Drover & Glasson and Anor
[2014] FamCA 714
•2 September 2014
FAMILY COURT OF AUSTRALIA
| DROVER & GLASSON AND ANOR | [2014] FamCA 714 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain solicitor from acting – Where the applicant asserts she provided confidential information to the solicitor relevant to matters in the present proceedings and that the solicitor provided the applicant with advice as a result of receiving that confidential information – Whether the relevant test in McMillan & McMillan (2000) FLC 93-048 has been changed by a subsequent Full Court in Volker – Where the appropriate test to apply is as set out in McMillan and where the applicant has satisfied that test – Where an order is made that the respondent be restrained from instructing that solicitor from acting for or on her behalf in these proceedings. |
| Family Law Act 1975 (Cth) |
| Billington & Billington (No. 2) [2008] FamCA 409 Volker and Anor & Dunwell and Anor (2013) Fam CAFC 169 |
| APPLICANT: | Ms Drover |
| RESPONDENT: | Ms Glasson |
| 2nd RESPONDENT: | Ms Knight |
| FILE NUMBER: | SYC | 2293 | of | 2014 |
| DATE DELIVERED: | 2 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 11 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson, SC |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Kyle Family Lawyers |
| SOLICITOR FOR THE 2ND RESPONDENT: | No participation in this application |
Orders
The respondent to this Application in a Case (the applicant in the proceedings for final orders) be restrained from instructing Ms Lou Kyle, principal of Kyle Family Lawyers, from acting for or on her behalf in these proceedings.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2293 of 2014
| Ms Drover |
Applicant
And
| Ms Glasson |
Respondent
And
| Ms Knight |
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
In an Application in a Case filed on 25 June 2014 the applicant (the respondent in the primary proceedings), seeks an order that the respondent (the applicant in the primary proceedings) be restrained from instructing Ms Lou Kyle, principal of Kyle Family Lawyers (“the solicitor”), from acting for and on behalf of the respondent in these proceedings.
The basis upon which that order is sought is that the applicant asserts that she provided confidential information to the solicitor relevant to matters in the present proceedings and that the solicitor provided the applicant with advice as a result of receiving that confidential information.
DOCUMENTS RELIED UPON
The applicant relied upon two affidavits which she swore on 25 June 2014 and 22 July 2014.
The respondent relied upon an affidavit sworn by her on 28 July 2014 and an affidavit from the solicitor sworn on 28 July 2014.
LEGAL PRINCIPLES
In Geelong School Supplies Pty Ltd v Dean [2006] 237 ALR 612 Young J said at [24]:
[24] in Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 (‘Spincode’) at 521-524 [52]-[58], Brooking JA identified three possible grounds for restraining a solicitor or counsel from acting for a particular party to litigation: the danger of misuse of confidential information; a breach of a fiduciary duty of loyalty not to act against a client, or against a former client in the same matter or a closely related matter; and the inherent jurisdiction of the court to control the conduct of solicitors and counsel as officers of the court....
The applicant in this case relies upon the first of those three grounds. The second ground, although referred to by senior counsel for the applicant, was not pressed although it may have been arguable.
In relation to the first ground (the danger of misuse of confidential information) the leading authority as it applies in proceedings under the Family Law Act 1975 (Cth), before Volker and Anor & Dunwell and Anor [2013] Fam CAFC 169 was McMillan v McMillan (2000) FLC 93-048. That decision had, in applications in the family law jurisdiction, resolved two different lines of authority in relation to the approach to the danger of misuse of confidential information. Previous cases had differently adopted a narrow test of actual prejudice or a broader test of theoretical risk of prejudice. In McMillan the Full Court set the lower bar, requiring an applicant to only establish a theoretical risk of prejudice rather than the proof of actual prejudice.
The rationale for departing from the stricter test set in other jurisdictions included the extensive scope of matters that might be relevant both in a parenting case and in a property case and the level of emotions that litigants in this jurisdiction often experience.
