Federal Court of Australia

Emerald Resources (WA) Pty Ltd v Mullan [2025] FCA 1049

ORDERS

THE COURT ORDERS THAT:

1.    The respondents' interlocutory application for orders that:

(a)    the applicant be restrained, and an injunction be granted restraining the applicant, from retaining MPH Lawyers and Mr Martin Goldblatt of counsel to act in relation to these proceedings; and

(b)    MPH Lawyers be restrained, and an injunction be granted restraining MPH Lawyers, from acting for the applicant in relation to these proceedings,

is dismissed.

2.    The respondents are to pay the costs of the interlocutory application, to the extent that the application sought the orders referred to in order 1, to be taxed if not agreed.

3.    The parties have liberty to apply within 14 days of these orders to vary or set aside order 2.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The applicant, Emerald Resources (WA) Pty Ltd (Emerald), was formerly known as Bullseye Mining Limited (Bullseye).

2    Emerald Resources NL (Emerald NL) made a non-binding indicative offer for the purchase of Bullseye's shares (Offer) in May 2021. The Offer provided that any later formal takeover offer would be subject to Bullseye and Emerald NL entering into a Bid Implementation Agreement (BIA). It also provided that any such BIA would require finalisation of Bullseye's capital structure at the time of its execution. This was to ensure that Bullseye's share capital structure could not be altered once the takeover process had commenced.

3    Later, on 7 December 2021, Emerald NL made an announcement to the Australian Securities Exchange (ASX) that it had entered into a BIA with Bullseye, pursuant to which the Bullseye board of directors agreed to recommend to its shareholders that a takeover offer by Emerald NL be accepted.

4    The first respondent, Dariena Mullan, was a shareholder and executive director of Bullseye at the time Emerald NL made the Offer and when the BIA was executed. She was also Bullseye's Principal Geologist. The fourth respondent is Ms Mullan's father, Desmond Mullan, who held shares in Bullseye at relevant times. The second respondent, Bernard Conway, and the third respondent, John McKenna, were known to the Mullans, and also each held shares in Bullseye at relevant times.

5    Emerald claims that during the month leading up to the execution of the BIA, and when Bullseye's share capital structure had to be finalised, a large number of Bullseye shares were issued to Mr Conway and to Mr McKenna. Emerald alleges that the shares were issued pursuant to transactions that were, to Ms Mullan's knowledge, shams, with a view to ultimately increasing Mr Mullan's beneficial interest in Bullseye shares, so as to enable him to block or to profit from a takeover by Emerald NL.

6    Emerald has filed a statement of claim, in which it asserts that it has several claims against each of the respondents. Emerald seeks various forms of relief against all four respondents, including an account of profits or, in the alternative, equitable compensation, compensation under both the Corporations Act 2001 (Cth) and the Competition and Consumer Act 2010 (Cth), and damages. The respondents are yet to file a defence.

7    The respondents have filed an interlocutory application in which they seek various orders. Relevantly, the respondents seek orders restraining Emerald from continuing to retain its current solicitors, MPH Lawyers (MPH), and counsel, Mr Martin Goldblatt, to act in these proceedings. The respondents also seek an order that MPH be restrained from continuing to act for Emerald in these proceedings.

8    The respondents contend that both MPH and Mr Goldblatt previously acted for Ms Mullan, when she was a director of Bullseye. The respondents submit that this gives rise to a real and sensible possibility of the misuse of Ms Mullan's confidential information, in breach of a lawyer's obligations of confidence owed to a former client. The respondents also argue that the restraint sought is justified because MPH and Mr Goldblatt owe a continuing duty of loyalty to Ms Mullan over and above any obligations of confidence. Finally, the respondents say that the Court should exercise its 'inherent' supervisory jurisdiction over the legal practitioners working for MPH, and over counsel, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

9    Before explaining why the respondents' application must be dismissed, it is necessary to say something about Emerald's pleaded case.

Emerald's pleaded case

10    Emerald's case is that Emerald NL made the Offer on or about 19 May 2021. The Offer included, amongst other things, a condition that a formal takeover would be subject to Bullseye and Emerald NL entering into a BIA. Further, it was contemplated that the proposed BIA would require Bullseye's share capital structure to be finalised at the time of its execution. It was intended that Bullseye's share capital structure could not be altered once the proposed takeover commenced, other than in respect of any existing Bullseye commitments of which Emerald NL had prior notice. Emerald pleads that Bullseye advised Emerald NL that it was interested in a takeover in early June 2021. Ms Mullan was a director of Bullseye at this time.

11    It is alleged that in late November 2021, Ms Mullan told one of the other directors of Bullseye that Mr Conway and Mr McKenna had entered into services agreements with Bullseye, that they had provided services to Bullseye pursuant to those agreements, that they had not been paid for those services, and that they were entitled to be paid for those services by the issue of shares in Bullseye.

12    The statement of claim goes on to contend that the directors of Bullseye considered a draft BIA at a board meeting on or about 28 November 2021. That draft contained a term that Bullseye represented and warranted to Emerald NL a final share capital figure as at the date of the agreement, that there were no other shares, options, notes or other securities of Bullseye and that there were no rights to be issued in respect of such securities, other than as envisaged by the BIA. The BIA further provided that, in effect, no shares were to be issued during the period in which Emerald NL's proposed takeover offer was to remain open for acceptance. Emerald pleads that Bullseye's board resolved to execute the draft BIA, subject to Ms Mullan and another director finalising the share capital structure and inserting that figure into the draft BIA.

13    It is then pleaded, in summary, that Bullseye's board of directors directed that Ms Mullan provide them with details and supporting documents to substantiate the services provided by Mr Conway and Mr McKenna, and their entitlement to be issued shares in consideration for having provided those services. Emerald's case is that by providing assurances to the board of Bullseye and to one of its directors (in late November and in early December 2021, respectively) Ms Mullan represented that services agreements between Bullseye and each of Mr Conway and Mr McKenna did exist. Emerald also alleges that Ms Mullan represented that both men had provided services to Bullseye pursuant to those agreements, that they were entitled to be issued 5 million and 4.7 million shares in Bullseye, respectively, and that details and supporting documentation existed.

14    According to Emerald, Ms Mullan then produced draft consultancy and advisory services agreements between Bullseye and each of Mr Conway and Mr McKenna to one of the Bullseye directors. It is contended that after the director made amendments to those draft agreements, Ms Mullan produced final consultancy and advisory services agreements to Bullseye on 3 December 2021 (Services Agreements). Both agreements had been signed by Ms Mullan, on behalf of all of Bullseye, Mr Conway and Mr McKenna, respectively.

15    The Services Agreements were dated 28 November 2021, had an 'Effective Date' of 28 November 2017 and were expressed to be for a two-year term. Relevantly, the Services Agreements also referred to the services that were to be provided by each of Mr Conway and Mr McKenna and to the fact that they would be paid a fee of $250,000 per annum and $235,000 per annum, respectively, which was to be paid by the issue of shares in Bullseye at an issue price of $0.20 per share.

16    Emerald alleges that on 3 December 2021, Ms Mullan also produced two documents entitled 'Letter of Clarification in relation to Consultancy and Advisory Services Agreement', in respect of each of Mr Conway and Mr McKenna (Clarification Letters). Both of those letters had been signed by Ms Mullan on behalf of Bullseye. The Clarification Letters stated that it had been mutually agreed, in November 2019, that the term of the relevant agreements would be extended for a further two years, until 28 November 2021. The Clarification Letters also provided that it was agreed in March 2021 that Bullseye would pay the amount owing to each of Mr Conway and Mr McKenna under their respective agreements, by the issue of ordinary shares in Bullseye at a value of $0.20 per share.

17    Emerald then pleads that, induced by various representations that were made by Ms Mullan about the arrangements that were in place between Bullseye and each of Mr Conway and Mr McKenna, respectively, on or about 3 December 2021:

(a)    one of Bullseye's directors signed the Services Agreements and the Clarification Letters; and

(b)    Bullseye issued 5 million shares to Mr Conway and 4.7 million shares to Mr McKenna, at an issue price of $0.20 per share.

18    It is also alleged that on or about 27 November 2021, Mr Mullan and Mr Conway entered into a written agreement, pursuant to which Mr Conway agreed that he would have no beneficial interest in the ordinary shares in Bullseye that were to be issued to him, and that the shares would be held in his name only. Further, Emerald's case is that it should be inferred that by no later than 3 December 2021, Mr Mullan and Mr McKenna entered into a similar arrangement by which Mr Mullan would be the beneficial owner of the Bullseye shares issued to Mr McKenna.

