CHILDERS & CHILDERS
[2021] FCCA 581
•17 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHILDERS & CHILDERS | [2021] FCCA 581 |
| Catchwords: FAMILY LAW – Application to restrain wife’s solicitor from continuing to act for the wife - where a paralegal formerly employed by the husband’s legal firm has moved to the wife’s legal firm – where paralegal in question had direct involvement in the husband’s family law matter – restraining order made. |
| Legislation: Federal Circuit Court of Australia Act 1999 |
| Cases cited: Kallinicos & Hunt [2005] NSWSC 1181 |
| Applicant: | MR CHILDERS |
| Respondent: | MS CHILDERS |
| File Number: | NCC 3108 of 2020 |
| Judgment of: | Judge Betts |
| Hearing date: | 17 March 2021 |
| Date of Last Submission: | 17 March 2021 |
| Delivered at: | Newcastle |
| Delivered on: | 17 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levick |
| Solicitors for the Applicant: | B Law Firm |
| Counsel for the Respondent: | Mr Rugendyke |
| Solicitors for the Respondent: | C Law Firm |
ORDERS
C Law Firm be restrained from continuing to act for the Applicant Wife in these proceedings.
The Husband’s Application for costs is adjourned to 25 June 2021 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Childers & Childers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3108 of 2020
| MR CHILDERS |
Applicant
And
| MS CHILDERS |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript so as to make them easier to read.
In my oral reasons I specifically chose not to name the paralegal involved in this case so as to avoid embarrassment or any issues for her. I simply referred to her as “the paralegal”. But for ease of reading I will call her “P” in these written reasons.
Introduction:
These are property settlement proceedings between Ms Childers (“the wife”) and Mr Childers (“the husband”).
The wife commenced these proceedings on 11 September 2020 by way of Initiating Application filed in this court. The husband filed his Response and associated material on 21 December 2020.
The proceedings have not progressed very far because an issue has arisen concerning the wife’s solicitors. In particular, the husband has filed an Application in a Case on 9 February 2021 in which he seeks the following orders:
(1) That C Law Firm be restrained from continuing to act for the Applicant wife in the matter of Childers & Childers, NCC 3108 / 2020;
(2) Costs.
The Application in a Case is supported by an affidavit of the husband, filed on 8 February 2021.
The wife opposes the relief sought by the husband. In her Response to an Application in a Case filed on 15 February 2021, she seeks the following orders:
(1) That the Applicant’s Application in a Case be dismissed;
(2) That the Applicant husband pay the Respondent wife’s costs.
In support of her Response, the wife relies upon an affidavit of her solicitor, Ms C, filed on 15 February 2021. She also relies upon an Undertaking which was filed by Ms C after 5pm on 16 March 2021. Under the Federal Circuit Court rules, the Undertaking would be deemed to have been filed today, the hearing date.
In addition to this material, I have had regard to the helpful written submissions of Mr Levick of counsel who appeared for the husband. I have also had regard to the helpful oral submissions of both Mr Levick and also Mr Rugendyke of counsel who appeared on behalf of the wife.
The debate before me:
By way of brief background, the current controversy has arisen in relation to a particular paralegal (whom I will not name but will refer to as “P”). For a period of time P was working for the husband’s current legal representatives, B Law Firm Lawyers, but has since ceased that employment and taken up work with the wife’s legal representatives, C Law Firm.
The husband had numerous dealings with P in the course of her previous employment at B Law Firm Lawyers. Those dealings specifically related to the present family law proceedings, or perhaps to be more precise, to the family law issues between these parties which are now the subject of the current proceedings.
The husband gives evidence of various dealings and communications that he had with P, and he contends on that basis that, given that P has now commenced employment with C Law Firm, that the wife’s law firm should no longer be permitted to continue to act for the wife in the proceedings.
Mr Levick relies upon the Full Court authority of Osferatu & Osferatu (2015) FLC 93-666, a decision of their Honours Finn, Ainsley-Wallace and Aldridge JJ.
In that decision, their Honours’ joint judgment reviewed the law relating to the court’s jurisdiction to restrain a solicitor from acting. Their Honours also re-visited various authorities of the Family Court as well as considering some overseas authorities.
