Corrigan & Bambridge
[2021] FedCFamC1F 31
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Corrigan & Bambridge [2021] FedCFamC1F 31
File number(s): SYC 7523 of 2020 Judgment of: HENDERSON J Date of judgment: 10 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Legal Practitioners – Application of the father to restrain a firm of solicitors and a particular solicitor from that firm from acting for his former partner in current proceedings – Application granted Cases cited: Billington & Billington (No 2) [2008] FamCA 409 at [43]
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Osferatu & Osferatu (2015) FLC 93-666
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 16 August 2021 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Liedermann Solicitor for the Respondent: Shukla & Associates Law Practice ORDERS
SYC 7523 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CORRIGAN
ApplicantAND: MR BAMBRIDGE
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.That Mills Oakley Lawyers and Ms D be restrained from acting on behalf of the applicant mother, Ms Corrigan, in proceedings between Ms Corrigan and Mr Bambridge.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Corrigan & Bambridge has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This was an application by the father Mr Bambridge (“the father”) seeking to restrain Mills Oakley (“the Firm”) and, in particular, Ms D, solicitor, from acting for his former partner Ms Corrigan (“the mother”).
The application for the restraint was contained in a Response to an Application in a Case filed by the father on 26 May 2021 and supported by an affidavit of 13 August 2021 and an affidavit of 26 May 2021. The most pertinent affidavit is that of 13 August 2021 commencing at paragraph 67 where the father says as follows under the heading “Previous Legal Advice from Mills Oakley”:
On or around 2012-2013 Ms Corrigan was going through the Family Court system with her ex husband (Mr H, as pronounced). To the best of my knowledge, Ms Corrigan’s solicitor was Ms D.
68. In 2015 I had Family Law problems & pending ADVO with my ex partner (Ms C). Ms Corrigan told me to go and see Ms D because she was very good and because she had represented Ms Corrigan previously.
69. In 2015, I attended the office of Ms D of Mills Oakley in Sydney City for legal advice. I recall walking through the glass doors and seeing a big desk. I remember…Ms D’s office having frosted glass panels and Ms D had Black/Brown/Brunette hair. This was the first and only time I had met Ms D.
70. I had a conference with Ms D [which] lasted an hour. She went through my matter, including taking a detailed personal history of my previous relationships including:
a. Ms B – my ex ex-partner with whom I have a child V now aged 12 years.
b. Ms C – my ex-partner with whom I have a child W now aged 7 years.
71. Ms D also gave me legal advice in relation to the ADVO with Ms C. She gave me legal advice after reviewing my history and the Court documents that it was not worth fighting the matter. I ended up attending the Court in Canberra without legal representation, we ended up resolving it mutually.
72. Ms Corrigan was acting on my behalf and continued to communicate with Mills Oakley about my matter. Identified in this affidavit at marked “E6” is correspondence in the matter.
(As per the original)
Going now to annexure “E6” to the father’s affidavit. The first document in that annexure is a letter from Mills Oakley to the father dated 20 January 2016. It refers to the meeting between Ms D, Ms F and the father on 15 January 2015 and subsequent telephone conversations with Ms F on 19 January 2015. It confirms that the father’s ex-partner, Ms C, had applied for an Apprehended Domestic Violence Order (“ADVO”) first listed in Canberra on 9 December 2014, that he did not attend on the occasion and interim orders were made by the court. That is, an interim ADVO order was issued to protect Ms C from the father. He was advised to be aware that under the interim order, if he engages in any of the prohibited restraints and restrictions it will be a criminal offence. The letter goes on to say:
Your matter is next listed before the Canberra Magistrates Court on 22 January 2015. You have been provided advice that it is unlikely that you can argue against the DVO on the basis that you admit to texting Ms C words to the effect of:
“I will kill you cunt” and “watch your back”.
You have advised that there were mitigating circumstances but despite this our advice remains that the Order cannot be opposed.
