Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641

Federal Court of Australia

File number:	NSD 426 of 2021

Judgment of:	THAWLEY J

Date of judgment:	27 May 2021

Date of publication of reasons:	11 June 2021

Catchwords:	PRACTICE AND PROCEDURE – application for injunction to restrain counsel from acting for the Hon Charles Christian Porter in defamation proceedings – whether there is a real and sensible possibility of the misuse of confidential information – whether the proper administration of justice requires counsel be restrained from acting – whether any discretionary reasons for refusing relief – application allowed

Legislation:	Federal Court of Australia Act 1976 (Cth) s 23 Defamation Act 2005 (NSW) s 30

Cases cited:	Brand v Monks [2009] NSWSC 1454 Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252 Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1 Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612 Grant v Downs (1976) 135 CLR 674 Grimwade v Meagher [1995] 1 VR 446 Jones v Dunkel (1959) 101 CLR 298 Kallinicos v Hunt (2005) 64 NSWLR 561 Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 Nash v Timbercorp Finance Pty Ltd (2019) 137 ACSR 189 Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 Yunghanns v Elfic Pty Ltd (unreported, Supreme Court of Victoria, Gillard J, 16 July 1998)

Division:	General Division

Registry:	New South Wales

National Practice Area:	Other Federal Jurisdiction

Number of paragraphs:	153

Date of hearing:	24-27 May 2021

Counsel for the Applicant:	M Hodge QC with S Chordia

Solicitor for the Applicant:	Marque Lawyers

Counsel for the First Respondent:	N Hutley SC with J McKenzie

Solicitor for the First Respondent:	Kennedys

Counsel for the Second Respondent:	C Withers SC with E Bathurst

Solicitor for the Second Respondent:	Company Giles

ORDERS

		NSD 426 of 2021

BETWEEN:	JOANNE ELIZABETH DYER Applicant
AND:	SUE CHRYSANTHOU SC First Respondent THE HON CHARLES CHRISTIAN PORTER Second Respondent

order made by:	THAWLEY J
DATE OF ORDER:	27 MAY 2021

THE COURT ORDERS THAT:

1. Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), Ms Theognosia (Sue) Chrysanthou SC be restrained from acting for the applicant in proceedings NSD206/2021 in the Federal Court of Australia.

2. The first and second respondents each file a document of no more than three pages identifying their positions with respect to costs and any submission in relation thereto by 5 pm on 1 June 2021.

3. The applicant file a document in response on the issue of costs of no more than three pages by 5 pm on 2 June 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(revised from transcript)

THAWLEY J:

1 This is an application by Ms Joanne Elizabeth Dyer for an injunction to restrain Ms Theognosia (Sue) Chrysanthou SC from continuing to act for the Honourable Charles Christian Porter in defamation proceedings commenced by him in this Court against the Australian Broadcasting Corporation (ABC) and Ms Louise Milligan, a journalist.

2 Ms Dyer relied upon two alternative grounds on which the Court might restrain a legal practitioner from acting for a person who has retained that practitioner. The first was based on the danger of misuse of confidential information received by Ms Chrysanthou in the context of her dealings with Ms Dyer. The second was based on the need to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice. Whilst these two bases provide distinct justifications for preventing a legal practitioner from acting, there is potential overlap. The fact that confidential information generally is, and might be shown in fact to have been, provided to a legal practitioner in the course of acting for a client is relevant to whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be prevented from acting in a situation which might, or might be seen to, be against the former client’s interests.

BACKGROUND FACTS

3 On 9 November 2020, the ABC broadcast a Four Corners programme entitled “Inside the Canberra Bubble”. The episode addressed the conduct of some federal politicians, including Mr Porter. Ms Dyer had been interviewed for that episode on 8 July 2020. The episode featured interviews with a number of current and former politicians, a former staffer, a barrister and Ms Dyer. Only part of the interview with Ms Dyer was broadcast. What was not aired included matters Ms Dyer had disclosed to Ms Milligan in their interview, in particular her knowledge of an allegation made by Ms Dyer’s friend, “AB”, that Mr Porter had raped AB in January 1988 when they both attended a debating tournament held at the University of Sydney.

4 On 14 November 2020, The Australian newspaper published an article written by Ms Janet Albrechtsen entitled “Vested interests cornered by shoddy ABC hatchet job”. The article concerned the Four Corners episode of 9 November 2020. The article included the following regarding Ms Dyer:

Four Corners did not mention that Dyer was a failed Labor candidate for preselection. Nor that she has said “my political views are not exactly secret”. Nor that, as incoming director of Adelaide Writers’ Week, Dyer attacked the state Liberal government for having “no f…king idea” and predicted “they will flog off everything … to their corporate mates”.

That background could help explain why she filled out a bingo card of progressive words and phrases when speaking against Porter.

5 On 16 November 2020, Ms Dyer’s friend, Mr James Hooke, spoke to Ms Dyer about the article which, at that time, Ms Dyer had not yet read. He suggested that the article insinuated that Ms Dyer was politically motivated in giving the interview to Four Corners and that it might be defamatory of her. Ms Dyer read the article and took the view that the article wrongly suggested she had provided comment to Four Corners out of partisan political views. She formed the view that the article was possibly defamatory. Ms Dyer and Mr Hooke discussed XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. As the events which follow reveal, Ms Dyer sought legal advice concerning the article in The Australian X XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX.

6 On 17 November 2020, Ms Dyer (assisted by Mr Hooke) instructed Mr Michael Bradley of Marque Lawyers to act for her. Mr Bradley suggested briefing Ms Chrysanthou. Mr Hooke suggested first talking to Mr Matthew Richardson, a long-standing friend of Mr Hooke and a barrister with expertise in defamation law. Ms Dyer and Mr Hooke met with Mr Richardson. Mr Richardson also suggested that Ms Chrysanthou might assist and that he would ask her. Mr Richardson asked Ms Chrysanthou to attend a conference with Ms Dyer on 20 November 2020, and Ms Chrysanthou agreed. Before the conference, Mr Richardson provided Ms Chrysanthou with a copy of the article in The Australian and a copy of the statement which had been prepared by AB. I will come later to further detail of the interaction between Mr Richardson and Ms Chrysanthou.

7 On 20 November 2020, Ms Dyer, Mr Hooke and Mr Bradley attended a conference with Mr Richardson and Ms Chrysanthou. Mr Richardson arrived about ten to fifteen minutes after the conference started.

8 Differing accounts were given in relation to the relevant events. Ms Chrysanthou’s evidence included:

[21] I am not certain, but I think Mr Richardson had told me that he might be a few minutes late. I also recall that he left the Article and the statement with me before he left for his court appearance (or it was possibly a conference) that morning so I could look at it. I briefly looked through the material and read a bit more of the statement. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[22] My junior Barry Dean and I were working together in my chambers at that time to prepare for the upcoming trial. He and my client were tasked with teaching me everything I needed to know about venture capitalism – a topic about which I knew little. My client was coming in later that morning for that purpose and for me to prepare her for her evidence. We also had many pre-trial tasks to complete that day such as objections to evidence and opening submissions. When I was told by reception at 10am that people had arrived for the conference with Mr Richardson we had to pack up Barry’s laptop and folders from my conference table.

[23] I believe that Ms Dyer arrived with Mr Hooke and Mr Bradley. I recall I met them in reception and introduced myself. I do not recall how Mr Hooke was introduced and why he was in attendance. Mr Bradley introduced himself. I realised that Mr Bradley and I had spoken before on the telephone over the years about various matters. He has called me in the past for short free advice about defamation issues. I think he briefed me in one matter that never went anywhere.

[24] While we waited for Mr Richardson in my room, one or more of the other attendees brought coffees and muffins. Someone noticed a framed New York Times front page on my wall (I am not sure who) and we discussed that. Because it concerned the Geoffrey Rush case we talked about that case for a while. I am not sure what was said on that issue.

[25] I vaguely recall that I also talked about the art work on my walls, and made complaints about venture capitalism. I spoke about my children (the artists behind the artwork). My recollection is that I was entertaining them until Mr Richardson arrived without discussing any substantive issues. I believe that my secretary brought me a coffee. I recall that Mr Bradley or I raised the topic of defamation reform and I expressed my criticisms of those reforms. I cannot now remember the detail of that discussion.

[26] When Mr Richardson arrived, he brought with him a draft Concerns Notice to News and I observed him to write on it from time to time throughout the meeting. I do not recall observing anyone else taking notes. I had not seen the draft at that point.

[27] At some point I made it plain that I was helping Ms Dyer with the Concerns Notice for free and as a favour to Mr Richardson and that I did not intend to charge for the conference or to review the letter that he drafted. I did not agree to do anything else on the matter. I cannot recall the words used when this was discussed but I do not agree that I used the term “pro bono” or that I gave any indication that I would be assisting beyond the letter. I also did not speak on behalf of Mr Richardson and his arrangement with Dyer – because I had no idea what that was. My understanding was that it was clear that my assistance related only to the Concerns Notice. That is how I regarded the matter. For the reasons explained below, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

[28] I do not remember what I said in direct speech. But I recall that I told Ms Dyer XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

[29] Mr Bradley asked me XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[30] I told them that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[31] We then discussed XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[32] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[33] We agreed that Mr Richardson would amend the draft and circulate it. I do not recall that Mr Hooke said much during the conference and I have no recollection of any topic that he discussed.

[34] I have been told by my lawyers that it is alleged that other topics were discussed during this conference. I have, over the last 2 months when it was first raised with me (as set out below), thought about this a lot. I have no recollection of any other topics and have no idea what they could have related to. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. I do not recall anyone else in the conference doing much talking. As far as I was concerned Mr Richardson had already told me the relevant facts that I needed to know in order to advise. I did not evaluate Ms Dyer in order to form my view and convey my advice and nor did I make any attempt to do so. My interaction with Ms Dyer was brief and not particularly memorable and I did not form any views about her, good, bad or indifferent.

[35] I recall that the conference was short (no more than an hour). My time was extremely limited that day because of the trial preparation I have described above. My junior was waiting in his room for us to keep going. He came back in as soon as they left at about 11am. I also had a short zoom meeting in another matter at 11:30am which I conducted while Mr Dean continued to work on the Stead matter. At about midday my solicitors and client attended chambers for a few hours.

9 Ms Dyer’s first affidavit included:

[21] On the morning of 20 November 2020, Mr Hooke, Mr Bradley and I met with Ms Chrysanthou in her chambers. Mr Richardson was also present at the conference, but he arrived approximately ten to fifteen minutes after the conference had started.

[22] I understood that the purpose of the conference was to hear Ms Chrysanthou’s opinion on whether it would be wise to issue a Concerns Notice in respect of The Australian article and the details to be included in such a notice, to discuss the viability of pursuing a defamation action against Ms Albrechtsen and News Limited.

[23] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

10 Ms Dyer went on to identify what was discussed at the meeting by reference to topics.

11 Mr Bradley’s first affidavit included:

[12] I attended the conference on 20 November 2020 in Ms Chrysanthou’s chambers. Ms Chrysanthou, Ms Dyer, Mr Hooke and I were present initially. Mr Richardson joined us after 10 or 15 minutes.

[13] Ms Chrysanthou informed us at the outset of the conference that she had read the Albrechtsen article and that she had been provided a copy of [AB]’s unsigned statement, which she stated she had also read.

[14] When Mr Richardson joined the conference, he brought several copies of a draft concerns notice to The Australian, which he had drafted. There were no other documents disclosed or referred to during the conference.

[15] The conference went for about an hour and a half. Every person present actively participated in the conversation.

[16] The conversation was lively. I shared my views, opinions, and advice in an open and frank manner consistent with my belief that what was said at the conference would remain confidential and subject to legal professional privilege.

