Bradney & Suwan

In SYC 3357 of 2020, Gill J of the Family Court of Australia considered an application by the wife and second respondent, Mr B, for an injunction to restrain the applicant husband’s solicitors from continuing to act in property proceedings. The dispute centred on documents relating to a company, Company B, which the husband had obtained and subsequently disclosed to his solicitors. The wife and Mr B contended that the husband should not have possessed these documents and that their use by the husband's legal representatives constituted a breach of confidentiality and professional conduct rules.

The court was required to determine whether the documents disclosed by the husband were subject to an equitable obligation of confidentiality, and if so, whether this obligation extended to restraining the husband's solicitors from acting in the proceedings. A related issue was whether the disclosure of certain documents constituted an inadvertent disclosure that would trigger the application of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW). The wife and Mr B relied on the nature of the documents to found their claims, arguing that their use by the husband's solicitors was improper.

Gill J dismissed the application for an injunction. The court found that while certain documents personal to Mr B did attract an equitable obligation of confidentiality owed to Mr B and Company B upon their entry into the husband's possession, this did not warrant the requested restraint. Regarding the claim of inadvertent disclosure under the Solicitors’ Conduct Rules, the court noted that the rules require a solicitor to have actual knowledge or a reasonable suspicion of confidentiality and an awareness that the disclosure was inadvertent. However, the wife and Mr B failed to identify specific documents that clearly fell within categories suggestive of privilege or inadvertent disclosure, such as correspondence with lawyers. Without this specific identification, the court could not assess whether the documents were privileged, confidential, or inadvertently disclosed, thus preventing the application of the rule.