19    Emerald says that Ms Mullan and Mr Mullan, together with Mr Conway and Mr McKenna, respectively, engaged in devising and executing schemes by which Bullseye shares were issued to Mr Conway and Mr McKenna before execution of the BIA, in circumstances in which they were not entitled to those shares (Schemes). The Schemes also included, as one of their objectives, that Mr Mullan would have the beneficial interest in the shares issued to Mr Conway and to Mr McKenna. This would then enable Mr Mullan to obtain and control as many Bullseye shares as possible before the commencement of the BIA. This, in turn, would increase the value of Mr Mullan's overall shareholding in Bullseye, and create (with other persons) a shareholder blocking stake of 25% or above. That would then be used to either defeat the Emerald NL takeover or generate leverage for those shareholders to get a better deal from Emerald NL.

20    After shares were issued to Mr Conway and to Mr McKenna, allegedly in furtherance of the Scheme, on or about 7 December 2021 Emerald NL announced an off-market takeover offer to acquire all of the issued shares of Bullseye in a share-based transaction. Pursuant to that transaction, accepting Bullseye shareholders would receive one new Emerald NL share for every 3.43 Bullseye shares held.

21    It is in this context that Emerald makes several claims against each of the four respondents.

22    As against Ms Mullan, Emerald claims that she breached her fiduciary duty not to place herself in a position of conflict between her duty as a director of Bullseye and her own interests or the interests of a third party. Emerald also claims that she breached her fiduciary duty not to profit personally, or for a third party to profit, from her position as a director of Bullseye. Similar claims are made by reference to the statutory duties imposed on directors under ss 181 and 182 of the Corporations Act. These claims are based on allegations that Ms Mullan knowingly made several false representations to Bullseye and to a Bullseye director. Those representations are essentially alleged to have concerned Mr Conway's and Mr McKenna's entitlement to be paid for services rendered by issuing shares in Bullseye. The claims are also based on Ms Mullan's alleged involvement in the Schemes.

23    Emerald's allegation that Ms Mullen made several false representations also forms the basis of claims that she engaged in misleading or deceptive conduct, contrary to s 18 in Sch 2 of the Competition and Consumer Act, and a claim that she is guilty of the tort of deceit.

24    Emerald also relies on the Schemes in support of claims of knowing receipt and knowing assistance against Mr Mullan, Mr Conway and Mr McKenna, relying on the so-called first and second limbs in Barnes v Addy (1874) LR 9 Ch App 244. In relation to Mr Conway and Mr McKenna, further claims are made that each of them engaged in their own misleading or deceptive conduct, or that they were knowingly involved in Ms Mullan's deceptive or misleading conduct, in contravention of s 18 in Sch 2 of the Competition and Consumer Act. As is the case in relation to Ms Mullan, Mr Conway and Mr McKenna are also alleged to be guilty of the tort of deceit.

25    It may be seen from this summary of Emerald's pleaded case that the focus of its claims is on the issue of Bullseye shares to Mr Conway and to Mr McKenna on 3 December 2021, which occurred amid consideration being given by Bullseye's board to the Offer and to the BIA.

26    Having summarised Emerald's pleaded case, it is necessary to provide some more background to properly understand the respondent's interlocutory application for orders to restrain Emerald's current legal representatives from acting further in these proceedings.

Some further background

27    In support of their application for interlocutory orders, the respondents rely on affidavits affirmed by Alexander Tharby on 11 March 2025 and 28 May 2025. Mr Tharby is a solicitor employed by Bennett, the firm retained to act on behalf of the respondents in these proceedings. Emerald relies on affidavits sworn on 7 April 2025 and 4 June 2025 by Nigel Pakes, a director of MPH, who is authorised to make an affidavit on behalf of Emerald. The deponents of the affidavits assert that the contents of their respective affidavits are based on their own knowledge, and that where what they have said is not based on that knowledge, the source of the information in their affidavits has been identified.

28    The following description of the relevant background to this application is based on those affidavits.

MPH's and Mr Goldblatt's initial involvement with Bullseye and Ms Mullan

29    According to Mr Pakes and based on what he has been told by the managing director of MPH, Mr Grant Pestell, MPH began acting for Bullseye in late March 2020 in relation to issues Bullseye was experiencing with various shareholders and their associates. Mr Pakes says that Mr Goldblatt was retained as counsel for Bullseye in mid-June 2020 to advise in relation to those issues.

30    In his affidavit of 11 March 2025, Mr Tharby says that Ms Mullan has informed him that while she was a director, Mr Pestell and Mr Mark Burchnall (both directors of MPH) provided corporate and day-to-day legal advice to Bullseye, including in relation to statutory reports, services agreements, investment paperwork, meetings, dealings with a mining services contractor and dealings with the Australian Securities and Investments Commission (ASIC).

Supreme Court proceedings involving Bullseye and Ms Mullan

31    On 3 July 2020, one of Bullseye's shareholders, HongKong Xinhe International Investment Co Ltd (Xinhe), commenced proceedings against Bullseye and three of its directors (including Ms Mullan), in the Supreme Court of Western Australia (Supreme Court proceedings). In those proceedings, which were served on Bullseye on or about 7 July 2020, Xinhe claimed relief for oppressive conduct under s 233 of the Corporations Act. On 7 July 2020, Xinhe sought various interlocutory orders in the Supreme Court proceedings, including orders to inspect Bullseye's books and that it be provided with a copy of Bullseye's register of members.

32    Bullseye formally engaged MPH to assist in relation to the Supreme Court proceedings in July 2020, and Mr Goldblatt was retained as Bullseye's counsel shortly thereafter. According to MPH's letter of engagement dated 10 July 2020, which was signed by one of Bullseye's directors on 11 July 2020, MPH was asked to act for 'Bullseye Mining Ltd and its directors' in relation to the Supreme Court proceedings, including the application for interlocutory orders. Further, according to Mr Pakes, MPH filed an appearance on behalf of Bullseye and the director defendants in the Supreme Court proceedings.

33    According to Mr Tharby, Ms Mullan has informed him that while she has not had access to her Bullseye email account, she recalls that she and the other Bullseye directors communicated with MPH in relation to Xinhe's request for inspection of Bullseye's register of members, and that she had various communications by telephone and by email with solicitors at MPH. It appears that Ms Mullan does not now recall with whom she had each communication. Ms Mullan's position is that MPH advised that they could act for Bullseye and for the Bullseye directors in the Supreme Court proceedings and that solicitors at MPH (Mr Pakes, Mr Bernie Cummins and Mr Daniel Murdzoski) would assist. Ms Mullan also says that:

(a)    MPH provided explanations about the court process;

(b)    MPH explained that the Bullseye directors would need to provide affidavits, give discovery and prepare evidence in the course of the Supreme Court proceedings;

(c)    MPH said that they would assist in the preparation of proofs of evidence and witness outlines;

(d)    the Bullseye directors provided instructions to MPH in respect of the matters raised by Xinhe in the Supreme Court proceedings;

(e)    MPH and the Bullseye directors discussed the merits of Xinhe's position in the Supreme Court proceedings and how Bullseye and the Bullseye directors would defend the proceedings; and

(f)    MPH provided written advice to the Bullseye directors about an issue relating to an allegation that Xinhe was entitled to nominate a director of Bullseye.

34    Both shortly before and then immediately after the hearing of Xinhe's application for interlocutory orders on 14 July 2020, Bennett & Co (the solicitors who were then acting for Xinhe) wrote to MPH. In those letters, Bennett & Co contended that Bullseye's directors had a material personal interest in the decision to defend the proceedings, where Xinhe sought orders that the directors be removed and that Bullseye commence proceedings against them. On that basis, Bennett & Co suggested that MPH had a conflict of interest in seeking to represent both Bullseye and its directors.

35    Ms Mullan says that MPH and/or Mr Goldblatt then provided advice to Bullseye and to the Bullseye directors, including Ms Mullan, that the directors had a material personal interest and that they should obtain separate legal representation. She says that she accepted the advice given by MPH about obtaining separate legal representation and did not obtain any other separate legal advice on the issue. She then decided to change solicitors and, together with the other Bullseye directors who were parties to the Supreme Court proceedings, instructed McNally & Co to act for them in the Supreme Court proceedings.

