Demetriou and Demetriou
[2018] FamCA 310
•11 May 2018
FAMILY COURT OF AUSTRALIA
| DEMETRIOU & DEMETRIOU | [2018] FamCA 310 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for injunction to restrain lawyers from acting – Where it is contended that the wife’s lawyers failed to comply with r 31 of the Family Law Rules 2004 (Cth) – Consideration of case law and the interests of justice – Application refused. |
| Evidence Act 1995 (Cth) s 75 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 31 |
| Billington & Billington (No 2)[2008] FamCA 409 Kallinicos & anor v Hunt & ors(2005) 64 NSWLR 561 Osferatu & Osferatu (2015) FLC 93-666 |
| APPLICANT: | Mr Demetriou |
| RESPONDENT: | Ms A Demetriou |
| FILE NUMBER: | SYC | 2580 | of | 2017 |
| DATE DELIVERED: | 11 May 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 16 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies SC |
| SOLICITOR FOR THE RESPONDENT: | Rowlandson & Co Solicitors |
Orders
The Application in a Case filed by the husband on 12 March 2018 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Demetriou & Demetriou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC2580 of 2017
| Mr Demetriou |
Applicant
And
| Ms A Demetriou |
Respondent
REASONS FOR JUDGMENT
There are current proceedings between Mr Demetriou (“the husband”) and Ms A Demetriou (“the wife”) in relation to parenting and property settlement. On 6 March 2018 the wife’s solicitors, Rowlandson & Co, received documents provided directly from the husband. The husband contends that these documents were sent accidentally and that his solicitors, Mills Oakley, were the intended recipient. On 12 March 2018 the husband filed an Application in a Case seeking that the wife’s solicitors be restrained from acting for her in these proceedings because they have had access to confidential information. He also seeks orders restraining the dissemination of information or documents inadvertently provided by the husband and the return of any such documents. He further seeks that a dollar for dollar costs order previously made on 14 December 2017 be suspended pending the determination of this Application.
The wife opposes the orders sought.
Application to restrain the wife from continuing to instruct her current lawyers
It is the husband’s evidence that on 2 March 2018 he instructed his cleaner, Ms G, who also assists him with administrative matters, to make a photocopy of documents he had collated for the purpose of those documents being provided to his solicitors. It is the husband’s evidence that these documents were being provided to his solicitors partly in aid of complying with his obligations of discovery and for the purpose of providing instructions and comments to his solicitor. It is the husband’s evidence that there was a box containing documents of the following nature:
(a)a copy of an email from the husband to his solicitors wherein he provided instructions to his solicitors, on a confidential basis, regarding the parenting proceedings;
(b)financial documents for the husband’s solicitors to inspect and then copy for provision to the wife’s solicitors in accordance with his obligations as to financial disclosure;
(c)copies of court documents filed in these proceedings and press clippings which he had highlighted and “marked up” for the benefit of providing comments and instructions to his solicitors; and
(d)some of these documents comprise more than two pages and were stapled together when they were placed in the box.
It is the husband’s evidence that on 6 March 2018 he learned from his solicitors that the box containing the documents (“the box”) had been forwarded to the solicitors for the wife rather than to his own solicitors.
At Rowlandson & Co, Mr K has had primary carriage of the substantive proceedings on behalf of the wife. On 5 March 2018 at approximately 1.00 pm the box was delivered to the offices of Rowlandson & Co at [Suburb T]. Ms K is a partner of the firm and at approximately 4.30 pm on 5 March 2018 she opened the box. She relevantly deposes as follows:
…
14.I recall that I opened the box and there were miscellaneous documents which I recall were as follows-
14.1publications concerning law firms excessively charging clients in the family law jurisdiction (“the publications”);
14.2some miscellaneous financial documents (“the financial documents”);
14.3tax invoices from Rowlandson & Co to the respondent which I distinctly recall were annexed to an affidavit sworn by [Mr K] in favour of a litigation funding application, such application conducted before her Honour Justice Rees on 4 December, 2017 and of those invoices there were certain parts of those invoices that were highlighted (“the invoices”);
14.4a copy of an e-mail purportedly sent from the applicant in these proceedings namely [Mr Demetriou] (“the applicant”) to his solicitor (“the e-mail”).
