Evert & Pascal
[2021] FedCFamC2F 291
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Evert & Pascal [2021] FedCFamC2F 291
File number(s): ADC 5265 of 2020 Judgment of: JUDGE C KELLY Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – procedure – application to restrain solicitor from further acting in the proceedings – where solicitor may be a witness in Court proceedings – relevant legal principles – no conflict with the Court’s obligation to maintain the integrity of the judicial system – application dismissed. Legislation: Australian Solicitors’ Conduct Rules (2011) R17.1, R27.1, 27.2 Cases cited: Grimwade & Meagher [1995] 1 VR 446
Kallinicos v Hunt [2005] 64 NSWLR 561
Osferatu & Osferatu [2015] FamCA FC 177
Gratton & Gratton & Anor (No 3) [2014] FamCA 839
Wong & Shen & Ors [2016] FCCA 1443
Abdou & Ahmed [2018] FamCA 396
Burns & Sellers [2018] FamCA 91
Evert & Pascal [2021] FCCA 496
Division: Division 2 Family Law Number of paragraphs: 38 Date of last submission/s: 8 September 2021 Date of hearing: 8 September 2021 Counsel for the Applicant: Mr M Anderson Solicitor for the Applicant: Belperio Clark Counsel for the Respondent: Ms A James Solicitor for the Respondent: Wadlow Solicitors Counsel for the Independent Children’s Lawyer: Ms A Horvat Solicitor for the Independent Children’s Lawyer: Norman Waterhouse ORDERS
ADC 5265 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EVERT
Applicant
AND: MS PASCAL
Respondent
ORDER MADE BY:
JUDGE C KELLY
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The husband’s application to restrain Mr John Wadlow and Wadlow Solicitors Pty Ltd from further representing the wife in these proceedings is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Evert & Pascal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE C KELLY
The issue for determination before the Court relates to the husband’s application seeking to restrain the wife’s present solicitors, Wadlow Solicitors, from continuing to represent her in these proceedings. The wife opposes the application.
The application was first raised as an oral application in a hearing on 21 June 2021 before Judge Kari (as she then was). Her Honour allowed the oral application to proceed and adjourned the hearing for further submissions on 23 June 2021. Judge Kari also ordered Counsel to exchange a List of Authorities to be relied upon and to provide same to the Court.
That hearing also dealt with two further applications by the wife, seeking first, that Her Honour disqualify herself in this matter and second, that Counsel for the husband, Mr Anderson, be restrained from further representing him. The wife no longer pursues that second application in relation to Mr Anderson. For reasons that do not concern this present application, Judge Kari granted the wife’s application for disqualification.[1] The proceedings were then transferred to my docket. In those circumstances I allowed Counsel to file “dot point” submissions in addition to relying upon the transcript of submissions made before Her Honour on 23 June 2021.
[1] Evert & Pascal
The husband’s application is brought on two grounds:
(1)That Mr John Wadlow and his employee, Mr U, have established a commercial relationship with the wife, which compromises their capacity to represent her and still meet their obligation, as officers of the Court, to give independent advice.
(2)That the principal of Wadlow Solicitors, Mr John Wadlow, may become a material witness in these proceedings, or in criminal law proceedings relating to an alleged breach of an existing Intervention Order.
BACKGROUND
The background to the parties’ relationship and the present dispute before the Court was summarised by Judge Kari in her Reasons for Judgment published on 25 February 2021 and I adopt her summary.[2] It is clear from the parties’ Affidavits that allegations of family violence are a significant issue in dispute between the parties. The husband has been charged with serious sexual offences in relation to the mother and the parties’ second child Y, although the charges in relation to Y have since been withdrawn.
[2] Evert & Pascal [2021] FCCA 496, paras 26 – 46
The wife is protected by an interim Intervention Order issued 6 January 2021. Paragraph 5 of that Order restrains the husband from entering or remaining within 200 metres of any boundary where the protected person stays, resides or works. The wife holds professional offices located in V Street, Adelaide. Wadlow Solicitors are also located in that same building. On 1 June 2021, Mr John Wadlow took a photograph allegedly showing the husband within 200 metres of V Street, in breach of the Intervention Order. The photograph is a back view of a male person.[3] The wife says Mr Wadlow informed her that the person had previously turned around and he recognised the husband, hence he took the photograph.[4]
[3] Wife’s Affidavit filed 18 June 2021 at para.25 and Annexure 4
[4] Ibid
The husband has denied on oath that he is the person in the photograph and this is now clearly a matter of contest between the parties both in any potential Magistrates Court proceedings and in this Court.
The husband further argues that the wife and Mr U have established a business together, Company W. The business name was registered in 2021 and is held by Wadlow Solicitors Pty Ltd.