12 Mr Bradley gave evidence about the topics discussed at the meeting.

13 Mr Hooke’s first affidavit included:

[10] On 20 November 2020, I attended a conference at Ms Sue Chrysanthou SC’s (Ms Chrysanthou) chambers with Ms Dyer, Mr Richardson and Mr Bradley. I recall that Mr Richardson was not in attendance for the entire conference.

[11] I believed that my role in attending the conference was to support Ms Dyer and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

[12] I believed that the purpose of the conference was to discuss the contents of The Australian article in the context of Ms Dyer potentially bringing defamation proceedings in relation to the article.

[13] I recall that during the conference, a conversation in which we discussed the conditions on which Ms Chrysanthou and Mr Richardson would be acting for Ms Dyer. I cannot recall exactly who said what, but I do recall that someone said that Ms Chrysanthou and Mr Richardson would act for Ms Dyer in a pro bono capacity until Ms Dyer commenced defamation proceedings in relation to Ms Albrechtsen’s article and if and when that time came, they may need to start charging for their work.

[14] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

14 Mr Hooke went on to identify the topics discussed at the meeting.

15 Mr Hooke addressed the detail of some of what was discussed in his second affidavit, which included the following:

[4] On the morning of 20 November 2020, Ms Dyer and I entered Ms Chrysanthou’s chambers together and were greeted by Ms Chrysanthou and the three of us sat down.

[5] I do not recall if Mr Bradley or Mr Richardson had arrived when Ms Dyer and I met Ms Chrysanthou but I recall that both Mr Bradley and Mr Richardson were present for most of the conference.

…

[7] Before I attended the conference on 20 November 2020, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

[8] After some general discussion unrelated to legal issues, I recall that the conversation turned to Ms Albrechtsen’s article which had been published in The Australian on 14 November 2020. I recall that a conversation then took place in words to the following effect:

Ms Dyer: I hadn’t actually read the article until it was brought to my attention. I don’t normally read The Australian or Janet Albrechtsen.

Ms Chrysanthou: I only read The Australian because I have to for work.

Ms Dyer: I’m annoyed that the article has been written because it’s stupid and wrong XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

[9] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX:

XXXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[10] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX.

[11] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX:

XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[12] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

[13] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[14] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[15] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX:

XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[16] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX:

a. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX;

b. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX:

i. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX;

ii. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX;

iii. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX;

c. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX;

d. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX;

e. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

f. XXXX XXXX XXXX XXXX XXXX XXXX.

[17] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[18] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX:

XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX:

[19] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX:

XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX.

[20] At some point during the conference, the topic of conversation reverted to Ms Albrechtsen’s article and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[21] It was around this time during the conference that the possibility of filing defamation proceedings against The Australian XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX was discussed in more detail. I recall that I said words to the following effect in relation to XXXX XXXX XXXX XXXX:

XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

[22] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX:

XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

XXXX: XXXX XXXX XXXX X.

16 Mr Hooke was not challenged in cross-examination on any aspect of his account of the conversation. I do not draw any particular conclusion from the lack of challenge to his evidence. Mr Withers SC acted for Mr Porter who was not at the meeting. Mr Porter could not have given instructions as to what was said. Although Ms Chrysanthou stated that she had been assisting Mr Porter in connection with the present proceedings, whilst also taking a neutral role in her capacity as the first respondent, it may not have been possible to obtain from her a position about whether Mr Hooke’s account was accurate as this might have disclosed to Ms Chrysanthou information which was said to be confidential. In any event, I found Mr Hooke to be a reliable and truthful witness, appropriately giving concessions where necessary, and I accept his evidence. His evidence is consistent with contemporaneous communications, in particular that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX. It is unlikely that this would not have been discussed given that it was one purpose of obtaining Ms Chrysanthou’s advice. I also consider it likely, in that context, that Ms Dyer and Mr Hooke disclosed to Ms Chrysanthou XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX. I will address Mr Hooke’s evidence further later.

17 Between 20 November and 23 November 2020, Ms Chrysanthou was copied on emails in which Mr Richardson provided advice in relation to draft correspondence to The Australian in respect of the article, namely a Concerns Notice. A draft of this Concerns Notice had been provided to Ms Chrysanthou in an email from Mr Richardson on 18 November 2020.

18 On 23 November 2020, Ms Chrysanthou spoke with Mr Richardson and, I infer, provided her views as to changes which should be made to the Concerns Notice. I draw this inference from the terms of Mr Richardson’s email to Mr Bradley at 10.35 am on 23 November 2020, which was copied to Ms Chrysanthou, and which included:

Spoke with Sue this morning.

Obviously we would like your input on this - we are perfectly aware that you are the person that signs the letter.

19 At around 4.30 pm, Ms Chrysanthou, Mr Richardson and Mr Bradley spoke, by telephone conference call, to discuss XXXX XXXX XXXX XXXX XXX. Mr Bradley sent an email at 6.13 pm to Ms Chrysanthou, Mr Richardson and Ms Dyer, copied to Mr Hooke, which stated:

Hi everyone,

Following discussions with Sue and Matt, I’ve recast the concerns notice somewhat. The attached version is marked up from Matt’s previous draft.

XXXX XXXX XXXX XX;

• XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

• XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX.

With those changes, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

I am now happy to issue the letter, subject to counsels’ review and Jo’s final say.

20 I infer from the terms of this email, that Ms Chrysanthou gave her opinion in relation to the recasting of the Concerns Notice during the telephone conference at about 4.30 pm on 23 November 2020.

21 On 25 November 2020 and in the following order:

•    Mr Bradley emailed a final version of the Concerns Notice to Ms Chrysanthou, Mr Richardson, Ms Dyer, and Mr Hooke.
•    Mr Richardson responded to the group, copying Ms Chrysanthou, stating that the letter was “ok to go”.
•    Ms Chrysanthou sent an email confirming that the letter was “good to go”.

22 On 1 December 2020, Ms Dyer sent an email to Mr Bradley, Mr Richardson, Ms Chrysanthou and Mr Hooke, which attached XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX X. Ms Dyer’s email included:

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX X.

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

23 Mr Bradley responded to each of the recipients of Ms Dyer’s email, including Ms Chrysanthou, in the following terms:

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

24 Mr Richardson responded to each of the recipients, including Ms Chrysanthou, in the following terms:

XXXX XXXX XXXX XXXX

25 Mr Bradley responded to each of the recipients, including Ms Chrysanthou, in the following terms:

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

26 Ms Dyer responded to each of the recipients, including Ms Chrysanthou, in the following terms:

XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX.

27 These emails provide some further contemporaneous support for the account of the conference on 20 November 2020 given by Mr Hooke and for the fact that the topics indicated by Ms Dyer, Mr Bradley and Mr Hooke were discussed. Mr Bradley’s email also demonstrates an understanding on his part that Ms Chrysanthou continued to act for Ms Dyer. The emails contained information, perhaps particularly in Ms Dyer’s last email, likely to be relevant in the defamation proceedings.

28 On 13 January 2021, Mr Bradley emailed Ms Dyer, Ms Chrysanthou and Mr Richardson, copying Mr Hooke, confirming that a response had been received from The Australian. He described it as XXXX XXXX XXXX XXXX XXXX. Mr Bradley indicated that he was available the next week to discuss.

29 On 27 January 2021, Ms Chrysanthou responded to the email asking Mr Bradley to let her know when he wanted to discuss. A conference was arranged for 4.30 pm on 28 January 2021. The conference took place at that time on Microsoft Teams between Ms Chrysanthou (who participated by telephone), Ms Dyer, Mr Hooke, Mr Richardson and Mr Bradley. I infer that, during the conference call, Ms Chrysanthou offered and it was otherwise agreed that she would contact Mr Quill, the solicitor who had responded to the Concerns Notice on behalf of The Australian.

30 On 29 January 2021, Ms Chrysanthou sent an email to Mr Hooke, copied to Ms Dyer, Mr Bradley and Mr Richardson stating:

Hi Team,

I had a good chat with Quill. He was very receptive and said that he would get instructions over the weekend.

After I explained it - He particularly understood the context in which Jo gave the interview to 4Cs and that her statements were made in that context. He said that the journalist did not know that and thought that it would be helpful for her to understand it.

I am hopeful of a positive outcome.

I will let you know when I hear from him and will otherwise chase him up mid-next week.

31 On 10 February 2021 at 6.21 pm, Mr Hooke replied to the group asking if there was an update. Ms Chrysanthou responded to say that she would call Mr Quill.

32 On 12 February 2021, Mr Hooke received a further email from Ms Chrysanthou confirming that she had attempted to follow up with Mr Quill on 11 February 2021.

33 On 26 February 2021, the ABC published an article written by Ms Milligan entitled “Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister”. This article is the subject of the defamation proceedings brought by Mr Porter. The article included the following:

Australian Federal Police have been notified of a letter sent to Prime Minister Scott Morrison detailing an alleged historical rape by a Cabinet Minister in the federal government.

The letter requests urgent action be taken by the Prime Minister to investigate the alleged rape, which occurred in 1988 before the accused man entered politics.

The matter has also been referred to the Australian Federal Police.

34 Since 26 February 2021, Mr Bradley has given multiple press interviews in his capacity as the lawyer for AB and has written a number of articles about the allegations against Mr Porter.

35 On 1 March 2021, Ms Dyer was quoted as a “friend” of AB in the article written by Ms Milligan entitled “Friends of woman who accused Cabinet Minister of rape call for inquiry into allegation”.

36 On 3 March 2021, Mr Porter held a press conference in which he identified himself as the person against whom the historical rape allegation had been made.

37 On 4 March 2021, Mr Hooke attempted to telephone Ms Chrysanthou in chambers. She did not return the call or make any attempt to speak to him. Ms Chrysanthou stated in her first affidavit that she did not know why he was calling.

38 On 4 March 2021, Mr Richardson emailed Ms Dyer and Mr Hooke copying Ms Chrysanthou. The email stated:

I [have] spoken with Sue. XXXX XXXX XXXX XXXX XXXX XXXX XXXX In any event Quill never called her back and in the last day or two his partner had a baby and he is off work.

39 On 8 March 2021, Four Corners aired an episode entitled “Bursting the Canberra Bubble”, which included longer excerpts from the interview Ms Dyer gave to the ABC in 2020, in which AB’s allegations had been explored.

40 Ms Chrysanthou gave evidence that she was briefed by Mr Porter in relation to the defamation proceedings on 10 March 2021. Her evidence was as follows:

[48] On 10 March 2021, Ms Giles asked me to have a video conference with Mr Porter. We had a short video conference and Mr Porter asked us if we would be his lawyers in relation to advising and then appearing in a defamation claim against the ABC.

[49] I told them both that I needed to check if I had any conflict or confidential information from a conference I attended last year where Mr Porter was mentioned.

41 The evidence did not disclose whether or not this was the first point in time at which there had been contact between Mr Porter, on the one hand, and Ms Giles or Ms Chrysanthou, on the other, or whether either of them had previously provided advice outside of being instructed to appear in defamation proceedings.

42 Ms Chrysanthou stated that, after the conversation with Mr Porter, she searched her emails and also spoke to Mr Richardson. She was unable to find any documents or emails in relation to Ms Dyer’s matter, except for the Concerns Notice. Ms Chrysanthou stated in cross-examination that she deletes emails every few days.

43 Mr Richardson made a handwritten note of his conversation with Ms Chrysanthou which recorded that he stated it was a “bad idea” to accept the brief from Mr Porter and that there “could be a conflict if they are witnesses” in the defamation proceedings. He suggested Ms Chrysanthou speak to a senior silk. Ms Chrysanthou subsequently spoke to Mr Walker SC and Mr Moses SC.

44 Ms Chrysanthou did not request, nor did Ms Dyer provide, permission for Ms Chrysanthou to act for Mr Porter in the defamation proceedings.