You have however been advised that the terms of the current Order sought by Ms C are particularly onerous and it may be appropriate to agree to the DVO but not to orders that stop you contacting Ms C or communicating with her regarding W.
You have instructed that despite our advice that you neither wish to oppose the Order, if it can’t be completely struck out, and you do not wish for us to arrange an agent to attend on your behalf. I note your instructions in this regard and understand that the final Order will proceed unchallenged. This will mean that absent you obtaining Family Law Orders that you will not be able to contact Ms C regarding time with W or approach Ms C for the purposes of collecting W until after the expiry of the DVO.
(Emphasis in original)
The penultimate paragraph says:
You have advised us that at this time you do not wish to proceed with any Family Law application but will contact us in the future if you later decide to pursue this option.
From reading this letter there can be nothing other than a finding that there were instructions given and notes taken about not just the ADVO proceedings but possible pending family law proceedings, in particular in relation to the father’s child W. The annexure continues with various other emails concerning the father’s matter with Ms C and his son W, some with Ms D and some with Ms F, dated 16 January 2015, 20 January 2015, 23 March 2015, 31 March 2015, 10 December 2015, 21 December 2015 and 22 December 2015, that being the last letter or email between the father and Ms D.
In the email of 16 January 2015 Ms F wrote to the father asking for copies of his bank statements and monies paid to Ms C, all correspondence in relation to child support, and exact times and dates that he had spent with his son. The Firm was drafting up a costs agreement for the father. Ms F notes that “as part of Family Law Proceedings you are required to attempt to negotiate a settlement” and that “this is unlikely to be successful”. The email of 23 March 2015 from Ms F to Ms Corrigan, the applicant in these proceedings, in response to a letter Ms Corrigan sent to her on 23 March 2015 as the agent for Mr Bambridge is as follows:
My partner Mr Bambridge has requested I contact you on his behalf due to the nature of his business he finds it difficult to find time to contact you regarding his family law matter.
I wish to advise [that the father] has given instructions for a formal letter to be sent to his former partner, Ms C, regarding the lack of response he is receiving from Ms C to gain access to his son…
Again, on 10 December 2015, the mother on behalf of the father wrote to Ms F:
I just wanted to see whether you were available for an urgent appointment to discuss parenting rights for [the father] and W. We have made several child support contributions, in fact [the father’s] child support to Ms C is in credit and at one point we were having W for a few nights stay here and there.
Ms F wrote on 31 March 2015:
I have advised that he will need Court Orders…I really think that he needs to file as soon as possible.
Ms D then contacted Ms Corrigan on 10 December 2015 advising she will have a conference with her and the father at no cost because the firm had missed an appointment with her and the father, advising that Ms F no longer works with the firm and that she can assist. This conference was in relation to the father wishing to spend time with his son W on an ongoing basis, and particularly at Christmas 2015. Ms Corrigan responded on behalf of the father:
So nice to hear from you!! It[’]s been 3 years since we have spoken!
…I will be available to talk at 6.30pm if that suits you?
(Emphasis in original)
The penultimate letter in the bundle is dated 14 December 2015 from the father to Ms D and is as follows:
As discussed, we would like a letter forwarded to Ms C in the first instance to arrange some time with W over the Xmas/New Year period…[She said]…she would bring him to Sydney for one day only prior to Xmas eve.
The letter makes complaint about the behaviour of Ms C in relation to the father spending time with his son.
A proposal was put forward by Ms Corrigan in that email on behalf of the father to Ms D about the time they would like to spend with W. Ms D responded on 22 December that she “can’t assist this evening”, but she will send off a letter, and to enjoy Christmas.
In light of this evidence, the submission Mr O’Reilly made on behalf of the mother that the father did not seek both family law and ADVO advice from Ms D cannot be sustained. It is clear there was a solicitor/client relationship with the father and Mills Oakley with solicitors Ms F and Ms D and that Ms Corrigan, with whom he is now in litigation and who has instructed Ms D to act on her behalf in this litigation, was also clearly involved.
