Recent Cases

Porter v Dyer [2022] FCAFC 116 (14 July 2022) (Besanko, Lee and Abraham JJ)


Catchwords:


PRACTICE AND PROCEDURE — appeal from orders made by Federal Court of Australia pursuant to s 23 of Federal Court of Australia Act 1976 (Cth), enjoining second respondent from acting for appellant in proceedings NSD 206 of 2021 (defamation proceedings) — where prior to defamation proceedings being brought by appellant, first respondent had sought legal advice and attended conference with second respondent and instructing solicitor, as well as friend of first respondent, Mr James Hooke — where primary judge found real and sensible possibility of misuse of confidential information imparted to second respondent during conference, applying analytical framework in Nash v Timbercorp Finance Pty Ltd (in liq) [2019] FCA 957; (2019) 137 ACSR 189 and, as second basis for order, need to protect integrity of judicial process and due administration of justice — whether open to primary judge to accept evidence of Mr Hooke as to what occurred at conference — whether error established on basis that confidential information found by primary judge or any of it had lost character of confidentiality by having entered public domain — whether primary judge erred in finding second respondent proposed to act “against” first respondent in defamation proceedings — whether primary judge erred in finding real risk that confidential information imparted during conference was relevant to defamation proceedings — whether error established in relation to conclusion of risk of misuse of confidential information — whether primary judge erred in relation to second basis of injunction in failing to consider “cab rank” principle in Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) and appellant’s rights — appeal dismissed

PRACTICE AND PROCEDURE — appeal from ruling made during hearing before primary judge, allowing second affidavit of Mr Hooke to be filed and read by first respondent — where affidavit served on appellant two days before first day of hearing before primary judge and purported to set out precise content of confidential information said to have been imparted to second respondent at conference — whether primary judge failed to consider matters advanced by appellant in the appeal as giving rise to prejudice to appellant — appeal dismissed

PRACTICE AND PROCEDURE — application for leave to appeal from orders made by primary judge pursuant to s 37AF of Federal Court of Australia Act, prohibiting publication or disclosure of documents tendered as Exhibits 2, 3 and 6 — whether error in process of reasoning adopted by primary judge, to link information in Exhibits 2, 3 and 6 to one or more of categories of confidential information identified — application dismissed — consideration of requirement in s 37AJ of Federal Court of Australia Act that order specify a period for its operation