifas gave evidence that he observed at the conclusion of the conference with Mr Hay that Mr Gipp's chambers door was open and he suggested to Mr Slaveski that Mr Kotsifas might see if Mr Gipp would be prepared to provide advice about appeal rights. The evidence of Mr Kotsifas in this regard, and about what followed, accord substantially with that of Mr Gipp. The Economakis matter had been a proceeding in VCAT heard on 5 September 2005 in which Mr Economakis had sought an order that Mr Slaveski pay the sum of $8,702.00. That order was certified and filed in the Magistrate's Court and taken to be a judgment of that court. On 5 December 2005 the Magistrate's Court varied an earlier instalment order on the basis of information contained in a letter from Mr Slaveski to Mr Economakis dated 28 September 2005 which had been marked "without prejudice". On 14 December 2005 Mr Slaveski appealed the Magistrate's Court decision alleging that the court had erred in having regard to his communication which had been marked "without prejudice". On 21 June 2006 Hargrave J handed down his decision refusing the appeal on the basis that the letter was simply a request to pay an existing debt in instalments and that there was no dispute on foot since final orders had been made.[12]

10 Mr Slaveski was self represented in the proceedings before Hargrave J on 21 June 2006.[13] It is unlikely that Mr Slaveski was having a conference with Mr Gipp about the Economakis matter before 21 June 2006: on 14 June Mr Kotsifas formally notified the court that his firm did not act for Mr Slaveski and he did not brief Mr Gipp in the matter. Later in June 2006 Mr Kotsifas had instructed Mr Hay in the Commonwealth Bank matter. It is unlikely, therefore, that the advice of Mr Gipp was being sought on that matter at about that time. It is more likely, however, as is the evidence of Mr Kotsifas and of Mr Gipp, that the advice of Mr Gipp was sought informally about an appeal from VCAT and that the occasion of that advice occurred casually, and briefly, on 29 June 2006 at the conclusion of the conference with Mr Hay. The chambers of Mr Hay and those of Mr Gipp were at the time on the same floor. The evidence of Mr Gipp is that the only advice sought from him, and given by him, was about whether Mr Slaveski could lodge an appeal from a decision of VCAT. The evidence both of Mr Kotsifas and of Mr Gipp is that the request occurred casually, there was no brief, documents had not been supplied, the entire meeting took a short period of time and none of the details of the underlying dispute were considered. Mr Kotsifas said that the conference did not last more than 5-10 minutes. Mr Gipp said in his affidavit that the meeting only took a few minutes and in cross examination accepted that it might possibly have lasted between 10 and 15 minutes. Given the nature of the occasion and the paucity of the briefing, it is more probable that the occasion was as they say rather than as Mr Slaveski contended.

11 One of the arguments made against Mr Slaveski's application is that the occasion in which Mr Gipp may have received any information was not one in which he had been retained. The evidence of Mr Gipp and Mr Kotsifas on this point was that in June 2006 Mr Kotsifas and his then client, Mr Slaveski, visited Mr Gipp in chambers without prior appointment or briefing to ask if he could give some advice. Mr Kotsifas and Mr Slaveski had been near Mr Gipp's chambers seeking the advice of other counsel on other matters and the discussion with Mr Gipp was short. It is said, however, that Mr Gipp was not retained on that occasion and that, therefore, the order sought by Mr Slaveski cannot be made. I do not agree with that submission. The power of this court is not limited in that way.[14] If the information supplied to Mr Gipp is otherwise capable of protection by injunctive relief, it will not loose that protection because of the relatively informal way in which the information was provided on that occasion. Each case may be different but even on the evidence of Mr Kotsifas and Mr Gipp there was a short professional consultation and an expression of a professional opinion. Whether or not payment was made, the occasion was not social; it was in Mr Gipp's professional chambers during ordinary business hours, and Mr Gipp appeared to have expressed a professional opinion however general, however unhelpful or however uninformative.

12 It is a serious matter to order that a legal practitioner should be prevented from appearing in a proceeding. To do so, it must be clear that it is appropriate to make such an order by considering the information said to be confidential and its potential misuse. That the application arose on the seventeenth day of a trial is also relevant[15] although no evidence was tendered about the potential impact on the trial if Mr Slaveski succeeded in his application. I accept for this argument that Mr Slaveski may not have been at fault by not having made his application earlier. I accept his evidence that he had not recognised Mr Gipp as the barrister he had previously consulted until shortly before making his present application even though the trial had been running for seventeen days and that there had been at least three other occasions when Mr Slaveski is likely to have seen Mr Gipp without the wig and gown he was wearing during the seventeen days of hearing before Kyrou J.

