Malovini v Abdishou

By a Notice of Motion filed on 17 June 2025, the first defendant in the substantive proceedings and applicant on the Motion, Ms Chantel Abdishou (the applicant), seeks orders restraining the first respondent on the Motion, Mr Edgar Marcelo Robalino Rojas, and the second respondent, Allsworth Lawyers Pty Ltd (together, the respondents), from acting for the plaintiff, Mr Marco Malovini, in the substantive proceedings. The applicant seeks orders removing the respondents from the record as the legal representatives for the plaintiff and restraining the respondents from acting as Mr Malovini’s legal representatives in these proceedings. The first respondent is the principal solicitor of the second respondent.

During the course of the hearing on 8 August 2025, the applicant also sought orders pursuant to ss 8(1)(a) and 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (Court Suppression Act) to suppress certain material before the Court as confidential, in that it is not to be opened or inspected without the leave of a judge. I made the orders sought on 8 August 2025 and I give my reasons for making those orders at [75]-[88] below.

The application arises in the following context. The first respondent acted for the applicant in XXXXX proceedings in Victoria XXXXX. The applicant seeks to have the first respondent restrained from acting against her. The restraint is sought either on the basis that in the aforementioned XXXXX proceedings, the first respondent obtained confidential information of which there is a real risk of its misuse, or because the proper administration of justice requires that he be prevented from doing so.

At no point has the applicant given, nor have the respondents sought, consent for the respondents to act against the applicant.

These proceedings form part of a larger series of disputes arising out of the breakdown of a family relationship. At the heart of that breakdown is the separation of the plaintiff in the primary proceedings and his ex-partner, the applicant’s mother, in around December 2020. There are other ongoing proceedings related to the relationship breakdown in the Federal Circuit and Family Court of Australia.

The substantive proceedings relate to a property at 8 George Street, Clyde, NSW (the Clyde Property). The applicant holds a 50% share in the property through G8 Clyde Pty Ltd (the Company), the second defendant in the proceedings. The applicant is one of two directors of the Company. The Company is the trustee of a unit trust known as the G8 Clyde Trust (the Trust) and is the registered proprietor of the Clyde Property. The applicant and the other director of the Company each hold 50% of the shares in the Company, and 50% of the units in the Trust. To give a broad summary, the plaintiff claims the applicant’s shareholding in the Company and unitholding in the Trust are held on trust for the plaintiff. Orders are also sought seeking the transfer of the applicant’s shares and units to the plaintiff.

In his Amended Statement of Claim (ASOC) filed 8 August 2024, the plaintiff relies on, amongst other things, various conversations that took place between the applicant and the plaintiff, and others, together with a number of oral representations made by the applicant.

I heard the Motion on 8 August 2025. Mr J Mack of counsel appeared for the applicant. Mr DE Thomas of counsel appeared for the respondents.

The applicant read and relied on two affidavits sworn by her, and three affidavits affirmed by her solicitor, Mr Weinberger. The respondents relied only upon an affidavit sworn by the first respondent. Each of the applicant and first respondent were briefly cross-examined.

For the reasons set out below, I have determined to grant the applicant’s application and restrain the respondents from acting for Mr Malovini in the main proceedings.

The facts referred to in this judgment are largely taken from the materials that are the subject of the suppression orders. For that reason, the parties have agreed on the parts of this judgment that are to be redacted for the version of to be published online. This redaction has taken place based on the suggestion by counsel for the applicant, to which counsel for the respondents raised no issue (TR P2 L13-20). I note that redaction of parts of the judgment was the approach taken by Thawley J in Dyer v Chrysanthou (No 2) [2021] FCA 641 (Dyer) in dealing with references to confidential information in his Honour’s judgment (see below).

Whilst I have already set out some background facts relating to the dispute at large between the plaintiff and the applicant, it is also necessary to set out the background as it relates to the relationship between the applicant and the respondents specifically.