That rationale was articulated in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 where Bryson J said:
.... It seems natural that a particularly careful view would be taken in family law business, as such litigation tends to be about highly confidential facts and a very wide range of facts and circumstances can conceivably be relevant; the sensitivity which even the most reasonable people feel about such litigation when they are engaged in it calls for careful measures to secure not only that justice is done but also that it is apparent that it is done, an appearance which would not survive any general impression that lawyers can readily change sides.
Senior counsel for the applicant relied upon the Full Court’s 2000 decision in McMillan. Counsel for the respondent relied upon the Full Court’s 2013 decision in Volker. There are questions as to whether the Full Court in Volker intended to change the law as expressed in McMillan; whether or not there is any inconsistency between those two judgments and if there is, which decision should guide me.
In McMillan the Full Court said at paragraph 87:
87. In other words, 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. (See Mills and also Lindenmayer J. in Stewart). 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”.
The discussion by Mullane J in Griffis and Griffis (1991) FLC 92-233 about what was said in Mills v. Day Dawn Block Gold Mining Company Limited; In re Marsland (1882) QLJ 62, and the extract from Stewart (Lindenmayer J., 17 April 1997 unreported), to which the Full Court refer with approval are contained at paragraphs 55 and 56 of the Full Court’s reasons in McMillan:
55. Before leaving these authorities, reference should also be made to the views expressed by Mullane J. in Griffis as to what degree of proof of the passage of confidential information a former client has to establish in order to have that information protected. His Honour’s view, relying again on Mills and Thevenaz, was that the client need only prove “a prima facie case as to confidential material, the disclosure or use of which by the solicitors in the course of the conduct of the current proceedings for the present client would be prejudicial to the applicant”. His Honour’s reasons were as follows (at 78,600-78,601):
“There was another important point made by the Queensland Full Court in the decision of Mills v Day Dawn Block Gold Mining Co Ltd. As to proof of the confidence, their Honours (at page 63) took the view that where there was a conflict between the solicitor and former client as to whether a confidence had been imparted, if the judges:
“. . . were to insist upon actual proof of the existence of such confidence and to insist upon knowing what it was and whether it was likely to prejudice a client's interests, they would compel him to strip himself of the protection which the court usually afforded and the whole mischief he wished to avoid might arise . . . on the one side the client insisted that he had imparted confidence to Mr Marsland; and on the other side, the solicitor said ‘I have no confidence’. How could the court decide it? If they took the oath of the attorney against the oath of the client and refused the protection which the client sought, why, then, the matter might proceed, and the mischief which the client feared might arise and the court could afford no remedy. In cases of this kind less mischief would accrue through granting the protection sought than in accepting the oath of the attorney against the client. The client's interests should prevail, and the judge should refuse to determine the matter on the conflicting testimony of the affidavits.”
And: “It was not for the judge to determine the conflict of facts but that he should have decided that the client had made out a prima facie case for his protection.”
At page 64 they said “If there was any evidence of confidential communication such as there was here the court would not enter upon a judicial enquiry whether it was true or false”. The court would not ask for detailed disclosure where there was evidence of confidence and “[t]he court would not weigh conflicting testimony as to confidence when the client swears he has made confidential communications”.
....
The Australian courts have not generally followed this aspect of the Mills decision. It has not usually been discussed but in the D and J Constructions case, (at page 124) Bryson J expressed reserve about such an approach.
Generally, instead of accepting a prima facie case as to the confidentiality of information the Australian courts have indulged in weighing conflicting testimony of the solicitor and his confider. The injunction proceedings have thus in many cases been a venue for the solicitor to disclose confidential information of the confider without his consent by way of establishing that such information is not, despite the general damage of its disclosure, such as would cause particular damage by use for, or disclosure to, the new client in the course of conducting litigation against the confider.
Wills, instruction sheets, tax returns, correspondence between solicitors and clients, advices to clients, advices by barristers, and statements taken by solicitors from clients or officers of client companies, have all been placed in evidence in the course of such proceedings so that the proceedings themselves become a mischief of their own in terms of solicitor/client confidences and the public policy considerations behind them. Resort has even been had to conducting proceedings in camera and confidentiality orders made in an attempt to minimise damage and prejudice to the former client from the proceedings themselves e.g. see Mallesons Stephen Jaques v KPMG Peat Marwick (at page 6).