36    According to Mr Pakes' affidavit, MPH advised Bennett & Co on 21 July 2020 that the Bullseye directors were arranging separate legal representation for the Supreme Court proceedings. It is common ground that McNally & Co were instructed to act for the Bullseye directors on or about 30 July 2020. Subsequently, McNally & Co retained counsel and on 10 August 2020 and filed an appearance on behalf of the directors of Bullseye.

37    Against that background, the position adopted by MPH in the context of this application is that they only acted for Ms Mullan in her personal capacity between 7 July 2020 (at the earliest) and 30 July 2020 (at the latest). It is said that by 21 July 2020, MPH were arranging for Ms Mullan to be separately represented. Having regard to Mr Tharby's affidavit, and what he says he has been told by Ms Mullan, none of this appears to be in serious dispute.

38    On 8 August 2020, Bullseye engaged Mr Anthony Short to provide instructions to MPH in relation to the Supreme Court proceedings. According to the terms of Mr Short's engagement, he was to perform his functions and to exercise his powers independently of Bullseye's board of directors, based on Bullseye's best interests, and in accordance with professional advice where he considered it to be appropriate. Mr Pakes attests that from 8 August 2020, it was Mr Short who provided instructions to MPH in connection with the Supreme Court proceedings.

39    On 10 August 2021, Xinhe commenced fresh oppression proceedings against Bullseye and its directors in the Supreme Court. Those proceedings were then consolidated with the proceedings that were commenced in 2020, and the matters then proceeded to trial.

40    The focus of the respondent's application to restrain Emerald from retaining its current solicitors and counsel to act in these proceedings is on the previous professional relationship those lawyers had with Ms Mullan for a period of approximately three weeks. Accordingly, it is only necessary to refer to the evidence about Ms Mullan's involvement in the Supreme Court proceedings.

41    According to Mr Pakes, he had day to day conduct of the Supreme Court proceedings, together with Mr Cummins, between early July 2020 and mid-September 2020, and Mr Murdzoski, from mid-September 2020 onwards. Further, Mr Goldblatt and Mr Alan Hershowitz were briefed as counsel. Mr Pakes says that Ms Mullan was called to give evidence by her own counsel at the trial in the Supreme Court. Mr Goldblatt then apparently carried out a further examination in chief of Ms Mullen on behalf of Bullseye. It is unnecessary to make any comment about why this procedure was adopted. Ms Mullan was then cross-examined by Mr Martin Bennett, who was then appearing as counsel for Xinhe.

42    Based on Mr Tharby's affidavit, Ms Mullan recalls that she provided a witness outline to Bullseye, and was called as a witness, in the Supreme Court proceedings. Ms Mullan says that while preparing various witness outlines for Bullseye:

(a)    she met or had telephone calls with Mr Goldblatt and his co-counsel Mr Hershowitz as well as with Mr Pakes, Mr Cummins and Mr Murdzoski, on a total of at least 30 occasions, which meetings or calls typically lasted between one and three hours and on several occasions went for more than four hours;

(b)    the meetings were generally held at the offices of MPH;

(c)    she provided information in relation to Mr Mullan, Mr McKenna, and other Bullseye investors;

(d)    she discussed and exchanged versions of a statement of facts, issues and contentions that was being prepared by MPH to be used by Bullseye in the Supreme Court proceedings; and

(e)    she exchanged many draft versions of her proof of evidence for evidence in chief and cross-examination with MPH, including with input from Mr Goldblatt.

43    Attached to Mr Tharby's affidavit of 11 March 2025 are various copies of draft proofs of evidence for Ms Mullan, a draft statement of facts, issues and contentions, together with a series of witness outlines for Ms Mullan that were filed by Bullseye in the Supreme Court proceedings. The draft proofs of evidence, and the statement of facts, issue and contentions, are heavily annotated with comments, highlighting and notes made by, I infer, at least Mr Pakes, Mr Goldblatt and Ms Mullan. Ms Mullan has informed Mr Tharby that MPH and Mr Goldblatt 'provided advice to her, which she accepted, as to what to include and not include in the witness outlines'.

44    Mr Tharby also refers to the fact that information was provided by Ms Mullan to Mr Goldblatt and to MPH about Mr Mullan, when preparing her witness outlines in the Supreme Court proceedings, and to her concern that this may give the lawyers a tactical advantage in these proceedings.

45    In his affidavit of 7 April 2025, Mr Pakes says that he understood that from the time the Supreme Court proceedings commenced in early July 2020 until about early March 2021, Ms Mullan was in Ireland. He also says that he recalls that all his attendances in person with Ms Mullan happened at the offices of MPH. However, he does not say anything about what occurred at those attendances, nor does he provide any further information about any other contact he had with Ms Mullan during the Supreme Court proceedings.

46    Mr Pakes says that he has spoken to Mr Murdzoski and with Mr Goldblatt. Relevantly, Mr Murdzoski has told Mr Pakes that he has never provided any advice to Ms Mullan in her capacity as a defendant in the Supreme Court proceedings.

47    Mr Goldblatt has informed Mr Pakes, in effect, that he had very limited contact with Ms Mullan. Mr Goldblatt has no record of corresponding directly with Ms Mullan, including via email. Further, other than while they were in court together during the Supreme Court proceedings, Mr Goldblatt has only met with Ms Mullan on three occasions. On one of those occasions, he met with the other Bullseye directors while Ms Mullan joined the meeting remotely as she was in Ireland at the time. On the other two occasions, Mr Goldblatt met with Ms Mullan in person to deal with an issue that had arisen in the Supreme Court proceedings, and then again so as to prepare to adduce evidence from her in those proceedings.

48    Later, in August 2022, and then again in February 2023, Xinhe and an associated entity of Xinhe, AU Xingao Pty Ltd (Au Xingao), commenced further oppression proceedings against Bullseye, Emerald NL and several of Bullseye's directors, including Ms Mullan. These proceedings were also consolidated. In that consolidated proceeding, Ms Mullan was separately represented by Mr Stephen Penrose of Tottle Partners, while MPH acted for Bullseye, Emerald NL, and others. There is no evidence that Ms Mullan had any relevant contact with either MPH or Mr Goldblatt in the context of that consolidated proceeding.

49    All of the above-mentioned proceedings in the Supreme Court were resolved, dismissed or discontinued in July and August 2023.

Other interactions between MPH and Ms Mullan

50    In his affidavit of 11 March 2025, Mr Tharby refers to information he has received from Ms Mullan about other contact she has had with MPH. However, none of this contact is said to have taken place in the context of an extant lawyer - client relationship between MPH and Ms Mullan. In this context, Mr Tharby refers to the relevant matters set out in the following sub-headings.

Advice and assistance from MPH to the Bullseye directors in relation to reimbursement and indemnification by Bullseye for their defence in the Supreme Court proceedings

51    Mr Tharby has been informed by Ms Mullan that the directors of Bullseye sought and obtained advice from MPH in September 2020 in relation to reimbursement from and indemnification by Bullseye for their defence to the Supreme Court proceedings. MPH provided the Bullseye directors with advice and prepared deeds for Bullseye to put to shareholders for approval but then provided further advice to the Bullseye directors that shareholder approval was not necessary. On 12 November 2021, Ms Mullan and Bullseye entered into a deed of indemnity, insurance and access. Ms Mullan's position is that she made her decision about how to deal with the issue of indemnity based on the advice MPH had given to the Bullseye directors.

52    Mr Pakes does not dispute Ms Mullan's version of events. However, in his affidavit dated 7 April 2025, Mr Pakes says that Mr Burchnall has advised him that:

(a)    he had conduct of matters relating to the deeds of indemnity, insurance and access, on behalf of Bullseye, including the preparation of those documents from about October 2020 until 30 November 2020;

(b)    Bullseye's directors signed a circular resolution on 2 November 2021, resolving that a board sub-committee comprising of Bullseye's independent non-executive directors, namely, Mr Short and Mr Ian Ladyman, be constituted with immediate effect to determine, on behalf of Bullseye, whether Bullseye should enter into deeds of indemnity, insurance and access with Ms Mullan and the other directors of Bullseye who were parties to the Supreme Court proceedings;

(c)    the sub-committee received legal advice about the deeds of indemnity, insurance and access from a firm of solicitors based in Sydney, on or around 8 November 2021; and

(d)    on 10 November 2021, Mr Short circulated an email to the Bullseye board of directors advising that the sub-committee had completed its review and taken independent legal advice in relation to the deeds of indemnity, insurance and access, and that he wished to get the deeds executed and in place as soon as possible.