It is not a matter of dispute in these, or the substantive, proceedings that the plaintiff in the primary proceedings and the applicant once had a familial relationship, the plaintiff having previously been the applicant’s mother’s partner (see paragraph [5]).

For his part, the first respondent deposes that he had a close relationship with the plaintiff when they were young, but they did not have any interaction from some time in 2005 until about May 2016. In 2016, the first respondent was approached by the plaintiff about a personal injury matter, and contact with the family was re-established to an extent. The plaintiff began occasionally referring clients to the first respondent for personal injury claims. XXXXX.

XXXXX in Victoria. XXXXX. The plaintiff referred the applicant to the first respondent. XXXXX, the applicant instructed the first respondent to act for her in the XXXXX proceedings in which she was involved in Victoria. It is not necessary for the purposes of this judgment to go into the nature or substance of the XXXXX proceedings in any detail, suffice it to say that the first respondent did in fact represent her.

Over the course of that representation, the applicant and the first respondent had several meetings in the usual course of seeking and providing legal advice. The applicant deposes that she told the first respondent about her “version of the events” in question, which included deeply personal matters. The first respondent then either requested or suggested that the applicant see XXXXX, which she did XXXXX.

In the sessions with XXXXX, highly personal subjects were discussed. XXXXX took notes of these sessions, which included some of the personal information discussed by the applicant. The applicant also deposes that she gave general updates and reports of what she discussed with XXXXX to the first respondent over the course of instructing him.

At some point, the first respondent requested copies of XXXXX records for the applicant in order to prepare for the XXXXX proceedings. These notes were provided to the first respondent shortly thereafter and were XXXXX in Victoria. Without directly denying the applicant’s recollection that she would report what happened at her sessions with XXXXX, the first respondent says he did not know what was said during those sessions. However, he did depose to relying on XXXXX clinical notes as part of representing the applicant. Having reviewed those notes, which were in evidence on the Motion, I consider that those notes still contain detail about the applicant’s mental health and personal history.

In the course of cross-examination for this Motion, the first defendant agreed that he acted for the applicant in the Victorian XXXXX proceedings, and that that he came into the possession of “some highly confidential and personal medical notes”, although, non-responsively to the question, he said “I’d say they’re confidential, but they’re not relevant to the current case” (TR P17 L18-35).

The first respondent was also cross-examined about a conversation he had with the applicant in relation to the Clyde Property (said by the cross-examiner to be relevant to subject of the substantive proceedings). Despite extensive cross-examination on the topic, the first respondent refused to concede that the substantive proceedings concerned the Clyde Property, stating rather, that they concern “a commercial agreement made between the applicant and the plaintiff about trusts of unit trusts held in a company”, whilst otherwise admitting that the main asset of the Trust was the Clyde Property (TR P25 L11 to P28 L29).

It is unclear on the material before the Court when the first respondent last acted for the applicant. The XXXXX proceedings were concluded XXXXX, and without further evidence to the contrary, I have presumed the applicant ceased to be a client of the respondents at that time or shortly afterwards.

In Cleveland Investments Global Ltd v Evans [2010] NSWSC 567, at [37], Ward J identified the three possible bases upon which a solicitor may be restrained from acting against a former client. Her Honour stated:

In the present case, the applicant put her case on the first and second bases identified by her Honour.

The principles applicable to the restraint of lawyers in possession of confidential information – the first basis for restraining a lawyer from acting in a matter identified by Ward J – were recently summarised by Thawley J in Dyer (upheld on appeal in Porter v Dyer (2022) 402 ALR 659; [2022] FCAFC 116):

I note the questions cited above, as set out in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 by Griffiths J, have recently been relied on and applied by Brereton J in Alamin v Islam [2025] NSWSC 221 (Alamin) at [15]-[16].

In addressing the issues raised in the Motion before me, I adopt the approach of Thawley J in Dyer and Anderson J in Nash v Timbercorp Finance Pty Ltd (in liq) (2019) 137 ACSR 189; [2019] FCA 957 and ask the following questions (to enable some structure to be given to my analysis):

However, as I will explain below, only the fifth and sixth questions are in dispute.