The husband argues that the wife has entered into a commercial relationship with her solicitors through the business Company W and that the status of this business, and the financial arrangements between the wife and Wadlow Solicitors (and/or Mr U) must compromise her solicitor’s capacity to provide robust, independent advice to her. The husband further argues that the business dealings may also become an issue in relation to financial proceedings in this Court.
The wife disputes this. She argues that while a business name has been registered, the business has not been launched and is not trading. In addition she says that she has no legal or equitable interest in the business.
Accordingly, the wife argues there is no conflict and no impact upon her ongoing representation by Wadlow Solicitors.
RELEVANT LEGAL PRINCIPLES
It is well established that there are three bases upon which solicitors may be restrained from acting for their client:
·Breach of confidence
·Breach of fiduciary duty
·The jurisdiction of the court over its officers and its process.[5]
[5] Osferatu & Osferatu [2015] FamCA FC 177 at para 20
The husband relies upon the third ground in pursuing this application. In Kallinicos v Hunt [2005] 64 NSWLR 561 the principles involved in the application to restrain the solicitor from acting for a client were summarised by Brereton J at [76] as follows:
•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.
•The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
•The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
•Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
•The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.
In Gratton & Gratton & Anor (No 3) [2014] FamCA 839, the Honourable Justice Cronin noted that the test facing the Court is whether:
36. … a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be prevented from acting for a client (see Spincode Pty Ltd v Look Software and Grimwade v Mergher [citations excluded]).
37. The test involving the fictional member of the public is an objective test based on what the general public could expect of the administration of justice (op cit Grimwade v Mergher).
38. Whilst litigants should not be deprived of their choice of representation without good cause and the power of the Court should be exercised very cautiously, the public’s interest in the administration of justice must override that right of legal representation. It is not just the administration of justice but also the public’s confidence in the legal profession and, if that is seen to be undermined, the Court should intervene.”
These are serious principles that go to the essence of our justice system and the role of legal representatives in the administration of justice. This is confirmed by reference to the Australian Solicitors’ Conduct Rules (2011) (the “Conduct Rules”) as follows:
Rule 17 Independence – Avoidance of Personal Bias
17.1 A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.
Rule 27 – Solicitor as Material Witness in Client’s Case
27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.
27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.
The authorities cited by Counsel reinforce and clarify the operation of the Conduct Rules. As is clear from decisions such as Wong & Shen & Ors [2016] FCCA 1443 and Abdou & Ahmed [2018] FamCA 396, the Court’s jurisdiction to restrain a solicitor from acting depends upon an assessment of the conduct or circumstances that are alleged.
In Wong & Shen & Ors, the wife’s solicitor had previously acted for both parties, before commencing a de facto relationship with the wife. In those circumstances Judge Roberts had no difficulty concluding that a “fair-minded, reasonably informed member of the public” would question the solicitor’s capacity to bring an objective approach to the matter.[6] In Abdou & Ahmed[7], the wife argued that two partners in the law firm representing the husband were family friends and therefore that firm should be restrained from representing him. Justice Foster was not satisfied that the pre-existing friendship with the family was a sufficient basis to restrain the law firm from representing the husband.
[6] Wong & Shen & ors [2016] FCCA 1443 at para 22
[7] Abdou & Ahmed [2018] FCCA FamCA 396
By contrast, in Burns & Sellers [2018] FamCA 91, Justice Foster reached a different conclusion. In that case, the solicitor was the husband’s brother-in-law. He was witness to, and allegedly involved in, an episode of familial conflict that occurred at a handover. His Honour concluded that the close family relationship, combined with a real prospect of the solicitor being a material witness and having potentially lost objectivity surrounding the litigation, was sufficient to restrain the solicitor from representing the husband further.[8]
[8] Burns & Sellers [2018] FamCA 91, para 51
DISCUSSION
The question to be determined by the Court is: would a fair minded, reasonably informed member of the public conclude that the proper administration of justice requires the Court to restrain Mr John Wadlow and Wadlow Solicitors from acting for the wife?
The two grounds argued by the husband should be addressed separately.
Is there a conflict of interest arising from the business Company W?
In 2021 Wadlow Solicitors Pty Ltd registered the business name of Company W.[9] The purpose of the business was to establish a practice operated by Mr U and the wife, offering various professional services. The business created a website advertising the range of services that would be provided by Mr U and the wife in their joint practice.
