Garrey & Crosby

[2007] FamCA 696

FAMILY COURT OF AUSTRALIA

GARREY & CROSBY [2007] FamCA 696

FAMILY LAW - INJUNCTIONS - Restrain solicitor from acting

Kallinicos & anor v Hunt & ors (2005) NSWSC 1181 (22 November 2005)
Prince Jefri Bolkiah v KPMG (1999) 1 All ER 517 at 529
Holborow & Ors v MacDonald Rudder (2002) WASC 265 (15 November 2002)
McMillan and McMillan (2000) FLC 93-048
McGillivray v Mitchell (1998) FLC 92-818
Oceanic Life Ltd v HIH Casualty and General Insurance Ltd [1999] NSWSC 292
Thevenaz and Thevenaz (1986) FLC 91-748

APPLICANT: Ms Garrey

RESPONDENT: Mr Crosby

FILE NUMBER: SYC 2844 of 2007

DATE DELIVERED: 12 July 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 19 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Twigg, solicitor of Adrian Twigg & Co, Solicitors

COUNSEL FOR THE RESPONDENT: Ms Messner

SOLICITOR FOR THE RESPONDENT: J & Partners, Solicitors

Orders

1. That [J] and Partners, and [Mr J], be restrained from acting further for the husband.

2. That the conciliation conference appointed for 9:15 am on 13 July 2007 is vacated.

3. That a further conciliation conference is appointed for 11:00 am on 20 September 2007.

4. That both parties are given leave to approach the Registrars’ Section and request appointment of a different conciliation conference date if 20 September 2007 is unsuitable to them.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2844  of 2007

Ms Garrey

Applicant

And

Mr Crosby

Respondent

REASONS FOR JUDGMENT

Applications and Introduction

1. The parties in these proceedings are Ms Garrey and Mr Crosby.  I shall refer to them for convenience as “the wife” and “the husband” respectively.

2. The husband and the wife are parties to substantive property proceedings. But the immediate proceedings involve an application in a case filed by the wife on 20 April 2007.  In this application, the wife seeks an order to the effect that the firm of solicitors, J and Partners (“the firm”), and Mr J be restrained from acting further for the husband.  This application is opposed by the husband.

Brief Background

1. The wife was born in July 1958 and the husband was born in April 1959.  They commenced cohabiting on 20 December 2001.  They married on 28 June 2003 and they separated on 18 September 2006.

2. There are no children of the marriage. 

History

1. At a time just prior to the parties commencing their cohabitation, Mr J was acting for the husband in relation to family law matters concerning his former wife M.  The wife attended a conference with the husband and Mr J in approximately September 2001.  During the conference the wife asked Mr J some questions.  Mr J said certain things.  There was also subsequent correspondence between the wife and Mr J.

Issues

1. There is an issue between the parties about whether the firm has given advice to the wife. 

2. There is no question that in mid-2001 the firm was acting for the husband in relation to family law matters concerning his former wife M.  It is also common ground that the wife attended a conference with the husband and Mr J in approximately September 2001.  Similarly there is no question that the wife had a concern that if the husband was to live in a home registered in the name of herself and her daughter, this might expose the home to some claim by the husband’s former wife in their property proceedings.  During the conference the wife asked Mr J whether this might be so. 

3. It seems that at this point there is some difference of recollection about what occurred.  In her affidavit the wife said that at this point she recalled Mr J informing the parties that if the husband signed a lease and actually paid the rent stipulated therein then there could be no proprietary interest accruing to the husband and therefore no claim by his former wife upon the property.  The wife said that Mr J said further that with both those arrangements in place, the husband would not acquire a proprietary interest in the property by living there with the wife.  The wife also said that Mr J said that with the tenancy agreement in place, that would be the only information about the wife that the husband’s former wife would be entitled to ask for. 

4. Mr J’s account, communicated to the wife’s solicitors in a letter dated 29 March 2007, was to the effect that upon the wife raising her concern about the possibility of the husband’s former wife having some claim on the property, he suggested she obtain her own legal representation.  Mr J said that from that time the wife instructed … Family Lawyers and that the husband and wife then through their respective solicitors negotiated a residential tenancy agreement under which the husband paid the wife $700 per week for occupation of the property until he reached property settlement with his former wife. 

5. Mr J also recalled that in addition to that conference the only direct contact the wife had with the firm was an email which she wrote to him which he immediately referred to … Family Lawyers.  It was said that there was no basis to suggest that the firm had ever represented the wife or provided advice to her with the exception of Mr J’s suggestion that she obtain her own legal advice. 

6. It is clear that subsequently the wife retained … Family Lawyers to assist her with the preparation of a lease and presumably other advice. 