The principles applicable to this Court’s inherent jurisdiction to restrain legal practitioners from acting were recently summarised by Slattery J in The Estate of Tabain [2025] NSWSC 690, as follows:

There has been some debate as to the proper construction of the test to be applied by the Court, specifically, whether the standard should be that a reasonably informed member of the public “would” conclude that the proper administration of justice required that a legal practitioner be prevented from acting, or if it is sufficient that a reasonably informed member of the public “might” come to such a conclusion: see Dyer at [138]. On this issue, it has been noted by Ward CJ in Eq in Michael Smith Real Estate Pty Ltd t/as Raine & Horne Marrickville v Chmait [2021] NSWSC 1160 at [62]-[63] that the weight of authority requires an assessment that in all the circumstances a fair-minded, reasonably informed member of the public would reach the requisite conclusion. I therefore adopt that test (ie, the test as stated by Brereton J in Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 at [76]).

For the purposes of the Motion only, the respondents accepted in their written submissions that the information the subject of the application was confidential and that it was in the possession of the respondents in the relevant sense. Given this, the respondents limited the focus of their submissions to addressing the questions at (5) and (6) of paragraph [26].

Given these concessions and having regard to the questions listed at paragraph [26] above, the remaining issues to be determined are:

The applicant submitted that there is such a risk, as the confidential information includes conversations between the applicant and XXXXX, and it is “highly personal and obviously confidential information” related to the first respondent’s assessment of the applicant’s credibility. It was submitted that it is irrelevant whether or not those confidential communications amounted to instructions about the issues in the current proceedings.

The applicant’s written submissions, with some particularity, identify the risk that particular pieces of information will be relevant in these proceedings. Without intending to do injustice to either the applicant’s written or oral submissions, I will summarise relatively succinctly the two bases upon which the confidential information held by the respondents about the applicant is said to be relevant in these proceedings. First, the applicant submits that the information pertaining to her mental health given to the respondents, especially that contained in the clinical notes of XXXXX, would be relevant to the respondents assessing the applicant or XXXXX as witnesses. Secondly, she submits that some of the information contained in the clinical notes or provided in the course of conversations during the respondents’ retainer will be more directly relevant to issues of fact in these proceedings, such as the contributions that the applicant may or may not have made to the purchase of the Clyde Property and spending in relation to it, or the nature of the familial relationship between the applicant, the plaintiff and the applicant’s XXXXX.

The respondents submitted that the confidential information in the respondents’ possession was discrete and did not touch on the subject matter of the primary proceedings, which is primarily related to whether or how certain trusts and companies were established in 2017.

The respondents particularly emphasised that the personal information which the applicant disclosed to the respondents was only with reference to the year preceding XXXXX in which the respondents represented the applicant. Specifically, it was submitted that, because the confidential information was “non-contemporaneous” to the key events in the substantive proceedings in this matter (said to have occurred in about XXXXX), and referred to “relatively common” traits of the applicant, it therefore could not be relevant in the substantive proceedings (TR P39 L20).

I do not accept the respondents’ submission on this issue. As Thawley J noted in Dyer at [100]-[101], a legal practitioner will naturally make an assessment of the general credibility of a client or potential client in the course of discussions with them. Indeed, in circumstances where a legal practitioner goes on to represent a client XXXXX, it could be argued that they are required as part of their professional obligations to their client to make such an assessment. As Thawley J said, XXXXX, the results of litigation can turn on whether or not a particular witness should be called and the credibility or reliability of witnesses. XXXXX.

While an assessment of the credit of a key actor in a case will not always be inherently relevant to its prosecution, it will almost certainly be relevant in circumstances where that actor is going to be cross-examined.