[9] See Exhibit H2
Counsel for the husband argues that the website leaves the reader in no doubt that the wife and Mr U are running a business together. He argues that the wife is in a commercial endeavour with Mr U, through a business name owned by Wadlow Solicitors Pty Ltd, a situation which must call into question the degree of separation between the wife and Wadlow Solicitors. Given this level of commercial involvement, Counsel further argues that Wadlow Solicitors are unable to fulfil one of their primary duties to the administration of justice, which is to exercise independent judgment in the interests of the court, not to be a mere agent for the litigant.[10]
[10] See Bosgard & Bosgard [2013] FamCA 308, para 32
The wife acknowledges that the business name was registered and a website created, but argues that is the extent of the project. Counsel for the wife submits that the business is not trading, there are no financial statements and the wife has made no financial contribution to the entity, such as it is. Counsel argues it was only ever intended that the wife would be engaged as a consultant and therefore there can be no suggestion that Wadlow Solicitors are compromised in representing her whilst also meeting their professional obligations to the Court.
It is an unusual situation for a solicitor to enter into a commercial relationship with their client. It may be unwise on the part of a solicitor to do so while proceedings are on foot, but that circumstance would not necessarily compromise the administration of justice. I am not satisfied that an order restraining the solicitor from acting is required, particularly where the client is to be engaged as a contractor, and where the business is not actually trading.
The Court’s view may be different if the business of Company W was operational, as there may be financial implications that are relevant, but that is not the situation here. I conclude that the registration of the business name Company W does not provide a basis to restrain Mr John Wadlow or Wadlow Solicitors Pty Ltd from representing the wife.
I note reference was made in submissions to the pre-existing social relationship that existed between the wife and Mr U, but the husband does not seriously contend that this friendship is a relevant factor, particularly as the wife is formally represented by Mr John Wadlow.
John Wadlow as a potential witness
The wife raises serious allegations of family violence and stalking behaviour by the husband, particularly in the period post separation. As mentioned, she has the benefit of an Intervention Order. The husband is also subject to a bail agreement in similar terms, arising from the serious criminal charges laid against him. The charges relating to the wife remain ongoing.
The wife alleges that the husband has breached the Intervention Order on numerous occasions. The husband denies the wife’s allegations and says he will be contesting the allegations in both Courts.
It is clear that the wife will be relying upon the photograph taken by Mr John Wadlow in support of one such allegation – that the husband was in breach of the Intervention Order by attending in the vicinity of her workplace on 1 June 2021.
Counsel for the wife argued that Mr Wadlow was unlikely to be required to give evidence about this photograph, as the wife can identify the husband as the person within the photograph, but I disagree. In the event the husband is charged with a breach of the Intervention Order arising from this incident, the timing and circumstances of the photograph and the identity of the photographer will need to be established.
The wife can give evidence as to the identity of the husband in the photograph (noting that this is denied by the husband) but she cannot give firsthand evidence as to the creation of the photographic image itself. Only Mr Wadlow can give that evidence. Similarly, only Mr Wadlow can attest to allegedly seeing the husband’s face prior to taking the photograph.
The same issues arise for proceedings in this Court, although it must be acknowledged that a lower standard of proof applies. If either case proceeds to trial, it is likely Mr John Wadlow will be called as a witness. The alleged breach of an Intervention Order is a serious matter. The wife’s allegations of harassment and stalking behaviour by the husband are equally serious matters in the primary parenting dispute before this Court.
Rule 27.2 of the Conduct Rules makes it clear that being a material witness, of itself, is not sufficient to disqualify a solicitor from ongoing representation. The circumstances must in some way prejudice the administration of justice.
The authorities are also clear that the power to disqualify a solicitor should be used very sparingly. Having considered this matter carefully, and taking into account submissions from both counsel, I conclude that a fair minded, reasonably informed member of the public would not consider that Mr John Wadlow’s potential involvement as a witness may prejudice the proper administration of justice.
The present scenario can be distinguished from cases such as Kallinicos & Hunt (supra). In that case, as with other relevant authorities, the solicitor’s own professional conduct was the subject of their anticipated evidence, which creates a greater potential for conflict with their duty to the court, or to their client.[11] In this matter, the events of 1 June 2021 remain a controversy to be determined, but Mr Wadlow’s evidence is limited to his observations; he is not an active participant in any other way.
[11] Kallinicos v Hunt [2005] NSWSC 1181 at 78-86
Any court subsequently considering this issue will assess his evidence in the usual manner. Whether a Court ultimately makes any findings based on Mr Wadlow’s evidence will depend on a range of factors. A finding to the contrary would not necessarily bring his professional integrity into question, nor would it compromise his obligations to his client, or as an officer of the court. In my view, the potential for Mr John Wadlow to give evidence about his observations on 1 June 2021 does not jeopardise the integrity of the judicial process and would not cause disquiet to the fictional fair minded, reasonably informed person.
I conclude that there is no basis to restrain Mr John Wadlow and Wadlow Solicitors Pty Ltd from further representing the wife in these proceedings.
CONCLUSION
For the reasons set out above, the husband’s application to restrain Mr John Wadlow and Wadlow Solicitors Pty Ltd from representing the wife is dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C Kelly. Associate:
Dated: 4 November 2021
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