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HWL Ebsworth forced to hand over client file notes to ANZ whistleblower

Published on Lawyerly.com.au written by Miklos Bolza


HWL Ebsworth has been ordered to hand over file notes to a former client and whistleblower suing ANZ for unfair dismissal, with a judge rejecting the law firm's argument that the notes were created solely for the benefit of the junior solicitor taking them.


In a judgment handed down on Friday, NSW Supreme Court ,Justice Richard Cavanagh ordered HWL to hand over the file notes to Etienne Alexiou, dismissing arguments made at trial that the documents did not have to be handed over because they were created for partner Alexandra White, who was a senior associate at the time, and not Alexiou as her client.


"I do not agree with HWLE's submission... that the evidence establishes that the file notes were prepared for HWLE for internal purposes only and were not charged to [Alexiou]. The evidence does not establish that at all," the judge wrote.


The lawsuit was filed by Alexiou in February this year seeking orders compelling HWL Ebsworth to produce a range of documents created while representing both ANZ and Alexiou during a 2014 investigation by the Australian Securities and Investments Commission concerning manipulation of the bank bill swap rate (BBSW) by the bank.


While HWL Ebsworth initially resisted handed over all the documents, the law firm ultimately provided an itemised bill of costs, memoranda and emails relating to the ASIC investigation.

At trial, it maintained that it was not required to supply the file notes, however.


Alexiou sought the documents for use in his Federal Court lawsuit against ANZ in which he claims the bank unlawfully terminated him in September 2015 after making complaints about the allegedly unlawful manipulation of the BBSW.


HWL Ebsworth's arguments 'more technical than substantive or real'


In ordering HWL Ebsworth to provide the documents, Justice Cavanagh questioned the law firm's submissions that the file notes were only made for internal purposes and the protection of its solicitors, especially without affidavit evidence from White who took the notes.


"The proposition that he or she is there making notes only for the benefit of the solicitors as if to protect the solicitors or only in the solicitors' own interests rather than the client's interests is somewhat difficult to accept, absent direct evidence,"the judge said.


HWL Ebsworth's suggestion that it had not charged Alexiou for the creation of the file notes and thus did not have to hand them over "was more technical than substantive or real," Justice Cavanagh added.


"HWLE's position might come as a surprise to those many members of the legal industry who have attended meetings with more than one solicitor attending from a firm with the most junior solicitor seemingly being there just to make notes and say nothing. The proposition that such notes (when taken by a HWLE solicitor) are not being taken for the benefit of the client and are not the subject of any charges to the client, might give rise to a question as to why there should be any charge to the client in respect of the second solicitor's attendance," he wrote.


The judge also rejected a submission by HWL Ebsworth that Alexiou be charged for a further

20 hours to review the file and extract the relevant file notes.


"A solicitor has professional obligations. The Solicitors' Rules guide solicitors in the conduct of their practice. The obligations of a solicitor include returning client documents to the client when requested to do so. It seems to me that this is an ordinary function of operating a professional practice. A request by a client to return client documents to him should not be met with a further costs agreement allowing the solicitor to charge an hourly rate for returning client documents to the client," Justice Cavanagh said.


HWL Ebsworth was also ordered to pay Alexiou's costs of the proceedings.


Judge silent on HWL Ebsworth's 'untenable' position, lawyer says


Speaking to Lawyerly, Alexiou's lawyer Stewart Levitt of Levitt Robinson, said the outcome was "satisfactory" but said HWL Ebsworth had been in an "inherent conflict of interest" by representing both Alexiou and ANZ during the ASIC investigation .


"I think what it shows it that there was an inherent conflict of interest that led to Ebsworth taking a position that was essentially untenable," Levitt said.


"It goes to show the perils of acting for multiple parties in a situation where the interests of the people aren't aligned."


While Alexiou did not raise conduct issues in the pleadings, Levitt brought up allegations of conflict in evidence filed with the court.However, Justice Cavanagh did not mention anything about this topic in his judgment.


"It still concerns me that when there is clear evidence that ought to give rise to judicial comment, those comments don't arise. People will decide a case on the lowest threshold in other words," Levitt said.


"There would have been some judicial officers in another day who would have seen fit to comment. Others don't.I'm not being critical of anybody but there's a convention that seems to apply whereby [people say] 'Don't rock the boat if you don't have to'."


HWL Ebsworth did not respond to a request for comment.


Alexiou was represented by Nick Kidd SC, instructed by Levitt Robinson. HWL Ebsworth was represented Alastair Vincent, instructed by its own in-house legal team. ANZ was represented by Jason Potts SC, instructed by Clayton Utz.


The case is Etienne Alexiou v Alexandra White and Ors t/as HWL Ebsworth Lawyers.

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