15.To the best of my recollection the e-mail was the last document in the box and at that point I became aware that the box was sent by the applicant directly to Rowlandson & Co but I was not sure if it was sent with the consent of the applicant’s solicitor Mills Oakley Solicitors (“Mills Oakley”) and at that point I ceased looking at any of the documents in the box.
…
17.In circumstances where [Mr K] was unavailable because he was involved in the Newcastle hearing, I attempted to telephone the applicant’s solicitor on record namely [Ms J] of Mills Oakley (“[Ms J]”) at approximately 5.15 pm on 5 March, 2018.
Ms J was not available and Ms K left a message for [Ms J] to ring her back.
Ms K telephoned Mr K in the early evening of 5 March 2018 and Ms K deposes to a telephone conversation which included words to the following effect:
Me:“Look, earlier this afternoon I received an express post parcel which was a box containing some documents from [Mr Demetriou].”
[Mr K]:“What do you mean.”
Me:“What I mean is, I have received documents directly from him not from Mills Oakley.”
[Mr K]:“What sort of documents are they?”
Me:“There are some publications on costs in relation to specifically Justice Benjamin’s judgment handed down a short while ago relating to excessive charges by lawyers in the family court jurisdiction, some of your tax invoices which appear to have been highlighted, there are some financial documents that I have skimmed but I haven’t read in any detail and curiously a copy of a sent e-mail from [Mr Demetriou] to his solicitor which you should read (the e-mail).”
[Mr K]:“OK. Just send me a screenshot of the e-mail. How long is it?”
Me:“One page.”
Ms K’s deposition continues:
20.I then took a photo of the e-mail using my mobile phone and sent it to [Mr K’s] mobile telephone.
21.To the best of my recollection and later that evening I received a telephone call from [Mr K] and we had a discussion in relation to the content of the e-mail and [Mr K] said to me words to the following effect-
[Mr K]:“[Ms K], I am still in this hearing which may not finish tomorrow. It’s a difficult hearing that is going to go for at least two days maybe three days. Her Honour has indicated that if the matter goes three days I will be here on Wednesday. I cannot deal with the matter of [Demetriou] now but I will attend to it on Wednesday (7 March, 2018) when I am back at the office.”
Me:“Ok.”
22.On Tuesday, 6 March, 2018 I appeared at a mention in an unrelated matter in the Federal Circuit Court of Australia, Parramatta Registry and I recall that I returned to the office at approximately midday and observed in my phone book that there was a missed call from [Ms S].
Ms S is an employee of Mills Oakley. Ms K’s deposition continuous:
23.Shortly after returning to the office, I had a telephone conversation with [Ms S] to the following effect -
Me:“Hi [Ms S], it’s [Ms K] returning your call from earlier this morning.”
[Ms S]: “Hi [Ms K], I passed on your message to [Ms J] ([Ms J]) yesterday to return your call. [Ms J] has advised that our client has inadvertently sent financial disclosure documents to your firm which should have been sent to our firm.”
Me:“[Ms S], I find that hard to believe in circumstances where the box which was sent by express post was actually addressed to [Mr K] and identified our firm name and address. If that is the case, how could these documents have been inadvertently sent?”
Ms S: “[Ms K], I am just passing on the message from [Ms J] and I wish to organise a courier to collect the documents.”
Me:“[Ms S], just so we are clear and to be frank with you, the box did not just contain financial disclosure documents and in any event I have only skimmed those documents. The box also contained some publications specifically in relation to a decision recently handed down concerning the way in which lawyers charge in family law matters in Sydney, some tax invoices from our firm to our client and a copy of a sent e-mail from your client to your firm (the email) and quite frankly the contents of this box are disturbing. I think it’s best if I speak to [Ms J] directly, colleague to colleague.”
Ms S “Ok.”
Me:“[Ms S], in any event [Mr K] has the carriage of this matter and he is currently in a two day hearing in Newcastle and probably won’t be back until tomorrow and until [Mr K] is back can you withhold sending the courier to collect the documents.”
Ms S:“Ok [Ms K] I will get [Ms J] to telephone you.”