In other words, the relevance of the confidential information to the present proceedings could simply be one that pertains to the forensic disadvantage of the applicant in not knowing precisely what advantage the plaintiff might have, by reason of the respondents having been privy to the medical information of the applicant. In In the matter of Edgecliff Car Rentals Pty Ltd (deregistered) [2017] NSWSC 244, Stevenson J cited with apparent approval at [25] the observations of Brooking JA (with whom Ormiston and Chernov JJA agreed) in Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501; [2001] VSCA 248 at [58] that confidential information may include “knowledge of such things as the personalities and reactions of participants” and the observation of Master Harper in Byrne v Production Magic Pty Ltd [2012] ACTSC 6 at [20] that confidential information may involve “the knowledge of the … vulnerabilities and strengths of the plaintiff [that] may be of use to those conducting the litigation”. Stevenson J then stated the following at [29]-[30]:

In All is 1 Pty Ltd t/as Banga Legal v Townsend [2025] NSWSC 953 (All is 1), McGrath J cited the above passages by Stevenson J and held, in that case, that information about a person’s “personality and vulnerabilities” obtained in another context is confidential information related to the subject proceedings and should not be used or disclosed. His Honour stated the following (with emphasis added):

In this case, a central issue in the substantive proceedings is whether certain conversations took place between the applicant and the plaintiff and, if so, what was said. It cannot reasonably be said that in this context, an assessment of the general credibility of the applicant is irrelevant.

To the extent that it was submitted that no information that the respondents are in possession of could be relevant because the first respondent does not specifically recall any confidential information conveyed to him, as it was years ago, I do not accept this submission. As noted in Dyer at [100], a legal practitioner will retain “possession” of the kind of credibility information being discussed here even if they do not recall it directly.

It follows that I accept the submissions of the applicant that the information which had been conveyed to the respondents in the course of them representing the applicant in the Victorian XXXXX proceedings would be relevant at least because they would be relevant in assessing the applicant’s credibility and reliability as a witness.

The general premise of the respondent’s submission that in 2025 it would be “remarkable” if the trial judge in this matter drew any inference as to the plaintiff’s credibility based on her suffering mental health issues XXXXX and/or XXXXX is contestable. But in any event, the question is not about the potential relevance of a person’s mental health troubles or XXXXX in general. The question here is as to the relevance of the information about those matters disclosed by the applicant to these particular proceedings.

Both parties accept that the plaintiff’s case involves consideration of disputed conversations and understandings. Those conversations happened many years ago. Evidently then, whether a particular witness can accurately recollect these past conversations will clearly be an important issue in this litigation, and as a part of this, issues as to witness credibility and reliability are likely to be central to the assessment of that evidence. I would consider it accurate that what is revealed in the medical records to which the respondents had regard during their representation of the applicant reveal XXXXX mental health challenges and XXXXX. There is also information as to the applicant’s view of XXXXX the applicant’s mental health. I think counsel for the applicant was correct in describing what is contained in parts of XXXXX clinical notes as “fodder” for a potential cross-examiner “and for a lawyer when seeking to impugn a witness’s credibility, particularly in relation to disputed conversations and recollections, and also in relation to contributions that people might make to an agreement”.

The respondents’ contention that they will not misuse the information pertaining to the applicant’s medical information will be dealt with separately. However, I will briefly address the submission put by the respondents that any cross-examination questions based on the applicant’s mental health would be inadmissible because of the fact that any such information would inevitably have come from the clinical notes and the applicant’s instructions. In Dyer at [124]-[125], Thawley J said that the inadmissibility of certain evidence in the substantive defamation proceedings to which his Honour’s decision related was not to the point. In that case, the confidential information was said to be relevant in assessing the response of the defendant in the defamation proceedings in relation to interrogatories and discovery. His Honour highlighted how the confidential information in that case “might affect, even subconsciously, the manner in which [the] proceedings are conducted”.