45 On 12 March 2021, Mr Hooke made a public statement which included:

I was mentioned in The Australian and The Adelaide Advertiser this week, and I am referred to in [AB]’s unsworn statement and the extracts from her diaries. I continue to be repeatedly contacted by numerous journalists seeking public comment, and in response, I make the following personal statement. But beyond this, I have no further public comment at this time.

I continue to be devastated by the untimely death of my very dear friend [AB], and I am enormously concerned for the privacy and dignity of [AB]’s family. I am also concerned for the well-being of Christian Porter. I have known all of them for approximately 30 years. We all find ourselves at a very upsetting time.

Mine is just one set of recollections, and I am aware of the fallibility of human memory, however unintentional. That said, I have what I consider to be clear recollections of relevant discussions I had with [AB] over the years from mid-1988 until her death. I also have what I consider to be clear recollections of relevant discussions I had with Christian Porter from April 1992 in Perth and through the mid-1990s.

46 On the morning of 15 March 2021, Mr Porter commenced proceedings against the ABC and Ms Milligan in the Federal Court. The statement of claim had been drafted with the assistance, at least, of Ms Chrysanthou. Ms Chrysanthou had decided to wait until proceedings were commenced before informing Ms Dyer, through Mr Bradley, that she had accepted instructions to act for Mr Porter. At around 9.30 am, Ms Chrysanthou spoke to Mr Bradley. Mr Bradley gave the following account of the conversation:

On 15 March 2021 I received a telephone call from Ms Chrysanthou and we had a conversation to the following effect:

She said: I’m letting you know that defamation proceedings are about to be filed by Christian Porter against the ABC, this is confidential for now but it’ll be public shortly. I wanted to give you a heads up so you can inform Jo, I have been retained by Porter. I have carefully considered whether I have a conflict in taking the brief and concluded that I don’t. The only confidential information that I recall having was a copy of the statement alleging the rape, but that’s become public since then, and I don’t recall being told anything else confidential when we met with Jo. I’ve checked with Matt Richardson and he agrees that I don’t have any confidential information. I want you to know that I’ve taken this very seriously, I didn’t seek out the brief, but I’m bound by the cab rank rule. I have run this past Bret Walker and two other silks, as well as Matt, and they all agree that I don’t have a conflict. But I wanted you to know from me before it goes public.

I said: I’m not sure what Jo’s view on that is going to be. I will let her know.

47 Ms Chrysanthou gave the following account:

On 15 March 2021, Ms Giles informed me at about 9am that the pleadings had been filed. I then telephoned Mr Bradley to inform him that I had accepted the brief for Mr Porter. I told him that I had spoken to other silks and I had formed the view that there was no conflict and no confidential information from my interaction with Ms Dyer. Also that I had checked with Mr Richardson that I had no confidential information. Ms Dyer had given many interviews on the issue and her views were in the public domain. He agreed at that point. Mr Bradley raised no issue at that time but said he would speak to Ms Dyer. I have looked at Mr Bradley’s version of this conversation (as it appears in paragraph [26] of his redacted affidavit dated 10 May) and do not agree that I spoke those words other than as reflected above.

48 Mr Bradley telephoned Ms Chrysanthou at about 3 or 4 pm on 15 March 2021. Ms Chrysanthou gave the following account of the conversation:

Mr Bradley telephoned me that afternoon at about 4pm and said to me that he, Mr Hooke and Ms Dyer believed that I had been told something else that could help Mr Porter against the ABC. I told him all that I could remember from the meeting and then asked him if any of that was the confidential information.

He said: No. We think we told you something else.

I said: Don’t tell me what it is. Have you read the Porter pleading? Is it in there?

He said: No.

I said: I drafted that, it has everything in my mind that helps Porter against the ABC. If it is not in there, it is not in my mind. Can you tell me broadly the topic it related to?

He said: XXXX XXXX XXXX XXXX.

I said: XXXX XXXX XXXX XXXX XX will be discoverable in the Porter proceedings and the subject of interrogatories to the ABC and Ms Milligan if it concerns Porter, it is not confidential.

He asked me if I could “theoretically act for Jo against News even though you are acting for Porter.”

I said: Putting aside the fact that XXXX XXXX XXXX XXXX XXXX, in theory yes – XXXX XXXX XXXX XXXX XXXX XXXX.

I said to him: you haven’t identified anything that gives rise to a conflict or satisfied me that I actually possess any confidential information. I am happy to answer any other questions that Ms Dyer has but at the moment I can’t see how I can return the Porter brief

49 Mr Bradley gave the following account of the conversation:

Later that day on 15 March 2021 at around 3:00pm or 4:00pm, I called Ms Chrysanthou and recall a conversation in words to the following effect:

I said: I’ve now spoken with Jo and she does have a problem with you taking the Porter brief. Our view is that you have a conflict with Jo. A lot of confidential information was disclosed in our conference with you that is potentially directly relevant to Porter’s case against the ABC. In my view, you’re conflicted and shouldn’t be acting.

She said: I have been extremely careful in considering my position on this. I genuinely have no recollection of anything confidential having been disclosed. All I recall is that I was shown a copy of [AB]’s statement and told that Jo had given a much longer interview to the ABC, but both those matters have since become public record. I spoke to Matt about this, he also doesn’t recall anything confidential being discussed at the conference and agreed that I can act. I won’t cross-examine Jo if she becomes a witness in the case against the ABC and I’ll step out of the court if she is cross-examined to reassure her. Because of the cab rank rule, I’m obliged to act unless I think I can’t. I have considered it carefully and spoken to others about it and I believe I don’t have a choice.

I said: What if Jo decides to sue the Australian; are you saying you would you be able to act for Jo against The Australian while you’re acting for Porter?

She said: Yes I would.

I said: We’re asking you to reconsider your position on this.

She said: I’m not prepared to return my brief. Anyway, nothing is going to happen in the ABC case for the next four weeks until the ABC files its defence. I’d be happy to reconsider my position then, depending on the content of the defence. If I find that I have a conflict at any stage, then I’ll act accordingly.

50 Ms Giles and Ms Chrysanthou spoke to Mr Porter on 15 March 2021, obtaining his consent for Ms Chrysanthou not to use any confidential information, if any confidential information had in fact been obtained, during the conference on 20 November 2020.

51 Mr Bradley gave the following account of a conversation with Ms Chrysanthou on 24 March 2021:

On 24 March 2021, I called Ms Chrysanthou and recall a conversation which lasted for approximately five minutes in words to the following effect:

I said: I’ve received written advice from Nic Owens about you acting for Porter. He agrees with our position that you’re conflicted and shouldn’t be acting. Our position remains that you should withdraw from the Porter proceedings and I am formally requesting that you do so. Nic is happy to meet with you directly and talk about it if you like.

She said: I’ve never been in this position before, what happens from here?

I said: Well, if you’re not prepared to withdraw, we’ll have to bring proceedings for an injunction to force you out or complain to the Bar Association, or both. I’d have to get instructions on that.

She said: I’d like to talk to Nic but I want to involve Bret [Walker] in that conversation as well and talk to them both together.

I said: OK that’s fine. I will leave you to organise that and I’ll let Nic know.

She said: That may be difficult this side of Easter, I wasn’t planning to go into chambers again before that.

I said: There is obviously some urgency to getting this resolved.

She said: I’m not actually doing anything on the Porter case at the moment and our side doesn’t have anything to do for a while. The ABC has to file its defence in six weeks’ time, then there’ll be a case management hearing in May and there’s nothing else going on in the meantime.

52 For sensible reasons, Mr Walker declined to become involved: if confidential information of Ms Dyer’s were disclosed to Mr Walker, there would then be an issue about his involvement in the defamation proceedings.

53 On 29 March 2021, Mr Bradley sent an email to Ms Chrysanthou stating:

Further to our phone conversation last week, I understood you were going to contact Nic Owens to arrange a meeting. I understand that hasn’t happened and that Bret Walker has indicated that he does not want to participate in that meeting for understandable reasons. I am anxious of course that this meeting should happen as soon as possible. Nic tells me he has good availability this week.

54 Mr Bradley has not received any direct communication from Ms Chrysanthou since sending that email.

55 On 30 March 2021, Mr Patrick George of Kennedys, acting for Ms Chrysanthou, wrote to Mr Bradley. The letter included:

I am instructed that you act for Ms Jo Dyer for whom our client has previously acted in settling a Concerns Notice to The Australian newspaper …

[Ms Chrysanthou] believes she has no confidential information belonging to Ms Dyer that she might use to Ms Dyer’s detriment or to Mr Porter’s advantage or otherwise and has no recollection of such information. Prior to accepting the brief for Mr Porter, she spoke to Matthew Richardson, junior counsel for Ms Dyer, who arranged the conference and was present, and asked him whether to his recollection she had any confidential information as a result of her instructions from Ms Dyer. He informed her that he did not think so and that he was not aware of any such confidential information.

If nevertheless you are instructed or believe that Ms Chrysanthou does hold such confidential information imparted to her in the course of acting for Ms Dyer then I request that you specify the confidential information to me on the following basis to preserve the confidential nature of the information pending resolution or determination of this issue.

I have retained Mr Richard McHugh SC to advise Ms Chrysanthou in relation to the issue and propose to communicate to him the confidential information specified by you for his consideration but not communicate it to Ms Chrysanthou so as not to prejudice her current brief.

In that way I would proceed on the basis that Mr McHugh and I would undertake to you not to disclose that information to anyone else without your consent but, to the extent that the issue may be capable of resolution or disputed, we would be in an informed position to respond, based on our current instructions and the disclosure you make. This undertaking would not prevent us from using your disclosure to defend any proceedings brought against Ms Chrysanthou. If this proposed course is not satisfactory, then please let us know.

We request that you specify:

1 The alleged confidential information with precision.

2 The legal and factual basis on which you contend that the information is confidential.

3 Whether it is alleged that it has already been used or disclosed by Ms Chrysanthou, and if so how.

4 Whether it is alleged that it appears on the Porter Statement of Claim, which we understand you obtained on 15 March 2021.

5 To what issue in the Porter proceedings you say it will relate or might be used.

6 The factual and legal basis for the contention that Ms Chrysanthou has or threatens to use the information.

In any event, given that Ms Dyer has an apprehension that Ms Chrysanthou might breach the confidence of information provided to her, I am instructed to assure you that Ms Chrysanthou does not recall any such information, and should it come to her mind, she undertakes never to disclose it to any person, particularly in relation to the Porter v ABC matter. She is happy to sign a formal undertaking to that effect.

56 On 31 March 2021, Mr Bradley responded to Mr George, indicating that the retainer had not been terminated:

…we also do not accept, to the extent that your letter suggests otherwise, that Ms Chrysanthou’s brief for Ms Dyer has terminated. It is correct that she is not presently instructed to perform any work in relation to the brief, but her retainer is ongoing.

57 In the letter of 31 March 2021, Mr Bradley also noted the following:

For the purposes of her brief, Ms Chrysanthou was provided, in advance of a conference, not only with a copy of the article in question, but also with a copy of a statement that [AB] had provided to NSW Police in February 2020, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. (Ms Chrysanthou confirmed at the conference that she had in fact read the dossier.) As you know, the article in The Australian did not refer to or reference XXXX XXXX XXXX XXXX XXXX XX. As such, the provision of that dossier in itself demonstrates the broad nature of the issues and factual matters that arose in connection with the retainer.

…

I have spoken directly with Mr Richardson. He informed me of the following.

1. His recollection is that there was a lengthy and broad-ranging discussion at the conference on 20 November about XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX.

2. He is unable to identify (because his recollection is not sufficiently clear) any specific piece of confidential information, but assumes because of the nature of the discussion that it would have included confidential information and would be surprised if it did not.