The very nature of the proceedings and the perversity of the courts allowing the hearing of such an application to become the venue for lengthy and detailed evidence by the solicitor of information which he received in confidence, or at least the former client alleges was received in confidence, are matters which strongly support the approach of the Queensland Full Court in the Mills case and of Frederico J in Thevenaz. So do the public policies so often declared by the courts that justice must be seen to be done, and the fact that the duty of confidentiality is based in part on the need for public confidence in legal representation and the legal system.
For these reasons the court should follow the approach in Mills that the former client be required only to prove a prima facie case as to confidential material, the disclosure or use of which by the solicitor in the course of the conduct of the current proceedings for the present client would be prejudicial to the applicant.”
56. Finally in this review of the cases decided to date, we draw attention to the fact that in the unreported decision of Stewart (17 April 1997), Lindenmayer J. quoted at length from the decisions of Mullane J. in Griffis and Kossatz, and went on to accept Mullane J.’s exposition of the law. Lindenmayer J. was also prepared to follow Mills, as this extract from his judgment shows (underlining added):
“I generally agree with and adopt the analysis of the law which fell from Mullane J in those two cases, and I propose to follow it. In the circumstances of this case, it seems to me that the wife does raise a prima facie case that the solicitors have received from her, during the previous retention of them by the husband and wife, confidential information which may, even quite inadvertently, be used to the advantage of the husband or to the disadvantage of the wife in these current proceedings.
As I have said, she claims to have conveyed confidential information to Ms Maria DeDonatis in relation to a number of matters including, it would seem, her marriage difficulties with the husband, and some allegations by him of infidelity by her and, of course, there was also an involvement by the solicitors at that time in the business affairs of the parties, in the sense that they must have received some information about their general business operations and they may well have received information about the sort of work which each of the parties claimed to do in the business.
Now, all of those matters may be of some relevance, ultimately, to the proceedings in this jurisdiction. As I have said, although the essential facts are denied by Ms DeDonatis, on the basis and the decision and the dicta of the Full Court of Queensland in the Mills case, adopted by Mullane J in Griffis, I am of the opinion that it is not appropriate for me, at this point, to enter into any examination of where the truth lies or to attempt to try an issue of fact about those matters. All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings. Accordingly, I propose to accede to the application of the wife.”
The decision in McMillan did not come as a surprise. A number of cases of a similar nature had proceeded it, including Thevanez and Thevanez (1986) FLC 91-748; Magro and Magro (1989) FLC 92-005; In The Marriage Of R P and A A Gagliano (1989) 12 Fam LR 843, Griffis and Griffis (1991) FLC 92-233; Kassatz and Kazzatz (1993) FLC 92-386 and Stewart.
As Coleman J observed in Billington & Billington (No. 2) [2008] FamCA 409 at [49] and [50]:
49. The passage most potentially helpful to the husband’s application before this Court arises from the Full Court’s acceptance in McMillan (supra) of the judgment of Lindenmayer J in the case of S & S (17 April 1997, unreported) in which his Honour said:-
All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings.
50. Clearly, the test, which the Full Court accepted in McMillan (supra) can more readily be satisfied than the test adopted by the New South Wales decisions to which reference has earlier been made.
The New South Wales decisions to which Coleman J referred set a narrower test of actual prejudice.
During submissions, reference was made to a statement of this narrower test applied in other civil jurisdictions which is succinctly stated in Durban Roodepoort Deep Limited v Mark David Reilly and Ors [2004] WASC 269 at [80]:
Before a court will grant an injunction to protect a client’s confidential information by restraining his former solicitor from acting against him, the former client must establish that the solicitor possesses confidential information and must identify the confidential information with precision and not merely in global terms. The client must identify the confidential information with some particularity. The degree of particularity required must depend upon the facts of the particular case. The confidential information must be identified with sufficient particularity to enable the court to determine whether the information is truly confidential, whether the confidential information which once existed, if it did, continues to be confidential and whether the confidential information is relevant to any issue in the current proceedings and might be used in those proceedings.