7. It appears that the assertion by Mr J that the only direct contact the wife had with the firm was the email which he said he immediately referred to … Family Lawyers was incorrect.  No doubt there has been difficulty in endeavouring to recall accurately events which now occurred many years ago. 

8. By early April 2002 the wife engaged the firm in correspondence.  On 8 April 2002 the wife sent an email to the firm, directed to Mr J, asking him some specific questions about the proceedings between the husband and his former wife.  These included questions about whether she was likely to receive a subpoena from the former wife, the likely percentage of adjustment which would reflect the fact that she lived in the same house as the husband, details about her current illness, details of what she described as her lost career including some details of litigation in which she was involved with her former employer, her income, details of her assets, background to her marriage and divorce, various matters in relation to the husband’s former wife and general expression of frustration at being involved in the litigation between the husband and his former wife.

9. Contrary to Mr J’s recollection, he replied by letter the same day to the wife’s email.  In my view, this letter contained legal advice as well as general information.  Mr J prefaced his information and advice with the information that he had spoken to the husband prior to considering her email and that the husband had informed him that it was in order for him to deal with it.  Mr J suggested that if the wife had any residual worries she might arrange a joint conference with the husband and him concerning outstanding matters.  Mr J advised the wife on what a subpoena, if issued, would relate to in terms of documents relevant to her circumstances and any benefits conferred by her on the husband and vice versa.  The letter included advice to the effect that if the Court was to make a determination that her position was a financial resource of the husband’s in Mr J’s view the adjustment would be relatively small in financial terms, if any.  The letter included other areas of legal advice and included the following words:

   “I think it is good that you get independent advice.  It will I am sure reflect my own advice.”

10. The conclusion I reach about all this material is that the wife has sought legal advice from the firm and the firm has provided legal advice to her.  There is no question that some of the information disclosed by the wife to the firm has been of a sensitive nature, particularly information about her then medical condition.  As would be clear from the above, this advice has been sought, and provided, in the context of the retainer by the husband of the firm as his solicitors in the litigation between himself and his former wife.  There is no suggestion that at any time the wife retained the firm as her solicitors. 

11. There was also an issue between the parties concerning an assertion by the wife that she had provided the firm with a table setting out her assets and liabilities.  This was set out at Annexure G to her affidavit sworn on 19 April 2007.  The husband denied that such a document was ever provided to his solicitors and he said that he had perused the file of his solicitors in relation to this assertion and apparently was unable to find any such document.  I was referred to other material in relation to this matter but I find myself unable to make a finding at this point.

12. In any event this is not an essential part of the wife’s case as I see it.

The wife’s case

1. It was submitted by learned solicitor for the wife that there are three bases upon which a Court can restrain solicitors from acting in proceedings.  It was submitted that the first is what is described as the fiduciary basis where a solicitor is acting for the client currently and there is essentially a conflict of interest.  The second is where a solicitor was previously acting for a client and there is a risk of disclosure or misuse of material which is confidential to that former client.  The third is what is described as the Court’s jurisdictional basis, that is that there is an inherent jurisdiction in courts to maintain authority in respect of legal practitioners. 

2. Learned solicitor for the wife referred to these principles being contained in the decision of Brereton J. in the New South Wales Supreme Court case of Kallinicos & anor v Hunt & Ors (2005) NSWSC 1181 (22 November 2005). It was submitted that the third basis does not involve a client or former client of the solicitor and can involve prior association by a solicitor with a person. Learned solicitor for the wife referred to a passage of Heenan J. in the Western Australian Supreme Court case of Holborow & ors v MacDonald Rudder (2002) WASC 265 (15 November 2002) in which the third principle was said to have been set out succinctly. This is at page 10 paragraph 28. After referring to certain comments by Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 concerning counsel’s obligation to the court as being a “paramount duty” Heenan J said as follows:

   If there are circumstances which are likely to imperil the discharge of these duties to a court by a legal practitioner acting in a cause, whether because of some prior association with one or more of the parties against whom the practitioner is then to act, or because of some conduct by the practitioner, whether arising from associations with the client or a close interest which gives rise to the fair and reasonable perception that the practitioner may not exercise the necessary independent judgment, a court may conclude that the lawyer should be restrained from acting, even for a client who desires to continue his service …

3. Learned solicitor for the wife submits that the present case falls within the principles of the second and third bases for restraining legal practitioners from acting for a client.