3. He conveyed the above to Ms Chrysanthou when she told him she was considering the Porter brief. He expressed his disagreement with her decision to accept the brief and attempted to dissuade her from doing so.

4. He subsequently restated his disagreement with Ms Chrysanthou’s decision by email to her.

5. He received [AB]’s statement XXXX XXXX XX, and handed it to Ms Chrysanthou.

58 On 6 April 2021, Mr George sent a second letter to Mr Bradley, seeking Ms Dyer’s consent to disclose his letter of 31 March 2021 to Mr Richardson and requesting additional information:

We refer to your letter dated 31 March 2021.

We seek your client’s consent to disclose the letter to Matthew Richardson, given his reported statements to you and his knowledge of the information provided in the conference of 20 November 2020.

We also seek the following additional information in order to respond to your letter:

1 To the extent that you assert that “Ms Chrysanthou’s retainer was arranged orally” and that her “brief was to advise and act generally for Ms Dyer in relation to the potential defamation claim against The Australian”, (a) when was the retainer arranged, (b) by whom was it arranged, (c) what was the substance of what was said by each such person as to payment of Ms Chrysanthou’s fees, and (d) what was the substance of what was said by each such person so as to create a retainer to advise and act generally for Ms Dyer in relation to the potential defamation claim against The Australian, beyond settling the concerns notice in conference on 20 November 2020;

2 The written communications provided to or by Ms Chrysanthou in the course of her brief;

3 Any communication with Ms Chrysanthou after the conference on 20 November 2020;

4 Any advice given by Ms Chrysanthou after the conference on 20 November 2020;

5 Any fees charged by Ms Chrysanthou for the brief;

6 Any information as to who represents the estate of [AB] and whether that representative has authorised the use or release of any documents or statements on her behalf.

We also note that in addressing our request that you specify the confidential information, your letter in many cases identifies the nature of that information by reference to a topic at some level of generality (see, eg, the first two sentences of numbered paragraph 1 on p 4), and then sometimes gives a specific example. The examples themselves sometimes involve a level of generality (e.g. the last sentence of that paragraph, which does not identify the sources). It is difficult to see how the disclosure to Ms Chrysanthou of information described in that way could practically prejudice your client (even putting to one side your client’s assertion that this is all information that Ms Chrysanthou already has, which is the essence of Ms Dyer’s complaint). We request whether it is possible for you to redact at least parts of the confidential information section of your letter and any other confidential parts of the letter subject to your client’s consent, in order for us to provide the redacted letter to Ms Chrysanthou for her instructions.

59 On 7 April 2021, Mr Bradley sent a further letter to Mr George, responding to the requests for information made on 6 April 2021:

I refer to your letter of 6 April 2021. You may disclose our letter of 31 March to Mr Richardson. We respond to your numbered questions below.

1. Ms Chrysanthou’s retainer was arranged by me, a day or two before the conference on 20 November 2020. It was agreed between us that she would act pro bono in relation to the advice and correspondence with The Australian. We have already informed you of the substance of the retainer so far as it was understood by us and our client. During the conference on 20 November, Ms Chrysanthou said that she was prepared to act pro bono in relation to the advice and correspondence, however if Ms Dyer decided to commence proceedings then Ms Chrysanthou would not act pro bono in that regard.

2. We attach copies of our written communications with Ms Chrysanthou, although we do not understand why you are unable to obtain the same from her.

3. Following the conference on 20 November, I participated in a telephone conference with Ms Chrysanthou and Mr Richardson on 23 November, the subject matter of which is explained by the emails exchanges before and afterwards.

On 1 December 2020, there was a further exchange of emails between our client, us and counsel, the subject matter of which is self-explanatory from their content.

On 28 January 2021, following receipt of a reply to our concerns notice from The Australian, I participated in a telephone conference with our client, Mr Hooke, Ms Chrysanthou and Mr Richardson, during which Ms Chrysanthou undertook to speak with The Australian’s solicitor Justin Quill, in an attempt to alter The Australian’s stated position. Ms Chrysanthou reported by email the following day on her call with Mr Quill.

On 4 March 2021, there was a further communication regarding Ms Chrysanthou’s dealings with Mr Quill on Ms Dyer’s behalf.

4. Ms Chrysanthou advised further on 23 November 2020 regarding the concerns notice and related matters; on 28 January 2021 during the telephone conference; and on 29 January 2021 by email.

5. Ms Chrysanthou did not charge any fees, as she knows.

6. I do not know who represents the estate of [AB] nor whether they have authorised the use or release of any material belonging to the estate.

As will be apparent from the material provided with this letter and our responses above, the confidential information disclosed to Ms Chrysanthou in the course of her retainer for Ms Dyer goes beyond what was disclosed to her during the conference on 20 November 2020. The correspondence, in particular the emails of 1 December 2020, speaks for itself. We do not understand how Ms Chrysanthou can continue to maintain that she has no conflict.

We have no objection to your providing our letter of 31 March or this letter to Ms Chrysanthou. It was her decision to engage you, not ours. There is no information in our letters to which Ms Chrysanthou has not previously been made privy. Whether or not she recalls receiving it is irrelevant to the question of her conflict.

So that there is no doubt, our consent to Ms Chrysanthou seeing our letters is given subject to her obligations of confidence to our client, and under no circumstances is she permitted to disclose their content to any other person.

60 On 13 April 2021, Mr Bradley sent an email to Mr George, enquiring as to when he could expect a response to his letter:

When can we expect to hear back from you? Our client is obviously very concerned that it has been almost a month since we first raised the concern of conflict with Ms Chrysanthou, with no sign of a resolution. She is not prepared to wait much longer before considering formal action.

61 Mr George responded to Mr Bradley later that day, indicating that he was working through Mr Bradley’s letters, noting that Ms Chrysanthou was spending time preparing for a trial:

Richard McHugh and I are working through your letters and expect to provide a substantive response next week in the circumstances.

We are examining the asserted confidential information, and the extent to which it is or is not confidential and/or relevant to the proceedings brought by Mr Porter against the ABC.

I confirm that I have not provided your letters to Ms Chrysanthou. I note in my letter dated 30 March 2021, Ms Chrysanthou has given an undertaking in respect of Ms Dyer’s apprehension about the asserted confidential information.

Ms Chrysanthou is currently preparing for a trial starting tomorrow (against Mr Richardson). We will need her instructions for the response, albeit without disclosing to her the asserted confidential information.

62 At some point which the evidence did not precisely disclose, but which is likely to have been around the middle of April 2021, Mr McHugh SC (acting for Ms Chrysanthou) met with Mr Richardson and went through with him the topics of information which had been identified in correspondence from Mr Bradley as having been discussed at the meeting on 20 November 2020. Mr Richardson reportedly confirmed that nearly all of the topics identified had been discussed. Ms Chrysanthou’s understanding was that Mr Richardson’s memory had been refreshed by reviewing the topics and that Mr Richardson took the view that confidential information had been disclosed during the conference on 20 November 2020.

63 On 17 April 2021, Mr Bradley informed Mr George that his client was prepared to wait until 21 April 2021 for a response to Mr Bradley’s letters, and after that time may take further action without notice:

I am instructed that my client is prepared to wait until the end of Wednesday 21 April for a substantive response from Ms Chrysanthou. Following that date, if the matter remains unresolved, we may be instructed to take further action without notice.

64 On 21 April 2021, Mr George wrote to Mr Bradley, indicating that he would not be able to provide a response until 23 April 2021, and requesting that Mr Bradley and his client await a response before taking any further steps:

I will not be able to confirm Ms Chrysanthou’s instructions today as she is on a flight to Melbourne and is starting a trial tomorrow.

I request that you and your client await the response before taking any further steps.

Given the seriousness of the issues under consideration, I need her instructions to respond to certain matters, albeit without reference to your letters.

Having regard to the trial in which she is briefed in Melbourne, I do not expect to be in a position to make the response before Friday.

65 On either 22 or 23 April 2021, Ms Chrysanthou obtained instructions from Mr Porter that she be permitted to undertake not to cross-examine either Mr Hooke or Ms Dyer in the defamation proceedings should either be called as a witness.

66 On 23 April 2021, Mr Bradley wrote a letter to Mr George, again requesting a response to his earlier correspondence. The letter included:

We refer to our earlier confidential communications but nothing in this correspondence should be taken to waive the confidentiality of that material.

…

One obvious concern is that to the extent that our client will be called or subpoenaed to give evidence in the ABC proceedings, your client will have had the benefit of an opportunity to assess Ms Dyer in person and form views about her credibility. That opportunity arose because our client retained your client in circumstances where she was entitled to expect that your client would not act in conflict with the duties she owed to our client.

We understand that your firm has retained Mr McHugh SC to assist your firm in reviewing the material and advising your client.

It ought to be clear from our previous confidential correspondence, and the matters set out in this letter, that our client requires that your client cease acting in the Porter v ABC proceedings. If your client does not provide an undertaking accordingly by 4.00 pm on Monday 26 April 2021, we are instructed to approach the Court without further notice to your client.

67 On 26 April 2021, Mr George wrote to Mr Bradley, responding to Mr Bradley’s letters of 31 March 2021, and 7 and 23 April 2021 and providing an explanation of Ms Chrysanthou’s position in relation to those letters. The letter included a denial that Ms Chrysanthou held any confidential information of Ms Dyer’s:

Ms Chrysanthou does not recollect or believe she holds any confidential information of Ms Dyer’s that could be used to Ms Dyer’s disadvantage or Mr Porter’s advantage, in the proceedings which he has brought against the ABC and Louise Milligan. I note that Ms Dyer is not a party to those proceedings or a person in the case. As yet, no defence has been filed such that the issues in dispute are, at present, unknown.

68 The letter concluded:

Ms Chrysanthou has already undertaken to you, for and on behalf of Ms Dyer, in our letter dated 26 March 2021 not to use any confidential information of Ms Dyer for the benefit of Mr Porter.

As a sensible approach to resolve Ms Dyer’s concerns, Ms Chrysanthou also undertakes to you that, beyond what she has disclosed to you is her recollection of that meeting, she does not recall any other topic or information, confidential or otherwise.

She now further undertakes to you to inform me, for the purpose of immediately passing on to you, if she recalls at any time, anything else that she was told by Ms Dyer or Mr Hooke.

She also undertakes to you not to cross-examine Ms Dyer or Mr Hooke should they become witnesses in the Porter matter.

All of these undertakings and the undertaking not to cross-examine are given without any admission.

If your instructions are to make the application to the court, please serve the court documents upon me on Ms Chrysanthou’s behalf and provide us with adequate notice of any urgent application Ms Dyer wishes to make. We see no need for an ex parte application without notice in the circumstances.

69 On 30 April 2021, Mr Mattock of Marque Lawyers wrote to Mr George, enclosing a number of court documents which had not yet been filed in the Supreme Court of NSW. Mr Mattock’s letter included (emphasis in original):

We refer to your letter dated 26 April 2021 confirming that you hold instructions to accept service of court documents on behalf of Ms Chrysanthou and advising that your client does not intend to cease acting for Mr Porter in the Porter v ABC proceedings.

Accordingly, please find enclosed by way of service, the following court documents:

1. Summons, dated 30 April 2021;

2. Affidavit of Joanne Elizabeth Dyer, affirmed 30 April 2021;

3. Affidavit of James Royce Murray Hooke, affirmed 30 April 2021; and

4. Affidavit of Michael David Bradley, affirmed 30 April 2021 and Confidential Exhibit MDB-1.

As you will see, these court documents have not yet been filed with the Court. We wished to give Ms Chrysanthou and those acting for her the opportunity to review the material before we approach the Court. Our client continues to hope that it is possible to avoid having to commence the proceeding. If it is not, our instructions are to approach the Duty Judge on Monday, 3 May 2021 to file these documents and seek interlocutory orders in accordance with prayers 5 to 9 of the Summons.

