Chinese Australian Services Society Co-operative Limited v Helen Sham-Ho

In the Federal Circuit and Family Court of Australia, Chinese Australian Services Society Co-operative Limited sought an order to restrain Helen Sham-Ho, a solicitor, from acting for the defendant on the grounds of a conflict of interest, breach of fiduciary duty, or confidentiality. The applicant, the Chinese Australian Services Society, had previously engaged the respondent to provide legal services but terminated the engagement. The society now sought to prevent the respondent from acting for another party in a related matter, claiming that she was privy to confidential information and had a conflict of interest.

The court was required to determine whether the respondent's proposed representation of the defendant would indeed result in a conflict of interest, breach of fiduciary duty, or breach of confidentiality. The applicant argued that the respondent's prior engagement with the applicant provided her with knowledge of sensitive information that she should not disclose to the defendant. The court had to weigh the applicant's concerns against the respondent's right to act for a client of her choice and the principle of maintaining the independence of legal practitioners.

The court held that the applicant had failed to demonstrate that the respondent's proposed representation of the defendant would result in a conflict of interest, breach of fiduciary duty, or breach of confidentiality. The court noted that the respondent had taken reasonable steps to protect any confidential information obtained during her previous engagement with the applicant. Additionally, the court found that the applicant had not shown that the respondent's knowledge of the previous engagement would lead to any actual or potential conflict of interest. Therefore, the application was dismissed.

The court ordered that the applicant pay the respondent's costs of the application on an indemnity basis. This decision underscores the importance of demonstrating a clear and present risk of a conflict of interest, breach of fiduciary duty, or confidentiality when seeking to restrain a solicitor from acting for a client. The court emphasised that such applications should be approached with caution and that the burden of proof lies with the applicant.