D & C
[2001] FamCA 1731
•28 February 2001
[2001] FamCA 1731
FAMILY LAW ACT 1975
IN THE FAMILY COURT
OF AUSTRALIA
AT BRISBANE No. BR 8295 of 1997
BETWEEN:
D
Applicant/Husband
AND:
C
Respondent
[Restraining order against a solicitor to act]
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE JERRARD
Date of Hearing : 28 February 2001.
Date of Judgment : 28 February 2001.
Appearances: The Husband appeared in person.
The Respondent appeared in person.
INJUNCTIONS – Whether a solicitor should be restrained from representing his/her de facto partner in matrimonial proceedings. McMillan and McMillan (2000) 26 FamLR 653; Caboolture Park v White Industries (1993) 117 ALR 253 and De Pardo v The Complaints Committee (2000) 26 FamLR 254 cited and applied
This was an application, filed by the husband, which essentially sought an order restraining the solicitor C, who was the wife’s de facto partner, from representing her in the matrimonial proceedings between him and the wife.
There was a lengthy history of antagonism between the wife, the husband and C, which included the husband being charged with the attempted murder of C and the wife, and a conviction against the husband for assaulting C and causing grievous bodily harm with intent. As a result of the latter conviction the husband was imprisoned for 5 years, a sentence which he was serving at the time of the application.
When the husband informed his then solicitors of certain arrangements regarding the sale of the former matrimonial home, (the sale of which was ordered by Warnick J) he received a letter from C, dated 21 February, 2001, which imposed very strict terms and conditions on the husband regarding access to the property, even though the wife had no greater rights in relation to the property than the husband.
The husband objected to C representing the wife because of :
1.the personal relationship between C and the wife;
2.an unfair advantage which accrued to the wife given that she had legal representation and advice, whereas he did not;
3.the terms of a domestic violence restraining order, issued against him on 5 January, 2000, which prohibited him from having or attempting to have any “contact” with C, or making any phone calls to the premises where C worked, until 4 January, 2002. The husband complained that this inhibited his capacity to conduct negotiations; and
4.the poor state of his mental health, which did not need the stress of correspondence from C, or from C representing the wife.
With respect to the husband’s complaint in ground three, C gave an undertaking to apply promptly for a variation of the domestic violence restraining order, so that the husband would be permitted to contact C in writing, or by telephone, to discuss matters related to the sale of the matrimonial home.
Held: in restraining C from acting on behalf of the wife but only until the terms of the domestic violence restraining order were amended in accordance with C’s undertaking:
Rule 501 of the Solicitors’ Handbook provided that a practitioner should give undivided fidelity to a client's interests, unaffected by any interest as a practitioner. It was difficult to see how, on at least some occasions, C would be entirely divorced in the suggestions he made from knowledge of the effect of a particular course of action, recommended by him, upon his own circumstances.
The fact that the wife had the benefit of legal representation, whereas the husband did not, was simply one of life's circumstances and that was not a reason why a spouse ought to have the spouse's new partner prevented from acting for the spouse.
The jurisdiction to restrict a solicitor from acting was a very limited one. It did not exist simply because the solicitor was considered to have been in any way obstructive by the applicant party, and it did not exist because the solicitor appeared to be dismissive or blind to the rights of the applicant party. Where there had been an abuse of the Court's process by the conduct, (usually required to be dishonest conduct), of a legal practitioner, and where it was necessary to protect the integrity of the Court's procedures to do so, the Court had the capacity to restrain that solicitor from acting. McMillan and McMillan (2000) 26 FamLR 653; Caboolture Park v White Industries (1993) 117 ALR 253 and De Pardo v TheComplaints Committee (2000) 26 FamLR 254 cited and applied. The husband suffered understandable stress from the probably unwise decision by C to represent and continue to represent the wife, which decision was likely to carry the risk of the husband responding in a non-co-operative way to any suggestions from the other side. But there was no evidence of any overt dishonesty by C.
The last order of the domestic violence restraining order grossly inhibited the husband in his capacity to conduct his end of the negotiations with respect to the sale of the parties' matrimonial property. However, in light of the undertaking made by C, the integrity of the litigation procedures in the Court would be protected by the amendment to the Domestic Violence Restraining Order. Although it was likely to be productive of difficulties for the husband that C represent the wife, there was no jurisdiction on the material presented to restrain him from doing so, other than for a short period of time in order for C to comply with his undertaking, because the husband was entitled to have contact with the legal representatives of his wife, in an endeavour to have the order made by Warnick J executed.
REPORTABLE
HIS HONOUR: This has been the hearing of an application in an amended Form 8 filed on 21 February 2001 by the applicant husband. The respondent to that application is C, who is the solicitor acting for the applicant's ex-spouse. That person is the wife, with whom C is in a de facto relationship and has been for some time. The circumstances giving rise to the application are generally that the husband objects to his ex-wife being represented in the proceedings by her de facto partner, C.