Advice and assistance from MPH to Bullseye in connection with the Offer and the BIA

53    I have already explained some of the circumstances that led to Bullseye and Emerald NL entering into the BIA. Based on Mr Tharby's affidavit, Ms Mullan's position is that MPH provided advice to her and the other Bullseye directors, in relation to the BIA and then assisted Bullseye in its negotiations with Emerald NL concerning a takeover. However, Ms Mullan has informed Mr Tharby that although MPH did not advise directly about the issue of shares to Mr Conway and Mr McKenna on or about 3 December 2021, Mr Pestell did provide advice about the appropriate issue price of Bullseye's shares.

54    Ms Mullan has also informed Mr Tharby that before the Offer was announced, there were meetings of the Bullseye board of directors, during which there were discussions about tidying up any outstanding matters, including the issue of any outstanding shares. However, Ms Mullan cannot now recall whether any of the MPH solicitors attended the board meetings at which the issue of the shares to Mr Mullan, Mr Conway or Mr McKenna was discussed, with a view to finalising Emerald NL's takeover offer.

55    Given aspects of the respondent's submissions, to which I will turn later in these reasons, it is necessary to make some further observations about the evidence relating to the BIA.

56    Attached to Mr Tharby's affidavit of 11 March 2025 was what he believed at that time was a copy of the BIA. That document was dated 29 November 2021, but it had only been executed by Bullseye. It is unnecessary to refer to the terms of that document other than to note cl 8.2(j), which provides that Bullseye warranted to Emerald NL that, subject to certain matters Emerald NL knew or ought to have known, Bullseye had 341,507,179 fully paid ordinary shares on issue as at the date of that document.

57    In a further affidavit affirmed by Mr Tharby on 28 May 2025, which was filed by leave after the hearing of the respondent's interlocutory application, reference was made to an ASX announcement made by Emerald NL on 7 December 2021. A copy of that announcement was attached to Mr Tharby's affidavit. An unsigned and undated copy of the BIA was annexed to the announcement. Although this copy of the BIA was unsigned and undated, given Emerald's continuous disclosure obligations I infer that the BIA was executed by Bullseye and Emerald on, or at least very shortly before 7 December 2021.

58    According to cl 8.2(j) of this version of the BIA, Bullseye warranted that it had 389,017,192 fully paid ordinary shares on issue.

59    Mr Tharby also attached to his affidavit a copy of a 'Change to company details' form dated 3 December 2021, which was lodged with ASIC on 6 December 2021. That form recorded that as at 3 December 2021, Bullseye had 389,017,192 ordinary shares on issue. It may be noted that this matched the number of shares that was the subject of the warranty in cl 8.2(j) of the BIA that was annexed to Bullseye's ASX announcement.

60    As the shares were issued to Mr Conway and to Mr McKenna on 3 December 2021, I infer that the BIA was finally executed by Bullseye and by Emerald NL after those shares were issued. As will be seen, the respondents place some emphasis on this sequence of events and, more specifically, on MPH's involvement in Emerald NL's takeover bid for Bullseye during this time, in support of their contention that MPH should be restrained from acting for Emerald in these proceedings.

61    Against this background, it is necessary to refer to some further aspects of Mr Pakes' evidence.

62    In his affidavit of 7 April 2025, Mr Pakes says that he was not aware of the Services Agreements, the Clarification Letters, or the fact that shares had been issued to Mr Conway or Mr McKenna in connection with those documents, at any time before Ms Mullan ceased to be an employee and director of Bullseye (on 21 June 2022). He says that to the best of his recollection, he was not aware of those matters until in or around early 2023. Mr Pakes also says that he has never met or spoken with Mr Mullan, Mr Conway or Mr McKenna.

63    Mr Pakes further attests that he has spoken to Mr Murdzoski and with Mr Goldblatt, who have told him that they were also not aware of the Services Agreements, the Clarification Letters, or the fact that shares had been issued to Mr Conway or Mr McKenna pursuant to those documents, at any relevant time. In Mr Murdzoski's case, he was not aware of those matters before Ms Mullan ceased to be an employee and director of Bullseye, and that to the best of his recollection, he was not aware of those matters until in or around early 2023. Mr Goldblatt has told Mr Pakes that he was unaware of those matters until 2023. Both Mr Murdzoski and Mr Goldblatt have also informed Mr Pakes that neither of them have ever met or spoken with Mr Mullan, Mr Conway or Mr McKenna.

64    The combined effect of Mr Pakes' affidavit of 7 April 2025, and his later affidavit of 4 June 2025, is also that both Mr Pestell and Mr Burchnall have informed Mr Pakes that before Emerald NL and Bullseye entered into the BIA they did not:

(a)    provide any advice to Bullseye or its directors (whether directly or indirectly) in connection with any of the Services Agreements, the Clarification Letters, or the issue of shares by Bullseye to Mr Conway or Mr McKenna in December 2021, whether pursuant to the Services Agreements and the Clarification Letters, or at all; and

(b)    have any knowledge of the Services Agreements, the Clarification Letters or the issue of shares to Mr Conway or Mr McKenna pursuant to those documents.

65    Although the evidence of Mr Pakes as to what he was told by each of Mr Murdzoski, Mr Goldblatt, Mr Pestell and Mr Burchnall is hearsay, no objection was taken. No doubt this is because s 75 of the Evidence Act 1995 (Cth) provides that in an interlocutory proceeding, the hearsay rule in s 59 does not apply to evidence if the party who adduces it also adduces evidence of its source. Mr Pakes' evidence of what he was told by Mr Murdzoski, Mr Goldblatt, Mr Pestell and Mr Burchnall about their knowledge of the Services Agreements, the Clarification Letters and the issue of shares to Mr Conway or Mr McKenna, prior to the BIA taking effect, was not challenged or otherwise called into question.

MPH's representation of Bullseye in the Takeovers Panel in proceedings commenced in January 2022 for a declaration of unacceptable circumstances in relation to a bidder's statement lodged by Emerald NL

66    In January 2022, Xinhe applied to the Takeovers Panel for a declaration of unacceptable circumstances in relation to the Offer. In his affidavit of 11 March 2025, Mr Tharby says that MPH represented Bullseye in the proceedings before the Takeovers Panel, and that Ms Mullan has informed him that she was involved in providing instructions to MPH for the purposes of those proceedings. Attached to Mr Tharby's affidavit are documents that evidence communications between Ms Mullan and MPH in connection with the proceedings before the Takeovers Panel.

67    Attached to Mr Pakes' affidavit of 7 April 2025 is a copy of the decision that was made by the Takeovers Panel on 7 February 2022 in relation to Xinhe's application for a declaration of unacceptable circumstances. Amongst other matters, Mr Pakes draws attention to the following matters that emerge from the Panel's reasons for decision:

(a)    Xinhe applied to vary the Panel's orders on 21 March 2022, to allow Ms Mullan to withdraw her acceptance of the Offer; and

(b)    Ms Mullan successfully applied to become a party to the Panel's proceedings on 25 March 2022, at which time she was represented by Addisons Lawyers.

68    Mr Pakes also deposes that he has been advised by Mr Burchnall that Mr Burchnall had conduct of the proceedings in the Takeovers Panel on behalf of Bullseye, and that MPH primarily obtained instructions from Mr Peter Burns Jnr, who was another director of Bullseye.

MPH's advice in relation to an alternative takeover bid made by AU Xingao in early 2022

69    Based on Mr Tharby's evidence, AU Xingao, lodged a bidder's statement in February 2022, offering to purchase Bullseye's issued share capital. Mr Tharby says that MPH provided advice to Bullseye in relation to that offer.

70    In his affidavit of 7 March 2025, Mr Pakes does not directly address Mr Tharby's evidence concerning MPH's involvement in AU Xingao's takeover offer. However, Mr Pakes says that Mr Burns Jnr has informed him that in around late February 2022, Ms Mullan advised Bullseye's board of directors that she had engaged her own legal adviser, in her capacity as a director of Bullseye, in relation to the takeover bids made by Emerald NL and Au Xingao.

71    Having summarised the pleaded and evidentiary context in which this application falls to be considered, it is necessary to determine whether MPH and/or Mr Goldblatt should be restrained from continuing to act in these proceedings as Emerald's solicitors and counsel, respectively, by reference to the grounds on which the respondents rely.

Should MPH and Mr Goldblatt be restrained from continuing to act for Emerald?