Osferatu is probably fairly described as the leading authority in relation to the court’s power to make restraining orders in respect of solicitors, at least insofar as it relates to the “breach of confidence” (confidential information) ground. In particular, the Full Court in Osferatu held:
20.There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. They are: breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its officers and to control its process. Each category has its own principles which guide its operation. The third category may be involved in conjunction with either of the first two categories, so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different (Kallinicos & Hunt [2005] NSWSC 1181).
Mr Levick primarily advocates that the appropriate category for restraint in this case is the first ground, namely “breach of confidence”. In the alternative, he submits that the court can restrain C Law Firm from acting in the course of its inherent jurisdiction, namely the third ground.
“Breach of confidence”:
As I have indicated, Osferatu is the leading authority in relation to this category. It is convenient to deal with that ground first.
In his affidavit filed on 8 February 2021, the husband deposes:
10. I have been instructing B Law Firm in these proceedings since September 2020. In the course of those instructions, I had telephone, email and documents exchanged directly with P who was during 2020 employed by B Law Firm as a paralegal.
11. During the course of my matter and in preparation for these proceedings, I provided to P my financial records including but not limited to my tax returns and assessment notices, my income records, documents in relation to my superannuation with Super Fund D, and the Super Fund E, banking records and account statements for accounts held by me with Bank SA, F Bank, G Bank and H Bank. I also provided her with documents in relation to various parcels of real estate, motor vehicles, home loans and credit cards.
12. I had numerous conversations with P about my matter and provided her with my oral instructions and she relayed to me certain information from Ms J, including on the following dates:
·1 October 2020
·9 October 2020
·14 October 2020
·15 October 2020
·4 December 2020.
13. P wrote to me on numerous occasions with regard to the documents required for disclosure in my matter. Including but not limited to the following occasions:
·30 September 2020
·1 October 2020
·8 October 2020
·9 October 2020 and
·3 November 2020.
14. During a phone call with P she said to me words to the effect of, “I examined the statements you have sent, and there are some missing after I indexed those records, I will get Ms B to let you know what you still need to produce”.
15. I am advised and believe that P authored and provided to my solicitor a schedule of documents that were to be produced by me and by Ms Childers [the wife]. I understand that P drafted initial correspondence to me and to C Law Firm based on those schedules.
16. I am further advised that P drafted balance sheets based on the disclosure records in my matter and that she and my solicitor, Ms J, then relied on those balance sheets in the drafting of letters, Court Documents and the subsequent advice given to me.
17. Over the course of the conduct of this matter, P provided me with copies of advice from my lawyer B Law Firm.
18. During the course of this matter, I provided my written instructions P who then relayed that advice to my solicitor B Law Firm including but not limited to the following occasions:
·23 September 2020;
·1 October 2020;
·9 October 2020;
·13 October 2020;
·14 October 2020;
·23 October 2020;
·29 October 2020;
·30 October 2020;
·3 November 2020;
·4 November 2020;
·5 November 2020;
·9 November 2020;
·13 November 2020;
·17 November 2020;
·19 November 2020;
·20 November 2020.
19. P worked with Ms J on the drafting of my Affidavit Evidence, Financial Statement and Response filed in these proceedings on 21 December 2020.
20. I am advised and verily believe that P is now in the employ of C Law Firm, the solicitors for the application [sic] wife.
21. P in the course of her employment with B Law Firm, was caused to:
a.Communicate with me by phone and email with regard to my matter;
b.Communicate with C Law Firm by phone and by email about the conduct of my matter;
c.Communicate with Ms J with regard to the conduct of my matter; and
d.Communicate with single experts and superannuation funds about my matter.
The husband’s affidavit goes on to indicate that he had his solicitors write to C Law Firm seeking that they withdraw from the matter, which they refuse to do.
The husband deposes in paragraph 24 of his affidavit:
24.I am extremely concerned about the protection afforded to my privileged information in circumstances where:
a)C Law Firm assert that “P has not held instructions in this matter” which is factually incorrect.
b)I am concerned about how C Law Firm purport to know how my matter was or was not conducted by B Law Firm.
(c) Given the inaccuracies in the correspondence of 8 January 2021 [being a letter from C Law Firm, annexure “C” to the husband’s affidavit] I am concerned about the efficacy and accuracy of any ‘protections’ as C Law Firm may or may not provide to the information that P holds with regard to my matter.
In response, the wife’s solicitor Ms C deposes that P accepted an offer of employment with her firm in late 2020; P commenced employment there in early 2021; that P signed an employment contract on that date.