There is a history of antagonism between the applicant husband, the respondent solicitor, and the applicant's ex-wife which does go beyond the degree to which parties in this Court act typically in ways hostile to and abusive of each other. In particular there are the matters that are recounted in the judgment of Warnick J of 16 November 2000, when his Honour heard the application in this matter for property orders between the parties. There had been a trial conducted before him on 11 October 2000, in which the wife was represented by Mr M. Byrne of counsel instructed by the solicitors Hawthorn Cuppaidge and Badgery. At that stage those solicitors were acting for the wife, and I understand from the evidence that they had acted for her from about January of 1999 until about December 2000. Before that, in the calendar year 1998, she had been represented by Delaney and Delaney, and from about mid-July 1997 until the end of 1997 by Clayton Utz. The firm of solicitors who employ the respondent C, namely B and C, Solicitors, only received instructions from the ex-spouse in or about December 2000, and C has only had the conduct of the mother's case for that firm since about December 2000.
Returning to the remarks of Warnick J in the hearing before him, the particular matters that he recounts that describe the level of hostility between the husband and C are summarised in his judgment in paragraph 56 by the simple note that on 28 July 1998 the husband assaulted C, and that the husband was convicted in respect of that assault. The judgment goes on to record that the husband was released on a 5 year suspended sentence in December 1999 having, I infer, been in custody from July 1998 until that date; and then was returned to prison in April 2000 following an appeal by the Director of Public Prosecutions against the apparent leniency of the sentence.
What occurred, as I understand it, was that in April 2000 the sentence of 5 years' imprisonment was upheld, but the order suspending that sentence entirely was varied so that all that remained was the simple sentence of 5 years imprisonment. The husband is now serving that term of imprisonment, and is currently on day release. The other evidence before me informs me that the charge on which he faced the jury, or the Court, in December 1999 arising out of the incident were two charges of attempted murder, one of the attempted murder of C and one of the attempted murder of his ex-spouse. He was convicted on at least one count of causing grievous bodily harm with intent, and it was that count which led to the sentence of 5 years' imprisonment.
I think that history is enough to describe the level of antagonism which exists. In addition to that antagonism, it is the case for the husband that he has suffered a good deal of stress as a result of the separation which has occurred, and he describes having attempted to end his own life in July of 1998; and of having experienced a great deal of stress and distress further recounted in his affidavit 21 February 1998 in paragraph 12.
The husband objects to C representing his ex-spouse on four grounds. The first is simply the relationship between C and the husband's ex-wife. He complains of what he considers to be the personal involvement of C in the matter, and there is some substance in that complaint. It is the fact that Rule 501 of the Solicitors’ Handbook (published by the Queensland Law Society) provides that a practitioner should give undivided fidelity to a client's interests, unaffected by any interest as a practitioner. Obviously, this would ordinarily describe a financial interest, but the fact is that of course there can be others. In these proceedings C, whilst he represents the wife, is required to give her objective advice about the best course she should follow at each stage of the proceedings. It is difficult to see how, on at least some occasions, C will be entirely divorced in the suggestions he makes from knowledge of the effect of a particular course of action, recommended by him, upon his own circumstances. This is probably inevitable whenever a solicitor represents a member of the solicitor's family, and that is undoubtedly a reason why most solicitors prefer not to.
The husband complains secondly that an unfair advantage is given to his wife, but I do not think there is any particular merit in that claim. He complains that she gets legal representation and advice, whereas he does not. That is simply one of life's circumstances, as I see it, and that is not a reason why a spouse ought to have the spouse's new partner prevented from acting for the spouse. There will still always remain, of course, the risk of having the lawyer partner's own feelings for his (or her) own client affect the lawyer partner's judgment about what is in the interests of the lawyer partner's new client.
The husband complains thirdly that his capacity to conduct litigation is restricted by the terms of a domestic violence restraining order issued on 5 January 2000 in the Brisbane Magistrates Court, on the application made by his ex-wife. There is some substance in this complaint, too. That order, which is in effect until 4 January 2002, prohibits the husband from having or attempting to have any "contact" with C. It also prohibits the husband from making telephone calls to the premises where C works. The last order obviously grossly inhibits the husband in his capacity to conduct his end of the negotiations, in what is the only actual application remaining on foot in this Court, namely the dealings involving the sale of the parties' matrimonial property.
