The loyalty of a Perth-based law firm was called into question by a previous client, which told a court it was troubled by the solicitors’ representation of a former director it has brought action against.
The Supreme Court of Western Australia was asked to restrain commercial and corporate firm Lawton Gillon from representing Giovanni Nicoletti, the former director of Dimension Agriculture.
In its chamber summons, Dimension submitted that the firm represented both the company and Nicoletti in past Federal Court proceedings. It was that action that led to Dimension’s current proceedings against Nicoletti for an alleged breach under the Corporations Act 2001.
In addition to making it clear it did not suggest Lawton Gillon knowingly made false statements, Dimension confirmed it made no allegations that Lawton Gillon participated in a sham transaction or did anything wrong while defending the Federal Court proceedings.
By acting for Nicoletti in the current Supreme Court proceedings, Dimension alleged Lawton Gillon “appeared disloyal and this appearance posed a risk to the due administration of justice”.
Dimension also raised the possibility that solicitors from Lawton Gillon may be called to give evidence about instructions it received.
“It was contended that the advice that Lawton Gillon would need to give would necessarily involve them making decisions about the presentation of the evidence which might not paint the firm in a favourable light,” Justice Terence Palmer added in the judgment.
Even if the firm’s involvement was not significant enough to bring its independence and objectivity into question, Dimension alleged it would be “more than adequate to create the impression, and such an impression endangered the appearance of justice and judicial process”.
Justice Palmer dismissed Dimension’s injunction application.
In his written reasons, Justice Palmer said no allegations were made that Lawton Gillon acted inappropriately and, even if the matters alleged were proven, they would not establish that the firm acted inappropriately. Further, it was not clear why the conduct would be scrutinised or why it should be concerned about the scrutiny.
Justice Palmer also noted Nicoletti had not indicated they proposed to call evidence from a solicitor at Lawton Gillon, and it was not apparent “there is a significant likelihood that they would be”.
“Notably, no Lawton Gillon solicitor gave evidence in the Federal Court proceedings,” Justice Palmer added.
“The manner in which those proceedings were conducted does not support the proposition that a solicitor associated with Lawton Gillon would be likely to be called as a witness in these proceedings.”
Justice Palmer was equally not satisfied with Dimension’s allegation that Lawton Gillon’s objectivity could be called into question, with respect to the “appearance” of its acting in the matter.
However, Justice Palmer noted the injunction came at an early stage in the proceedings and no defence had yet been filed.
“It is possible … that as these proceedings progress and circumstances evolve, it may become clearer that there is an issue with Lawton Gillon acting,” Justice Palmer said.
“If circumstances do change, it will be open to Dimension to apply to restrain Lawton Gillon given those changed circumstances.”
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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