24.As at the date of swearing this affidavit I have never received a return phone call from [Ms J].
25.At 2.10pm on Tuesday, 6 March, 2018 I received an e-mail from Mills Oakley asserting amongst other things that [Mr K] had breached the Legal Profession Uniform Law Australian Solicitor’s Conduct Rules, 2015…
In the letter of 6 March 2018, Ms J noted the request from Rowlandson & Co that Mills Oakley delay in arranging for a courier to collect the box, noted the suggestion that the box and its contents were clearly intended to be received by Rowlandson & Co, drew attention to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (“the Conduct Rules”) and gave notice that in the event that Rowlandson & Co did not cease to act for the wife immediately an Application in a Case would be filed seeking that those solicitors cease to act.
Rowlandson & Co advised Mills Oakley on 6 March 2018 that they would respond to the letter sent by Mills Oakley on 6 March 2018 by the close of business on 8 March 2018. Later on 6 March 2018 Mills Oakley wrote to Rowlandson & Co in the following terms:
I refer to your letter dated 6 March 2018.
With respect, it is not acceptable to defer a response to the serious and pressing matters raised in my letter to you dated 6 March 2018 for a further 48 hours as you propose. Although your [Mr K] is presently in a hearing, I note Court generally runs from 10.00am until 4.00pm and that technology, such as telephone and email, is available.
I further refer you to the decision of the High Court in ExpenseReduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46.
Please immediately return the documents inadvertently provided to your office by my client, and provide an undertaking not to disseminate same.
I otherwise advise having regard to your office’s failure to treat this matter with priority that the application foreshadowed in my earlier letter will be filed without further notice to you.
At about 7.00 pm on 6 March 2018 Rowlandson & Co replied to Mills Oakley in the following terms:
I refer to your e-mail received at 5.27pm this evening. I advise that [Mr K] did not finish court in Newcastle today until approximately 5.30pm. I further advise that although [Mr K] has a hearing tomorrow in Parramatta that he will endeavour to respond to your letters/e-mails (x2) of even date by the close of business tomorrow.
If the application foreshadowed in your said correspondence received at 5.27pm today is filed, which is premature, then [Mr K] reserves his rights to tender this letter/e-mail as to the issue of costs.
I note that you proposed to arrange for a courier to collect the documents forwarded by your client to our firm and advise that same can be collected and I look forward to receiving your advices in that regard.
On 7 March 2018 Rowlandson & Co wrote to Mills Oakley in the following terms:
I refer to your letter e-mail of 6 March 2018 received at 2:10pm and your letter e-mail of 6 March 2018 received at 5:27pm and advise/am instructed as follows:-
1.that I have the primary carriage of this matter;
2.that as you were advised by my office by way of e-mail dated 6 March 2018 sent at 4:20 pm, I was involved in a two day hearing in the Federal Circuit Court of Australia, Newcastle Registry which commenced Monday 5 March, 2018;
3.for your information, the matter that I was involved in in the Federal Circuit Court of Australia at Newcastle finished at approximately 5:30pm/5:45pm on 6 March, 2018 and there was a possibility that the Judicial Officer may have rolled that matter over into a third day of hearing being 7 March 2018 and it is on that basis that I quite appropriately sought a period of 48 hours to respond to your letter e‑mails of 6 March 2018 and of course, it should be borne in mind that I was staying in Newcastle which is an approximate two and a half hour drive from my offices in [Suburb T];
4.that your comment that the Court “generally runs from 10.00am to 4.00pm” may be correct in some cases but given that you are an experienced solicitor, you would appreciate that frequently (certainly as far as my practice is concerned) matters run up until 6:00pm;
5.that in any event, the fact remains that this office received a box of documents (“the box”) addressed specifically to me and my firm with my street address and in circumstances where the box was posted to my office by express post, someone (presumably your client) physically attended upon the post office at [Suburb H] and ensured that the abovementioned box was in fact posted to me/my firm;
6.that my staff have informed me that the box was delivered to my office on 5 March 2018 at approximately 1:05pm;
7.that in circumstances where the box was addressed to me and refers to my firm and my firm’s address (picture attached), my staff were of course at liberty to open the box;
8.given what was contained in the box, my partner [Ms K] quite appropriately left a message with you on 5 March 2018 as stated in your letter e-mail of 6 March 2018, and on 6 March 2018 at 12:10pm had a conversation with your “assistant”;