72    There are three grounds on which the respondents rely in support of their contention that MPH and Mr Goldblatt should be restrained from continuing to act for Emerald in these proceedings. Those grounds, which are drawn from the judgment of Brooking J in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501, are that MPH and Mr Goldblatt must be restrained from acting for Emerald in these proceedings because:

(1)    there would otherwise exist a risk that they may use, or be bound to use, information they held subject to a duty of confidence owed to Ms Mullan;

(2)    they would otherwise be in breach of a duty of loyalty owed to Ms Mullan, notwithstanding the termination of their retainer; and/or

(3)    a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that MPH and Mr Goldblatt be prevented from acting, in the interests of the integrity of the judicial process and the appearance of justice.

73    I will deal with each of those grounds in turn.

Is there a risk that MPH and Mr Goldblatt may use, or be bound to use, information they hold subject to a duty of confidence owed to Ms Mullan as their former client?

74    It is settled that a legal practitioner may be restrained from acting in proceedings, where to continue to allow the practitioner to act would involve a risk that they might use, or be bound to use, information that is subject to a former client's confidences the practitioner is bound to maintain.

75    In Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 at [34], Brereton J said that this basis on which a legal practitioner may be restrained from acting:

involves a claim to enforce a contractual or equitable right, namely, the protection of a confidence which the solicitor was bound, by the contract of retainer and/or in equity, to maintain, even after termination of the retainer. It depends on ordinary contractual and equitable principles … [This basis involves] the assertion of legal rights which might as easily arise in relationships other than between solicitor and client (for example, as in [Prince Jefri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222], between accountant and client).

(emphasis added)

76    See also, Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; (2014) 228 FCR 252 at [35].

77    Accordingly, insofar as the respondents seek to restrain MPH and Mr Goldblatt on the basis that there is a risk that they may breach a duty of confidence owed to Ms Mullan as their former client, it may have been more appropriate for Ms Mullan (and not the respondents) to have commenced separate proceedings seeking injunctive relief: as was done, for example, in Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641; see also Porter v Dyer [2022] FCAFC 116. However, as will be seen, nothing turns on this procedural issue.

78    It has been said that the test to be applied on an application to restrain a legal practitioner from acting in a matter because of the possible misuse of a former client's confidential information may be 'dissected', and then applied, in a number of ways: Porter v Dyer at [74] (Lee J); Nash v Timbercorp Finance Pty Ltd (in liq) , in the matter of the bankrupt estate of Nash [2019] FCA 957 at [62]-[64]. However, it is settled that an injunction will be granted if there is a real and sensible possibility of the misuse of confidential information: Porter v Dyer at [74] (Lee J), [1] (Besanko and Abraham JJ agreeing).

79    In Porter v Dyer, Lee J said that a series of questions, drawn from the judgment of Anderson J in Nash v Timbercorp at [64] (which, in turn, drew on what was said by Riordan J in Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd [2015] VSC 453 at [70]; and by Gillard J in World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick Lawyers (a firm) [2000] VSC 196 at [121]), had utility as an analytical framework, without amounting to a replacement for the relevant test. Those questions are:

(1)    What is the relevant information?

(2)    Is that information confidential?

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

(4)    Is the legal practitioner proposing to act 'against' the former client in the requisite sense?

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

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

80    It is for Ms Mullan to identify the putative confidential information with specificity (question 1), and then to obtain an affirmative answer to the next four questions. If affirmative answers to each of those questions are forthcoming, then the onus is on the resisting party (in this case, Emerald) to establish that there is no real risk of misuse of that confidential information: Porter v Dyer at [75] (Lee J), [1] (Besanko and Abraham JJ agreeing).

81    The respondents' submissions in support of their application to restrain MPH and Mr Goldblatt from acting on this ground refer to a range of purportedly confidential information that is said to be in the lawyers' possession. In that regard, the respondents note the following matters:

(1)    Information that came into the possession of MPH and Mr Goldblatt when they acted for Ms Mullan at the commencement of the Supreme Court proceedings in July 2020, for approximately three weeks. It is said that Ms Mullan and Bullseye had a common interest in defending the Supreme Court proceedings, and that Ms Mullan had extensive dealings with Mr Goldblatt and MPH during those proceedings.

(2)    Over a period of about two years, and while Ms Mullan was a director of Bullseye, MPH provided advice to Bullseye, and that as a director of Bullseye Ms Mullan was accustomed to seeking, receiving and acting based on MPH's advice. According to the respondents, some of that advice was for the benefit of Ms Mullan personally, including advice to obtain separate representation for the Supreme Court proceedings and in respect of the deed of indemnity, insurance and access.

(3)    Pursuant to cl 3.1 of the deed of indemnity, insurance and access, Bullseye was required to instruct MPH that advice provided to Bullseye was to be provided to Ms Mullan if it was in any way relevant to Ms Mullan, except in certain circumstances.

(4)    MPH dealt with Emerald NL's takeover offer in 2021 on behalf of Bullseye, and they attended Bullseye's board meetings during this time.

(5)    Mr Goldblatt and MPH had significant opportunity over a long period of time to 'get to know' Ms Mullan's strengths, weaknesses, honesty, reaction to pressure and approach to litigation, from acting for Ms Mullan personally and from their close relationship thereafter. Ms Mullan also disclosed to MPH and to Mr Goldblatt, information in respect of Mr Mullan during these exchanges.

82    On this basis, the respondents submit that Ms Mullan is concerned about the potential use of this information by MPH and Mr Goldblatt in these proceedings, to her disadvantage.

83    In relation to what I have referred to above at [81(1)], the respondents submit, in effect, that MPH and Mr Goldblatt are in possession of Ms Mullan's confidential information because they were retained by her for approximately three weeks at the commencement of the Supreme Court proceedings in July 2020. However, that information has only been identified at a very high level of generality. Mr Tharby says in his affidavit of 11 March 2025, that Ms Mullan has informed him, in effect, that her recollection of what she communicated to MPH and to Mr Goldblatt during those three weeks is limited. So much may be accepted. However, as I have already said, it is Ms Mullan's responsibility to establish that MPH and/or Mr Goldblatt had possession of her confidential information. In any event, apart from the lack of specificity in identifying the relevant information said to be confidential, there are at least two fatal problems with the respondents' case.

84    Firstly, there is no real risk that the identified information will be relevant to these proceedings. Based on the current state of the pleadings, the respondents have failed to establish that there is a real risk that either MPH or Mr Goldblatt are in possession of any confidential information obtained during the life of their retainer with Ms Mullan that will be relevant to the issues that the Court will be required to determine in the event this matter proceeds to trial. As Emerald submits, one of Bullseye's shareholders, Xinhe, sought relief for oppressive conduct in the Supreme Court proceedings. However, these proceedings concern allegations that Bullseye shares were issued pursuant to sham agreements, which are alleged to have been brought about in breach of Ms Mullan's fiduciary or statutory duties by conduct that was misleading or deceptive, which constituted a dishonest and fraudulent design, or which otherwise amounted to a tortious deceit.

85    Secondly, there is no real risk that any confidential information imparted to MPH and Mr Goldblatt in the course of their retainer with Ms Mullan will be misused. This is because MPH's letter of engagement dated 10 July 2020 demonstrates that at the same time MPH and Mr Goldblatt were retained to act for Ms Mullan in relation to the Supreme Court proceedings, they were also retained to act for Bullseye and its other directors. There is no doubt that this occurred because at that time the interests of Bullseye aligned with the interests of its directors, including Ms Mullan. Further, it must be understood that after her retainer with MPH and with Mr Goldblatt was terminated, Ms Mullan communicated with MPH and Mr Goldblatt in their capacity as lawyers acting for Bullseye. Those communications took place in a context in which Ms Mullan was a potential witness in the Supreme Court proceedings, whose evidence both Ms Mullan and Bullseye no doubt expected would advance their respective cases. In those circumstances, it makes no sense to suggest that MPH or Mr Goldblatt were under a contractual or equitable obligation to keep Ms Mullan's communications with them confidential from Bullseye.