Her evidence is that P is based in the firm’s Town L office (at M Street, Town L) and that P is a paralegal to Ms N and Ms O. I understand both of them to be solicitors employed by Ms C; each of them have appeared before me on different occasions in that capacity.
Ms C goes on to depose in her affidavit that the wife’s family law property settlement file has at all times been conducted from her Town P office, not her Town L office, and that P does not work from the Town P office. Ms C deposes that the wife’s files are kept in the Town P office, and that they have been moved to Ms Q’s office, who is C Law Firm’s office manager. Ms Q’s office is locked. The file has been in Ms Q’s office since 1 December 2020, and P does not have access to either Ms C’s emails or to the office manager’s office.
Ms C also deposes that on 1 December 2020, she instructed Ms Q, to “lock” the wife’s electronic file on LEAP, which I understand to be a word processing programme used by legal firms to prepare family law documents. Ms Q actioned this request on the same day.
Ms C’s evidence is that the only employees with electronic access to the wife’s file are herself, her personal assistant Ms R, and Ms Q, the accounts and office manager.
In relation to the first issue of whether or not “confidential information” has been imparted by the husband to P, there is a significant debate between Mr Levick and Mr Rugendyke.
Mr Levick contends that the evidence of the husband which I have quoted earlier clearly reveals the imparting of confidential information. He points to the fact that there were personal, direct and numerous communications between the husband and P, and that the dealings between them were over a period of time.
It is also clear that the husband himself deposes that he is extremely concerned about the protection now afforded to his “privileged” information as set out in paragraph 24 of his affidavit. In short, his case is that:
· the communications with P on the dates in question were clearly of a legally professionally privileged nature;
· that they were inherently confidential, that they related to the subject matter of the family law dispute which is now before the court; and
· that as such information is clearly confidential, this enlivens the court’s jurisdiction to restrain the wife’s solicitor from continuing to act.
Mr Rugendyke advocated for a more limited interpretation of the husband’s affidavit.
He observed that at no point in his affidavit did the husband give any specificity even as to the basic nature of the communications between himself and P - to the extent that such specificity might have otherwise enabled the court to clearly infer that the communications were in fact privileged and confidential.
Mr Rugendyke refers specifically to paragraph 8 of the Full Court’s earlier decision in McMillan & McMillan (2000) FLC 93-048, and to paragraph 26 of its later decision in Osferatu. I will address McMillan first.
At paragraph 8 of McMillan, the Full Court (Finn, Kay and Moore JJ) were referring to evidence given by the husband in support of his restraint application. Specifically, the Full Court noted that the husband had deposed to these things, which the Full Court specifically underlined:
That during the course of providing instructions to S Law Firm, I had occasion to speak directly with Mr T [the relevant legal practitioner the subject of the restraint application in that case] by telephone, and did provide instructions to him as to how I wished my matter to be conducted and the position to be put to the wife.
The Full Court goes on in that paragraph to quote the husband’s affidavit wherein he deposed that:
I believe Mr T could make those instructions or information available for the use by the wife against me in the course of these proceedings.
In McMillan the husband clearly set out in general terms what he had imparted that was confidential - namely instructions as to how he wished his matter to be conducted, and the position to be put to the wife.
At paragraph 26 of Osferatu, the Full Court reviewed McMillan and observed:
26.It is, however, important to recognise that McMillan, as were Thevanez and Stewart, was a case where the applicant was seeking to restrain a solicitor or a clerk to whom they had recently, and directly, given instructions from acting, or the firm to which they had moved, from acting, in those proceedings. Because the applicants in those cases had given instructions to the solicitor about the very matter in issue, it follows easily that there would be a finding that the solicitor who had moved was in possession of confidential information which is or may be relevant to that matter. It is for that very reason that the passage of Lindenmayer J in Stewart commenced with the words “All that is necessary is that …”. His Honour was simply saying that, in such circumstances, the burden borne by the applicant was discharged by such evidence. Nothing that appears in Stewart, Thevanez or McMillan obviates the need for an applicant seeking such relief from discharging his/her burden of proof by adducing cogent and persuasive evidence. This is particularly so where, as here, the circumstances differ from McMillan. In this case, Mr F [the relevant legal practitioner] had never taken instructions from the wife.
[NB - Thevanez and Stewart were two earlier decisions of the Family Court relating to restraint applications against solicitors.]