9.with respect, it is my position that on any view the documents contained in the box were intended to be sent to me/my office;
10.that given that I have the primary carriage of this matter and given that I was in a defended two day hearing in the Federal Circuit Court at Newcastle, [Ms K] of this office in circumstances where she was not in a position to contact me quite appropriately advised your office that she would not allow a courier to collect those documents;
11.that I was able to contact [Ms K] at approximately 6:00/6:15pm on 6 March and having discussed the matter with her, I note that a letter /e-mail was sent to your office at 7:02pm confirming that the box could be collected by a courier which I am instructed (as I was not in the office due to unrelated Court commitments) occurred at 9:40am today;
12.that in your letter/e-mail of 6 March 2018 received at 2:10pm, you drew my attention to Rules 30 and 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (“the Rules”) and asserted in clear terms that [Ms K] (I presume given the chronology referred to above) breached both of those Rules;
13.that Rule 30 (specifically Rule 30.1 of the Rules) provides that a solicitor must not take unfair advantage of the obvious error of another solicitor or other person, if to do so would obtain for a client to benefit which has no supportable foundation in law or fact;
14.that as stated at 12 above and at page 2 of your said letter/e-mail, you make a positive allegation that the conduct, I can only presume of [Ms K], is a breach of that Rule;
15.with respect and in relation to Rule 30.1:-
15.1.it is my clear position that the act of your client posting the box to my firm does not in any way amount to an “obvious error”;
15.2.that in addition to 15.1, there is no foundation that my firm or myself have taken any “unfair advantage” on the assumption that the sending of the box amounted to an obvious error
and accordingly, you (and by the word “you”, I refer to [Ms J]) should not have made an allegation that I presume [Ms K] of this firm has breached that Rule and this is relevant when one considers Rule 32 of the Rules which is referred to below;
16.it is also asserted my [sic] [Ms J] that (I presume) [Ms K] has positively breached Rule 31 of the Rules which states the following:-
Rule 31.1Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must:
31.1.1return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and
31.1.2notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.
Rule 31.2A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must:
31.2.1notify the opposing solicitor or the other person immediately; and
31.2.2not read any more of the material.
Rule 31.3If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so;
17.that insofar as Rule 31 of the Rules is concerned and as stated above, it is my clear position that the receipt of the box and the documents contained in the box was not “inadvertent” and given the way in which the box was posted to my firm, it was deliberate conduct on behalf of your client however if the box was somehow inadvertently sent by your client to me/my firm (which is not my position), your firm was notified of the receipt of the box by [Ms K] on the afternoon of 5 March, 2017 and the box and the documents contained in the box were collected by a courier arranged by your firm this morning, ;
18.on that basis, there is no foundation for the assertion by [[Ms J] that] (I presume) [Ms K] has breached Rule 31 of the Rules and in any event and as far as I am concerned I have only sighted one document;
19.that as far as [Ms J’s] unfounded allegations are concerned, I refer her to Rule 32 of the Rules and Rule 32.1 of the Rules provides that a solicitor must not make an allegation against another Australian Legal Practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bone fide and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it;
20.it is my contention that [Ms J] has in fact breached Rule 32 of the Rules and such conduct can amount to either professional misconduct or unsatisfactory professional conduct especially in circumstances where despite two letters/emails from [Ms J] of 6 March, 2018 the circumstances surrounding the sending of the box to my firm ie the fact that the box was addressed to me, at my postal address and by express post, have not at all been explained;
21.that in light of my views referred to above, I wish to make it clear that it is on any view unpleasant that solicitors be put in a position where they are compelled to write to each other making allegations which in relation to [Ms J]’s letter
e-mail [sic] of 6 March 2018, I say are baseless;
22.that in light of the above, I will not be filing a notice of ceasing to act;
23.that if your client instructs you to file an application in a case seeking an Order that I be restrained from acting in these proceedings, same will be opposed and I reserve my client’s right to tender this letter as to the issue of costs.