That sale was ordered by Warnick J but has not yet occurred. There seems to have been a great deal of to-ing and fro-ing about who can or who cannot have keys to go into the place or inspect it or appoint the agents to sell, and this is likely to be a source of litigation in this Court for some time to come. I think that is likely to be aggravated by the fact that it is C who represents the wife, and not another solicitor. I am not surprised that the husband finds it difficult personally to receive letters plainly drafted by his wife's new partner, the terms of which deny the husband the right to enter what are equally his own premises, or to authorise other people to do so.
If The husband wanted to complain about those letters and their terms, he would be prohibited from telephoning the premises where C works; and if the husband were to identify himself and leave a message, he would be in clear breach of order number 8 of that domestic violence restraining order. The order in terms prohibits him also from having any "contact" with C, and although C assures me that he comprehends that to mean physical contact, that is not precisely what the order says. It may be that a Magistrate before whom a complaint was heard would be prepared to hold that the expression "have any contact with" includes attempting to have contact by writing.
It would not be surprising if, for example, should the husband write each day a letter to his ex-wife telling her his frank views about issues between them, that a complaint might be made that he was having (prohibited) contact with her. However, in answer to my concerns about this ground of complaint, C has given an undertaking to apply promptly for a variation of that order. He undertakes, as I understand it, to cause the order to be amended to permit the husband to contact C in writing, or by telephone, on matters related to the sale of the matrimonial home.
The husband complains finally that it is provocative to him to have C appearing. I think this is a valid complaint, and it undoubtedly shows that it is a very questionable exercise of judgment for C to appear. However, it remains to be seen whether that fact satisfies the tests required for an order restraining C from acting. The husband says that his mental health is not good and that he does not "need the stress" of the correspondence he has from C, or from having C represent his wife. That is undoubtedly a valid complaint as well. The orders made by this Court by agreement in 1999 on 6 September include orders that after his release from prison the husband may apply for contact with his children, but that upon any such application he must file and serve an affidavit from a psychiatrist deposing, amongst other things, to the psychiatrist's opinion as to the likelihood of the husband being violent to his ex-wife, C or the children, and the husband's attitude towards his ex-wife and C.
In those circumstances, I think it is quite correct for the husband to complain that it must be common ground that his mental health is not strong and that it is not helped by the stress of having C acting for his ex-wife in the matter. The husband says as an example that he objects to the receipt of letters such as that which is annexure C to his affidavit filed 21 February 2001. What appears to have happened is that the husband had set about engaging agents to sell the property, as had his wife, but that, unlike his ex-wife, the husband informed his then solicitors, Hawthorne, Cuppaidge and Badgery, of the agents he intended to appoint, the reserve price he intended to set, and asked for a set of house keys.
The response to those requests was a letter, annexure C, advising him that should he attempt to enter the premises or approach the tenants either in person or by phone, an application would immediately be made for an injunctive order to restrain him, and that keys would not be issued to him but only to real estate agents, only after the tenants had confirmed they would not be available when an inspection was required and had consented to any inspection occurring in their absence, and only after his ex-wife's consent had been obtained. Those conditions were imposed, although the wife has no greater rights in and about the property than the husband has. In those circumstances, I think it is a valid complaint that he has received letters in those terms.
However, the jurisdiction to restrict a solicitor from acting is a very limited one. It does not exist simply because the solicitor is considered to have been in any way obstructive by the applicant party, and it does not exist because the solicitor appears to be dismissive or blind to the rights of the applicant party. Many solicitors who practise in this jurisdiction are probably regarded by the spouses against whom they appear as dismissive of that spouse's rights or blind to them, and many solicitors would undoubtedly be regarded as obstructive to settlements by the spouses who are opposed to them.
Accordingly, although I think the husband has grounds for complaint about the terms of the letters and the conditions sought to be imposed upon him, that does not distinguish him from many litigants in this Court. What is significant is the stress to which he is subjected by having C appear. The issue is whether or not that is sufficient to restrain C from doing so. There is no direct authority in this Court on the point, although there are some straws in the wind. In the matter of McMillan and McMillan (2000) 26 FamLR 653, the Full Court of this Court, when reviewing United Kingdom and Australian case law on the capacity or power of a Court to restrain a solicitor from acting for a party where there was a misuse of confidential information, held (at paragraph 54) to the effect that in this Court even a theoretical risk of misuse of confidential information, actually passed by the other litigant to the solicitor now representing that litigant's spouse, gives rise to a jurisdiction to restrain the firm of solicitors from so acting. (My emphasis).
It was held that in this Court it is not necessary to show any real or serious possibility of the misuse of that information, but only, as I have said, a theoretical risk. The reason why it is only necessary to demonstrate a theoretical risk was explained by the Full Court to be because of the sensitive nature of the jurisdiction exercised and practised in the Family Court. However, as I have indicated, that authority is restricted to a consideration of the power in this Court to restrain a solicitor from acting for a party where that solicitor has previously acted for, or been employed by a firm representing, the opponent spouse. That is not the situation here. Here there is simply the proposition that the husband's ex-wife is represented by her new partner, and that this is extremely stressful for the husband.