Counsel for the respondent relied upon the Full Court’s more recent decision of Volker. In that case, the Full Court said that the principles to be considered in determining an application to restrain a solicitor from acting are “uncontroversial”. At [45] and [46] the Full Court adopted with approval a statement of those principles by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181:
45. The principles to be considered in determining an application to restrain a solicitor from acting are uncontroversial and were set out in the appellant’s written submissions at paragraph 22. They bear repeating here:
The principles involved in the application to restrain the solicitor from acting for the opposing party were discussed at length by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561 at [31]-[76]; and ultimately summarised by him at [76] as follows:
·During the subsistence of a retainer, where the court’s intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court’s jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests [Prince Jefri].
·Once the retainer is at an end, however, the court’s jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure) [Prince Jefri].
·After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court’s intervention, such duty having come to an end with the retainer [Prince Jefri; Belan v Casey; Photocure; British American Tobacco; Asia Pacific Telecommunications; contra Spincode; McVeigh; Sent].
·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; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt]. Prince Jefri does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications 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].
·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].
·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 [Black v Taylor; Bowen v Stott].
46. It is said that his Honour’s focus ought to have been whether “the proper administration of justice” required the appellant be restrained from acting for the wife. However, that cannot be determined in a vacuum and what was said by Pembroke J in Westpac Banking Corporation v Newey [2013] NSWSC 533 at [22] is particularly resonant in this case:
The law and lawyers would be held in disrepute if judges acceded too readily and too often to such applications. Before doing so, there must be some realistic sense of impropriety about the circumstances; something that sensibly justifies the conclusion that unless an injunction were granted, the integrity of the judicial process would be impaired. The basis for the second defendant's application existed only in the clouds, at an abstract theoretical level. The facts on which it relied were thin and the speculation on which it depended was unconvincing. On the other hand, the grant of an injunction must be grounded in pragmatism, reflecting the practical commercial reality, paying due regard to established legal principle and acknowledging norms of acceptable behaviour.
[emphasis added]
The facts of this case fall for determination within the second dot point of the principles set out by Brereton J at [76] in Kallinicos, that is, in this case it is asserted that a solicitor should not act because the solicitor is said to have received confidences in circumstances where the applicant believes there is a real risk of disclosure given that that solicitor now acts for the other party in the proceedings.
It is arguable that by the Full Court in Volker endorsing the second bullet point of Brereton J’s summary in Kallinicos, the Full Court was returning to the House of Lords’ decision in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 and various Australian authorities which have followed that decision.
In Prince JeffriBolkhiah v KPMG (a firm) [1999] 1 All ER 517, the test relating to evidentiary burden of proving confidential information had been provided was expressed in the following way at [527]:
Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters. But given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case. In this respect also we ought not in my opinion to follow the jurisprudence of the United States. [emphasis added]
Prince Jeffri provides that the applicant incurs the burden of proving the solicitor has been given confidential information and is a statement of the narrower test applied in other jurisdictions.
Given the Full Court’s apparent endorsement in Volker of Brereton J’s citation of Prince Jeffri, in Kallinicos, as the uncontroversial basis of the protection of confidences (seemingly in this jurisdiction), the question arises as to whether or not the Full Court in Volker intended to raise the bar to require the applicant to prove that confidential information was given rather than simply asserting in an affidavit that it was, in circumstances where that assertion is contested.
The facts in Volker are significantly different from the facts in the current case. In Volker the Full Court held that the trial judge had incorrectly found that the solicitor acting for the wife, who had received confidential information from the husband, had disclosed that information to a third party. There was no issue in that case about whether the solicitor had received confidential information; it was agreed that he had. The issue was whether or not he had passed it on when he was duty bound not to. The Full Court concluded that the trial judge’s finding that he had, was erroneous.
