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Public interest concern not sufficient to restrain law firm, judge finds
Despite some public interest concerns, Justice Michael Lee was not prepared to restrain Harmers Workplace Lawyers from representing two corporate counsel who were axed from Super Retail Group.
Naomi Neilson
Super Retail Group (SRG), the owner behind major brands like rebel and Supercheap Auto, sought to restrain Harmers Workplace Lawyers and chairman Michael Harmer from representing chief legal counsel Rebecca Farrell and corporate legal Amelia Berczelly.
However, Justice Lee said he was “not prepared to make an order” to restrain the firm or Harmer from acting in the proceedings.
In coming to this decision, Justice Lee acknowledged Farrell and Berczelly obtained independent legal advice from Jeremy Giles SC on the conflict of interest and still wished to retain the firm.
“There is no doubt in my mind, after being fully informed by experienced counsel, they wished for Harmers to act. I accept this would not necessarily cure public concern for the administration of justice, but that is a matter to be assessed contextually,” he said.
At the centre of SRG’s complaint was Harmers’ media statement, issued in the wake of SRG’s own statement on the Australian Securities Exchange (ASX) that it expected “workplace litigation” by two then-unnamed employees, who would claim loss and damage.
Farrell and Berczelly were also concerned that SRG had “backgrounded” journalists and were determined to control the narrative.
While initially published with the advice it would be protected under the Corporations Act as an emergency disclosure, the firm and the legal officers were soon informed this was a misapprehension. That it was a mistake is not in dispute in the current proceedings.
Sheahan said there was a possibility Farrell and Berczelly could make a claim against Harmers for this advice, meaning the firm would have a “financial and professional interest” in the proceedings.
Due to the firm’s involvement, Justice Lee said it would be difficult to see how the successive proceedings, scheduled for December, could run “without Harmer being called” to give evidence.
With this in mind, Justice Lee said: “The mere fact that a solicitor is a witness in a case does not prevent the firm from acting, [but] obviously, it does enough to cause for close examination.”
Ahead of the December hearing, SRG flagged it would consider launching defamation action against Harmers for the media statement. In his judgment, Justice Lee clarified that none of his comments should be taken to express a certain view.
SRG makes ‘red herring’ submission to distract
In submissions prior to Justice Lee’s judgment, counsel for Farrell and Berczelly, Shane Prince SC, accused SRG of making a “red herring” out of the emergency disclosure proposal “to distract attention from what was really going on”.
“This statement was being drafted in response to quite awful backgrounding, and we invite Your Honour to draw the inference that it is open and not contracted by the evidence that SRG was backgrounding against Harmers and my clients … and laying the groundwork for discrediting them,” Prince said.
While Justice Lee said he was unable to make a finding one way or another that SRG had “backgrounded” journalists, he said it was reasonable for Farrell and Berczelly to have taken that view.
Justice Lee also noted the legal officers became “fixed upon” the media statement being published to “combat what they subjectively regarded as a misleading narrative” created by the SRG parties.
Although having since been made aware the statement was not protected under emergency disclosure and a mistake was made by Harmers in advising it would be, Farrell and Berczelly said “they would have gone ahead irrespective of that misapprehension”.
Prince said he also took issue with the submission made by Sheahan that Farrell and Berczelly had an “emotional dependence” on Harmers, “because the evidence doesn’t show that”.
“It shows an ardent desire to keep them as their solicitors and the conscious decision to maintain them as their solicitors, but there is nothing in the evidence to suggest that tie is in any way emotional.
“There is obviously a position of balance between a solicitor and client … but here, it is not something that is emotionally based, it is a rational decision that is being made,” Prince said.
Justice Lee said he was hesitant to accept this submission, particularly because one of the legal officers had made a reference to their mental health in relation to the fate of their legal representation.
However, he agreed there was nothing to show “that these women are anything other than highly experienced, highly sophisticated” legal professionals, no matter their emotions at the time.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