Further and relevant to the conduct of your client sending the box to me, my client has instructed me that since I have been retained in this matter which occurred in or about 2017, your client continually denigrates both myself and also [Dr L] to my client and that denigration is reflected in conversations and text messages as recently as February, 2018 as follows: -
1.on 21 February 2018 the following text message exchange occurred between our respective clients:-
Your client: “Do you want to end this between us lets work out a settlement? I’m not letting your dr or lawyer off I have the evidence against them, do you want to accept (part of text deleted)… and it ends”
My client:“First off you say you have evidence of them evidence of what and it doesn’t end for me …”
2.on 10 January 2018 your client sent the following text message to my client:-
“I was ordered to pay your legal bill which was $179,000 yes [Ms A] that’s your legal bill, we have wasted over $400,000 thanks to you, why can’t we negotiate and settle this your lawyer wants to drag this out for more money, it’s up to you to stop this and my mother is already over $50 in legals and why did your [Dr L] refer her own lawyer.”
3.on 4 December 2017, your client sent the following text message to my client:
“This is about settlement today I don’t want to spend the next couple of years in court and waste millions because your lawyer is greedy.”
4.on 3 December 2017 your client sent the following text message to my client:-
Your client: “well tomorrow is about money (money bag emoji) and you push me into a corner [Mr K] and [Dr L] have some explaining to do, [Mr M] is handling that part”
My client:“what corner”
Your client: “sweet dreams”.
Of further concern to my client, I am instructed that on Friday, 12 January 2018 my client attended upon your client’s residence to collect the children in order that they could spend time with her and my client observed that your client was heavily intoxicated and your client represented to my client, amongst other things:
1.that myself and [Dr L] have known each other since we were teenagers and in particular your client made reference to my previous employment at [O Club] and [Dr L]’s alleged previous employment at a hotel known as the [Hotel P],
2.that myself and [Dr L] “have a lot to answer to” and “that he (your client) is going to sue both of us” and
3.that “they’re working together (myself and [Dr L]) to take me down and I wouldn’t be surprised if they are fucking”.
Given the text messages referred to above, it is quite clear that your client takes issue with myself and [Dr L] without any foundation..
As far as my dealings with [Dr L] are concerned:-
1.I never knew of [Dr L] until I was retained by my client to act for her in this matter and my client advised me that [Dr L] was her treating psychologist;
2.I have never met [Dr L] in person;
3.in circumstances where [Dr L] is my client’s treating physician and has been for some time and in circumstances where this is a complex parenting matter, I have from time to time spoken to her or e-mailed her (noting that she has prepared two reports) but I do not recall having any further communications with her since in or about December, 2017;
4.it is without foundation, offensive and inappropriate for your client to make the assertions and send the above text messages.
Of even more concern to me is that your client made the above comments to my client in front of the children.
It is clear that your client is attempting to either intimidate my client and/or myself and/or [Dr L] with a view to obtaining some sort of advantage in these proceedings and that is consistent with your client’s actions in addressing the box to me and referring to my address and either attending upon the post office himself or arranging an agent to do so and providing me with the documents contained in the box.
As far as [Dr L] is concerned, she has acted appropriately in these proceedings even to the extent that when the matter was re-listed by the ICL in October 2017 that she formed the view that it would be in the youngest child [Q’s] best interests to be placed on an interim basis in the primary care of your client. Given the position taken by [Dr L] in that regard, it is impossible to see how she has acted inappropriately in these proceedings.
In conclusion and in relation to the complaints made by your client to my client:-
1.my fees given the complexity of this matter have in no way been excessive and from memory and when this matter was listed for the hearing of my client’s interim application on 4 November, 2017, my client’s fees were some $100,000 less than your client’s;
2.that as stated above, I have no “relationship” with [Dr L] other than she is the treater of my client;
3.I am entitled to communicate directly with [Dr L] and your client would also recall the [Dr L] was spoken to by the Chapter 15 Expert [Dr R] and also communicated with [Dr R] when the matter was relisted before the Court in October, 2017 and as stated above [Dr L] objectively formed a view that it was in [Q’s] best interests to be placed into your client’s primary care which at the time was not what my client wanted;
4.that I will not tolerate a client denigrating another client’s solicitor and I certainly would not tolerate my client denigrating any member of your firm and in any event my client has not in any way denigrated any member of your firm. I would ask that you counsel your client in relation to the way in which he has denigrated both myself and [Dr L].