Prince Jeffri, Kallinicos and some other cases discussed in Kallinicos, relate to the broader exercise of an inherent jurisdiction aimed at controlling situations where there is the need to preserve the proper administration of justice. Examples include situations where a lawyer becomes a witness in the proceedings; where the efficacy of documents prepared by a legal practitioner is questioned; where the lawyer has some direct pecuniary or other interest in the outcome of the proceedings, or where there is some need for the lawyer to justify and defend the lawyer’s behaviour which may involve an evaluation of the conduct of that lawyer (see Young J in Geelong School Supplies Pty Ltd v Dean at [31]). In Prince Jeffri, there was again no issue as to whether confidential information had been received but a focus on a volume of evidence about whether effective Chinese walls had been created within a large accounting firm to ensure the confidentiality was protected.
In the current case, the question is what approach is to be taken in the hearing of a matter when an assertion is made that confidential information has been provided to a solicitor and the respondent seeks to refute that assertion.
Given the facts in Volker, that case did not raise any issue as to whether or not confidential information had been provided. Consequently any reference to the proof required when a litigant asserts that confidential information has been provided, is obiter. Given that the Full Court in Volker did not mention McMillan, nor specifically refer to any of the cases mentioned in McMillan, in my view the Full Court in Volker could not be said to have intended to overrule McMillan and I remain bound by that authority in determining this application and not by the more stringent standards set from decisions emerging from other civil jurisdictions.
To reiterate the Full Court’s endorsement in McMillian of what Lindenmayer J said in Stewart:
All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings.
THE APPLICANT’S EVIDENCE
On 24 April 2013 at the suggestion and organisation of the respondent, the applicant had a telephone conversation with the solicitor on the respondent’s mobile phone. That conversation, according to the applicant, lasted 30 minutes. The respondent does not dispute that that was the length of time the telephone conversation took place.
It is the applicant’s evidence (from paragraph 7 of the applicant’s affidavit of 22 July 2014):
7. .... At the commencement of the conference, [the respondent] made some introductory remarks to assist me and, thereafter, a substantial part of the conference (after those introductory remarks) between [the solicitor] and I took place in the absence of [the respondent]. Whilst [the respondent] was initially trying to listen to the conference she was called away by the children. At this point I took the phone off speaker and held it to my ear. I provided [the solicitor] with confidential information in respect of matters concerning my children, me, and my various relationships with persons relevant to the children’s lives, including their biological father, [Mr P], his partner, [Ms Knight] and her partner. The telephone conference lasted approximately 30 minutes in duration during which time, as referred to above, [the respondent] was not present for a large part of the discussion as she was attending to matters concerning the children. I chose not to disclose information I regarded as confidential when [the respondent] was nearby.
It is not controversial that in relation to the current substantive proceedings, matters concerning the applicant’s children, the applicant herself and Ms Knight, will be matters relevant to those proceedings.
The respondent agrees that there was some time that she was not able to hear the conversation that was taking place between the applicant and the solicitor. She puts it at two minutes rather than a large portion of the 30 minutes.
Counsel for the respondent submits that it is not sufficient for the applicant to simply assert that confidential information was given and suggests that what should be in evidence are the actual words used when the confidential information was given in relation to the applicant herself, her children and Ms Knight. Counsel for the respondent developed this argument by suggesting that there was an onus on the applicant to clarify the position by waiving legal privilege. As McMillan points out, that would defeat the purpose for which the injunctive order is sought. No inference can be drawn against the applicant arising from her choice not to waive privilege (see Giannarelli v Wraith [No 2] (1991) 171 CLR 592 at 605 per McHugh J citing Wentworth v Lloyd (1864) 10 H.L.C. 589).
Counsel for the respondent further submitted that there had to be some clear indication that the information given would be relevant in the substantive proceedings. Counsel for the respondent did not attempt to give an example of what type of information that would be, given the applicant was not compelled to disclose to the court privileged information.
The respondent relies upon an assertion that there was no formal engagement of the solicitor by the applicant. There was a request to the solicitor that she provide an invoice for reading what she was sent and her time spent on the matter on 24 April 2013, but no account was ever rendered. The lack of a formal retainer is of no relevance. The threshold is crossed once a lawyer voluntarily receives confidential information in circumstances where advice is sought and particularly in circumstances where advice is then subsequently given. It is not essential that there be a retainer or the provision of legal fees. Two obvious examples were discussed in submissions, namely where advice is provided pro bono at a community legal centre and where a solicitor receives and engages in a cold call enquiry for the purposes of attempting to secure a new piece of legal work.