The mother says, relying upon the authorities of Osferatu & Osferatu (2015) FLC 93-666 (“Osferatu”) and Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 (“Dyer”), that the onus is on the father to establish that the Firm, and in this case Ms D, is in possession of information that is confidential. That the father must identify what was said and what this confidential information is, and authority for that proposition is found at paragraph 41 of the decision of Osferatu and he has not.
Further, if the information imparted was confidential it is now not confidential. It is in the public record and domain, namely the father’s conviction of an ADVO in relation to his treatment of Ms C. We know this because the father has filed in his material what was discussed at the conference. It may have been confidential information some six years ago, but is no longer.
Thirdly, that the father has taken a significant period of time to raise this issue. These proceedings commenced in 2020. He was represented for a short period of time by G Lawyers and he is only raising this issue in 2021, a restraint on Ms D and Mills Oakley acting for his former partner and as a positive order this will be detrimental to the wife financially and in the presentation of her case.
Fourthly, there is no evidence led by the father that Mills Oakley or Ms D will misuse this information and that is an important evidential fact.
That the law is encapsulated in the decision of Dyer, where at paragraph 76 Thawley J quotes from a decision of Anderson J of Nash v Timbercorp Finance Pty Ltd (2019) 137 ACSR 189 (“Timbercorp”) as follows:
[62]. The court will restrain a legal practitioner from continuing to act for a party if a reasonable person, informed of the relevant facts, might reasonably anticipate a danger of misuse of confidential information of a former client and that there is a real and sensible possibility that the interest of the practitioner in advancing the case might conflict with the practitioner’s duty to keep the information confidential, and to refrain from using that information to the detriment of the former client.
That the husband had every opportunity to subpoena Mills Oakley to provide the information to the Court that he says was of a confidential nature. That the evidence in his affidavit at paragraphs 67 to 72 falls well-short of what is required to establish that the Court ought restrain a practitioner from acting for a particular person.
That the husband has not established a solid basis that the information he gave to Ms D would be used against him or was confidential and he does not meet the requirement in paragraph 27 of Osferatu where their Honours referred to the decision of Mancini v Mancini [1999] NSWSC 900, a decision of Bryson J as follows:
It is of importance to observe that information generally is not protected; the protection available relates to confidential information, and is available to the person entitled to the confidence. No circumstances were put forward in which Mrs Mancini herself is entitled to the protection of the law against the use of any particular information by Mr Mancini or by the lawyers whom he has chosen to retain.
It is not possible to address in any clear way and to come to a decision on protection of any alleged confidential information without identifying what the confidential information is in a sufficiently specific way to enable it to be identified. Without doing that it is not possible to come to a conclusion on whether the information truly is confidential, to consider and appraise the circumstances in which it came into existence and was communicated, to come to any conclusion about whether protection is appropriate, or to make any enforceable order.
A case about confidential information cannot be nebulous. Confidential information which once existed may no longer be confidential; it may no longer be available although it was communicated in the past; it may not be material to any use which might now be proposed to be made of information. Without specificity a claim to protection cannot be defended or decided on any fair procedural basis…
Lastly, that to deprive the wife of the representation she has retained and has been ongoing since the case commenced in 2020 is serious and weighty. As Coleman J said in the decision of Billington & Billington (No 2) [2008] FamCA 409 at [43]:
As the authorities make clear, the jurisdiction to grant relief of this kind "is to be exercised with caution". The court understands caution to be exercisable in relation to the totality of the evidence, and the matters relevant to the exercise of the jurisdiction, and not to be referrable only to the interests of the party seeking the relief. Relevant in that context is the need to give appropriate weight to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. Also relevant in this context is the cost and inconvenience of requiring the wife to retain new lawyers. Quite apart from the work required to be undertaken by solicitors familiar with the case to adequately represent the wife's interests before the Full Court, realistically, were new solicitors now to be instructed, a far greater level of reading and preparation would be required, and at greatly increased expense to the wife.
Mr Liedermann, on behalf of the husband, made the following submissions.
