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

Slaveski v State of Victoria & Ors [2009] VSC 540 - VSC 2009 case summary — Zoe

[7]

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]

[8]

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.

[9]

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.

[12]

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]

At a glance

Court

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Before

Source

Judgment (31 paragraphs)

Parties

Cases Cited (4)