Essentially, by reference to paragraph 8 of McMillan, and paragraph 26 of Osferatu, Mr Rugendyke submits that the husband has not, in fact, met the evidentiary onus of proof in this case. To borrow the expression of the Full Court in paragraph 26 of Osferatu, Mr Rugendyke submitted that the husband has failed to adduce “cogent and persuasive” evidence.
Essentially Mr Rugendyke submits that, read as a whole, there is nothing specific in the relevant paragraphs of the husband’s affidavit to which I have referred which would indicate that the husband has imparted information that is “confidential” in the relevant sense.
He specifically points to the fact that in paragraph 11 of the husband’s affidavit, he deposes to having dealings with P in relation to issues of disclosure. Mr Rugendyke submits that the husband simply has not given the court anything to work with in terms of any detail as to the nature of what was said to be confidential that he imparted to P. He submits that it would have been very easy for the husband to tell the court, at least in general terms, what confidential matters he said he had conveyed to P. Mr Rugendyke pointed to the obvious example in McMillan where the husband indicated in his affidavit what the nature of his instructions were.
Mr Rugendyke effectively submits that the husband should not be given the “benefit of the doubt” as it were, in terms of what he is unwilling, or seemingly unwilling, to come out and positively say in his affidavit. He submits that if the husband has not specifically said that he provided confidential information, then the court should not infer that he has in fact done so.
I can understand the submission made by Mr Rugendyke, which was acknowledged by Mr Levick to be “ingenious”. I tend to agree with that assessment, but in the end, I am unpersuaded by it, ingenious as it is. In my view, the husband’s evidence can only be interpreted that he provided confidential information to P in this case at a time when she was in the employ of Ms J.
Paragraph 17 of the husband’s affidavit in particular refers to P providing him with copies of advice that were provided by Ms J, which were then passed on by P. I see no basis to read down the paragraphs of the husband’s affidavit by specific reference to the earlier detailed evidence he gave about disclosure. The husband had numerous discussions with P over the course of his dealings with her, and it would be unreasonable, in my view, to expect him to necessarily even recollect all of those individual dealings.
The fact of the matter is that the husband was dealing with P in the course of Ms J representing him in these very proceedings. When he deposes at paragraph 24 that he is concerned, or extremely concerned, about his “privileged” information not being protected, in my view this is also a clear statement that, at least from his perspective, he regarded it as confidential information.
To be fair, I do not see how the overwhelming bulk of any discussions between the husband and the paralegal in question could have been anything but confidential. B Law Firm’s office was representing the husband in these inherently sensitive family law proceedings. His communications with P would ordinarily be subject, one would think, to legal professional privilege save for the specific documents and correspondence which is required to be exchanged in relation to issues of disclosure.
To the extent that the husband’s affidavit specifically refers to disclosure, I would accept the submission of Mr Rugendyke that, clearly, such documents cannot be confidential. They are obliged to be exchanged between the parties.
But it is an artificial process, ingenious as the argument is, to read down the husband’s affidavit as being limited entirely to discussions and dealings with P about disclosure. In my view, that would not be a reasonable interpretation of what the husband deposes to.
I do not consider that it is necessary for him to give any more detail than he has in his affidavit for me to be able to find that the husband has imparted confidential information. If an inference was necessary to be drawn, I would draw it.
In this regard, I specifically observe that this is a case in which the husband was dealing with P in relation to the very subject matter of this dispute. It seems to me that this scenario is what the Full Court are referring to in paragraph 26 of Osferatu - namely that while a party seeking a restraint has to adduce “cogent and persuasive” evidence, it is much easier done when the confidences or information imparted relate to the subject matter of the proceedings.
I also note paragraph 29 of the judgment in Osferatu, where the Full Court referred to the judgment of his Lordship, Lord Millett, in Prince Jefri Bolkiah & KPMG (A Firm) [1999] 2 AC 222, at 236, citing with approval his Lordship’s observations that:
It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor, or other person in possession of confidential and privileged information, should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.
Accordingly, I am of the view that the husband here has discharged the onus of proving that the relevant solicitors, C Law Firm, are in possession of “confidential information” which is, or may be, relevant to these proceedings.
But as the Full Court observed in Osferatu, that finding is not of itself the end of the matter:
32.The next step involves a consideration of the risk that the relevant confidential information will be disclosed. The risk of disclosure “must be a real one, and not merely fanciful or theoretical. But it need not be substantial: Prince Jefri at 237.