70 On 2 May 2021, Mr George wrote to Mr Mattock, responding to Mr Mattock’s letter dated 30 April 2021. Mr George’s letter included:

We are not in a position to take detailed instructions from Ms Chrysanthou by tomorrow morning. We reiterate our position that, in the circumstances, approaching the Duty Judge is not appropriate. If you nevertheless approach the Duty Judge ex parte tomorrow, we ask that you provide this correspondence to the Court, and draw attention to the date of the commencement of the Porter proceedings in the Federal Court and whether the Supreme Court is the appropriate forum for this matter .

71 On 10 May 2021, Mr Mattock wrote to Mr George, responding to his letter dated 2 May 2021. Mr Mattock addressed the short delay in responding to Mr George’s letter:

We apologise for the short delay whilst we considered your letter. By our letter, our client had sought the co-operation of your client, Ms Chrysanthou, in relation to the just and expeditious conduct of the proposed proceedings. Your letter indicated that Ms Chrysanthou would take or might take a number of steps in the event that our client commenced the proceedings against her. We address the topic of the manner in which you have indicated Ms Chrysanthou will approach the proceedings below. Ms Chrysanthou’s intended approach to our client’s foreshadowed proceedings raised a number of concerns that our client and those advising her needed to consider. Having done so, our client remains committed to protecting her communications with Ms Chrysanthou and so seeking to prevent Ms Chrysanthou continuing to act in breach of Ms Chrysanthou’s duty to our client.

72 The letter also addressed the issues of choice of forum and the urgency of the proceedings:

First, in your letter you suggested that the Federal Court rather than the Supreme Court may be the appropriate forum. Whilst we do not agree that the Supreme Court is an inappropriate forum, we do not wish to have the determination of our client’s rights delayed by a debate with you about the appropriate forum. Our client will commence her proceedings in the Federal Court.

…

Fourthly, our client will seek to have this proceedings determined as quickly as is possible to do justice to the parties. We propose to seek an initial case management hearing on the afternoons of Tuesday, 11 May or Wednesday, 12 May. Could you please let us know about the availability of Ms Chrysanthou’s senior counsel on those two days? We will propose that your client file her concise response by Monday, 17 May; that your client file her affidavit material by Friday, 21 May and that the proceedings be heard in the week of 24 May. This will depend upon the convenience of the Court but there is plainly an urgent need to have this issue resolved given that Mr Porter’s defamation trial is to be heard in less than six months and Ms Chrysanthou has refused to give an undertaking to cease acting for him in that proceedings.

73 On 10 May 2021, the applicant wrote to the Federal Court, seeking the matter to be listed for a case management hearing before the duty judge on 11 or 12 May 2021. The originating application commencing these proceedings was filed on 11 May 2021.

MISUSE OF CONFIDENTIAL INFORMATION

The relevant principles

74 In Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [33], Nettle J stated:

Authority establishes that the court will restrain a legal practitioner continuing to act for a party to litigation if a reasonable person informed of the facts might reasonably anticipate a 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 the litigation might conflict with practitioner’s duty to keep the information confidential, and to refrain from using that information to the detriment of the former client: see Farrow Mortgage v Mendel Properties Pty Ltd (1995) 1 VR at p 5 per Hayne J; Yunghanns v Elfic Pty Ltd (1998) Butterworth Cases 9803497 per Gillard J; Bolkiah v KPMG [1999] 2 AC 222 especially at 237 in the speech of Millet L; and World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick (2000) VSC 196 per Gillard J.

75 In Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252 at [34] and [35], Beach J said:

[34] The first and usual potential basis for enjoining a solicitor from acting against a former client is that there is a “real and sensible possibility of the misuse of confidential information” (Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1 at 5 per Hayne J; see also Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 (Prince Bolkiah) at 237 per Lord Millett). There are differences in emphasis in the authorities as to the degree of risk, the onus of proof and what needs to be shown by the former client before any evidentiary onus shifts to show that there is no real risk …

[35] … The first basis is not generally seen as being founded upon any fiduciary duty owed by the solicitor to the former client which is said to survive the termination of the solicitor’s retainer. Rather, it is usually seen as being founded upon a contractual or equitable duty to preserve the client’s confidential information, which survives the termination of the retainer (Prince Bolkiah at 234-235 per Lord Millett); it may be an express or implied term of the contract of retainer or it may be an equitable obligation that arises from the imparting of information in confidence as part of the solicitor/client relationship (but not a fiduciary obligation as such, although one could perhaps so link it; see [78]-[80] below) …

76 In Nash v Timbercorp Finance Pty Ltd (2019) 137 ACSR 189 at [62] to [64], Anderson J stated:

[62] The court will restrain a legal practitioner from continuing to act for a party if a reasonable person, informed of the relevant facts, might reasonably anticipate a 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 might conflict with practitioner’s duty to keep the information confidential, and to refrain from using that information to the detriment of the former client: Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 (Mallesons) at 362-3; Farrow Mortgage Services Pty Ltd (In liq) v Mandall Properties Pty Ltd [1995] 1 VR 1 at 5; Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 (Bolkiah) at 237; [1999] 1 All ER 517; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; [1999] WASC 171 (Newman) at [63]; Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 (Sent) at [33].

[63] The strictness of this test arises not least because of the special fiduciary position of a legal practitioner towards his or her client: Mallesons at 361; Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 310-11; 115 ALR 112 at 116–17 (Carindale); Re a firm of Solicitors [1997] Ch 1; [1995] 3 All ER 482 at 9 (Re a firm of Solicitors). Drummond J explained in Carindale at 311 that the reason for the emphasis on the fiduciary character of that relationship was twofold:

First, there is a public element in the work that a solicitor does in that he is an officer of the court and, in performing his professional function, he plays an integral part in the administration of justice. …

Secondly, the existence of legal professional privilege and the policy considerations which justify its continued recognition are inconsistent with a rule that would too readily allow a solicitor, who has received confidential information from one client, to later act for another client against the old client’s interests.

[64] This test for restraining a legal practitioner on the basis of the possible misuse of confidential information may be dissected, and then applied, in a number of ways. Based on the relevant authorities, particularly the approach of Riordan J in Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd [2015] VSC 453 (Babcock) at [70], I will apply the relevant test by responding to the following sequence of questions (which are in short-form for the sake of simplicity):

(a) What is the relevant information?

(b) Is that information confidential?

(d) Is the legal practitioner proposing to act “against” the former client in the requisite sense?

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

(f) Is there no real risk of misuse of the confidential information?

77 In Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 at [38], Griffiths J stated:

The relevant principles may be summarised as follows:

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

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

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

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

(i) What is the relevant information?

(ii) Is that information confidential?

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

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

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

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

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

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

78 I will broadly adopt the approach of Anderson J (with which Griffiths J agreed) by responding to the questions his Honour identified in Timbercorp at [64], supplemented by looking at the scope of the lawyer-client relationship in the present case. I would emphasise, however, and as was made clear by Anderson and Griffiths JJ, that these questions provide a framework for analysis as opposed to supplanting the test.

Consideration

Was there a lawyer-client relationship between Ms Chrysanthou and Ms Dyer?

79 There is no question that Ms Chrysanthou was in a lawyer-client relationship with Ms Dyer. The existence of such a relationship was initially denied by Mr Porter, but ultimately, and properly, conceded at hearing. Ms Chrysanthou acted and communicated at the time of the events in a way which was consistent with a barrister acting on a pro bono basis. Her actions after the events were also mostly consistent with her taking the view that Ms Dyer was her client.

80 At the hearing, Mr Porter accepted that a lawyer-client relationship arose between Ms Chrysanthou and Ms Dyer on 20 November 2020, but only in connection with Ms Chrysanthou reviewing the draft Concerns Notice and advising on the prospects of a claim in relation to the publication in The Australian.

81 Even if Ms Chrysanthou was not the subject of a formal retainer as such, she was in a fiduciary relationship with Ms Dyer by virtue of her providing legal advice to Ms Dyer and acting on Ms Dyer’s behalf and acting on her instructions and in her interests. Those present at the conference on 20 November 2020 sought Ms Chrysanthou’s advice as to what matters known to Ms Dyer could properly be stated in the Concerns Notice and, for that as well as other purposes, confidential information was given to Ms Chrysanthou for her consideration and so that Ms Chrysanthou was made aware of the matters those present considered were relevant. I accept that one of the issues in relation to which Ms Chrysanthou’s advice was sought was XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

What was the information imparted in the context of that relationship?

82 Mr Porter emphasised that the information said to be confidential must be precisely identified. As Drummond J explained in Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 314:

It is a basic requirement that before material will be recognised as having the character of confidential information, the information in question must be identified with precision and not merely in global terms: Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443 and cf O’Brien v Komesaroff (1982) 150 CLR 310 at 327. The requirement is insisted upon even though it may necessitate disclosing to the court the very information the confidentiality of which it is sought to preserve by the action. This requirement has its foundation in the need for the court to be able to frame a clear injunction, should relief against misuse of confidential information be granted. There are procedures available that will minimise the risk that confidentiality will be lost by the litigation process, although the applicant did not seek to invoke them here. Cf R Dean, Law of Trade Secrets, p 122 and s 50 of the Federal Court of Australia Act 1976 (Cth). But the requirement goes to a matter more fundamental than that: “The more general the description of the information which a plaintiff seeks to protect, the more difficult it is for the court to satisfy itself that information so described was imparted or received or retained by a defendant in circumstances which give rise to an obligation of confidence”: Independent Management Resources Pty Ltd v Brown [1987] VR 605 at 609.

83 In Timbercorp at [66], Anderson J stated:

For material to possess the character of confidential information, the information in question must be identified with precision: Re a firm of Solicitors at Ch 10; Carindale at FCR 314; ALR 120, citing Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443; 74 ALR 428 at 437–8; 13 ALD 254 at 262–3; 10 IPR 53 at 62–3; O’Brien v Komesaroff (1982) 150 CLR 310 at 327; Durban Roodepoort Deep Ltd v Reilly [2004] WASC 269 (Durban) at [69]-[80]. As explained by Le Miere J in Durban at [80], the precise identification of the information is also central to the subsequent characterisation of its potential misuse:

Before a court will grant an injunction to protect a client’s confidential information by restraining his former solicitor from acting against him, the former client must establish that the solicitor possesses confidential information and must identify the confidential information with precision and not merely in global terms. The client must identify the confidential information with some particularity. The degree of particularity required must depend upon the facts of the particular case. The confidential information must be identified with sufficient particularity to enable the court to determine whether the information is truly confidential, whether the confidential information which once existed, if it did, continues to be confidential and whether the confidential information is relevant to any issue in the current proceedings and might be used in those proceedings.

84 In Sent at [67], Nettle J set out the following passage of the decision of Gillard J in Yunghanns v Elfic Pty Ltd (unreported, Supreme Court of Victoria, Gillard J, 16 July 1998) at page 10:

[T]he degree of particularity of the confidential information must depend upon all the circumstances. Often, it cannot be identified for fear of disclosure. In considering this factor it must be borne in mind that a solicitor makes notes, forms views and opinions of clients and observes things that the client may have forgotten or overlooked.

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

85 I am satisfied that the topics stated by Ms Dyer, Mr Hooke and Mr Bradley were discussed during the conference. These were summarised in submissions, by reference to the evidence, in the following way:

Information A: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information B: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information C: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX.

Information D: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information E: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information F: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information G: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information H: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information I: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information J: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX X.

Information K: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX.

Information L: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information M: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

Information N: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

86 As noted earlier, I also accept the evidence of Mr Hooke in relation to the content of what was said during the conference on 20 November 2020. This is set out at [15] above.