The logic applied by Thawley J is apposite here. Accepting for the sake of argument that evidence as to the applicant’s mental health and XXXXX would be inadmissible (and I record expressly that I offer no comment on the potential admissibility of any such evidence) is not to the point. The information could and likely would still be relevant, even if subconsciously, in conducting the litigation given it would likely play some part in the assessment of the applicant as a witness.

Additionally, the respondents have been in possession of XXXXX records of XXXXX since they were provided to them, and thus the documents have been available to the first respondent to refresh his memory of those notes in the course of providing them to the applicant’s solicitors and the Court.

I therefore find that there is a real risk that the confidential information in the possession of the respondents will be relevant to the primary proceedings.

This analysis applies to the respondents’ best case factual scenario. It was not accepted by counsel for the applicant that no statements of fact directly relevant to the current proceedings were said by the applicant to the respondents when she engaged him to represent her. Given my above finding, however, it is not necessary for me to form a view about what specifically was said, and it is my opinion that that is an issue better left undecided.

At hearing of the Motion, counsel for the applicant made the submission that the first respondent may well be called as a material witness in the substantive proceedings. If this is the case, he would likely be unable to act for the plaintiff by reason of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 27. This submission was not addressed in either party’s written submissions, and only very briefly in oral submissions, such that it is unclear how likely it is the first respondent will be called. That remains a matter for the parties. If he is called, however, it is clear that it would be for the purposes of substantiating the claims of the applicant about a contested issue in the primary proceedings, and the rules are therefore unequivocal about his prohibition from acting for the plaintiff. To this extent, I accept there is some force in the oral submissions made by the application on this issue.

The applicant submitted that there is a real risk of misuse of her confidential information because the first defendant:

It was submitted that the risk of misuse is “going to happen” as this is a case which turns substantially on an assessment of the credibility of witnesses, including the applicant. The conversation the applicant had with the first respondent is a “critical, core conversation” as part of that assessment, which is “the type of conversation which will be compelling in such a case as this where there’s no written document” (TR P46 L8-10).

The respondents submitted that even if the confidential information the respondents possess was relevant, there would be no potential for it to be misused. This submission had two bases. First, it was argued that because of the supposedly limited scope of the confidential information, it would not have any bearing on how the respondents, especially the first respondent, would assess the credibility of the applicant or any other witnesses in the substantive proceedings. Second, it was submitted that the Court should find that there was no real risk of the respondents misusing the confidential information because of undertakings not to do so that he had already made (or to the extent they were insufficient, because of further undertakings he was willing to make).

I accept the applicant’s submissions.

Neither of the respondent’s submissions are persuasive. It is convenient to deal with them in turn.

As noted above at [36] and in Dyer at [101] even a general assessment of credibility will have enduring relevance, and will instinctively be used by a legal practitioner in their preparation of a case. Again, in this case, the assessment was far more than general.

Additionally, using the words of Thawley J at [131] of Dyer, I consider there is a risk that the respondents might use information obtained during their representation of the applicant without appreciating the source of that information. I accept that the first respondent (and, by extension, the second respondent) has not consciously disclosed any of the applicant’s confidential information to the plaintiff, and nothing suggests to me he is likely to do so. However, that is not the end of the problem. It has long been recognised that a legal practitioner who, with the best will in the world, is determined not to make use of a client’s confidential information for the benefit of another, may subconsciously do so: Dyer at [131].

As I explained earlier in these reasons, the conduct of these proceedings, both as to any settlement or as to a trial of the issues, will necessarily be influenced by the assessments of evidence given by the applicant. The first respondent has, by reason of his representation of the applicant, come into confidential information which is likely to bear on those assessments, at least in so far as it relates to the applicant’s personality and vulnerabilities. To borrow a metaphor used by McGrath J in All is 1 at [43], one cannot “unscramble the egg”. By this, I mean to say it does not seem realistic to expect that the first respondent can simply compartmentalise and not be influenced at all by the confidential information he obtained while representing the applicant when he makes the necessary assessments of the applicant in the course of representing the plaintiff in these proceedings. For those reasons, I do not accept the first of the respondents’ submissions on this issue.