Should there be any queries concerning the above, please do not hesitate to contact me.
It is asserted by the wife’s solicitor that Mills Oakley have not responded to that email.
It is the evidence of Ms K that she was the only staff member of Rowlandson & Co to handle the documents in the box and that the box had left the office by the time Mr K returned from Newcastle. Ms K deposes that she did not photocopy any of the documents in the box nor did she cause any of the documents in the box to be copied. In relation to the photograph that she took of the email contained in the box, she has deleted that photograph from her mobile phone and to the best of her knowledge Mr K has deleted it from his mobile phone. Ms K deposes that she did not remove any staples from any documents in the box except where she sent a copy of the email to Mr K. Otherwise it is her evidence that no other member of Rowlandson & Co has in any way seen or read the contents of the box.
The Law
In Osferatu & Osferatu (2015) FLC 93-666 (“Osferatu”) the Full Court (Finn, Ainslie-Wallace & Aldridge JJ) dealt with an appeal in relation to an injunction restraining solicitors from acting. The Full Court determined that an application for such an injunction was a final proceeding. That is of some relevance in the circumstances before me because the conditional exception to the hearsay rule for interlocutory proceedings, contained in s 75 of the Evidence Act1995 (Cth), is not available.
In Osferatu the Full Court said at 80,411:
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 so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different (Kallinicos v Hunt [2005] NSWSC 1181).
The circumstances in the proceedings before me fall into the third category. Whether the power of a court of limited jurisdiction such as the Family Court of Australia is described as inherent or implied, there is no doubt that this Court has the power and on occasions, the obligation to control its own processes and its officers.[1]
[1] See DJL v The Central Authority (2000) 201 CLR 226 judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 240-241.
In Kallinicos & anor v Hunt & ors(2005) 64 NSWLR 561, Brereton J of the New South Wales Supreme Court canvassed authorities from Australia and overseas in respect of the jurisdiction to restrain lawyers from acting. At page 582 of the judgment Brereton J summarised the import of those authorities and said:
…
·However, the court always has inherent jurisdiction to restrain solicitors 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 (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v Pattern Holdings; Spincode Pty Ltd; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt). Prince Jefri Bolkiah does not address this jurisdiction at all. Belan v Casey and British American Tobacco Australia Services Ltd are not to be read as supposing that Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications Ltd appears to acknowledge its continued existence.
·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 (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications Ltd).
·The jurisdiction is to be regarded as exceptional and is to be exercised with caution (Black v Taylor; Grimwade v Meagher; Bowen v Stott).
·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 (Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott).
Discussion
The issue here is the access had by the wife’s lawyers to the copy of the email from the husband to his lawyers dated 16 February 2018.[2] There were other documents in the box but it is not asserted that they contained or represented confidential information.
[2] Exhibit 1.
For the husband’s part it is argued that as the email was copied and disseminated to Mr K and the contents of the box were not immediately made available for collection, the wife’s solicitors should be restrained from acting in these proceedings.
There are a number of challenges made on behalf of the wife to the husband’s application.
It is apparent from the communication between solicitors that the wife does not accept that the dispatch of the box of documents to the wife’s solicitors was accidental. The suggestion is that without any evidence from the person who allegedly sent the box, Ms G, the Court could not find that the dispatch was accidental. There are curious aspects to the dispatch of the box. For example, given that the offending document is a copy of an email sent between the husband and his solicitor, why was that copy included in a box that was intended, on the husband’s case, for the solicitors to whom the email had already been sent? Curious or not, the husband has deposed that he intended that the box be sent to his solicitors. He was not required for cross-examination and therefore his evidence is unchallenged. I am obliged to accept that the box was accidentally dispatched to the wife’s solicitors.
Next it is disputed that the copy of the email in question contains confidential information. Returning to Osferatu the Full Court said at 80,412:
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 caseshad 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 had never taken instructions from the wife.