87 It was submitted for Mr Porter that I should prefer the account of Ms Chrysanthou as to what was said at the conference. I do not prefer her account. There are a number of reasons for that and it is sufficient to mention a few. I am satisfied that her recollection was not good and certainly not as good as that of Mr Hooke. That may well be a function of the fact that, for Ms Chrysanthou conferences in which allegedly defamatory articles were discussed and considered were a regular occurrence, whereas for Mr Hooke that would not have been the case and the matter was one of particular personal significance for him. Ms Chrysanthou’s account of the events leading to the conference in her first affidavit was demonstrated to be incorrect in a number of ways, including with respect to her communications with Mr Richardson before the conference occurred. In her affidavit, she stated that she did not know why Mr Hooke was in attendance or how he was introduced. However, she knew before the conference that Mr Hooke would be attending and the email from Mr Richardson dated 18 November 2020 informing her of that fact was in terms from which it is to be inferred that she had a conversation about it with Mr Richardson before the email was sent. Likewise, she stated that she did not know that Mr Bradley would be attending, but she agreed that she in fact must have known, having been told as much by Mr Richardson in the email. Ms Chrysanthou also accepted that she must have merged two conversations together and it was not clear whether she had any good recollection of a conversation with Mr Richardson before he sent her the email on 18 November 2020 which attached a draft of the Concerns Notice (which she also did not recall receiving). As Ms Chrysanthou made clear in cross-examination and through her affidavit, this incorrect understanding of what occurred before the conference informed Ms Chrysanthou’s recollection and account of what was said at the conference.

88 Ms Chrysanthou denied that one of the purposes of the conference was XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX. Given the contemporaneous documentary evidence establishing that that issue was one of the principal ones about which Ms Dyer wanted advice, and having regard to XXXX XXXX XXXX XXXX, it is improbable that the issue was not discussed and I accept that it was discussed. As I have mentioned earlier, Mr Hooke was not challenged in cross-examination on his evidence that it was discussed but I do not attach any particular significance to the lack of challenge by reason of the circumstances I have earlier indicated.

89 It was submitted that Mr Hooke would not have said the kinds of things that he did during the conference given he had never met Ms Chrysanthou before. I do not accept that submission. First, Ms Chrysanthou had been recommended by Mr Richardson, Mr Hooke’s long-standing friend, and by Mr Bradley. Secondly, it is quite normal for clients to state matters fully and openly. One of the rationales for legal professional privilege is the promotion of public interest in facilitating full and frank disclosure by a client to his or her lawyer – see: Grant v Downs (1976) 135 CLR 674 at 685. Clients also expect that information given in confidence will be kept confidential, which itself encourages disclosure. Mr Hooke’s account of what he said is not unusual in light of the context for the conference, the preceding events, his XXXX XXXX XXXX, his motivations for being at the conference and his education and experience.

90 As to the relatively minor inconsistencies in the accounts given by Ms Dyer, Mr Hooke and Mr Bradley, this is to be expected in circumstances where each has sought to identify his or her own independent recollection. It would have been more troubling if the accounts were identical. I think it unlikely that each of them was prepared to identify topics which were not discussed or give a false account of what occurred. I found both Ms Dyer and Mr Hooke to be credible. Mr Bradley was not cross-examined on this issue.

91 It was also submitted that I should not accept Mr Hooke’s account because his recollection differed from the recollections of Ms Dyer and Mr Bradley as to the terms of Ms Chrysanthou’s advice about the merit of the defamation claim. Accepting that his recollection was different, I did not form the view that Mr Hooke gave anything other than his genuine recollection of what occurred in this respect.

92 It was submitted by Mr Porter that the Court should draw an adverse inference from the failure by Ms Dyer to call Mr Richardson as a witness. The rule in Jones v Dunkel (1959) 101 CLR 298 does not require the calling of cumulative evidence. I do not see Mr Richardson’s absence as particularly remarkable. The inference I draw from the documentary material is that Mr Richardson would have wanted nothing to do with the case. I do not think the issues in this case are assisted by employing the process of reasoning authorised by Jones v Dunkel. I am satisfied about what was discussed at the meeting.

Is the information confidential?

93 The relevant principles were analysed by Anderson J in Timbercorp at [73] to [77] in the following way:

Test of confidentiality

[73] The test for whether information is confidential or not is dependent on the source of the duty of confidentiality. At general law, the duty will either arise in contract pursuant to the retainer between the legal practitioner and client, or otherwise pursuant to equitable obligations. However, the difference between these bases often appears to be blurred in practice. The parties did not distinguish between the two in this case.

[74] There is no one precise formulation for determining whether information is confidential: Australian Medic-Care Co Ltd (a company incorporated in Hong Kong) v Hamilton Pharmaceutical Pty Ltd (2009) 261 ALR 501; [2009] FCA 1220 at [634]. However, it is clear that, within the context of a relationship of legal practitioner and client, the concept is not to be construed narrowly.

[75] To start, unless a relevant exception applies, all communications by a client to the legal practitioner will prima facie be confidential, as explained by Riordan J in Babcock at [83]:

In my opinion, communications (other than those about matters of common or public knowledge) between a client and a solicitor for the purposes of obtaining or giving legal advice would have the necessary ingredient of confidentiality against all persons unless, by reason of implied direction or otherwise, the solicitor was authorised to provide the confidential communication to the third party.

[76] Even broader, Professor Dal Pont quotes a Canadian decision which expresses that “any information received by a lawyer in his professional capacity concerning his client’s affairs is prima facie confidential unless it is already notorious or was received for the purposes of being used publicly or otherwise disclosed in the conduct of the client’s affairs”: Dal Pont G E, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters, 2017) p 345, quoting Ott v Fleishman [1983] 5 WWR 721 at 723. Moreover, although the passing of information from client to legal practitioner is the most obvious means of information attracting a confidential character, it is not necessary for that information to have come directly from the client. The question is not who provided the information, but the character of the circumstances in which the legal practitioner received it: Re Holloway (1887) 12 PD 167 at 171.

[77] Information received in circumstances of confidence can, however, lose its character as confidential. As expressed by Professor Dal Pont, “[w]hether reflected in the framing of the implied term as to confidentiality or, more perhaps accurately, by reference to the equitable doctrine of confidentiality, the duty of confidentiality lasts as long as the information in question remains outside the public domain”: Dal Pont G E, Law of Confidentiality (LexisNexis Butterworths, 2015) p 170. But once confidential information is characterised as having been released into the “public domain”, it forever loses its character as confidential.

94 Mr Porter submitted that whatever information was furnished in the conference was either not confidential (including because it was already in the “public domain”) or that it lost its character as confidential information because it was subsequently put into or became part of the public domain.

95 The question whether confidential information has entered the public domain to such an extent that is loses its character as such is a question of fact and degree. As Ward J explained in Brand v Monks [2009] NSWSC 1454 at [180] and [184] (albeit in a different context to the present):

[180] Whether information has entered the public domain to such an extent as to permit its disclosure in the face of a contractual prohibition against disclosure is a question of fact and degree, taking into account the circumstances and the extent of any existing publication of the information. If only limited publication has occurred, and if relative secrecy remains, then the information may well retain its confidential character.

…

[184] Whether something has entered the public domain is a question of fact and will often be a matter of degree. I am not aware of a definitive test as to when it may be said that information is sufficiently accessible or so widely known as to be regarded as being in the public domain. If relative secrecy remains, notwithstanding a limited publication of the information, then it seems likely that the information in question will not have lost the necessary quality of confidence in order to preclude a duty of confidence arising in equity.

96 I accept that some of what was said in the conference on 20 November 2020 was information which was already in the public domain. I also accept that some of what was said has subsequently come into the public domain. That is to be expected given that the underlying events generally were the subject of media attention. However, I am left with no doubt that there was confidential information disclosed to Ms Chrysanthou during the meeting which was not in, and has not entered, the public domain. In particular, I am not satisfied that much of the detailed information referred to in Mr Hooke’s second affidavit entered the public domain. I am also not satisfied that some of the information disclosed by Ms Dyer (and Mr Hooke) as to what Ms Dyer knew about XXXX XXXX XXXX was in the public domain at the time of the conference or that it now is in the public domain.

97 Further, I am also satisfied on balance, having regard to the context in which the meeting took place, that it is likely that there was other information disclosed during the conference, in discussing the aforementioned topics, which was confidential and which, more probably than not, has not entered the public domain. The real risk of confidential information having been disclosed is a proper inference to draw from the topics which were discussed and the context.

Is Ms Chrysanthou in possession of the confidential information?

98 Ms Chrysanthou said she cannot remember any confidential information being disclosed. She also stated that she has not retained emails that she sent or received and, in relation to some of those emails, that she does not recall receiving or reading those emails. The question, accordingly, arises as to whether she is relevantly in possession of confidential information.

99 The duty of confidentiality attaches to information disclosed to a lawyer within the confines of a lawyer-client relationship. The fact that Ms Chrysanthou does not presently recollect the information does not mean that she is not in possession of confidential information. As Nettle J observed in Sent at [89]:

One knows as a matter of experience that when he has advised on documents and transactions, recollections of them, although long faded, may revive in the course of the sort of close and careful study which precedes the trial of an action. And when one has conferred with a client, recollection of things said and done in conference may be revived long after the event when the same or similar things are said or done in another place.

100 Ms Chrysanthou is relevantly in possession of confidential information irrespective of whether or not she presently recalls the content of it.

101 Further, Ms Chrysanthou’s assessment of Ms Dyer as a witness, and of the credibility of Ms Dyer’s account of the facts, is confidential information. Ms Chrysanthou denies she made such an assessment. Accepting that Ms Chrysanthou did not make any formal assessment of such matters, that does not gainsay that impressions were inevitably formed by her and formed in connection with particular facts, some of which were confidential. It is a part of human nature to assess what one is told by reference to the way in which it is said and the impression one forms, often if not generally subconsciously, of the person making the statement. Barristers are no exception; indeed they readily engage in such assessments out of professional necessity. This kind of confidential information has been rightly described as “highly confidential”: Sent at [70]; Timbercorp at [79]. Amongst other reasons, this is because the course of litigation, including whether it should be settled, and the result of litigation, can turn on whether or not a particular witness should be called and the credibility or reliability of witnesses.

Is Ms Chrysanthou acting “against” Ms Dyer in the defamation proceedings in the requisite sense?

102 Timbercorp concerned a former client who sought to restrain certain legal practitioners from acting in a proceeding to which the former client was not a party. The proceeding was a public examination in which the former client was a potential examinee. Anderson J concluded that the former client in was in a position analogous to a witness in a court proceeding, stating:

[96] Although the “relevant person” may be legally represented (s 81(7) of the Act), he or she is not a party to the examination. As noted above at [54], the relevant person is instead merely a witness of the court: Price. A person being examined must answer all questions put to him or her (s 81(11) of the Act), subject to the discretion of the Court, Registrar or magistrate, as the case may be, under s 81(10) of the Act to disallow the question.

[97] In attending an examination as a witness, a relevant person is not afforded the same protections as a witness in adversarial litigation. A relevant person is not excused from answering a question merely because to do so might tend to incriminate him or her: s 81(11AA) of the Act: in the context of s 77(2)(a) of the Act, see Griffin. In addition, although legal professional privilege has been held to be available to a relevant person (see, for example, Re Wagner; Ex parte Stapleton v Bennett (1964) 20 ABC 133), he or she may not be able to assert the privilege where the communication was “so closely connected with property of the bankrupt which vests in the trustee”: Re Steele; Ex parte Official Trustee of Bankruptcy v Clayton Utz (a firm) (1994) 48 FCR 236 at 245; 119 ALR 716 at 725.