That the information his client discussed with Ms D is not in the public domain, it is in the files and continues to be in the files of the Firm. There is a risk that Ms D will use confidential information obtained at those conferences in defending her client in the proceedings between Mr Bambridge and Ms Corrigan, and that this will be a disadvantage to the husband and that the lawyer/client privilege that exists between Ms D and the husband will be breached.
That it is all the evidence the father relies upon, not just his affidavit but the annexures to the affidavit as well to support his case.
That, consistent with Osferatu at paragraph 25 where their Honours recite a decision of the Full Court of McMillan & McMillan (2000) FLC 93-048:
…the client need only give evidence that he has provided confidential information to the solicitor (or in this case, the law clerk/secretary). The client does not have to divulge the content of that information…In the present case, we consider it sufficient, as we said earlier, that the husband has sworn that he had given instructions to Mr Pitts as to how he wished his "matter to be conducted and the position to be put to the wife". It is obvious that such matters would come within the description of "confidential information".
That Mr Bambridge has provided sufficient evidence to discharge the onus that confidential information is in the possession of Ms D and the Firm and Ms D should be restrained from acting for the mother.
THE LAW
Mr Liedermann relied on paragraph 84, amongst others, of the decision in Dyer where Thawley J referred to Nettle J’s decision in Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 (“Sent”). In Sent, his Honour quoted from the decision of Yunghanns v Elfic Pty Ltd (unreported, Gillard J, Supreme Court of Victoria, Gillard J, 16 July 1998) (“Yunghanns”) wherein Gillard J said the following at page 10:
[T]he degree of particularity of the confidential information must depend upon all the circumstances. Often, it cannot be identified for fear of disclosure. In considering this factor it must be borne in mind that a solicitor makes notes, forms views and opinions of clients and observes things that the client may have forgotten or overlooked.
In some cases, the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information. In this regard, the relationship between solicitor and client may be such the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the “getting to know you” factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client.
Thawley J in Dyer relied heavily upon that decision. He also relied heavily upon Anderson J’s decision in Timbercorp at paragraph 93 of his decision, where his Honour says as follows:
[73] The test for whether information is confidential or not is dependent on the source of the duty of confidentiality. At general law, the duty will either arise in contract pursuant to the retainer between the legal practitioner and client, or otherwise pursuant to equitable obligations. However, the difference between these bases often appears to be blurred in practice. The parties did not distinguish between the two in this case.
[74] There is no one precise formulation for determining whether information is confidential…[h]owever, it is clear that, within the context of a relationship of legal practitioner and client, the concept is not to be construed narrowly.
[75] To start, unless a relevant exception applies, all communications by a client to the legal practitioner will prima facie be confidential…
[76] Even broader, Professor Dal Pont quotes a Canadian decision which expresses that “any information received by a lawyer in his professional capacity concerning his client’s affairs is prima facie confidential unless it is already notorious or was received for the purposes of being used publicly or otherwise disclosed in the conduct of the client’s affairs”…The question is not who provided the information, but the character of the circumstances in which the legal practitioner received it…
[77] Information received in circumstances of confidence can, however, lose its character as confidential…
(Citations omitted)
Quoting, again, Anderson J at paragraph 103, Thawley J says:
…The touchstone of the restraint of a solicitor is not direct opposition to the former client per se, but rather conflict with the legal practitioner’s duty of confidentiality to the client…and that such conflict would disadvantage, or operate to the detriment of, the former client…
(Emphasis in original) (Citations omitted)
In Dyer his Honour found that there was a risk that the confidential information given to Ms Chrysanthou would be used in these proceedings, and she was restrained from acting on behalf of the former Attorney General. Thawley J, quoting from Nettle J in the decision of Sent, at paragraph 129 of his judgment reported:
One knows as a matter of experience that when he has advised on documents and transactions, recollections of them, although long faded, may revive in the course of the sort of close and careful study which precedes the trial of an action. And when one has conferred with a client, recollection of things said and done in conference may be revived long after the event when the same or similar things are said or done in another place.
