Billing … Ebsworth refused to hand over file notes to client … Client’s bills paid by bank … Property of the file notes … For whose benefit were the file notes created? … No charge code in billing system for file notes … Janek Drevikovsky reports
The client, Etienne Alexiou, is a former ANZ trader who in 2014 was subject of an ASIC inquiry into alleged market manipulation.
HWL Ebsworth represented Alexiou, with ANZ footing his bills. ASIC took proceedings, but no adverse findings against the trader were made.
In 2015, ANZ fired Alexiou for sending explicit messages to his workmates. He has now brought a Federal Court action against the bank, alleging improper dismissal under whistleblower laws.
To argue his case against ANZ, Alexiou said he needed documents held by HWL Ebsworth, mostly file notes of meetings between the firm, ASIC and various other lawyers.
Even though the bills had been paid the law shop refused to hand them over.
Justice Richard Cavanagh of the Supreme Court said he had no idea why the documents were in issue:
“I do not know why the plaintiff seeks the file notes, other than that his current solicitors seek them as part of advising the plaintiff in the Federal Court proceedings. I do not know why HWLE does not wish to provide them to the plaintiff. It may be pursuing a point of principle.”
In the end, the parties’ motivations didn’t matter. The sole question was how the file notes should be classified in light of Wentworth v De Montfort, the leading authority on point.
If the file notes were made for Alexiou’s benefit, they belonged to him. If, however, they were created for the firm’s purposes, then they were not the client’s property.
HH was unconvinced, however, that this showed the notes were created for the firm’s benefit.
“I do not think that I should determine an issue such as this based on the HWLE billing system,” he said.
The judge noted that the firm had charged for lawyers to attend the meetings later recorded in file notes. The charge for attendance covered preparing a file note.
His Honour cautioned against the logical endpoint of HWL Ebsworth’s argument:
“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 … are not being taken for the benefit of 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.”
Justice Cavanagh noted that none of those lawyers had been called to give evidence about the purpose of each note.
In those circumstances, he was satisfied the file notes were made for Alexiou’s benefit and ordered HWL Ebsworth to hand them over and to pay their former client’s costs.