86    I should also note that the respondents submit that because of their interactions with Ms Mullan in particular, during the Supreme Court proceedings, MPH and Mr Goldblatt 'got to know' her, and that this is information that is confidential to Ms Mullan: see Yunghanns v Elfic Ltd (Unreported, VSC, 3 July 1998) (Gillard J). However, there is no evidence that MPH or Mr Goldblatt 'got to know' Ms Mullan's strengths, weaknesses, honesty, reaction to pressure and approach to litigation during the three weeks they were retained to act for her, such that this knowledge amounted to some form of confidential information. There is, in fact, little or no evidence to suggest that anyone from MPH dealt with Ms Mullan to any significant extent, except when she was communicating with MPH as a potential witness in the Supreme Court proceedings. Further, the unchallenged evidence of Mr Pakes is that Mr Goldblatt has informed him that he has only met with Ms Mullan in person on two occasions.

87    In relation to the balance of the 'information' on which the respondents rely (at [81] of these reasons), it is important to reiterate that an application to restrain a lawyer from acting in proceedings against a former client because there exists a real and sensible possibility of the misuse of confidential information, is based on a claim of a contractual or equitable right to protect a confidence by which a lawyer is bound: Kallinicos at [34]; see also Nash v Timbercorp at [73].

88    It may be accepted that Ms Mullan has a relevant enforceable contractual or equitable right to protect against the misuse of any of her confidential information that came into the possession of MPH and Mr Goldblatt while they were acting as her lawyers in July 2020. However, the same conclusion cannot be reached in relation to the other 'information'. In my view, there is nothing to suggest that there exists a relevant obligation of confidence that MPH or Mr Goldblatt owe to Ms Mullan in respect of that material.

89    At the hearing of the respondents' application, it appeared to be submitted that even after their retainer was terminated, MPH and Mr Goldblatt owed obligations of confidence to Ms Mullan because she remained 'as good as a client'. In support of that argument, reference was made to Macquarie Bank Ltd v Myer [1994] 1 VR 350.

90    Macquarie Bank concerned an appeal from orders obtained by directors of a company who were parties to two sets of related proceedings. By those orders, another party to those proceedings was restrained from retaining their solicitors of choice, even though the directors had not been clients of the solicitors. It was accepted at first instance, that the solicitors should be restrained from acting because the directors were 'as good as' clients. On appeal, JD Phillips J noted (at 359) that the decision to make the orders at first instance rested largely on the decision of the Court of Appeal in In re a Firm of Solicitors [1992] QB 959, as well as various other authorities. After declining to comment on what he thought was a division of opinion displayed by those authorities, his Honour said:

In most of these cases, the solicitors - or in one case the barrister - had, since acting for one client, accepted a retainer from another; and the question was whether the practitioner, by virtue of the new retainer, could be allowed to act against one who had been his former client or one who had been 'as good as' his former client. Obviously the court will not readily countenance a solicitor who has acted for one client accepting a retainer from another to act against that former client in the same matter or in a related matter (although, as the cases demonstrate, there cannot be said to be any absolute rule). The protection afforded to the client has sometimes been extended to one who, though not strictly speaking the client, might be said to be virtually in the same position through his association with the one who was, strictly speaking, the client. Thus, in In re a Firm of Solicitors, an associated company was so regarded.

It appeared to be common ground in the course of argument before us that if a company retains solicitors by means of instructions given by the then current board, then that current board might, in certain circumstances, be able to claim that although not the client, strictly speaking, it was in 'as good as' a position as the client for relevant purposes. Counsel for the defendants was, I think, correct, however, when he submitted that every case must depend upon its own particular circumstances and that it was not desirable to lay down in advance strict criteria concerning the circumstances when information from the non-client might attract the status of information from a client.

91    It might be said that this passage tends to elide as a basis for restraint, the more controversial duty of loyalty (which I will come to later in these reasons) with the obligation to maintain the confidence of a former client. However, it is only necessary to note that on the facts of that case, JD Phillips J was not persuaded that the directors were 'as good as' the solicitor's clients. Amongst other factors, his Honour noted that at all relevant times, the directors attended upon the solicitors as witnesses, not as clients, that the directors knew full well the capacity in which the solicitors were acting at the relevant time, and that the directors had their own solicitors.

92    In separate reasons, and in relation to the issue of whether the solicitors in that case should be restrained from acting because the directors had been 'as good as' their clients, Marks J said (at 351) that it was,

not the occasion on which to attempt to draw a line around all the circumstances in which the court may intervene to restrain engagement of solicitors by a party in a particular case. We need go no further than to say that there must be something in the communication between a solicitor and the person seeking restraint which gives rise to trust or to stamp it with confidentiality.

93    His Honour concluded that on any view of the meaning of the expression 'as good as' a client, there was no evidence to justify its application to the directors in that case. In that regard, Marks J referred to the fact that the directors were defendants in proceedings in which the solicitors were, at the relevant time, acting for a party who was suing them, and that the directors were represented by their own solicitors at all relevant times.

94    In my view, there is also no basis for concluding that after her retainer with MPH and Mr Goldblatt was terminated, Ms Mullan was 'as good as' their client in the context of the Supreme Court proceedings. This is because Ms Mullan obtained separate legal representation very shortly after the retainer was terminated. Further, and as I have already said, when Ms Mullan attended upon MPH and Mr Goldblatt in the context of those proceedings, she did so as a witness. There is also no evidence from which it can reasonably be concluded that Ms Mullan was 'as good as' a client, or that MPH or Mr Goldblatt owed any concomitant obligation of confidence in circumstances in which she may have obtained advice from or provided information to MPH or Mr Goldblatt, in relation to either the deed of indemnity, insurance and access, or the takeover offer from Emerald NL.

95    In any event, there is no real risk of the misuse of any such information were MPH or Mr Goldblatt to continue to be retained by Emerald in these proceedings, even if the information was protected by a relevant obligation of confidence. As MPH and Mr Goldblatt were acting for Bullseye at all relevant times and were therefore Bullseye's alter ego (Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 659), none of this 'information' could be said to be confidential as against Bullseye. In those circumstances, it makes little sense to suggest that Emerald should be restrained from retaining its lawyers of choice on the basis that those lawyers have possession of information that it also legitimately has in its possession.

96    It must also be said that in light of the current state of the pleadings, there is no real risk that any of the 'information' will be relevant to these proceedings. At this stage at least, the advice provided by MPH and Mr Goldblatt while Ms Mullan was a director of Bullseye, and issues concerning the deed of indemnity, insurance and access, are not issues that arise on the pleadings. Further, to the extent the 'information' relates to the Offer and to the BIA, it is true that those matters are referred to in the statement of claim. However, those matters are clearly only relied on to provide some limited, and what appears from para 37 of Mr Tharby's affidavit of 11 March 2025 to be non-contentious, background to the critical allegations that shares in Bullseye were issued on the back of sham transactions.

97    For these reasons, I am of the view that there is no real risk that in these proceedings, MPH or Mr Goldblatt may use, or be bound to use, information they hold subject to a duty of confidence that is owed to Ms Mullan as their former client. Accordingly, I would refuse to restrain either MPH or Mr Goldblatt on this ground.

Would MPH and Mr Goldblatt be in breach of a purported duty of loyalty owed to Ms Mullan after the termination of their retainer?

98    The respondents argue that MPH and Mr Goldblatt should be restrained from acting for Emerald in these proceedings on the ground that they are in breach of an equitable 'duty of loyalty' they continue to owe to Ms Mullan, despite the fact that their retainer with her was terminated over five years ago. In that regard, the respondents rely on Brooking JA's recognition of the existence of such a duty of loyalty in Spincode. The respondents also submit that their application to restrain MPH and Mr Goldblatt on this basis is supported by what was said by Malcom CJ in Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467.

99    The question of whether lawyers owe a duty of loyalty to former clients that survives the termination of a retainer is controversial: Makfam Pty Ltd v CV Australia Pty Ltd [2020] VSC 296 at [43]; and Groupline Constructions Pty Ltd v CDI Lawyers Pty Ltd [2024] QSC 209 at [40]. As Steytler P observed in Ismail-Zai v State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379 at [20], at the time of that decision, there was conflicting authority concerning the question of whether a duty of loyalty survives the termination of a retainer. Little has changed.

100    In Dealer Support Services, Beach J carried out an exhaustive analysis of the relevant authorities before concluding that he did not accept that there was a basis for disqualifying a solicitor from acting that arises from a duty of loyalty said to survive termination of the solicitor's retainer. His Honour summarised the conclusion he reached in the following way at [42]:

First, this second basis did not have a secure foundation in the authorities prior to Spincode. Second, Brooking JA's analysis in Spincode was obiter, and accordingly has diminished force. Third, the Victorian cases that have followed Spincode have not added further to its conceptual foundations. Fourth, NSW cases have not followed Spincode. Fifth, Federal Court cases have either not followed Spincode on this aspect or been equivocal. Sixth, there is no need for this second basis for disqualification given the first and third bases. Seventh, and relatedly, there are conceptual problems with this second basis.