As to the second submission, it is difficult to see how an undertaking not to use confidential information could practically function in a case such as this. This is a case where a key question will be whether the version of events provided by the plaintiff or the applicant should be accepted by the Court. As such, the applicant’s credibility is likely to be a central issue in the case. Even if the respondents were to brief separate counsel or retain external legal assistance with respect to the cross-examination of the applicant, their knowledge would still be relevant and liable to be misused in most every other aspect of the case.

It was submitted by the applicant, and I accept, that in the circumstances conceded by the respondents where the first respondent may engage counsel and make an undertaking not to convey any of the applicant’s confidential information, this might well not be possible. The very fact of the first respondent being bound not to answer certain questions from counsel which would arise in the normal preparation for a cross-examination could indicate areas in which confidential information had been conveyed by the applicant, and therefore which areas should be of special interest in that cross-examination.

In a case such as this, it is difficult to conceive a set of undertakings which would be capable of effectively preventing the respondents from misusing the confidential information of which he is in possession, without those undertakings being tantamount to undertaking not to act for the plaintiff at all.

As such, I find that there is a real risk of misuse of confidential information by the respondents against the applicant, and therefore that the respondents should be restrained from acting against the applicant in these proceedings.

In case I am wrong about the conclusion above, it is necessary to consider whether the respondents should be restrained from acting against the applicant on the basis of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

As noted in Dyer at [139], “this ground does not depend upon a conclusion of risk of misuse of confidential information.” It does not follow, however, that the passing of confidential information between a legal practitioner and their client is therefore necessarily irrelevant. Indeed, whether and how that information is passed, and then later used, may be a key factor in how a fair-minded member of the public might consider what the proper administration of justice requires.

The respondents were privy to confidential information of the most serious and personal nature concerning the applicant. It seems likely to me that a fair-minded member of the public would reasonably come to the conclusion that the first respondent possessing that information might gain him some advantage in prosecuting the plaintiff’s case. Therefore, even if I had not formed the opinion which I have expressed at [62], I would nevertheless see it as appropriate to restrain the respondents from acting against the applicant.

The respondents submitted that I should exercise my discretion and decline to restrain them from acting because of the delay on the part of the applicant in bringing the Motion. The Notice of Motion was only filed 9 months after the commencement of the proceedings. The respondents’ submission was that where that delay was unexplained, that delay combined with considerations of the cost and inconvenience to the plaintiff if the respondents were to be replaced at “this late stage” militated against granting the applicant the restraints she sought.

This submission is not persuasive. Mr Nathan Weinberger, the solicitor for the applicant, objected to the respondents acting for the plaintiff, on the basis of the respondents holding the applicant’s confidential information at the latest in a letter dated 31 October 2024, to which there was no response. Mr Weinberger again raised these issues in a letter dated 12 November 2024 and in an email dated 16 June 2025.

One can accept that the applicant has not completely explained why it took so long to file a Notice of Motion. Orally, the applicant suggested that the delay was caused by the respondents failing to hand over the documents they held in relation to the applicant when the applicant had requested those files in December 2024. That perhaps provides a partial explanation. However, this is not a case where the applicant only objected to the respondents acting for the plaintiff for the first time by filing the Notice of Motion in June 2025. Mr Weinberger’s letters make the applicant’s position clear enough in this regard.

Additionally, any delay is also at least partially explained by the conduct of the respondents. The letters sent by Mr Weinberger on behalf of the applicant in October and November 2024 were not responded to, nor was his December 2024 letter requesting his client’s file from the respondents. The first respondent, in his affidavit, says he did not respond to the October 2024 letter because he “did not consider the letter to have merit”. He also deposed to assuming that as 7 days passed after the letter (the time by which the first respondent was requested to withdraw), the applicant’s request for his withdrawal was not pressed.

