FAMILY LAW – INJUNCTIONS – Legal practitioners – where solicitor moved from firm representing husband to firm representing wife – application to restrain wife's solicitors from continuing to act for her – confidential information – significance of "getting to know you" factors – effectiveness of "information barrier" – consideration of Full Court's decision in Osferatu v Osferatu (2015) 53 Fam LR 433 – ruling that wife's solicitors should not continue to act for her

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Hooper SC
Respondent: Dr Dickey QC

Solicitors:

Applicant: Law Firm B
Respondent: Law Firm A

Case(s) referred to in judgment(s):

Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2007] NSWSC 350
Billington & Billington (No 2) [2008] FamCA 409
Black v Taylor [1993] 3 NZLR 403
Holborow v Macdonald Rudder [2002] WASC 265
In the Marriage of R A and E Thevenaz (1986) 11 Fam LR 95
Ismail-Zai v The State of Western Australia (2007) 34 WAR 379
Kallinicos v Hunt (2005) 64 NSWLR 561
Karapataki & Karapataki [2011] FMCAfam 6
Mancini v Mancini [1999] NSWSC 800
Martin v MacDonald Estate (Gray) [1991] 1 WWR 705
McMillan & McMillan [2000] FamCA 1046
Mintel International Group Limited v Mintel (Australia) Pty Ltd [2000] FCA 1410
Osferatu v Osferatu (2015) 53 Fam LR 433
PhotoCure ASA v Queen's University at Kingston [2002] FCA 905
Pond & Thurga (No 2) [2007] FamCA 587
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222
State of Western Australia v Ward and Ors (1997) 76 FCR 492
Stewart & Stewart (unreported, Family Court of Australia, Lindenmayer J, 17 April 1997)
Yunghanns v Elfic Ltd (Unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)
Zalfen v Gates [2006] WASC 296

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1This is an application for orders restraining a firm of solicitors from continuing to act for their client in these proceedings. The applicant is [Mr Foley]. The firm of solicitors is [Law Firm A].
2Mr Foley married [Ms Foley] [in] 2000. They separated in April 2014 and divorced in September 2015. There are four children of the marriage, aged between 9 and 15.
3Although they are now divorced, I shall refer to Mr Foley as "the husband" and Ms Foley as "the wife" because it is more convenient and less confusing than referring to them in other terms. I mean them no disrespect by doing so.
4At all material times, the husband has been represented by [Law Firm B] and the wife has been represented by [Law Firm A].
5The husband and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FOLEY and FOLEY

Details

AGLC: FOLEY and FOLEY [2016] FCWA 41
Case: [2016] FCWA 41
Decision Date: 10 JUNE 2016

CaseChat Overview and Summary

In the Family Court, Foley sought an injunction against his ex-wife's legal representatives to prevent them from acting for her in ongoing family law proceedings. The solicitor who had been representing Foley had left his former firm to join the firm now acting for his ex-wife. Foley argued that this constituted a conflict of interest and that confidential information had been improperly accessed. The court was required to determine whether the ex-wife's solicitors were bound by any confidential information from Foley's former firm and whether an injunction was warranted to prevent the ex-wife's solicitors from continuing to act.

The court considered the Full Court's decision in an earlier case, which held that an injunction would only be granted if the former solicitor was privy to confidential information that could advantage the opposing party. The court examined the nature of the relationship between the solicitor and Foley, including the "getting to know you" factors that contributed to the solicitor's understanding of Foley's case. The effectiveness of the information barrier established by the former firm was also scrutinised. The court concluded that the former solicitor had not obtained any confidential information that would benefit the ex-wife's case, and that the information barrier was sufficient to prevent any such information from being disclosed.

The court found that there was no basis for an injunction as the ex-wife's solicitors were not privy to any confidential information from Foley's former firm. The court held that the "information barrier" was effective in preventing any such information from being disclosed. The application for an injunction was dismissed, and the ex-wife's solicitors were allowed to continue to act for her in the proceedings.

Orders