101    In Nash v Timbercorp at [122], Anderson J said that he agreed with the analysis in Dealer Support Services, and followed Beach J's conclusion in that case that there is no basis for restraining a solicitor arising from a duty of loyalty which survives termination of the solicitor's retainer. However, as Riordan J noted in Makfam at [44], Brooking JA's formulation of a duty of loyalty continues to be endorsed by courts in Victoria. In that regard, the Victorian Court of Appeal was confronted with the question of whether fiduciary duties can survive the termination of the relationship that first gave rise to those duties in Schmidt v AHRKalimpa Pty Ltd [2020] VSCA 193, albeit in the context of a claim made against a former director of a company. In that case, the Court acknowledged the existence of authority in jurisdictions outside of Victoria to the effect that a fiduciary duty does not survive the termination of the relevant relationship. Nevertheless, the Court expressly concluded at [142], that in the absence of a contrary decision of the High Court, the law in Victoria is that fiduciary duties may survive the termination of the relationship that first called those duties into being.

102    Since Schmidt, the question of whether lawyers may be restrained from acting based on a duty of loyalty that survives the termination of their retainer does not appear to have been considered by any intermediate court of appeal, or by the Full Court, and it is yet to be finally resolved in the High Court.

103    It is not necessary for me to reach any conclusion about whether MPH and Mr Goldblatt are subject to a continuing duty of loyalty to Ms Mullan. As I have already noted, the respondents rely on Brooking JA's formulation of a solicitor's duty of loyalty to a former client, which appears at [52]-[53] of his Honour's judgment in Spincode:

How, then, do matters stand? I think it must be accepted that Australian law has diverged from that of England and that the danger of misuse of confidential information is not the sole touchstone for intervention where a solicitor acts against a former client. That danger can and usually will warrant intervention, but it is not the only ground. There are two other possible bases for an interdict. In the first place, it may be said to be a breach of duty for a solicitor to take up the cudgels against a former client in the same or a closely related matter.

Three possible sources of a relevant duty suggest themselves. The first is that there is an equitable obligation of 'loyalty', which forbids not only the concurrent holding of two inconsistent engagements by different clients in the same matter, but also the holding of two successive inconsistent engagements. To speak of two successive inconsistent engagements might be thought to beg the question whether equity imposes a bar; in the view of the House of Lords there is in this sense no inconsistency. By 'inconsistent' I mean only that the solicitor who formerly acted for one client in the same matter now acts in that matter for a client with an interest adverse to that of the former client. In their Lordships' view, the duty of loyalty largely perishes along with the retainer from which it sprang, the only survivor being that aspect of the duty which protects confidential information. Once the retainer has gone 'the solicitor has no obligation to defend and advance the interests of his former client'. But what can be drawn from this last proposition? Once the contract of retainer comes to an end the solicitor does, it is true, cease to have active duties to perform for the former client. But why should we not say that 'loyalty' imposes an abiding negative obligation not to act against the former client in the same matter? The wider view, and the one which commends itself to me as fair and just, is that the equitable obligation of 'loyalty' is not observed by a solicitor who acts against a former client in the same matter.

(footnotes omitted, emphasis added)

104    The respondents also submit that their case is supported by the judgment of Malcolm CJ in Fordham.

105    Fordham was an appeal to what was then the Full Court of the Supreme Court of Western Australia, from a decision made by what was then the solicitors' disciplinary tribunal, that the legal practitioner was guilty of unprofessional conduct. The practitioner had previously appeared as counsel in criminal proceedings for a client who was charged with an offence alleged to have been committed against one of her former clients. The practitioner's former client was called to give evidence at the criminal proceedings, and the practitioner cross-examined him on the very subject matter that formed the basis of her earlier retainer.

106    One of the grounds of appeal relied on by the practitioner was a contention that the disciplinary tribunal erred in law in finding that there existed a duty of loyalty owed by a legal practitioner to a client which arises independently of the relationship of confidence. This ground was ultimately rejected by Malcolm CJ, with whom Franklyn and Wheeler JJ agreed. After referring, with evident approval, to Gesellschaft Fur Drahtlose Telegraphie MBH v Brown (1935) 78 F 2d 410 at 412, where reference was made to a 'well-established rule' that where a lawyer has acted for a client, he or she cannot thereafter assume a position hostile to the client concerning the same matter, Malcolm CJ went on to say, at 489-490:

Thus, the rule not only prevents the use of knowledge or information gained from the client during the course of a retainer, but also prevents the assumption of a position hostile to the client concerning the same matter. In my opinion, the extension to any related matter is both logical and consistent with the public policy which gives rise to the duty of professional loyalty. In the context of loyalty it is the establishment of the hostile relationship against the former client in relation to the same or a related matter which is the breach of professional duty. To put it another way, it is the existence of the former relationship which has the potential to create in the mind not only of the former client but also of the reasonable bystander a reasonable apprehension that use will be made of information provided in the course of the former relationship to the detriment of the former client, as by cross-examination for the purpose of destroying his or her credit. The submission that a practitioner is free to cross-examine a former client in the same or related matter without any inhibition, save for not actually making use of, or appearing to make use of or in circumstances giving rise to a reasonable apprehension that he or she was making use of confidential information is not a satisfactory test.

The Tribunal also said:

'Further, a theme running through the reasons for judgment of Ipp J in Mallesons [Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357] is that a cross-examiner has 'a very great psychological benefit' in cross-examining a former client on matters previously revealed by that former client to the practitioner. This is particularly so where the practitioner is seeking to establish that the former client is lying. The awareness of the former client that the practitioner has certain knowledge even though the cross-examining practitioner has not to date used that knowledge in the cross-examination, could very likely have an adverse effect upon the demeanour of the former client who is being accused by the practitioner of lying. This is the situation which existed here.'

Counsel for the appellant submitted that there was no evidence to support the conclusion in the last sentence. I accept this submission because [the client] was not called to give evidence before the Tribunal. However, the considerations mentioned by the Tribunal in this context represent a general consideration founded on common sense which adds to the rationale for the general rule.

107    The respondents submit at para 39 of their written submissions dated 25 April 2025 that:

… Ms Mullan is a former client of Mr Goldblatt and MPH Lawyers and reposed such trust and confidence in them including at the time of, and in the case of MPH Lawyers in relation to, events the subject of these proceedings. It is also clear that Mr Goldblatt and MPH Lawyers will have gained important psychological insights into Ms Mullan's thinking, idiosyncrasies and approach to defending litigation.

108    The respondents say that this is the very sort of psychological advantage to a legal representative, and corresponding disadvantage to a former client, that Malcolm CJ referred to in Fordham in the passage I have reproduced above at [106]. However, the respondents' submissions do not grapple with the fact that the formulations of a duty of loyalty that is said to be owed by a lawyer to a former client in both Spincode and in Fordham, are concerned with a duty that arises when a lawyer acts against a former client in the 'same' or in a 'closely related' matter.

109    Determining whether a lawyer is acting in the 'same' or a 'closely related' matter will involve questions of degree. As Nettle J observed in Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [108]:

In litigation, at least, there can be no doubt about what constitutes the same matter, and I do not think that there should be much doubt about what constitutes a closely related matter. If there are significant issues in one matter that arise in another, or factors which are significant to one matter which will be significant to another, the matters are likely to be closely related.

110    In this case, the Supreme Court proceedings was the only 'matter' that was the subject of Ms Mullan's former retainer with MPH, and therefore with Mr Goldblatt. Those proceedings are plainly not the same matter as the matter that is the subject of the proceedings in this Court. Further, based on the materials before me, the Supreme Court proceedings did not concern any matter that could reasonably be said to be 'closely related' to the current proceedings. As I have already noted, in July 2020, Bullseye, Ms Mullan and her fellow directors, retained MPH and Mr Goldblatt to provide legal services in relation to oppression proceedings that Xinhe commenced against Bullseye. On the other hand, the proceedings in this Court are concerned with allegations that shares in Bullseye were issued in December 2021 pursuant to contrived transactions and for dishonest purposes.

111    Even if I were to conclude that lawyers may be bound by a duty of loyalty to a former client that survives the termination of a retainer, there are no grounds for concluding that either MPH or Mr Goldblatt would be in breach of any such duty because they are '[taking] up the cudgels' against Ms Mullan in the same or a closely related matter. It follows that the respondents have failed to establish that MPH and Mr Goldblatt should be restrained from acting for Emerald in these proceedings on that basis.