It appears from the evidence that the first time the respondents directly engaged with the issues raised by the applicant was in an email sent by the first respondent to Mr Weinberger on 16 June 2025. In that email, the first respondent says Mr Weinberger had not indicated what confidential information the first respondent held that was relevant to the proceedings, and that he did not intend to respond further until that information was identified.

Whatever might be said of the applicant waiting to bring this application, the respondents contributed to the delay by seemingly choosing not to respond to Mr Weinberger’s correspondence.

Additionally, and perhaps more importantly, I was not taken to or provided with any evidence as to what prejudice might be caused by the delay in the applicant bringing her application when she did. I can infer from the circumstances that the proceedings have progressed somewhat. The pleadings are closed. According to the first respondent’s affidavit, the plaintiff’s evidence in chief appears to be on. The applicant has put on some of her evidence, but her own affidavit has not been served. In an email sent on 13 June 2025 (attached to which was the applicant’s other evidence in the substantive proceedings), Mr Weinberger explained that the applicant’s own affidavit was not being served given the outstanding objection she had as to the respondents acting for the plaintiff.

Of course, simply by reason of the plaintiff needing to get new legal representatives, there will be some prejudice, delay and cost occasioned by those new representatives reading into the matter. That much can be accepted without evidence: Alamin at [28] (Brereton J). However, no hearing date has yet been set down, nor was it suggested this was a case where the matter was ready to take a hearing date. As I said above, the respondents did not point me to any evidence or make any submissions as to the severity of the prejudice caused by any delay on the applicant’s part in bringing the application.

In these circumstances, I do not find that the delay in filing the Motion is sufficient to cause me not to restrain the respondents from acting against the applicant.

As I have noted above, on 8 August 2025, I made the following suppression orders pursuant to ss 8(1)(a) and (e) of the Court Suppression Act:

The criteria for making such an order in this Court are set out in the Court Suppression Act:

Section 6 makes clear that when considering an application for orders under s 7, the primary consideration for the Court is the principle of open justice: R v BB (No 6) [2021] NSWSC 1518 at [18] (Rothman J). If made, a suppression order or a non-publication order will necessarily detract from the principle of open justice. The question here is whether it is nevertheless appropriate to make such a suppression order to prevent prejudice to the proper administration of justice (s 8(1)(a)), or because it is necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice (s 8(1)(e)).

It has been emphasised many times that all of the criteria in s 8(1) are expressed in terms of whether an order is “necessary”. It can be accepted that that notion must be construed in the context of each particular paragraph of s 8(1): Council of New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [219]-[220] (Bathurst CJ, Leeming JA and Simpson AJA).

As the High Court said in a related context, “necessary” is “a strong word” and requires more than that an order be found to be “convenient, reasonable or sensible, or to serve some notion of the public interest”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30] and [31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). It is implicit in the Court Suppression Act that significant weight is to be afforded to the principle of open justice: Misrachi v Public Guardian [2019] NSWCA 67 at [11] (Bell P, Emmett AJA); DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [30] (Leeming JA, Bell P and Meagher JA agreeing). Nevertheless, the word “necessary” should not be given a narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 (Ibrahim) at [8] (Bathurst CJ). The meaning of “necessary” does not mean that proof is required of some particular identifiable consequence in the event that an order is not made: see AB (a pseudonym) v CD (a pseudonym) (2019) 93 ALJR 321; [2019] HCA 6 at [14]-[15] (Nettle J); Richards (a pseudonym) v Jones (a pseudonym) (No 2) [2025] NSWSC 27 (Dhanji J).

As to s 8(1)(a), much has been said in this Court. The core of the assessment is that if the suppression order is not made, the result will be – or at least will be assumed to be – that the consequences which will flow would be unacceptable, and so the Court has the power, implied as necessary to the proper function of the Court, to prevent those consequences from happening.