His Honour says this is the “real and sensible possibility of revival of recollection” that Nettle J referred to in Sent at [91], and was previously referred to in Yunghanns. Further, as Thawley J pointed out in paragraph 134 of Dyer, quoting Beach J in Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252:
…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 solicitor [or barrister] be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice.
Similarly, paragraph 76 of Brereton J in Kallinicos v Hunt (2005) 64 NSWLR 561 is quoted at paragraph 136 of his Honour’s judgment in Dyer:
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.
(Citations omitted)
Thawley J then poses a question at paragraph 139:
…Asking what a fair minded reasonably informed member of the public would say of the requirements of the administration of justice in this case, if told of the events that I have described earlier including that confidential information had been disclosed, my conclusion is that a fair minded member of the public would say that Ms Chrysanthou should not act for Mr Porter in Mr Porter’s defamation proceedings.
Mr Liedermann submitted that Ms D knows the extensive history of Mr Bambridge’s relationship with Ms C, his former partner, and most particular his conduct and behaviour towards her, that she knows his characteristics and the type of person he is, matters referred to directly by Thawley J in Dyer at [84], quoting from Gillard J in the matter of Yunghanns, and I repeat:
…In this regard, the relationship between solicitor and client may be such the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics…the overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances result to confidential information that should not be disclosed or used against the client.
As their Honours quote in Osferatu at [26], the decisions of Thevenaz v Thevanaz (1986) FLC 91-748 and McMillan & McMillian (2000) FLC 93-048 concerned cases:
…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 about the solicitor who had moved was in possession of confidential information which is or may be relevant to that matter.
Going to the test set out in the decision of Anderson J in Timbercorp and referred to at paragraph 76 of Dyer:
…[The] test for restraining a legal practitioner on the basis of the possible misuse of confidential information may be dissected, and then applied, in a number of ways…
…
(a) What is the relevant information?
(b) Is that information confidential?
(c) Does the legal practitioner have possession of that information?
(d) Is the legal practitioner proposing to act "against" the former client in the requisite sense?
(e) Is there a real risk that the confidential information will be relevant?
(f) Is there no real risk of misuse of the confidential information?
Answering those questions on the facts in this matter.
The relevant information is the conduct, reasons why, characteristics, personality, capacity of the husband and attitude towards his partners and the risk that his behaviour exposes his children to. The child the subject of these proceedings is X but the same factual risks applied to W as they do to X.
The information was confidential as it was obtained in confidence. That is, reasons why he behaved as he did, his insight, his understanding, his acceptance of his behaviour and his capacity to change, are highly relevant matters that would have been discussed with Ms D. Ms D clearly formed a view of the father as she told him there was no basis for defending the ADVO. Ms D and Mills Oakley possess that information. Ms D is proposing to act against Mr Bambridge by having accepted a retainer from Ms Corrigan in a very similar fact matter to that with Ms C.
The information obtained by Ms D from Mr Bambridge relates to the very gravamen of the issue before the Court now, namely, does the father pose an unacceptable risk of harm to the child as the mother asserts he does. That is the mother's case. His prior conduct, attitude, behaviour, insight and understanding will be highly relevant, as will be his conduct, insight, understanding and behaviour now. There is a real risk the confidential information will be misused in these circumstances, if not intentionally, perhaps subconsciously because of the knowledge Ms D obtained.
Again quoting from Dyer at paragraph 129, referring to Nettle J's decision in Sent:
One knows as a matter of experience that when he has advised on documents and transactions, recollections of them, although long faded, may revive in the course of the sort of close and careful study which precedes the trial of an action. And when one has conferred with a client, recollection of things said and done in conference may be revived long after the event when the same or similar things are said or done in another place.
CONCLUSION
Ms D was Mr Bambridge’s solicitor in proceedings between he and his former partner. In that relationship, Ms D obtained information from him concerning ADVO proceedings and family law proceedings regarding him spending time with his son W. This is clear and apparent from the correspondence entered into between the father, Ms F, Ms D and the mother annexed to the father’s affidavit.