Would a fair minded, reasonably informed member of the public conclude that the proper administration of justice requires that MPH and Mr Goldblatt be prevented from acting?

112    This Court has implied (not 'inherent') powers 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: Porter v Dyer at [113] (Lee J), [1] (Besanko and Abraham JJ), citing Kallinicos at [76] and referring with approval to a summary of the relevant principles by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 at [39]. See also Farrell v Super Retail Group Limited (Cross-claim) [2024] FCA 1189 at [6], where Lee J discussed the source of this Court's powers by reference to s 23 of the Federal Court of Australia Act 1976 (Cth), and to an implied power to control its own proceedings.

113    The test to be applied in this context is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice: Porter v Dyer at [113]-[114] (Lee J), [1] (Besanko and Abraham JJ). In Porter v Dyer at [114], Lee J observed, there have been differences in the cases in the way in which this test has been expressed. In that regard, his Honour referred to the test adopted by Griffiths J in Mumbin, which asked whether a reasonably informed member of the public might conclude that the proper administration of justice requires that a legal practitioner be prevented from acting. However, as the Full Court in Porter v Dyer appeared to favour the 'would' formulation of the test, being a test that was said to have been favoured by the weight of authority, I will apply that test.

114    The power to restrain a legal practitioner from acting is an exceptional one, which should be exercised with caution. In Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791 at [9], Pagone J explained that:

It is a high test with a heavy burden imposed upon a party making the application. The jurisdiction has been described as 'extraordinary and protective' (Woodgate v Leonard [2007] NSWSC 495 (Woodgate v Leonard) at [37]), of an 'exceptional nature' (TJ Board & Sons Pty Ltd v Castello [2008] VSC 91 at [30]) and to be applied only in a 'clear' case (Bransdon v Davis & Gilbert (2007) 37 Fam LR 555; [(2007)] 212 FLR 28; [2007] FamCA 579 at [70]): see also GE Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th Edition) [17.20], p538. There are many reasons for a heavy burden to be satisfied by the party making such an application. One reason is that a court should not make an order that interferes with the relation between the opposing party and that party's chosen and trusted legal practitioners. Public confidence in the administration of justice depends in part upon litigants being able to choose who they have to represent them and in whom they place their trust and confidence. The proper administration of justice is assisted by trust and confidence existing between litigants and their legal representatives. The legal practitioner plays a crucial role in conveying the client's case to a court for adjudication and the confidence and trust of the client in the chosen legal practitioner is an essential aspect of that role. An order restraining a legal practitioner from acting for a client interferes with that role, adversely affects the client and may unjustifiably interfere with the proper conduct of the client's case. It may also have the effect of causing irreparable harm to the client's case and is apt to undermine the proper administration of justice in all but the clearest cases. To restrain the legal practitioners from acting for a party in continuing proceedings may also confer an unjustifiable forensic advantage upon the party seeking the restraint.

115    The respondents contend that the matters raised in support of the ground that there is a real and sensible possibility of the misuse of confidential information, including on the basis that Ms Mullan was 'as good as' a client, independently weighs in favour of the Court exercising its implied powers. However, in circumstances in which I have found that there is no risk of misuse of Ms Mullan's confidential information, and where the respondents have not articulated any further reason why the Court should exercise its implied powers on that basis, the respondents' submission must be rejected.

116    The respondents also submit, in effect, that the psychological advantage to MPH and Mr Goldblatt, and the corresponding disadvantage to Ms Mullan, that arises because of their past interactions, favours the Court making an order restraining them from further acting against Ms Mullan, in the exercise of its implied power. I do not accept that submission.

117    Ms Mullan's memory of the communications she had with MPH while their retainer was extant is limited. She is only really able to say that there were 'communications by telephone and by email with [unknown] solicitors at MPH'. In any event, there is no evidence that anyone from MPH spent any significant amount of time with Ms Mullan while the retainer was in force. Further, the unchallenged evidence is that Mr Goldblatt only met with Ms Mullan in person on two occasions between 2021 and 2022, neither of which meetings appear to have occurred before MPH's retainer with Ms Mullan was terminated. Based on Ms Mullan's evidence, I am left with the clear impression that the only relevant communications that took place in July 2020 were those that occurred when MPH gave advice to the board of Bullseye as a whole, rather than in one-on-one meetings with Ms Mullan. In those circumstances, there is no basis for concluding that either MPH or Mr Goldblatt gained important 'insights' into Ms Mullan's thinking, idiosyncrasies, her approach to defending litigation, such that they will have gained a relevant psychological advantage over Ms Mullan, or that she has or will suffer any corresponding disadvantage. Relevantly, there is no evidence that Ms Mullan communicated any information to MPH or to Mr Goldblatt during the period of their retainer, that may be relevant to the proceedings before this Court, including any matters that may be relevant to Ms Mullan's credit that may properly be the subject of cross-examination.

118    The respondents' final contention in this context is that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that MPH should be prevented from acting. The respondents submit that this is because the conduct of Mr Pestell and Mr Burchnall may be in issue (giving rise to a potential conflict of interest and duty), or because they may become witnesses, at the trial of these proceedings. It may be noted that there is no suggestion that Emerald should be restrained from retaining Mr Goldblatt as counsel on either of these grounds.

119    This contention is concerned with what Mr Pestell and Mr Burchnall did or did not do, as the solicitors who were apparently providing advice to Bullseye as the Offer and the BIA progressed, particularly during November and December 2021. Specifically, the respondents note that the BIA was entered into on 7 December 2021, after shares in Bullseye were issued to Mr Conway and to Mr McKenna on or about 3 December 2021. On that footing, the respondents then submit that Mr Pestell and Mr Burchnall may have in fact provided advice to Bullseye during that period, or that they at least ought to have provided advice, about the significance of any changes that had been made to its capital structure before it entered into the BIA. As I understand it, the respondents argue that in circumstances in which Bullseye gave certain warranties to Emerald NL about its capital structure, there is likely to be an issue at the trial about whether Mr Pestell and/or Mr Burchnall gave advice to Bullseye, or whether they ought to have given advice, before it entered into the BIA. The respondents say that these matters may be relevant to Emerald's pleas that shares in Bullseye were issued to Mr Conway and to Mr McKenna, induced by, and in reliance on, Ms Mullan's alleged misleading and deceptive conduct. The respondents also say that those matters may bear upon the reasonableness of any such reliance, whether Ms Mullan's conduct caused any loss claimed by Emerald, and whether MPH may be concurrent wrongdoers.

120    I am not persuaded that I should exercise the exceptional power to restrain MPH, or any of its solicitors, from acting for Emerald in these proceedings on that basis. None of the matters raised by the respondents emerge from even a generous reading of the statement of claim. Further, as the respondents have not filed a defence, it is not possible to reach any meaningful conclusion about whether the matters referred to by the respondents are in fact going to be material issues that will need to be resolved at trial. It is also not possible to reach any firm view about whether the conduct of Mr Pestell and Mr Burchnall will be legitimately called into question, or whether they will be a witness at the trial. At this stage in the proceedings, the respondents' contentions are merely speculative.

121    MPH has now been acting for Bullseye, and then Emerald, for a significant period of time. The detailed nature of the statement of claim also strongly suggests that MPH has undertaken a significant amount of work prosecuting these proceedings to date. Based on the material that is currently before the Court, an order restraining Emerald from continuing to engage MPH would in fact work an injustice to Emerald, and cause it to suffer significant cost and inconvenience. In my view, the public confidence in the administration of justice would be undermined if the Court decided, at this stage at least, to restrain Emerald from continuing to repose its trust in MPH by instructing it to act on its behalf in these proceedings.

122    It should also be noted that the Court is entitled to expect that experienced solicitors, such as Mr Pestell and Mr Burchnall, will comply with their professional obligations to ensure that they do not act in circumstances in which their conduct becomes a legitimate issue the Court is required to resolve, or if it appears that they will be a witness in relation to any substantive matter.

123    The respondents have failed to satisfy me that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that MPH, including Mr Pestell and Mr Burchnall, or Mr Goldblatt, should be prevented from acting for Emerald in these proceedings, in the interests of the protection of the integrity of the judicial process and the appearance of justice.

Conclusion

124    The respondents' application is dismissed, with costs.

Associate:

Dated:    29 August 2025