On Friday, BTLawyers, led by Principal Clint Kanther, were successful in our defence of an attack on the sanctity of legal privilege and right to free speech and fair comment on public affairs in Australia.
BTLawyers represented an anonymous blogger who operates a website providing robust commentary on Australian business and the conduct of publicly listed companies. Between May and July 2017, the blogger published several posts expressing concerns about the funds managed by hedge fund managers John Bridgeman, Henry Morgan, Benjamin Horngold and Stuart McAuliffe.
The Applicants complained that the comments made on the blog were defamatory and, as a result, they sent several demands to the blogger for the material to be removed and requested that they reveal their identity. The blogger engaged BTLawyers for legal advice.
“After our client engaged us to act, we attempted to negotiate a resolution with the Applicants, but were unable to settle. The Applicants’ lawyers then shifted their demand directly to BTLawyers in an attempt to compel us to hand over confidential information about our client’s identity that is protected by legal professional privilege. We refused,” said Kanther.
“Defamation is about protecting against the publication of false information. It is not a law that sets out to curtail the creativity of journalistic opinion or prevent robust discussion and commentary.”
Bridgeman, Henry Morgan, Horngold and McAuliffe then filed an application in the Federal Court in an attempt to force our hand – however, the application failed.
“We defended the application against BTLawyers primarily on the basis that the primary purpose for our client disclosing their identity to us was to obtain legal advice about whether they had to reveal their identity,” said Kanther. “Interestingly, there is very little case law in Australia on the issue, so most of our research and submissions were premised on Canadian and US authorities, which were for the most part favourable to us.”
On 24 August in the Federal Court, Justice Rangiah handed down his decision in John Bridgeman Limited v Dreamscape Networks FZ-LLC  FCA 1279.
Whilst there were orders made that will require Dreamscape Networks to release documents that might ultimately lead to the bloggers identity, this was an important victory for the preservation of individual rights to proper and confidential legal advice. Justice Rangiah commented that “It would be contrary to this aspect of the public interest if those wishing to take legal advice about protection of their anonymity were required to take the risk that their lawyers may be compelled to disclose that which they seek to protect.”
Bridgeman, Henry Morgan, Horngold and McAuliffe were ordered to pay BTLawyers costs of the Application.
According to Kanther, the win is critical to help protect lawyer’s relationships with their clients.
“In order for legal clients to be able to communicate honestly and openly with their lawyers, they must be able to trust their lawyer to keep their information confidential. It’s only the client that can agree to waive their right to legal professional privilege, and it’s the responsibility of all lawyers to closely guard that right.”
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