Ms Corrigan has retained Ms D in the proceedings between she and Mr Bambridge. The issues before the Court between them encompass the same issues as existed between Mr Bambridge and his former partner, namely how best to go about obtaining orders to spend time with his son in circumstances where Mr Bambridge has been found guilty of violent conduct towards the child’s mother.
The communication between Ms D and Mr Bambridge must have included how to go about commencing proceedings, how to address the issue of violence to the child’s mother, how to address the Court and mother’s concerns, what the father needed to do to maximise his chance of success and minimise failure, courses he should attend, the putting forward of proposals etcetera.
The issue that Ms D and Mr Bambridge had conferences about and entered into correspondence about must have had, at minimum, a striking similarity to the issues before the Court now between Ms Corrigan and Mr Bambridge. There can be no doubt that Ms D, a competent, experienced practitioner would, to use Gillard J’s words, have learned a great deal about Mr Bambridge such as:
…his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics…the overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances result to confidential information that should not be disclosed or used against the client.
Ms Corrigan, like all of Mr Bambridge’s previous partners, has complained about his conduct and attitude towards her and the risk of harm to the child in the father’s care. There have been criminal charges laid against Mr Bambridge vis-à-vis Ms Corrigan, who was at one time in 2015 very supportive of Mr Bambridge.
The very fact in issue that a Judge of this Court will need to determine ultimately, namely whether there is a risk or unacceptable risk of harm to the child in his father’s care due to the father’s behaviour, conduct and attitude towards Ms Corrigan will encompass his behaviour in other personal relationships, particularly those where children are involved. These matters will be highly relevant to the issues before the Court. In those circumstances, the information Ms D obtained from her conference with Mr Bambridge falls squarely within confidential information about the type of person, to use Mr Liedermann’s words, the “characteristics” of Mr Bambridge which could well be unfairly used against him, thus putting at risk Ms D breaching her obligation of confidence to the husband and placing the husband at a serious disadvantage and bringing into disrepute the administration of justice.
Using Thawley J’s test set out at paragraph 139 of Dyer:
…[a]sking what a fair-minded reasonably informed member of the public would say of the requirements of the administration of justice in this case, if told of the events I have described earlier including that confidential information had been disclosed
I say in this case there is a risk of that confidential information, that is, the knowledge Ms D has formed of the characteristics of the father being disclosed. My conclusion is that a fair-minded member of the public would say that Ms D should not act for Ms Corrigan in these family law proceedings because of her prior relationship with Mr Bambridge, the information she obtained from him and that there is a significant risk that she will breach her obligation of confidentiality to Mr Bambridge with the knowledge she obtained from the conferences, letters and discussions she had with him and Ms Corrigan in relation to his prior family law proceedings.
The test of the “three established categories” referred to in Osferatu at [20] of restraint, that there is a “breach of confidence, [a] breach of fiduciary duty and the inherent jurisdiction of [the] court” are all satisfied in this matter. There is a real risk that Ms D will breach her fiduciary duty to Mr Bambridge, that the breach of this duty will act unfairly to him in these proceedings given his attitude, his conduct and behaviour is at the very heart of the matter before the Court, and the inherent jurisdiction of the Court over its officers to control processes and, using Thawley J’s wording, the “administration of justice”.
In those circumstances the restraint must be granted.
I accept this causes the mother Ms Corrigan difficulty. She has expended legal fees with Ms D. However, this is not at a final hearing stage. We are still in the throes of obtaining reports and the like and preparing for an ultimate final hearing if required. Her costs have been some $30,000. Given Ms D was Mr Bambridge’s lawyer in virtually identical factual circumstances, that is, ADVOs being obtained by the mother of his child due to his poor behaviour towards them and negotiations about spending time with a child the subject of the relationships, it is my view a clear case where Ms D should no longer act.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 10 September 2021