A larger jurisdiction to restrain solicitors was considered in passing, (and obiter), by the Full Court of the Federal Court in Caboolture Park v White Industries (1993) 117 ALR 253. There the Full Court of the Federal Court wrote at page 263:
"…in an appropriate case, involving, for example dishonesty by a legal practitioner, the Court could refuse to permit that practitioner to represent a client before it…"
Their Honours added that (and I omit unnecessary words):
"It is of the utmost importance… that legal practitioners acting in proceedings… –"
(before either the Federal Court or the Family Court) -
“are honest, candid with the Court and neither obstruct the administration of justice…, nor abuse the Court's process.”
They added elsewhere that:
“…the Court has jurisdiction to make an order against a solicitor representing one of the parties before it based on the ability of the Court to enforce a duty owed by practitioners to the Court…”
Similar observations were made in De Pardo v The Complaints Committee. This was both at first instance before Lee J, (1999) 163 ALR 472; and on appeal in a Full Federal Court, (2000) 26 FamLR 254. In the Full Federal Court, French J and Whitlam J approved, at page 273, the proposition that the exercise of federal jurisdiction includes the power to make orders which will affect the supervision of the conduct of legal practitioners, where such orders are necessary, amongst other things, to maintain the integrity of the Court's procedures.
This power was regarded by French J to be an implied incidental power, derived from the terms of the Federal Court Act; and I consider likewise in this Court from the Family Law Act. I think that those authorities indicate quite clearly that where there has been an abuse of the Court's process by the conduct, (usually required to be dishonest conduct), of a legal practitioner, and where it is necessary to protect the integrity of the Court's procedures to do so, the Court has the capacity to restrain that solicitor from acting.
In this case, the husband suffers understandable stress from what I regard as the probably unwise decision by C to represent and continue to represent the wife's interests in the proceedings, which decision, I think, is likely to carry the risk of the husband responding in a non-co-operative way to any suggestions from the other side. But I do not think that there is evidence of any overt dishonesty by C. I think C was perhaps less than frank at first about the position with the charging of legal fees to the wife, but that matter was cleared up by his giving evidence. It is regrettable that that lack of frankness appears to have been in and about the issue of costs to be charged, or costs to be sought, from the husband; but I repeat that matter has now been cleared up by evidence. Costs (other than outlays) are not being charged, and accordingly the wife is not entitled now to ask for costs (other than outlays) from the husband in any matters in which she succeeds against the husband , because she is paying none.
Likewise, in light of the undertaking now given, I do not think there is evidence of an abuse of the process of this Court. I think there is evidence of letters which are aggressive in tone and apparently oblivious of rights that the husband has, but I do not think that sending those is an abuse of the process of this Court. Letters of that nature are probably sent every day by solicitors acting on behalf of parties in this Court. I do think that the husband is stressed by a reminder of the new shape of the wife's life, but that happens every day to parties in this Court. People have to accept that things have changed, and they have to move on. Accordingly, although I think that it is likely to be productive of difficulties for the husband that C represents the wife, I do not see that I have a jurisdiction on the material presented to restrain him from doing so, other than as now described.
Because Mr. Cartledge has undertaken forthwith to obtain or cause to obtain an amendment to the existing domestic violence restraining order, I propose to make what I fully expect to be an order of short duration, namely one that orders that until that restraining order is amended, C will be restrained. I will make this order because I think that the husband is entitled to have contact with the legal representatives of his wife, in an endeavour to have the order made by Warnick J executed. At the moment he cannot, as I read this order. That will not prevent C from advising his present partner or drafting correspondence for her, but it will mean he cannot appear at Court for her, or sign letters on her behalf, unless and until he obtains an amendment to that domestic violence restraining order. I think the existence of that order in unamended terms does inhibit the husband unfairly in the conduct of the litigation, and that C ought not to act for his wife until that order is amended. The integrity of the litigation procedures in the Court will be protected by the amendment to the Domestic Violence Restraining Order.
RECORDED : NOT TRANSCRIBED
HIS HONOUR: I order that upon the undertaking of C not to act directly on behalf of the wife in the matrimonial proceedings between herself and the applicant husband until the said C has caused the terms of a domestic violence order made 5 January 2000 in which the husband is the respondent spouse and the wife the aggrieved spouse, such terms to be amended to permit the husband to contact the said C in writing or by telephone on matters related to the sale of the husband's matrimonial home or matrimonial proceedings between him and the wife the application in form 8 filed 21 February 2001 is dismissed. I make no order as to costs.
I certify that the preceding 24 paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Court.
Sgnd: P. Russell
Associate
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