33.How is this to be determined? It is by the consideration of the risk and of any protective measures taken or proposed by the solicitor or his or her new firm. The evidentiary burden on this issue falls squarely on the lawyer, or the firm to which he or she has moved. As Lord Millett said in Prince Jefri at 237 - 238:
Once the former client has established that the defendant firm is in possession of information which was imparted in confidence and that the firm is proposing to act for another party with an interest adverse to his in a matter to which the information is or may be relevant, the evidential burden shifts to the defendant firm to show that even so there is no risk that the information will come into the possession of those now acting for the other party. There is no rule of law that Chinese walls or other arrangements of a similar kind are insufficient to eliminate the risk. But the starting point must be that, unless special measures are taken, information moves within a firm. In MacDonald Estate v. Martin, 77 D.L.R. (4th) 249, 269 Sopinka J. said that the Court should restrain the firm from acting for the second client “unless satisfied on the basis of clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur.” With the substitution of the word “effective” for the words “all reasonable”, I would respectfully adopt that formulation.
There is a continuum of risk in this regard, from obvious risks to remote risks. It is clear that, as the Full Court identified in Osferatu, the relevant test is whether there is a real risk of disclosure as distinct from a risk which is merely theoretical or fanciful, but it should be noted that a real risk need not be a substantial risk. Weighing of the risk of disclosure requires consideration of any measures the law firm has put in place, or proposes to put in place, in order to prevent disclosure.
In the overall analysis, the court must carefully weigh the nature and relevance of the confidential information imparted and the risk of its misuse in the proceedings. This is because, as the Full Court emphasised in Osferatu, the jurisdiction to restrain a solicitor is one which needs to be exercised with caution, having regard to the totality of the evidence. It is not only the applicant’s interest that must be considered, but also the interests of the opposing party who have engaged the solicitors in question, and who would be put to the cost and inconvenience of changing lawyers if the restraining application succeeds.
In this particular case, I accept that the wife’s legal representatives have taken reasonable steps to try to prevent any confidential information in the possession of P from being disclosed. Ms C has clearly decided to physically lock the wife’s file out of P’s reach, and she has also taken steps to limit or prevent P from having access to potentially relevant emails of Ms C as well. Moreover, P works at a different law office altogether.
Ms C’s Undertaking provides, relevantly:
(1) I confirm that I have not discussed with [P] the content of any communications that pass between herself and Mr Childers, or between herself and B Law Firm in respect of this matter, and
(2) I confirm that I will not discuss with [P] the content of any communications that pass between herself and Mr Childers, or between herself and B Law Firm in respect of this matter, nor will I discuss any aspect of her conduct of the matter with her.
The Undertaking was provided to the court yesterday, but effectively today under the rules.
Mr Levick asks the question how the Undertaking could have been prepared without some form of “preliminary discussion at least” between Ms C and P, but I do not understand it to be suggested by Mr Levick that Ms C has, in any way, misled or attempted to mislead the court about it, or that she has acted in any inappropriate manner at all.
The issue that arises is that the Undertaking comes in very late, and in that sense, the situation is that there has already been a significant opportunity, potentially, for P to have had discussions with other staff members employed by Ms C, including solicitors, who may in turn pass on information to Ms C. I do not suggest that such information would be passed on maliciously or inappropriately. Sometimes the fact of “getting to know a client” to an extent, or making some basic observations that might be made about a client, can themselves constitute relevant “information” about the client which could be confidential, and which could be passed on in an office, even inadvertently. Information ordinarily moves around a legal firm, as was observed in Price Jefri.
It is unknown what discussions between P and any other employees of Ms C may already have happened about the matter.
In Ms C’s letter of 8 January 2021, which is annexure “C” to the husband’s affidavit, she responds to letters from his solicitor inviting C Law Firm to withdraw. Ms C’s letter responded as follows:
We confirm that we have no intentions on withdrawing from this matter. [P] is not working directly with the writer, and all of our files have been locked, which B Law Firm Lawyers are involved. [P] is a support staff member. She is not a solicitor. [P] has not held instructions in this matter at your firm, and she did not run the matter on behalf of Mr Childers.
Mr Levick points particularly to that last sentence, and asks the rhetorical question: how could C Law Firm know whether or not P ever held instructions when she was at B Law Firm’s office, and what involvement she had in running the matter at B Law Firm’s office if there had not been at least some information provided to someone else in Ms C’s office to enable Ms C to make those assertions.
