Burns & Sellers
[2018] FamCA 91
•23 February 2018
FAMILY COURT OF AUSTRALIA
| BURNS & SELLERS | [2018] FamCA 91 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from further acting in the proceedings – Where the solicitor is the brother in law of the husband – Where there is a likelihood that the solicitor may be required to give evidence in the proceedings – Where there is an assertion that the solicitor has lost objectivity – Where consideration of applicable principles – Order made restraining the solicitor from acting. |
| Evidence Act 1995 (Cth) s 36 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 rr 17.1, 27.1, 27.2 |
| Bosgard & Bosgard [2013]FamCA 308 Grimwade v Meagher & Ors. (1995) 1 VR 446 Holborow and Ors v Macdonald Rudder [2002] WASC 265 Jones v Dunkel (1959) 101 CLR 298 Kallinicos v Hunt [2005] NSWSC 1181 Kennon v Public Trustee of the Australian Capital Territory [2008]FamCA 919 Mitchell v Burrell [2008] NSWSC 772 Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 Westpac Banking Corporation v Newey [2013] NSWSC 533 |
| APPLICANT: | Ms Burns |
| RESPONDENT: | Mr Sellers |
| FILE NUMBER: | PAC | 5854 | of | 2016 |
| DATE DELIVERED: | 23 February 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23 January 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Karras Partners Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Batey |
| SOLICITOR FOR THE RESPONDENT: | DD Lawyers |
Orders
That Mr CC, solicitor, DD Lawyers and any employee or partner in that firm be and is hereby forthwith restrained from further acting for the husband or any other party in these proceedings.
That any application for costs of and incidental to this application be made by written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days and thereafter judgment be reserved to chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Burns & Sellers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5854 of 2016
| Ms Burns |
Applicant
And
| Mr Sellers |
Respondent
REASONS FOR JUDGMENT
In the context of ongoing parenting and financial proceedings between the applicant wife and respondent husband, the wife on 15 August 2017 filed an Application in a Case seeking orders that would effectively restrain the husband’s present solicitor from acting on his behalf or acting on behalf of any entity over which the husband has control or in which he has a financial interest.
It is that Application in a Case that falls for determination.
The wife relies upon:
a)her Application in a Case filed 15 August 2017;
b)her affidavits filed 13 September 2017 and 12 December 2017; and
c)the affidavit of Ms K filed 12 December 2017.
The husband in response relies upon:
a)his Response to the wife’s Application in a Case filed 21 September 2017; and
b)his affidavit filed 21 September 2017.
The Wife’s Case
The wife says that on 29 December 2016 she attended a property in the Central Coast that she believed to be owned by the husband’s father. She had visited the property numerous occasions previously. The wife was accompanied by her mother Ms K.
The wife says that she attended at the property at the invitation of the husband who invited her to visit the children of the marriage who were staying with him at the property.
The wife, having spoken to the housekeeper at the property, entered the cottage and spoke to her children. The maternal grandmother was filming the interaction on her iPad.
The husband’s solicitor, Mr CC (“the solicitor”), was present at the property, he being married to the husband’s sister.
The wife asserts that the husband then appeared from a bedroom wearing underwear. He pushed the wife and took the child F from her.
The wife asserts that she saw the solicitor push her mother who called out “stop assaulting me” and “stop touching me”. The wife says that out of concern for her own safety and that of her other child D she left quickly and called the police.
The wife says that she received a telephone call from her mother saying that “he (the Solicitor) is pushing me and holding me down. He took my iPad and I believe he deleted the video. Mr Sellers (the husband) told [Mr CC] (the Solicitor) to forcibly remove me from the property.” A short time later the wife says that she received another call from her mother who said “I’m sitting outside the house. I can’t breathe. I can’t walk. [Mr CC] (the solicitor) is coming towards me again. I fear for my life”. The wife’s mother was screaming over the phone: “I fear for my life”.
The police attended at the property and the wife’s mother was taken by ambulance to hospital.
The wife’s mother, Ms K says that the solicitor said to her “you know you shouldn’t be here. Get off the property. You are trespassing.” She says that she replied to him “No, [Ms Burns] (the wife) was invited”.
The wife’s mother says that the solicitor yelled at her and “he assaulted [her]”. She alleges that he was overbearing, intimidating and yelling and that this behaviour lasted for about 30 minutes including when she was attempting to exit the house and when she was outside. She confirms that she was taken by ambulance to hospital.
What is alleged to have transpired was in the presence or partly in the presence of the children that are the subject of ongoing parenting proceedings in this Court.
Some six months later and on 6 June 2017 the wife’s solicitor wrote to the Law Society of New South Wales seeking a ruling as to whether, in the circumstances, the solicitor should continue to act on behalf the husband. The Law Society of New South Wales responded by letter dated 5 July 2017, it appears that response was considered on behalf of the wife and by letter dated 18 July 2017 the wife’s solicitor informed the Law Society of New South Wales that they were content for the Law Society to close its file and that “our client will elect to deal with the matter in another way”.
Concurrently with correspondence to the Law Society of New South Wales, the wife’s solicitors wrote to the husband’s solicitor expressing concerns as to his ongoing representation of the husband. The correspondence dated 6 June 2017 identified two concerns:
a)The events of 29 December 2016 that placed the solicitor in the middle of a high conflict exchange between respective clients and the serious allegations that the solicitor assaulted the wife’s mother. It was asserted:
It is certainly conceivable, and more likely probable, that [Mr CC] will need to give evidence in relation to that incident at any Trial. If he refuses to give evidence an adverse inference can be taken against your client. If he gives evidence, [Mr CC] becomes a witness in a case. ...
This it was asserted would place the solicitor in breach of rule 27.1 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (“the Solicitor’s Rules”).
b)That Rule 17.1 of the Solicitor’s Rules prohibits a solicitor from being a “mere mouthpiece of the client” and provides that the solicitor must exercise “the forensic judgments called for during the case independently”. The correspondence noted the “frequency and tone of the correspondence and allegations in the proceedings” and asserted “They are, with respect, over and above the mere robust conduct of the litigation on behalf of your client. They have been partisan, misconceived and under unduly polemic. At times, the comments have lacked objectivity, independence and calm rationality.”
The correspondence invited the solicitor to carefully consider his position in the proceedings and purported to reserve the wife’s position as to seeking an order that the solicitor disqualify himself from further acting on behalf of the husband.
The wife expresses concern that as a consequence of the relationship between the husband and his brother in law, the solicitor, the proceedings are not being conducted in an unemotional and cost efficient way.
The wife expresses concern that the tone of correspondence emanating from the solicitor has been “condescending, offensive, demeaning and distressing”. The correspondence exhibited to the wife’s affidavit supports such a contention.
The wife further complains as to the multiplicity of correspondence emanating from the husband’s solicitor. She complains of being sent seven letters on 14 June 2017, seven letters on 20 June 2017, seven letters on 30 August 2017, four letters on 10 October 2017, three letters on 13 October 2017 and five letters on the afternoon of 12 December 2017. Notwithstanding complaints by her solicitor to the husband’s solicitor, correspondence from the husband’s solicitor continued unabated.
The husband’s case
The husband says that following the initial correspondence about his solicitor continuing to act the wife’s solicitors continued to correspond with the solicitor on numerous occasions and did not object to the solicitor continuing to appear on behalf of the husband at various court appearances.
The husband says that on 30 August 2017 he caused the solicitor to write to the wife’s solicitors seeking information as to any objections raised by the wife as to the solicitor continuing to act for the husband prior to the wife retaining her present solicitors and information as to the objections raised by the wife’s present solicitors as to the solicitor continuing to act for the husband. As to the latter request this was notwithstanding the wife’s solicitors’ correspondence of 6 June 2017.
As to the matters raised by the wife and her mother as to their attendance at the property occupied by the husband on 29 December 2016 the husband takes issue. He asserts that the allegations are a complete fabrication, that the wife and her mother entered the property unlawfully and without notice to the husband. He further asserts that he removed the child F from the wife and that the wife then “ran off” with the child D and that the wife’s mother “refused to leave the farm altogether”.
He further says that the wife’s mother was “yelling and abusing my brother-in-law [Mr CC] (the solicitor)” and that the solicitor was asking the wife’s mother to get off the property.
There is a significant issue raised by the husband as to what thereafter transpired.
The husband confirmed that the police attended and that upon viewing CCTV footage determined that the solicitor had “acted reasonably at all times”. Notwithstanding an agreement to provide the CCTV footage to the wife’s solicitors it has not been forthcoming.
The husband says that he has no intention of requiring his solicitor to give evidence in the proceedings before this Court and that the solicitor has indicated that he does not wish to give evidence in the proceedings.
Discussion
The solicitor, it is to be inferred, corroborates the husband’s version of events. The failure to call the solicitor in the husband’s case raises evidentiary inferences: Jones v Dunkel (1959) 101 CLR 298.
It is readily apparent that this issue goes to not only an assessment of the credit of both parties but the very nature of the relationship between the husband and wife and an assessment of their conflict and their respective capacity to regulate their behaviour and promote their children’s relationship with the other.
There is every likelihood that the “incident” of 29 December 2016 will be the subject of close scrutiny at the trial of parenting issues. This is in circumstances where there is no doubt a close personal relationship existing between the husband and his brother-in-law (the solicitor). The solicitor’s presence, although probably inadvertent, and his engagement in the incident was regrettable and now raises significant issues.
Notwithstanding that, the husband deposes as to his intention not to call evidence from the solicitor, the reality is that the solicitor may be subpoenaed to give evidence by the wife or if present in court called by reason of s 36 of the Evidence Act 1995 (Cth).
The wife also argues that in such circumstances the solicitor having placed himself, although maybe inadvertently, in his current predicament has otherwise lost objectivity and focus as evidenced by the course of correspondence the subject of detailed submissions from counsel for the wife.
The correspondence is not indicative of an unemotional involvement by the solicitor. This is reflected in the submission of counsel for the wife who asserts “The files are voluminous, the correspondence has been relentless, such that his solicitor’s files now span no less than 10 arch folders.”
Discussion
In Grimwade v Meagher & Ors (1995) 1 VR 446 at 452 the test as to whether a lawyer should be prevented from acting was described in the following terms:
Whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice required that the [lawyer] be … prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of [lawyer] without good cause.
In Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 at [52]-[58], Brooking JA identified three possible grounds for restraining a solicitor or counsel from acting for a particular party to litigation:
a)the danger of misuse of confidential information;
b)a breach of a fiduciary duty of loyalty not to act against a client, or against a former client in the same matter or a closely related matter; and
c)the inherent jurisdiction of the court to control the conduct of solicitors and counsel as officers of the court.
In Holborow and Ors v Macdonald Rudder [2002] WASC 265 at [27] His Honour EM Heenan J said:
27.Concurrently with the obligations to the client will be the practitioner’s obligations to the court which have been described as an “overriding duty” - per Mason J [sic] in Giannarelli v Wraith (1988) 165 CLR 543 at 555, where the Chief Justice cited a passage from the judgement of Pollock CB in Swinfen v Lord Chelmsford (1860) 5 H & M 890 at 921; [1860] EngR 838; 157 ER 1436 at 1499. Mason CJ went on to expound the nature of counsel’s obligation to the court in a manner which is germane in the present case, not only because it identifies the duties owed by a legal practitioner conducting litigation but because it also emphasises how the forensic conduct of litigation must necessarily be left to the discretion of the legal practitioners representing them largely, if not completely, free of simultaneous supervision by the court itself...
…This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being the mere agent for the litigant, exercises an independent judgement in the interests of the court.
Heenan J importantly then went on to say:
33.If there are circumstances which are likely to imperil the discharge of these duties to a court by a legal practitioner acting in a cause, whether because of some prior association with one or more of the parties against whom the practitioner is then to act, or because of some conduct by the practitioner, whether arising from associations with the client or a close interest which gives rise to the fair and reasonable perception that the practitioner may not exercise the necessary independent judgement, a court may conclude that the lawyer should be restrained from acting, even for a client who desires to continue his service [citations omitted].
Later in Kallinicos v Hunt [2005] NSWSC 1181 the principles involved in the application to restrain the solicitor from acting for the opposing party were discussed at length by Brereton J and were, relevantly, summarised by him at [76]:
• The court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice.
• The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
• The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
• Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
• The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.
In Mitchell v Burrell [2008] NSWSC 772 Brereton J observed, after finding that the solicitor may be a witness and that his evidence might be controversial:
20.That said, I do not accept that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor from continuing to act. As Windeyer J pointed out in Scallan v Scallan [2001] NSWSC 1078, it is, for example, not unusual for instructing solicitors in contested probate proceedings to give evidence of facts relevant to instructions for and execution of a Will. Similarly, in contested conveyancing proceedings, it is not unusual for solicitors who have acted on the conveyance to continue to act in the proceedings for specific performance or rescission and to give evidence in those proceedings. Accordingly, despite Rule 19 of The Law Society of New South Wales Professional Conduct and Practice Rules, which imposes a professional obligation (as distinct from a private right), I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. Although some observations of Campbell CJ in Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542, 545, may go somewhat further, the cases indicate – as Campbell CJ did in that case itself – that the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice – which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests – require the lawyer to be restrained from continuing to act.
21.The point is illustrated, in Windeyer J's judgment in Scallan (at [10]), by his Honour’s reference to the difference between the case where the (mere) interest of a solicitor is one that arises simply in supporting the success of his or her client (for example, in connection with advice about discovery or the commencement or continuation or abandonment of proceedings), and the case where the solicitor has an interest in the result of an action "additional to his interest in doing his best for a client to have success in an action". Similarly, in Kooky Garments Ltd v Charlton [1994] 1 NZLR 587, Thomas J recognised the distinction between the situation where solicitors were, in effect, called on to defend their own actions or advice on the one hand – in which case it was inappropriate that they act – and other cases (at 589-590):
What I have said, of course, does not apply where the advice given is unrelated to liability or the question in dispute. Advising a client to prosecute or defend a claim does not attract these observations. They are restricted to the situation where the acts or omissions of the solicitors are an integral part of the other party's complaint or the client has been sued in circumstances where he or she was acting on the advice of their solicitors and it is effectively that advice which is in issue. In such cases, apart altogether from the position of the client, the Court is not receiving the assistance of counsel who are observably independent. Independence is a function of counsel. The Court is entitled to assume that solicitors and counsel appearing before it possess that independence.
On this issue in Kennon v Public Trustee of the Australian Capital Territory [2008] FamCA 919 Faulks J said:
24.On the other hand, if the solicitor had been a direct witness relating to a primary matter relating to the establishment of the issues in dispute before the Court, it would be a matter of some concern in the administration of justice, adopting the phrase used by his Honour Brereton J, that a primary witness should also be acting for one of the parties and there may be a concern that his or her objectivity would be in question. Again, a matter of circumstances.
The caution to be exercised was referred to by Pembroke J in Westpac Banking Corporation v Newey [2013] NSWSC 533 at [22] said:
The law and lawyers would be held in disrepute if judges acceded too readily and too often to such applications. Before doing so, there must be some realistic sense of impropriety about the circumstances; something that sensibly justifies the conclusion that unless an injunction was granted, the integrity of the judicial process would be impaired.
More recently Fowler J in Bosgard & Bosgard [2013]FamCA 308 (where the solicitor was in a defacto relationship with the litigant husband) said;
29.It is clear that a solicitor owes two duties: one to the client and one to the Court.
…
34.The authorities make it clear that the priority, in any conflict of fulfilment of duties owed by a solicitor, must be the fulfilment by the solicitor of their duty to the Court.
…
38.The Court is never assisted by litigation riding on a wave of the emotions which might be engendered by such events; the reality of the Court’s task is not to punish vice and reward virtue, but to make decisions pursuant to its powers under the Family Law Act (Cth), in this case as to property.
39.The Court is assisted in the administration of justice where the litigants and legal practitioners focus on the issues of importance to that process. It is assisted where there is a focus on objectivity among legal practitioners and a capacity for them to be independent of their clients in the fulfilment of both their duty to the Court and their duty to clients. A lack of such focus and objectivity gives rise to the possibility of the integrity of the justice system being undermined.
40.In considering any relief of the type sought, the Court has to consider the prejudice caused to the parties…
The solicitor apart from the common law position has obligations under the applicable Professional Conduct Rules.
Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 relevantly provide:
a)Rule 17: Independence—avoidance of personal bias
17.1A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.
b)Rule 27: Solicitor as material witness in client’s case
27.1In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.
27.2In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.
It is almost inconceivable that the subject conflict will not be canvassed at hearing as a matter of significant relevance. There is a real possibility of the solicitor being required to give evidence. In the absence of his evidence it may be inferred that his evidence might not have assisted the husband’s version of the subject incident.
Ultimately, the test as propounded by Brereton J above is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
The solicitor faces the real prospect of being called or forced to give evidence in the proceedings on a significant issue as to parental conduct and conflict impacting on the children. His credit and that of his client will be in issue. As such his objectivity must be in issue and be influenced by his perceived duty to his client.
There is no explanation for the initial delay in raising the issue of the solicitor’s position until June 2017. But it has been a very live issue since then as have the assertions as to his lack of objectivity in correspondence.
The proceedings have not as yet been fixed for trial. There is time enough for the husband to instruct another firm.
Whilst the Court must be must be hesitant in depriving a litigant of his lawyer, in circumstances that see the solicitor, a close relative by marriage, facing the real prospect of being engaged in the litigation as a material witness and where there is a strong indication that he has lost objectivity there must, in the mind of a reasonably informed member of the public, be a requirement that the solicitor be restrained from further acting for the husband in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
In the circumstance of this matter the solicitor should be restrained from further acting.
Orders will be made accordingly.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 23 February 2018.
Associate:
Date: 23 February 2018
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