103 Anderson J observed at [98] that the basis for restraining a legal practitioner from acting was not the fact of direct opposition to the former client per se, but rather conflict with the legal practitioner’s duty of confidentiality to the former client (emphasis in original):

Various authorities and commentary contain observations to the effect that a legal practitioner may be enjoined on the basis of a possible misuse of confidential information where the legal practitioner’s new client is to “act against” the former client. That is undoubtedly true but the doctrine extends further. The touchstone of the restraint of a solicitor is not direct opposition to the former client per se, but rather conflict with the legal practitioner’s duty of confidentiality to the client (see Mallesons at 362-3; Sent at [33]), and that such conflict would disadvantage, or operate to the detriment of, the former client (see Carindale at FCR 312-313; ALR 118-19).

104 His Honour noted that such conflict could arise in the context of a legal practitioner acting in proceedings in which the former client is a witness: at [99]. I agree. Relevant conflict arises in any situation where a legal practitioner uses confidential information obtained in the confidence and privilege of the lawyer-client relationship without the client’s informed consent, particularly where the use of the information may be regarded as against the client’s interests, whether legal or otherwise.

105 On the basis of matters as they presently stand, it is at least reasonably possible that Ms Dyer will be called as a witness in the proceedings between Mr Porter and the ABC and Ms Milligan. The ABC and Ms Milligan are putting forward a defence of qualified privilege to Mr Porter’s claim that he was defamed, alleging that they acted reasonably in publishing the article that is the subject of that proceeding: ABC Defence [11]. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Whilst the defence turns in part on the reasonableness of the ABC’s and Ms Milligan’s conduct, and it is the ABC’s and Ms Milligan’s states of mind which are significant in this respect, there is a real possibility that Ms Dyer will be called as a witness XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX. In this regard, I note that Mr Richardson considered it a possibility that Ms Dyer and Mr Hooke might be witnesses in the ABC defamation proceedings. I note, on the other hand, that his view in this regard was formed at a time when no defence had been filed. XXXX XXXX XXXX in relation to the truth defence XXXX XXXX XXXX XXXX XXXX XX it is unlikely that she would be called as a witness on that issue.

106 It is not necessary to the relief sought that I conclude that Ms Dyer will or might possibly be called as a witness in the defamation proceedings. In the particular circumstances of this case, Ms Chrysanthou’s conflict with her duty of confidentiality to Ms Dyer arises whether or not Ms Dyer is called as a witness or is likely to be called as a witness. Ms Dyer obtained information through her dealings with the ABC which was not publicly available and which was confidential so far as Ms Dyer was concerned. The use of such information in the defamation proceedings, a course which Ms Dyer by these proceedings demonstrates that she opposes, would present a conflict with Ms Chrysanthou’s duty of confidentiality to Ms Dyer and is contrary to Ms Dyer’s interests such that it can be said that Ms Chrysanthou would relevantly be acting against Ms Dyer.

Is there a real risk that the confidential information will be relevant to the defamation proceedings?

107 For the reasons just given and those that follow, I conclude that there is a risk that the confidential information will be relevant to the defamation proceedings. Extensive submissions were made by the parties in relation to the various ways in which the confidential information might be, or is, relevant to the defamation proceedings. In addition to the written submissions, Ms Dyer relied on an analysis of the potential relevance of the information disclosed on behalf of Ms Dyer by Mr Hooke, set out in his reply evidence, to the interrogatories and defence filed in the defamation proceedings (MFI 2). Mr Porter relied on an annexure (Annexure A) to his written closing submissions which addressed by reference to the topics which were discussed at the meeting, documents where information relevant to those topics was in the public domain and containing submissions as to the relevance (or irrelevance) of the information to the defamation proceedings and containing, in relation to some information, the observation that the information would not benefit Mr Porter and so would be unlikely to be misused.

108 As mentioned, one of the ABC’s defences in the defamation proceeding is a defence of qualified privilege: ABC Defence at [11]. Section 30 of the Defamation Act 2005 (NSW) provides:

30 Defence of qualified privilege for provision of certain information

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

(a) the recipient has an interest or apparent interest in having information on some subject, and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

(a)     the extent to which the matter published is of public interest, and
(b)     the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c)    the seriousness of any defamatory imputation carried by the matter published, and
(d)     the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
(e)    whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f)     the nature of the business environment in which the defendant operates, and
(g)     the sources of the information in the matter published and the integrity of those sources, and
(h)     whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i)     any other steps taken to verify the information in the matter published, and
(j)     any other circumstances that the court considers relevant.

(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

109 One aspect of the defence of qualified privilege involves the ABC’s and Ms Milligan’s conduct in publishing the article being reasonable. The ABC and Ms Milligan have provided particulars of why they allege their conduct was reasonable in the form of Sch 1 to their defence. Schedule 1 includes XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The defence of qualified privilege (if it is made out) is defeated if the applicant in the defamation proceedings, Mr Porter, establishes that the publication of the article was actuated by malice: s 30(4).

110 I am satisfied that some of the confidential information revealed at the conference on 20 November 2020 is relevant both to whether the ABC’s and Ms Milligan’s conduct was reasonable and whether it could be said that it was actuated by malice.

111 It was submitted for Mr Porter that evidence in respect of the ABC’s and Ms Milligan’s state of mind would all be discoverable or the subject of interrogatories in the defamation proceedings with the result that it would not matter if confidential information was disclosed because all of the confidential information would ultimately be in the possession of Mr Porter and the ABC through these processes.

112 I do not accept that this provides an answer to the problem. The difficulty is that the information provided to Ms Chrysanthou by Ms Dyer, either directly or through Mr Hooke, is likely to contain evidence or information additional to answers to interrogatories provided by the ABC or to the documentary or other evidence revealed by the ABC. Further, the confidential information will not necessarily coincide precisely with the information which is disclosed as a result of those processes. The submission advanced for Mr Porter assumes that the confidential information revealed to Ms Chrysanthou is confined to what the ABC already knows, or will obtain in the process of answering interrogatories or providing discovery, and that the confidential information will necessarily be captured by an interrogatory or some other form of discovery. I am not satisfied that either of these implicit assumptions are correct.

113 Interrogatories have been drafted and a number of them refer to Ms Dyer. The interrogatories issued to the ABC include:

44. In including quotes from Jo Dyer in the 1 March article, did the First Respondent [the ABC] consider that readers might make the connection between the cabinet minister the subject of the Article and the November 4Corners, given Ms Dyer also appeared in that, and in which she made adverse comments about Mr Porter?

45. If the answer to the preceding interrogatory is in the affirmative:

(a) what consideration was given;

(b) why was Ms Dyer included in the 1 March article?

…

49. In including parts of an interview with Jo Dyer in the 7:30 story, did the First Respondent consider that viewers might make the connection between the cabinet minister the subject of the Article and the November 4Corners, given Ms Dyer also appeared in that, and in which she made adverse comments about Mr Porter?

50. If the answer to the preceding interrogatory is in the affirmative:

(a) what consideration was given;

(b) why was Ms Dyer included in the 7.30 story?

…

65. After the publication of the Article and before 3pm on 3 March 2021, … did the First Respondent receive any enquiries about whether the Article was connected to the November 4Corners?

114 I am satisfied that Ms Dyer disclosed during the conference XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX – see: Information G. This is not public information. It is relevant to the defamation proceedings.

115 The interrogatories issued to the ABC include:

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX

116 I am satisfied that Ms Dyer and Mr Hooke disclosed XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX – see: Information E. Insofar as these matters were disclosed by Mr Hooke, I conclude that his disclosure was made in order to assist Ms Dyer in obtaining legal advice. That the information may also have been confidential information of Mr Hooke does not prevent it from constituting confidential information of Ms Dyer. I am satisfied that this information included information which is not in the public domain and which is relevant to the defamation proceedings.

117 The interrogatories issued to ABC ask:

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

118 I am satisfied that Ms Dyer and Mr Hooke discussed with Ms Chrysanthou the contents of an unsigned statement prepared by AB. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX. I am satisfied that this last-mentioned matter was confidential information which was not in the public domain and that it has potential relevance in the defamation proceedings – see: Information C.

119 The interrogatories issued to the ABC include:

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXX XXXXX

120 I am satisfied that Mr Hooke disclosed that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX – see: Information D. XXXX XXXX XXXX XXXX XXXX XXXX XXXX is presumably relevant to the defamation proceedings, it being the subject of an interrogatory. It would appear to be relevant to the defence of qualified privilege. The facts disclosed by Mr Hooke are relevant to the interrogatory. I am satisfied the information is not in the public domain.

121 The interrogatories issued to the ABC include:

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX

X XXXX XXXX XXXX XXXX

X XXXX XXXX XXXX XXXX XX

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

X XXXX XXXX XXXX XXXXX

X XXXX XXXX XXXX XXXX XXXX XXXX

X XXXX XXXX XXXX XXXXX

122 I am satisfied that Mr Hooke disclosed XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX – see: Information I. The question whether XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX is relevant to the defamation proceedings, it being the subject of an interrogatory and relevant to the defence of qualified privilege. The facts disclosed by Mr Hooke on behalf of Ms Dyer are relevant to the interrogatory. I am satisfied the information is not in the public domain.

123 The interrogatories issued to the ABC include:

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXX

X XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX X

X XXXX XXXX XXXX XXXX XXXX XX

X XXXX XXXX XXXX XXXX XXXX

X XXXX XXXX XXXX XXXX

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

…

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

XX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

124 I am satisfied that Ms Dyer (with the assistance of Mr Hooke and Mr Bradley) disclosed XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX – see: Information G. This information is not in the public domain. It is not to the point that the evidence might not be admissible in the defamation proceedings, contrary to the submissions advanced by Mr Porter in Annexure A. Ms Dyer’s information is relevant to assessing any response made by the ABC by way of answers to interrogatories or to documentary records which might exist and which might be discovered.

125 Mr Hooke gave evidence of information he stated to Ms Chrysanthou which is relevant to certain of the interrogatories issued to the ABC by Mr Porter and which is relevant to certain paragraphs of the defence. These were set out in an aide memoire: MFI 2. The information given to Ms Chrysanthou included XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Irrespective of whether all of this information would ultimately be revealed in the process of discovery or interrogatories, the defamation proceedings ought not be conducted by a barrister who has already obtained information on a confidential basis about those matters. A part of the reason for this is that knowledge of the confidential information might affect, even subconsciously, the manner in which those proceedings are conducted, including with respect to interrogatories and discovery.

126 As to the specific evidence given by Mr Hooke, I am satisfied that the information given by Mr Hooke at the conference in order to assist Ms Dyer in her obtaining advice from Ms Chrysanthou is, or is likely to be, relevant to the following:

(1) interrogatories to the ABC: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX;

(2) interrogatories to Ms Milligan: XXXX XXXX XXXX XXXX XXXX; and

(3) ABC Defence: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

127 I am satisfied that the information disclosed in the conference by Mr Hooke in assisting Ms Dyer included information which was confidential, which has not subsequently entered the public domain, and which is relevant to the defamation proceedings, for reasons analogous to those given earlier. It is not necessary to address each of the items of confidential information individually. I have given examples above.

Is there no risk of misuse of the confidential information?

128 Mr Porter submitted that there is no real risk that the confidential information might be misused. There were two principal bases for this submission. First, he says that Ms Chrysanthou does not recollect anything confidential from the conference on 20 November 2020. I note in this regard that Ms Chrysanthou has not read the affidavits or other evidence or the submissions in these proceedings to the extent that such material purports to reveal the confidential information said to have been given during the conference. Secondly, Ms Chrysanthou has undertaken not to use any such information should she later recollect the existence of such information.