13 The evidence on the application for Mr Slaveski, taken at its highest, would not lead a fair minded reasonably informed member of the public to conclude that the proper administration of justice required that Mr Gipp be prevented from acting against Mr Slaveski giving due weight to the public interest that litigants should not be deprived of counsel of their choice without good cause. Mr Slaveski's evidence, taken together with that of his wife, at its highest, is that Mr Gipp came to know something of the circumstances which are relevant to the proceeding subsequently commenced against the defendants for whom Mr Gipp appeared. Mr Slaveski does not establish details or particulars of a confidential character which were communicated or could only have been communicated confidentially by Mr Slaveski to Mr Gipp. It is not enough that the information given to Mr Gipp related generally to the current proceedings; it is the detail and particularity of the confidential information that matters. The detail matters because it is by reference to the detail that a court is able to evaluate both the need to maintain confidentiality and the degree of apprehension for potential misuse. It must be possible to conclude from the facts that there is a "real and sensible possibility of the misuse of confidential information".[16] The degree of particularity that may be given may vary with the circumstances[17], and the court may fashion appropriate means for the reception of evidence to ensure proper evaluation without inappropriate disclosure; but the evidence here is only of a short and most general discussion which is not shown to impact in any concrete way on the proceedings before Kyrou J. Mr Slaveski does not show how any information might be used that would cause a reasonable person to apprehend an anticipated danger of misuse. There is not shown to be a real and sensible possibility of confidential information being used to the detriment of Mr Slaveski.

14 The view I have taken about this matter does not require me to consider the conflict of evidence between Mr Slaveski and Mr Gipp about whether the former had given the latter cash in payment of some advice. Mr Slaveski deposed to the fact that he gave Mr Gipp and Mr Kotsifas $100 in cash to have a lunch on him on the day in which they met. He said that they accepted the cash. His wife supported that evidence in those terms. Both Mr Gipp and Mr Kotsifas deposed to an offer of $100 being made by Mr Slaveski but declined by them.

15 The state of the evidence concerning the payment of the $100 in cash is contradictory. Two deponents say one thing and two other deponents say another. Neither has been shown reliably to be wrong. That is sufficient to dispose of the matter against the party with the burden of proving the fact asserted. If, however, I were required to make an affirmative finding about the matter I would prefer the testimony of Mr Gipp against that of Mr Slaveski. Both may be said to have an interest in maintaining a version of events, however, Mr Gipp's testimony is supported by that of Mr Kotsifas who is not a party to the proceeding and has no interest one way or another in the proceeding to maintain any view. It has not been shown that there would have been an impropriety in Mr Gipp or Mr Kotsifas accepting the $100 offered (although I am not to be understood as suggesting that it would have been proper to have done so). In those circumstances I accept the evidence of Mr Gipp which is supported by Mr Kotsifas, as being more likely to be correct in respect of whether or not the $100 offered was accepted.

16 In the circumstances I dismiss the application and reserve any question of costs to the trial judge.

[1] Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501; Sent & Prime Life Corporations v John Fairfax Publication Pty Ltd [2002] VSC 429 (Unreported, Nettle J, 7 October 2002) [98]-[104]; Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152 (Unreported, Whelan J, 12 April 2006) [25], [35] - [37]; Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202 (Unreported, Whelan J, 23 May 2006); Commonwealth Bank of Australia v Kyriackou [2008] VSC 146 (Unreported, Judd J, 9 May 2008).

[3] [1995] VicRp 28; (1995) 1 VR 446.

[5] Ibid 446, see also, Main Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43 (Unreported, Bell J, 1 March 2007); R v Kahzaal [2006] NSWSC 1353; (2006) 167 A Crim R 565; Bhaghat v Global Custodians Ltd (No 1) [2001] NSWSC 720 (Unreported, Young CJ, 17 August 2001).

[6] [2001] NSWSC 720 (Unreported, Young CJ, 17 August 2001).

[8] [2005] NSWSC 1181; (2005) 64 NSWLR 561.

[10] Black v Taylor [1993] 3 NZLR 403.

[11] Ismail-Zai v Western Australia [2007] WASCA 150; (2007) 34 WAR 379; see also The Uncle Toby's Co Pty Ltd v Trevor Jones Steel Fabrications Pty Ltd (In Liq) (Unreported, Supreme Court of Victoria, Batt J, 12 October 1995) 31 where Batt J considered former provisions the Rules of Conduct and Practice of the Victorian Bar which at a time contemplated the possibility of counsel who had settled pleadings for a party subsequently accepting a brief against that party in those proceedings.

[12] Slaveski v Economakis [2006] VSC 244 (Unreported, Hargrave J, 21 June 2006).

[14] Grimwade v Meagher [1995] VicRp 28; (1995) 1 VR 446; Black v Taylor [1993] 3 NZLR 403; Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 582 [76] (Brereton J); Balsiene v Penhall [2008] NSWSC 1414 (Unreported, Latham J, 18 December 2008) [7].

[15] Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 583 (Brereton J).

[16] Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] VicRp 1; [1995] 1 VR 1, 5 (Hayne J); Uncle Toby's Co Pty Ltd v Trevor Jones Steel Fabrications Pty Ltd (In Liq) (Unreported, Supreme Court of Victoria, Batt J, 12 October 1995) 20.

[17] Yunghanns v Elfic Ltd (Unreported, Gillard J, 3 July 1998); Sent & Prime Life Corporations v John Fairfax Publication Pty Ltd [2002] VSC 429 (Unreported, Nettle J, 7 October 2002) [67]-[71].