Shannon v Gadens Lawyers Sydney [2013] NSWSC 417

Shannon v Gadens Lawyers Sydney [2013] NSWSC 417

The summons for preliminary discovery against the first to third defendants was dismissed because the plaintiffs failed to show more than assertion, suspicion or conjecture that Mr Newton had received relevant confidential information or that there was any possibility of misuse, and they had not made reasonable inquiries because Mr Shannon had negotiated but not performed an agreement to obtain Crisp Legal's files on payment of $30,000. The s 728 application against Crisp Legal was granted only conditionally, because the Court considered the plaintiffs should be no better off and Crisp Legal no worse off than under the agreement previously struck.

Jurisdiction
Australia
Judgment Date
23 April 2013
Procedural Posture
Summons for Preliminary Discovery and Application Under S 728 of the Legal Profession Act 2004 (nsw) / Ex Tempore Revised Judgment
Outcome
Summons for preliminary discovery dismissed with costs against the first to third defendants; order made requiring the fourth defendant to produce files on payment of $30,000.
Legal Topics
['preliminary Discovery' 'discovery From Prospective Defendant' 'confidential Information' 'restraint of Lawyers Acting Against Former Clients' 'inherent Jurisdiction Over Officers of the Court' 'delivery Up of Client Documents']
['civil Procedure' 'legal Profession' 'equity'] ['preliminary Discovery' 'discovery From Prospective Defendant' 'confidential Information' 'restraint of Lawyers Acting Against Former Clients' 'inherent Jurisdiction Over Officers of the Court' 'delivery Up of Client Documents']

Case Brief

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Procedural Posture

Summons for Preliminary Discovery and Application Under S 728 of the Legal Profession Act 2004 (nsw) / Ex Tempore Revised Judgment

Legal Issues

  1. 1 ['Whether the plaintiffs satisfied UCPR r 5.3 for preliminary discovery from Gadens Lawyers Sydney Pty Ltd, Peter Newton and Commonwealth Bank of Australia Limited to decide whether to seek restraint of legal representatives acting against former clients.' 'Whether the evidence showed more than assertion, suspicion or conjecture that Mr Newton may have received relevant confidential information and that there was a risk of misuse.' "Whether the plaintiffs had made reasonable inquiries before seeking preliminary discovery, including by obtaining Crisp Legal's files under the negotiated agreement." 'Whether documents held by Crisp Legal should be delivered up under s 728 of the Legal Profession Act 2004 (NSW), and on what conditions.']

Ratio Decidendi

The summons for preliminary discovery against the first to third defendants was dismissed because the plaintiffs failed to show more than assertion, suspicion or conjecture that Mr Newton had received relevant confidential information or that there was any possibility of misuse, and they had not made reasonable inquiries because Mr Shannon had negotiated but not performed an agreement to obtain Crisp Legal's files on payment of $30,000. The s 728 application against Crisp Legal was granted only conditionally, because the Court considered the plaintiffs should be no better off and Crisp Legal no worse off than under the agreement previously struck.

Court Disposition

Summons for preliminary discovery dismissed with costs against the first to third defendants; order made requiring the fourth defendant to produce files on payment of $30,000.

Orders

  • ['Order that the summons be dismissed with costs as against the first to third defendants.' "Order that upon payment to the fourth defendant of the sum of $30,000, the fourth defendant produce to the plaintiff's solicitor such of the documents specified in schedule 2 to the amended summons as are in the possession...