Counsel for the respondent referred to the “reasonable member of the public” test set out in the fifth dot point at paragraph 76 of Kallinicos. That test applies to the third of the three possible grounds for injunction, namely, the exercise of inherent jurisdiction. If in fact the “fair minded, reasonably informed member of the public” test applies to this fact situation (a test clearly relevant to the exercise of the broader inherent jurisdiction), then the answer will inevitably be that a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner who has received relevant confidences from one person and now acts for a party against that person 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.
Counsel for the respondent suggests that it is a relevant fact that at the time of the telephone conversation between the respondent and the solicitor, the respondent had retained her current lawyers to act for her in these proceedings. It is not uncommon for parties in this jurisdiction to seek a second opinion or the assistance of an available lawyer in anxious circumstances. The fact that the applicant had retained her current lawyers at the time of the telephone conversation with the solicitor is of no relevance.
The respondent in this case is a legal professional with experience in family law. Annexure E to the respondent’s affidavit filed 28 July 2014 is an email dated 6 June 2014 from the respondent to the applicant about a proposed mediation. In that email, the respondent writes:
You mentioned the mediation might be with lawyers as well but given I am without legal representation, I don’t think lawyers should be involved. If you and [Ms Knight’s given name] want to have lawyers there, I could ask [the solicitor] if she would come with me. Would you be comfortable with that?
Given the question in the last sentence, I accept the submission by senior counsel for the applicant that on 6 June 2014 there was a doubt in the mind of the respondent as to whether or not the solicitor should attend the mediation with her given the solicitor’s prior involvement with the applicant.
Parts of the written evidence in the respondent’s case were objected to on the grounds of relevance. That evidence was admitted provisionally. The affidavit of the solicitor asserts at [9] that any confidential information that she received was received by way of email from the respondent and that that was confidential information that had been prepared by the applicant and the respondent jointly. She denies that she received any additional confidential information during the telephone conversation on 24 April 2013 from the applicant. She denies giving legal advice about any relevant issue. The solicitor makes clear at [12(VI)] that she has no independent record of the duration of the telephone call. She seeks at that paragraph to give the impression that at all times the applicant and the respondent participated in the telephone call (which I accept actually lasted 30 minutes). In an email written by the solicitor to the court’s case coordinator on 11 July 2014, the solicitor asserted that she had absolutely no confidential information in relation to the applicant, not already known to the respondent prior to the respondent instructing her in these proceedings. However, the solicitor goes on to acknowledge at [14] that she has subsequently been instructed by the respondent that for some of the time during the telephone conversation on 24 April 2013 the respondent did not hear what was being said by the solicitor. The respondent herself acknowledges that she did not hear everything the applicant said to the solicitor during the conversation ([48] of her affidavit).
Evidence allowed provisionally as to relevance in the respondent’s case should not be read. Those paragraphs substantially contain a denial that the solicitor received confidential information. As the Full Court made clear in McMillan, the court should not embark upon a forensic analysis of conflict in the evidence. An application of this nature should be decided on the basis of the prima facie case brought by the applicant. There is not to be a judicial enquiry as to whether or not an assertion that confidential communication was given is true or false. There is not to be a weighing of conflicting testimony as to what confidences were or were not given when the applicant gives evidence that confidential information has been given.
Without asserting that the respondent was in any way impecunious, counsel for the respondent pointed to the significant wealth of the applicant and suggested that I could take that into account as a discretionary matter, given that the financial effect of an injunctive order would be that the respondent would have to incur costs retaining a new lawyer. This submission is of little weight because once the applicant has satisfied the test set out in McMillan, the discretion should be exercised in the applicant’s favour.
The result will be that the application will be granted and the order made restraining the solicitor from acting.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 September 2014
Associate:
Date: 2.9.2014
5
7
1