In John Fairfax Group Pty Ltd (Receiver and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131, Mahoney JA said at 161 (in a passage later adopted by Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13] and by Bathurst CJ in Ibrahim at [8]):

As to s 8(1)(e), that it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice, the fundamental issue is that the public interest in open justice is always significant. But there are circumstances where an even greater public interest is achieved by suppressing the material at issue, such as where open access to the material would practically defeat the purpose for which the proceedings are brought.

So much was said by Brereton J in Welker v Rinehart [2011] NSWSC 1094:

In the course of ordinary life, physical or mental health conditions are generally regarded as private and confidential matters. Each of the items sought to be suppressed by the applicant contain ordinarily confidential communications between the applicant and the first respondent relating to the applicant’s medical conditions and circumstances. Those conversations took place when the first respondent was still acting for the applicant in those earlier XXXXX proceedings in Victoria, and in the course of the applicant’s giving of instructions to the first respondent in relation to those proceedings. Among other things, those conversations recalled information the applicant conveyed to XXXXX, which included highly personal subjects.

I was satisfied that a suppression order should be made in this case pursuant to both s 8(1)(a) and s 8(1)(e). First, I considered a suppression order was necessary to prevent prejudice to the proper administration of justice. The material subject to the suppression order was not just confidential information, but confidential information generated by reason of and in connection with the engagement by the applicant of the respondents as her legal representatives. That information would ordinarily have been protected from disclosure by legal professional privilege, and throughout the affidavits it is expressly stated that no waiver of such privilege is intended. It would be contrary to the proper administration of justice not to suppress this information which, as is made apparent elsewhere in this judgment, is not only sensitive but would otherwise not be in the public domain (given its privileged nature).

Secondly, the public interest in not allowing access to such material (unless the Court permits otherwise) significantly outweighs whatever the public interest there is in open justice there is in permitting access to those material. I do so on the grounds that open justice would practically defeat the applicant’s claims. Here, the applicant’s purpose is to protect the misuse of her confidential and privileged information. Not having a suppression order would practically defeat the applicant’s obvious intention to minimise the access to her confidential information generated by reason of her retaining the respondents as her lawyers.

I also considered whether a non-publication order would be sufficient rather than the significantly more restrictive suppression order sought. Ultimately, I was persuaded that the harm sought to be prevented was likely to arise not only through general broadcast of the information but by the exchange of information by word of mouth, justifying the making of a suppression order.

Although there is a degree of overlap as between the relevant grounds in s 8(1), in the circumstances, I am satisfied that it is necessary to make the suppression orders sought on the grounds provided in ss 8(1)(a) and (e) of the Court Suppression Act.

The legal principles in relation to costs in the context of interlocutory proceedings was summarised by Ward CJ in Eq in Wang v Cai (No 2) [2021] NSWSC 1268 (Wang) at [60]-[64], which I adopt:

In relation to the Court’s reference to what “ordinarily” occurs, in circumstances where an interlocutory application is brought, as here, then the usual order will be for the costs of the application to be costs in the cause: Uniform Civil Procedure Rules 2005 (NSW) r 42.7(1), Wilson v Gillies (No 2) [2020] NSWSC 658 at [11] (Rees J); Skytraders Pty Ltd v Meyer [2023] NSWSC 857 at [2] (Richmond J).

The legal principles to be applied when considering whether to make an order for costs on an indemnity basis was recently summarised in Muscat v Qin (No 2) [2024] NSWSC 391 by McGrath J at [25], which I adopt:

In her written submissions the applicant does not make submissions on the issue of costs. However, in her Notice of Motion, she seeks an order that the respondents pay her costs of the Motion forthwith, on the indemnity basis.

In their written submissions, the respondents indicated they wished to be heard on costs.

In the absence of more comprehensive submissions on the issue, in particular in relation to the issue of indemnity costs (given the seriousness of the issues to be considered that follow the principles to be applied, as set out above), I propose to make the “ordinary” order for costs in interlocutory proceedings, allowing for the possibility that the parties may wish to be heard on this issue.

For the reasons set out above, the Court makes the following orders: