Carberry and Delaney

[2008] FamCA 460

FAMILY COURT OF AUSTRALIA

CARBERRY & DELANEY [2008 ] FamCA 460

FAMILY LAW – CONFLICT – Injunction to prevent firm of solicitors from continuing to act for one party – Somewhat similar situation had arisen previously in relation the other party who was now self-representing –  Principles to be applied – Nature of conflicting duties of lawyers – Billington & Billington  Mc Millan & McMillan – Evidence necessary – objective reasonableness of apprehension

Billington & Billington (No. 2) [2008] FamCA 409
Jones v. Dunkel (1959) 101 CLR 298

McMillan & McMillan (2000) FLC ¶ 93-048

APPLICANT: Mr Carberry

RESPONDENT: Ms Delaney

INDEPENDENT CHILDREN’S LAWYER: Ms Burgess

FILE NUMBER: CAF 586 of 2005

DATE DELIVERED: 20 June 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 18 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Gill

SOLICITOR FOR THE RESPONDENT: Ms Simpson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Burgess

Orders

1. The husband’s application for an injunction to restrain the firm of Dobinson Davey Clifford Simpson from representing the wife is dismissed.

2. Ms Osmand, may be employed by Dobinson Davey Clifford Simpson and that they may continue to represent the mother, subject to her complying with the following conditions:

   (a)       At no time will an employee of the firm Dobinson Davey Clifford Simpson seek confidential information about the husband from Ms Osmand.

   (b)       Ms Osmand sign an undertaking that she has not provided confidential information to any member of the firm and that she would not provide confidential information about this matter to any member of the firm.

It is noted that:

1. It has been stated in evidence before this Court that no member of the firm Dobinson Davey Clifford Simpson has received any confidential information from Ms Osmand about the husband. 

2. The wife has agreed that there would be a limitation on her retainer agreement with Dobinson Davey Clifford Simpson removing and releasing that firm from any obligation to seek or utilise confidential information which may be held by Ms Osmand relating to this matter.

IT IS NOTED that publication of this judgment under the pseudonym Carberry & Delaney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 586  of 2005

MR CARBERRY

Applicant

And

MS DELANEY

Respondent

REASONS FOR JUDGMENT

(Injunction to restrain solicitors from acting)   

1. Proceedings came before the Family Court of Australia on 17 June 2008.  These proceedings were the finalisation of the Less Adversarial Trial in relation to children and property.  In these proceedings, the wife was represented by Mr Gill of Counsel instructed by Ms Dianne Simpson from the firm of Dobinson Davey Clifford Simpson.  The husband represented himself and Ms Burgess was the Independent Children’s Lawyer.  She had only been recently appointed when in the week preceding the commencement of the finalisation the husband indicated that he would not participate in the proceedings before the Court but would seek to advance some evidence and would make himself available for cross-examination.  Partly, as a result of that announcement, I appointed a children’s lawyer and requested the Legal Aid Office in Canberra to make appropriate arrangements.  Ms Burgess appeared as a result of that process.

2. The husband had previously been represented in the proceedings by the firm of Farrar, Gesini and Dunn.  In 2007, a Mr Chris Crowley, a solicitor and partner in the firm which then existed of Crowley Clifford Simpson, joined the firm of Farrar Gesini and Dunn.  Mr Crowley’s firm had previously represented the wife. Mr Crowley “took” the file of the wife with him to Farrar Gesini and Dunn (but apparently kept it off-site).  It was not suggested that at any time Mr Crowley had any involvement with the file of the husband and indeed the proposal was that he would be isolated from any contact with the file and would not be given any information in relation to it. 

3. Nevertheless, the wife took exception to the fact that Farrar Gesini and Dunn continued to represent the husband and subsequently, although without any court determination of the issue, Farrar, Gesini and Dunn withdrew from representing the husband and indeed, so the husband tells me they have commenced proceedings against him to recover outstanding fees.

4. The complications associated with representation in this matter did not cease.  Ms Alison Osmand, a solicitor in the employ of Farrar Gesini and Dunn began negotiations with Dobinson Davey Clifford Simpson to commence employment with that firm.  Ms Simpson, in the week prior to the commencement of the finalisation of the Less Adversarial Trial scheduled, announced that these negotiations were in train and she drew to the Court’s attention, the fact that Ms Osmand had postponed her commencement with Dobinson Davey Clifford Simpson, pending the finalisation of the trial between the wife and the husband.

5. In the context of the husband’s announcement that he would not participate further in the proceedings, it became apparent that only part of the finalisation could proceed as had been scheduled.  This involved the giving of evidence by a professional witness on behalf of the mother, namely Mr I, who had analysed certain computer discs which, it was asserted, may have contained child pornography. 

6. The content of the hard drives and whether or not the husband had possession of child pornography were live issues in the proceedings before the Court.  It had been determined, in agreement with all of the parties (this was prior to the appointment of the Independent Children’s Lawyer) that the professional evidence would be undertaken first and that the finalisation of the trial would then proceed with a more usual order of witnesses. 

7. The husband’s announcement that he would not be participating in the proceedings but that he wished to file further evidence would ordinarily have caused the hearing dates to have been vacated to permit the filing of the additional evidence (assuming that was allowed) and to enable the Independent Children’s Lawyer (of necessity then appointed) to become more familiar with the quite difficult elements of the child aspect of this case.

8. At the same time, the husband announced that he would not be opposing the wife’s relocation to Perth where she has not been living for some time.  He also said he would not be seeking that the children would live primarily with him. 

9. The husband, perhaps understandably in the history of this matter, when he heard Ms Simpson’s announcement about the possible movement of Ms Osmand to her firm, took the position that he wished Dobinson Davey Clifford Simpson to cease to act for the wife.

10. Ms Simpson was concerned that if the trial dates were vacated, Ms Osmand would have to abandon or indefinitely postpone her movement to Ms Simpson’s firm or some other appropriate and acceptable arrangement would have to be reached. 

11. In any event, it was determined that the evidence of Mr I would be taken.  Initially the husband had indicated that he would not attend Court on that day, but in the end he did so. 

12. At the end of the evidence of Mr I, the husband renewed his objection to Ms Osmand’s joining the firm of Dobinson Davey Clifford Simpson continuing thereafter to represent the wife.

13. Mr Phillip Davey who is a principal in the firm of Dobinson Davey Clifford Simpson, filed an affidavit in which he deposed that he was the “Compliance Officer” for the firm’s Information Barrier Protocols.  He indicated that the firm had adopted protocols in accordance with recommendations made by the Law Institute of Victoria and as adopted and recommended by the Law Society of New South Wales.  He set out in his affidavit arrangements he proposed to be put in place that at no time would Ms Osmand have confidential information sought from her and deposed to the fact that no member of the firm had received any confidential information from Ms Osmand. 

14. He further deposed that it would be a condition of Ms Osmand’s employment with the firm that she would be required to sign an undertaking that she had not provided confidential information to any member of the firm and that she would not provide confidential information about this matter to any member of the firm.  A copy of the suggested undertaking was annexed to the affidavit.  He also deposed to the fact that the wife had agreed that there would be a limitation on her retainer agreement with the firm that would remove and release the firm from any obligation to seek or utilise confidential information which may be held by Ms Osmand relating to this matter.

15. I gave leave to the husband, as a self-representing person, to make an oral application for an injunction to restrain the firm of Dobinson Davey Clifford Simpson from representing the wife if Ms Osmand were to join that firm.

16. The husband sought to tender an e-mail he had received from one of the principals of the firm of Farrar Gesini and Dunn but that tender was rejected[1].

    [1] The tender was objected to a determination made on that objection.

17. There appeared to be some controversy about the extent to which, if at all, Ms Osmand had received any information about the husband’s matter while she was in the employ of Farrar Gesini and Dunn.  I  was not able, on the evidence before me, to come to any conclusion about whether Ms Osmand had been involved in the proceedings directly except in the relatively formal sense of perhaps appearing on the production of documents the subject of a subpoena. 

18. In any event, there is no doubt that the firm itself and the partners in the firm had imputed knowledge of the husband’s matters and it would be reasonable on the part of the husband to feel a sense of disquiet about the fact that someone who may have had knowledge of his case and possibly the factors associated with it, may be moving to work with the lawyers for his former wife. 

19. It is notable that the husband did not give evidence himself that he had ever consulted Ms Osmand direct or that he had any knowledge of her having any actual knowledge of her matter.  It may have been reasonable, if the husband had been represented to draw an inference (perhaps in accordance with the principles of Jones v Dunkel[2]that his failure to give evidence might have enabled the conclusion to be drawn, that Ms Osmand had not had any direct involvement with the husband or other direct knowledge of the matter. 

    [2] (1959) 101 CLR 298)

20. The ambit of the inference to be drawn in accordance with Jones v Dunkel is not free from complication.  Whatever may be the effect of that decision (and it was not relied upon by Mr Gill for the wife), in circumstances where the husband represents himself, I would not be prepared to draw an inference contrary to the husband.  However, equally, as he has presented no evidence, I cannot draw the alternative inference that Ms Osmand did have direct involvement with the husband or had direct knowledge of the matter.

The nature of the conflict

1. Mr Gill succinctly submitted that the normal reason for a legal firm not to be able to continue to act in the circumstances proposed was that the lawyer involved, namely Ms Osmand, would have a conflict of duties.  He submitted that ordinarily she would have a duty to the husband (vicariously) through her former firm of Farrar Gesini and Dunn to preserve the husband’s confidences notwithstanding the termination of his retainer with that firm.  There is no doubt about that obligation. 

2. He further asserted that she would ordinarily have a duty to the wife in the new firm to make available to her all relevant information which would assist in the firm’s representation to the wife.  Mr Gill submitted that in such circumstances, the conflict would without more, preclude the new firm from continuing to act for the client. 

3. However, he submitted that the effect of the evidence before me was that one of those elements of duty for Ms Osmand had been removed.  Because of the evidence of Mr Davey and the requirements in relation to the limitation of retainer as far as the wife was concerned and the agreement and condition of employment and the undertakings to be given by Ms Osmand, the duty to the wife had ceased to exist and that accordingly, it would be feasible provided I could be satisfied about the practical efficacy of the arrangements put in place, for Ms Osmand to satisfy her duty to the husband by maintaining his confidences while at the same time working for the firm Dobinson Davey Clifford Simpson, conditional of course on her, not being involved in any way in relation to this matter.

4. There is significant force to these submissions. 

The appearance of justice being done

1. Nevertheless, that is not quite the end of the matter.  It is not enough that in the overall course of events, justice is done, it must also be seen to be done.  In this instance, the appearance of justice as well as the actuality may involve at least two matters.  The first of these is that the husband might, notwithstanding all of the matters set out above, still feel a sense of unease about the fact that someone who had previously represented him, was now working for the firm representing his former wife.  While there is no evidence which would justify his unease in an objective sense his unease might only be assuaged if he had confidence in the legal profession, the integrity of a solicitors undertaking, the ability of the lawyers involved specifically to quarantine and isolate Ms Osmand from any connection with his matter and perhaps the advantage of being represented by a lawyer who would be able to provide assurance and confidence about the process as it unfolded

Hardship

1. The second element of justice associated with this determination relates to hardship that would necessarily be occasioned to the wife in having to change the lawyers she is instructing at this late stage in the proceedings and in fact after the finalisation of the Less Adversarial Trial has commenced.  Admittedly, it may be that whoever she instructed might also be directed to retain Mr Gill who could not be affected by the suggested conflict which would arise from Ms Osmand’s employment by Dobinson Davey Clifford Simpson.

2. However, it was submitted by Counsel and appeared in the material before me, that specific arrangements about fees have been entered into which could only be regarded as advantageous to the wife and which may not be available with another solicitor if she had to employ one.  

3. It was further submitted that Ms Simpson, as the solicitor primarily involved in instructing Mr Gill, had what was described as “corporate memory” of the matter and complications in the matter were such that her departure from representing the wife would be a significant disadvantage to the wife.

4. Against this, the husband asserted that he had some sympathy for the hardships the wife would suffer as he himself had been subjected to the same difficulties when objections were taken to Farrar Gesini and Dunn representing him. 

5. He suggested and submitted that his situation was parlous because the complications associated with his matter were aggravated by his inability to have legal representation.  He submitted that in fact his decision “not to participate” in the proceedings was a direct result of his inability properly to conduct proceedings on his own behalf.

6. It is tempting to find the two situations similar.  In fact however, Farrar Gesini and Dunn  were not subjected to an order restraining them from representing the husband but rather chose themselves to withdraw from representing him. 

7. To some extent this distinction is tenuous because although the circumstances in which Farrar Gesini and Dunn ceased to act may not have been brought about entirely by the objections raised by the wife (they subsequently sued the husband) their decision was probably prompted by the objection.  Certainly, it appears that initially they resisted the suggestion that they should cease to act and offered what the husband and Mr Gill described as “Chinese walls”. 

8. I have no satisfactory evidence about these matters but in any event, this is not a case of reciprocity or the refusal of one application because another may or may not have succeeded on a different basis.

Balance and perception

1. It may be possible in some cases to reach easy and clear conclusions.  If for example, a solicitor who had previously directly personally represented the husband were to seek to join the firm representing the wife it would be hard to imagine that there could be any basis upon which any reasonable observer would conclude that this could be satisfactory whatever arrangements were put in place and the apprehension of the husband in such circumstances would have to be regarded as reasonable.  This is so even if the duty of that lawyer to the wife had been excluded as is proposed that Ms Osmand’s duty will be excluded.

2. On the other hand, if a person had joined the firm previously representing the husband after it had ceased to represent him and now wanted to move to the firm instructed by the wife, while the husband might still have some apprehension about a breach of his confidences, it is hard to see that such an apprehension would be reasonable. 

3. Needless to say, the situation at present falls between those two more extreme positions.

Other decisions

1. In considering this matter I have derived assistance from the decision of His Honour Justice Coleman in Billington & Billington[3], (at this point unreported, but delivered on 6 June 2008).  I draw particular attention to and acknowledge that the circumstances in that matter were different from those in the present matter in that the matter before His Honour arose out of an appeal and were not (as here), the continuation of a Less Adversarial Trial. 

   [3] [ Billington & Billington (No. 2) [2008] FamCA 409]

2. Nevertheless, that distinction is in part diminished by the fact that the husband has indicated clearly and unequivocally he sees his future role in the matter as being passive and that having presented his evidence, he will in effect allow the court to come to a conclusion.  This means to some extent that whatever tactics he may have discussed with his previous solicitors would not be relevant to the way in which he proposes to proceed. 

3. Although the reasons for his Honour’s determination in Billington may have been  different to some extent, the conclusion he reached (paragraph 62) that “(the) evidence fails to establish, notwithstanding the absence of the necessary findings of fact with respect to confidential information, that there is the possibility of any such information being used against the husband or to his disadvantage in the appeal proceedings”  would be also applicable in my opinion, in these proceedings.

4. His Honour considered but did not feel obliged to follow the more narrow approach enunciated in McMillan &. McMillan[4].  Their honours in the Full Court in McMillan concluded that if a party swears that he or she has conveyed confidential information to his or her solicitors and that he or she believes that that information may be used to his or her disadvantage in the proceedings, there only needs to be a theoretical risk of prejudice there need not be any proof of prejudice as such[5].

   [4] (2000) FLC ¶ 93-048

   [5] See their Honours endorsement of Justice Lindenmayer J’s judgment in Stewart in paragraph 66.

5. However, there is no evidence in this matter that the husband had provided confidential information to Ms Osmand and while there can be no doubt that he did convey confidential information to his solicitors (Farrar Gesini and Dunn) his belief that the information may be used to his disadvantage in the proceedings, is, in the circumstances of this case, not supported by the evidence.  This is particularly so in the light of the adoption by Dobinson Davey Clifford Simpson of the guidelines propounded by the Law Society of New South Wales and the Law Institute in Victoria. 

Conclusion

1. I am satisfied in the circumstances of this matter that there is not (even) the theoretical risk that the confidential information given by the husband to his former solicitors may be disclosed - even inadvertently. 

2. In those circumstances, it is appropriate to balance the inconvenience and potential injustice to the wife in being deprived of her legal representation at this late stage in the proceedings against the objectively considered reasonableness of the husband’s apprehension about any potential breach of his confidences.

3. In my opinion, in this matter, the balance is resolved in favour of denying the injunction sought by the husband. 

4. While it is true that justice must be seen to be done, it must logically be seen through the eyes of a person properly informed and behaving reasonably.  It cannot be that any apprehension, whether ill-founded or not, must inevitably lead to the consequence that in these circumstances an injunction to prevent the wife’s solicitors from continuing to act must prevail.

5. Consequently, the husband’s application will be dismissed and it follows that Ms Osmand, may, subject to her complying with the conditions proposed in the evidence before me, be employed by Dobinson Davey Clifford Simpson and that they may continue to represent the mother.

6. In coming to that conclusion, I express my sincere sympathy for the husband.  There is no doubt that he must feel a sense of helplessness in the face of what must appear to be a morass of legal and evidentiary complications.  Nevertheless, my determination must be based upon principle not upon sympathy and for the reasons I have outlined above it seems to me that his application should be refused.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks.

Associate: 

Date:  20 June 2008