27.In Mancini v Mancini [1999] NSWSC 800 Bryson J said at [7]:
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, and a general allegation of the kind put forward here to the effect that from the nature of the past legal business confidential information must have been communicated should not in my opinion be upheld. (Emphasis added)
It was submitted on behalf of the wife that much of the information in the email, dealing with allegations made by the husband against Mr K and Dr L, has been extensively communicated to the wife. In that regard there are the references to the husband’s communications with the wife set out in the email of Mr K to the husband’s solicitors dated 7 March 2018 and quoted above.
In my view, the email of 16 February 2018 contained confidential information. It is a document which imparts information, seeks advice and gives instructions. It is quintessentially a privileged document. The wife’s solicitor does not assert and has not established that all of the information in the email was already known to him or to his client.
However, the wife and her solicitors were in no way responsible for the circumstances in which the confidential information came into the possession of the wife’s solicitors. That arose entirely through the carelessness of the husband.
On the other hand, the wife’s solicitors were wrong to photograph the email and forward the photograph to Mr K. They were also wrong to delay the return of the box.
Rule 31 of the Conduct Rules provides:
31 Inadvertent disclosure
31.1Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must:
31.1.1return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent, and
31.1.2notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.
31.2A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must:
31.2.1notify the opposing solicitor or the other person immediately, and
31.2.2not read any more of the material.
31.3If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so.
On the basis of r 31, in my view, immediately upon finding the copy of the email and scanning it as to the author, addressees and its import, the solicitor who opened the box should have not read any more of that email, should not have facilitated anyone else reading the email and should have returned the box and its contents to the husband or his solicitors or facilitated that return.
In my view the wife’s solicitors were obliged to accept at face value, the assurance of the husband’s solicitors (albeit conveyed indirectly by an employee) that the box was wrongly delivered to them.
Indeed, as the box and its contents have belatedly been returned and all copies of the email have been destroyed, I gather that the wife’s solicitors now accept that the email contained confidential information and that it was inadvertently sent to them.
It still remains to weigh the additional harm done by the wife’s solicitors reading the email, which they should not have done, compared to a perusal of the document, which they were entitled to do, to identify the documents addressed to them by the husband. That additional harm then needs to be balanced against the impact of granting the injunction sought by the husband.
In Billington & Billington (No 2)[2008] FamCA 409 Coleman J said 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.
Here the proceedings have been on foot since 2017 and there will no doubt be cost and delay for the wife, and perhaps for both parties, the Independent Children’s Lawyer and the Court, if the wife is required to find and instruct new solicitors. Family law litigation can lead to particular reliance of parties on their lawyers and it may not be possible for the wife to readily replicate with new solicitors the trusting relationship she may have with her current lawyers. Absent a grant of legal aid, the costs of family law litigation are a direct impost on the wealth of the family. There is no tax deduction normally available for those costs, for example. The costs can run to tens and sometimes hundreds of thousands of dollars and any unnecessary duplication of those costs is to be avoided.
As to the potential damage caused by the disclosure of the confidential information, the subject of the email seems to relate to parenting proceedings. Because of the inquisitorial nature of parenting proceedings, questions of forensic strategy can have little if any practical importance. As to the incidental action canvassed by the husband in relation to the wife’s solicitor and a child’s treating medical practitioner, that action could have no legitimate connection with the proceedings themselves and must be intended and could only be implemented for the necessary purposes of each action. I can only speculate, but it may be that the reaction of Ms K, which in my view was outside the requirements of r 31 above, was prompted by an initial concern that there might have been an intended connection between that incidental action and the proceedings.
Advised of all of the circumstances that arose here and being informed of the competing issues and prejudices, in my view, a fair-minded member of the public would not conclude that the proper administration of justice requires that the wife’s lawyers should be prevented from acting. On balance the interests of justice would be best addressed by the husband’s application for an injunction being dismissed.
As to the orders sought at paragraphs 2 and 3 of the husband’s Application in a Case, the wife’s solicitors have provided on oath an assurance about the dissemination of information and the fact that they no longer hold any relevant document or record. The order sought at paragraph 4 was interlocutory to the substantive order sought at paragraph 1 and is addressed by the refusal to grant that order.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 May 2018.
Associate
Date: 11 May 2018
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