129 As to the first matter, and as Nettle J observed in Sent at [88], the difficulty is that recollections are liable to be revived. His Honour’s observation was made in relation to a conference which had occurred 14 years earlier in circumstances where the barrister gave evidence that he had no recollection of what was said. Nettle J observed at [89]:

130 There is a “real and sensible possibility of a revival of recollection” in the present case: Sent at [91]. That is, there is a real and sensible possibility that Ms Chrysanthou might at some later time recall matters stated in the conference of 20 November 2020 which she presently does not recollect.

131 As to the second matter, it is not enough – at least in the circumstances of this case – that Ms Chrysanthou give an undertaking to keep confidential any matters she does later recollect. The first reason for that is that there is also a real and sensible risk that Ms Chrysanthou would use confidential information (being information not otherwise in the public domain) obtained during the conference without realising that what was said in the conference was the source of that information. Ms Chrysanthou states she does not recall what was said during the conference. It follows that there is also a risk that she might use information obtained during the conference without appreciating its source. It has long been recognised that a solicitor or barrister who, with the best will in the world, is determined not to make use of a client’s confidential information for the benefit of another, may subconsciously do so: Carindale at 313 (Drummond J); Sent at [93] (Nettle J); Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1 at 8 (Hayne J). A second reason is that, if she did later recall what was said during the conference, the present issue might be revived. It might be that the nature of the information recollected is of sufficient significance that Ms Chrysanthou perceived an obligation to raise the issue with her former client, Ms Dyer. By that time, the litigation between Mr Porter and the ABC and Ms Milligan might be expected to have significantly progressed. An even worse situation would be if Ms Chrysanthou later realised that she had in fact already subconsciously used confidential information, for example in drafting interrogatories or preparing cross-examination of one of the witnesses called by the ABC and Ms Milligan.

132 For those reasons I accept that Ms Chrysanthou should be restrained on the first basis contended by Ms Dyer.

THE ADMINISTRATION OF JUSTICE

133 In Sent at [112] to [114], Nettle J stated:

[112] In Grimwade v Meagher [1995] 1 VR 446, Mandie J held that the court has inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and, as part of that jurisdiction, to prevent a member of counsel appearing for a particular party in order that the jurisdiction should not only be done but be seen to be done.

[113] The objective test to be applied, his Honour held, is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that counsel be prevented from acting; giving due weight to the public interest that litigants should not be deprived of their choice of counsel without good cause.

[114] The decision has been followed and applied by other judges of this court, by judges of the Federal Court, and by a judge of the Western Australian District Court [see Caruso v Tartaglia (2002) VSC 91; Uncle Toby’s supra; Lincoln v Holmesglen Institute of TAFE (1999) FCA 601; Grey v Alexander (2000) Australian and New Zealand Conveyancing Reports 386. The decision was also referred to with evident approval by Brooking JA in Spincode, above at paragraph 40]. If it were necessary in order to decide this application, I would, with respect, also follow the decision.

134 In Dealer at [4], Beach J described this basis of granting relief as being that “the proper administration of justice requires that the solicitors should be prevented from acting to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice”. His Honour summarised the relevant principles at [94] to [97] in the following way:

[94] First, the test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a solicitor [or barrister] be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice.

[95] Second, due weight should be given to the public interest in a client not being deprived of the solicitor of its choice. That public interest is an important value, although it can be over-ridden with due cause (WA v Ward at 498 per Hill, Branson and Sundberg JJ).

[96] Third, this third basis is not discharged by it being demonstrated that the first basis does not apply (cf Photocure at [56] and [60] per Goldberg J). It has independent scope. The third basis deals not just with private fiduciary relationships and inter-partes fiduciary obligations, but rather the administration of justice, the public interest and the appearance of propriety of officers of the court. The third basis is not only justified, but its justification explains its additional scope.

[97] Fourth, nevertheless this jurisdiction is an “exceptional one” and is “to be exercised with appropriate caution” (Young J in Geelong School Supplies at [35] and Brereton J in Kallinicos at [76]).

135 His Honour also referred at [93] to what had been said by Mandie J in Grimwade v Meagher [1995] 1 VR 446 at 452, Brooking JA in Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 at [40]-[41] and [60] and Young J in Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612 at [29], [33] and [35].

136 In Kallinicos v Hunt (2005) 64 NSWLR 561 at [76], Brereton J summarised the relevant principles in the following way:

• 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 Bolkiah).

• 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 Bolkiah).

• 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 Bolkiah; Belan v Casey; PhotoCure ASA; British American Tobacco Australia Services Ltd; Asia Pacific Telecommunications Ltd; 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 Pty Ltd; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt). Prince Jefri Bolkiah does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications Ltd 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 Ltd).

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

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

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

137 In Mumbin at [39], Griffiths J stated (emphasis in original):

The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:

(a) The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).

(b) The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).

(c) Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).

(d) This basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information (Dealer Support Services at [96] per Beach J).

(e) This basis for disqualification is an “exceptional one” and is “to be exercised with appropriate caution” (Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404; 237 ALR 612 at [35] per Young J).

(f) A legal practitioner may be restrained from acting in a matter not only where the practitioner has a conflict of interest viz a viz a former client, but also viz a viz a person who is “as good as” a client (Macquarie Bank Ltd v Myer [1994] VR 350 at 359 per J D Phillips J).

138 It will be observed that there is a difference between the summaries of principles made by Brereton and Griffiths JJ in that Brereton J considered that the test was whether a reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner be prevented from acting, whereas Griffiths J considered it sufficient if such a person might so consider. The test as formulated by Griffiths J conforms or coheres more closely with the test for apprehended bias.

139 As mentioned earlier, this ground does not depend upon a conclusion of risk of misuse of confidential information. I have concluded that there is such a risk. Asking what a fair minded reasonably informed member of the public would say of the requirements of the administration of justice in this case, if told of the events that I have described earlier including that confidential information had been disclosed, my conclusion is that a fair minded member of the public would say that Ms Chrysanthou should not act for Mr Porter in Mr Porter’s defamation proceedings.

140 Even if I had concluded that there was no real risk of misuse of confidential information, or minimal risk, I would have reached the same conclusion. Ms Chrysanthou acted for Ms Dyer in circumstances in which fair minded members of the public would think that it was likely that material was disclosed to Ms Chrysanthou which would be relevant to the proceedings instituted by Mr Porter against the ABC and Ms Milligan, and that Mr Porter might gain an advantage from his barrister possessing such information. It would not matter whether Ms Chrysanthou in fact had confidential information.

141 Further, by reason of the events described earlier, there is a real and material risk of the public having less faith in the result of the defamation proceedings between Mr Porter and the ABC, a situation which is as undesirable to Mr Porter and the ABC as it is to the administration of justice. This conclusion is amplified in respect of those members of the public who would consider it entirely possible that Ms Dyer might be a witness in those proceedings. If Ms Dyer is not called as a witness in the defamation proceedings, it might be thought that Ms Dyer was not called because Ms Chrysanthou had been her barrister. If she is called as a witness, it might be thought that Mr Porter has an unfair advantage notwithstanding Ms Chrysanthou’s undertaking not to cross-examine Ms Dyer.

142 I also consider that fair minded members of the public, with knowledge of the relevant events, would say that Ms Chrysanthou should not act for Mr Porter given the inconsistency in the interests of Ms Dyer and Mr Porter and the fact that Ms Chrysanthou acted for Ms Dyer in relation to matters which might potentially affect Mr Porter and that she now acts for Mr Porter in defamation proceedings, inconsistently with the interests of Ms Dyer, and in circumstances where the defamation proceedings may relevantly affect Ms Dyer whether or not she is called as a witness. Ms Dyer consulted Ms Chrysanthou in part because XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XX. Information was disclosed in that context. Ms Chrysanthou then accepted a brief for the person about whom Ms Dyer wanted AB’s allegations made public.

143 The question arises as to whether there are any discretionary reasons for refusing relief.

144 Mr Porter contended that Ms Dyer unreasonably delayed bringing the present application, given that Mr Bradley was told by Ms Chrysanthou on 15 March 2021 that she had accepted a brief from Mr Porter. Ms Dyer brought her application approximately eight weeks later. As the background facts set out earlier demonstrate, Mr Bradley sought to deal with the matter in a professional and non-confrontational way, including by obtaining advice from Mr Owens SC and offering for that to be discussed between Mr Owens and Ms Chrysanthou.

145 On 31 March 2021, Ms Dyer’s solicitors informed Ms Chrysanthou in writing that they did not accept that Ms Chrysanthou’s brief for Ms Dyer had been terminated and that they considered information shared with Ms Chrysanthou by Ms Dyer was confidential. They requested Ms Chrysanthou return Mr Porter’s brief immediately. Ms Chrysanthou’s solicitor replied on 6 April 2021 and Ms Dyer’s solicitor sent another letter on 7 April 2021. Ms Dyer’s solicitors enquired a number of times as to when they could expect a response to their letters of 31 March and 7 April 2021. Ms Chrysanthou’s solicitors requested that Ms Dyer “await the response before taking any further steps”. When the response did come it stated that, because no defence had been filed in the defamation proceedings, it was not possible to assert that any confidential information might be relevant in those proceedings.

146 After being provided with a number of documents to be filed by the applicant in the Supreme Court on 30 April 2021, Ms Chrysanthou’s solicitors indicated a view that the Supreme Court might not be the appropriate forum for the proceedings. Ms Dyer then chose to commence proceedings in the Federal Court to ensure there was no delay caused by a debate in relation to the choice of forum. To the limited extent that the cause of the delay lies at the feet of Ms Dyer, it is not a serious delay and it is sufficiently explained.

147 The delay is not such as to warrant refusing the relief sought.

148 Mr Porter said he will suffer significant prejudice if the relief sought is granted. This arises for a number of reasons, in particular because he will be denied his choice of counsel and because of the amount of time that has already been spent by Ms Chrysanthou on the defamation proceedings.

149 Mr Porter did not give evidence. There is no evidence as to how he came to choose Ms Giles as his solicitor or Ms Chrysanthou as his barrister. There is no evidence as to the basis, with respect to costs, on which Ms Chrysanthou is acting or as to Mr Porter’s financial capacity to pay relevant costs or as to the amount of costs so far incurred. Having said that, I accept that very substantial work on the part of Ms Chrysanthou has gone into Mr Porter’s defence.

150 Mr Porter was aware from at least 15 March 2021 that there might be a conflict in Ms Chrysanthou acting for him. Ms Chrysanthou must have known from this time (or indeed earlier) that litigation of the present nature was a real possibility or even likely. In the absence of evidence to the contrary, I assume she kept Mr Porter broadly up to date with the dispute which was developing between her and Ms Dyer. Given the events which were occurring (including the strong expression of opinion on the part of Mr Richardson that what Ms Chrysanthou was doing was a “bad idea”) and the communications between her solicitors and Ms Dyer’s solicitors, Ms Chrysanthou must have become increasingly aware that this proceeding was possible or likely until it became a reality. I accept that Mr Porter will suffer prejudice as a consequence of Ms Chrysanthou being restrained. However, both he and Ms Chrysanthou must have known that an injunction was a real possibility from the outset of the defamation proceedings, namely 15 March 2021.

151 I am not satisfied that restraining Ms Chrysanthou will ultimately prejudice Mr Porter’s defamation case. I am satisfied that Mr Porter will be able to obtain representation by senior counsel with expertise in defamation of equivalent capability as Ms Chrysanthou.

152 It follows that I consider that the second basis for restraining Ms Chrysanthou is satisfied. I am satisfied that it is made out on the more rigorous basis identified by Brereton J in Kallinicos. It necessarily follows that I am satisfied it is made out on the test as identified by Griffiths J in Mumbin. I do not consider there are any discretionary reasons sufficient to warrant refusing the relief.

CONCLUSION

153 The Court orders that, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), Ms Chrysanthou be restrained from acting for the applicant in proceedings NSD206/2021 in the Federal Court of Australia.

I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.

Associate:

Dated: 11 June 2021

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