Mr Levick makes a legitimate observation. It goes to the issue about justice not only being done, but being seen to be done. It goes to the issue of the overriding importance, for the proper administration of justice, that a client must be able to have complete confidence that what they tell their lawyer will remain secret. It is a matter of perception as well as a matter of substance, and regarded as of the highest importance to the administration of justice, that a solicitor or other person in possession of confidential and privileged information not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.
There is no Undertaking provided by P. I accept Mr Rugendyke’s submission to me that he had not considered that it was necessary for P to provide an undertaking, and I do not consider that to be a fatal omission in terms of the matter. If doing so would be sufficient, I consider that P could provide an Undertaking, and I am not making a decision based on the absence of that Undertaking.
I do however consider that, in my view, there is a real risk that information has already been imparted of a confidential nature, the details of which will inevitably be somewhat spectral, but which tend to erode the confidence of the husband in the administration of justice if the wife’s solicitors were to continue acting. To be fair, it is difficult to see how the assertion made in the letter from C Law Firm of 8 January 2021 (last sentence) could reasonably be interpreted in any other way.
The court’s inherent jurisdiction:
This last point leads me to the court’s inherent jurisdiction to restrain a solicitor (the third category). Although in my view it is not necessary for me to have regard to that limb, I will do so.
The Full Court in Osferatu identified the court’s inherent jurisdiction, stating that it may overlap with the other two categories of case, namely in this case to prevent a breach of confidence.
The Federal Circuit Court is a court of law and a court of equity: section 8(3) of the Federal Circuit Court of Australia Act. The Federal Circuit Court does have an inherent power to restrain a solicitor from acting for a party if the interests of justice so require.
The basis of this jurisdiction and the relevant authorities were helpfully discussed by Brereton J in Kallinicos & Hunt, a decision subsequently cited with approval in Osferatu and in numerous other Family Court and Federal Circuit Court authorities.
At paragraph 76 of Kallinicos, Brereton J distilled the following principles:
(a) The court retains an inherent jurisdiction to restrain a solicitor 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.
(b) The test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner be prevented from acting in the interests of the protection of the integrity of the judicial process, and due administration of justice, including the appearance of justice.
(c) The jurisdiction is to be regarded as exceptional, and to be exercised with caution.
(d) 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.
(e) 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.
At the heart of the inherent jurisdiction, in my view, is the recognition that the integrity of the legal process must be preserved. In my view, a reasonable observer in this case would feel considerable disquiet at the wife’s solicitors continuing to represent her in these proceedings, given the previous connection of P with the law firm who represent the husband, and particularly given P’s direct involvement in the conduct of the husband’s proceedings while in the employ of that law firm.
It may well be a different case if P was involved in some other aspect of the husband’s legal affairs, or if P was simply employed by B Law Firm Lawyers previously but had not had any involvement in the family law proceedings at all. But this is not such a case. P is “front and centre” in terms of Ms J’s conduct of the proceedings. This is not saying that there may not have been other people who assisted Ms J, but P’s role was a role that, in my view, was a substantive one.
Conclusion & order:
In my view, the basis for the court’s exercise of jurisdiction to restrain a solicitor is made out on the first ground. It is also made out on the third ground, although it is not necessary even to go to the third ground but I have done so for the sake of clarity.
The proceedings are at an early stage, or relatively early stage. They were only recently filed. It would be a relevant consideration if they were much more advanced, such that there would be a significant, or significantly greater cost to the wife in engaging a new legal representative. That might be a different situation, but here we are still at a relatively early stage of the proceedings.
Regrettable as it is, I consider that the interests of justice require that the wife’s solicitors cease to act for her in these proceedings, but I want to be clear in making the observation that I do not want these reasons to be in any way interpreted as any criticism of the ethics or approach of the solicitor who acts for the wife. I am not making any adverse findings in relation to her conduct, and I want to be clear about that, particularly given professional reputations of legal practitioners.
This matter is decided by reference to the law, and the facts as I can best find them to be, and I do not intend to be casting any aspersion on any practitioner in this case, and much less on P who, herself, is but an employee working for another law firm now. I specifically do not want these reasons to be seen as any criticism of her.
For these reasons I make the order set out at the commencement hereof.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Betts
Associate:
Date: 24 March 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Costs
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Fiduciary Duty