4. Learned solicitor for the wife referred to the following passage in the House of Lords case of Prince Jefri Bolkiah v KPMG (1999) 1 All ER 517 at 529:

   Once the former client has established that the defendant firm is in possession of information which was imparted in confidence and that the firm is proposing to act for another party with an interest adverse to his in a matter to which the information is or may be relevant, the evidential burden shifts to the defendant firm to show that even so there is no risk that the information will come into the possession of those now acting for the other party.  …

5. Learned counsel for the wife also referred to the decision of the Full Court of this Court in the case of McMillan and McMillan (2000) FLC 93-048 as authority for the principle that the narrow or English approach which involves a court only intervening to restrain a solicitor if it is convinced that real mischief and real prejudice will follow if the solicitors are allowed to continue to act is not the appropriate test in family law proceedings. But rather it is sufficient if a party swears that he or she has conveyed confidential information to his or her solicitor and he or she believes that information may be used to his or her disadvantage in the proceedings. The Full Court said that there only needs to be a theoretical risk of prejudice rather than actual proof of prejudice.

6. Learned solicitor for the wife referred to the letter from Mr J dated 8 April 2002 referred to above and indicated that clearly this contained advice.  It was submitted on behalf of the wife that true it is that from April 2002 the wife instructed separate solicitors namely … Family Lawyers.  But it is submitted that this does not detract from the fact that Mr J gave advice to the wife.  The wife imparted to Mr J matters relating to her illnesses and other confidential matters. 

7. It was submitted that under the principle in the Prince Jefri case referred to above the burden fell on Mr J to provide clear evidence that no disclosure of the material provided by the wife would occur.  It was submitted that no evidence on affidavit has been filed in the wife’s case by Mr J.

The husband’s case

1. It was submitted on behalf of the husband that there was no formal relationship of solicitor and client between Mr J and the wife.  It was submitted that the wife merely attended a conference during the course of which a tenancy agreement was discussed.  It was submitted that, as the husband said in his affidavit, the wife simply accompanied him to the conference.  In relation to the correspondence contained in the emails and the letter from Mr J to the wife dated 8 April 2002 learned counsel for the husband said that the wife’s emails were unsolicited and not sent to Mr J in accordance with any formal retainer.  In any event, it was submitted that Mr J’s letter was sent in the context of him having sought the approval of the husband to communicate with the wife.  It was submitted to the extent that the letter contained information that this was really general information in relation to requirements in respect of a de facto relationship and that in any event the wife was informed that she should obtain independent advice.  It was submitted that the wife had her own lawyers.  Learned counsel for the husband referred to the wife as saying that she had only instructed … Family Lawyers in relation to a subpoena apparently directed to the Commonwealth Bank of Australia as the wife’s employer.  But learned counsel for the husband submitted that an email from the wife to Mr J dated 9 April 2002 suggested that the wife was consulting … Family Lawyers in respect of matters which were much more broad than only the subpoena. 

2. In any event it was submitted that the material contained in the wife’s emails was no longer confidential because the wife had annexed them to her affidavit and tendered some originals in these proceedings.  Accordingly, it was submitted that they are now a matter of public record.

3. It was submitted that … Family Lawyers assisted the wife in negotiations with the husband’s solicitors concerning the possibility of the husband and wife entering into a financial agreement.  It was submitted that during the course of such negotiations the wife did not raise at any time that Mr J was in any relationship which could be in conflict with the wife’s interests.  Accordingly, it was submitted that the wife has delayed raising her objection to Mr J.

4. Learned counsel for the husband also submitted that the personal matters concerning the wife’s medical condition and the other matters about which the wife had provided information to Mr J were not matters of any substance and therefore would not be significant in the current litigation.

5. Learned counsel for the husband submitted that if the Court found against her and considered that there is a basis for restraining the solicitor then the wife should not succeed in obtaining the injunction in circumstances where she has delayed in raising this matter with the husband’s solicitors.  It is submitted that the wife did not raise any objection to the firm’s acquiescence and delay and therefore the wife should be precluded from now raising this objection.  In this regard, learned counsel for the husband points to the decision of the Full Court of this Court in McGillivray v Mitchell (1998) FLC 92-818. I shall deal with this below.

Discussion

1. Despite the vigorous submission on behalf of the husband to the contrary, in my view Mr J provided legal advice to the wife, at least pursuant to his letter dated 8 April 2002 in reply to the various questions of the wife set out in her email.  It appears that at approximately this time the wife instructed … Family Lawyers to act on her behalf.  And it appears that these solicitors assisted the wife with advice both in relation to the matter of a subpoena either addressed to her or to the Commonwealth Bank as well as in negotiations on behalf of the wife with the firm as the husband’s solicitors.  Apparently such negotiations did not culminate in any binding financial agreement between the parties.

2. But more significantly in my view, at a time prior to the wife retaining … Family Lawyers to act on her behalf, the wife engaged

   
   

   Mr J in oral discussions and written communications about her circumstances, during the course of which details of the wife’s financial circumstances and, in particular, various details concerning her state of health and illnesses passed from the wife to Mr J.

3. As submitted by learned solicitor for the wife, it is clear from the decision of the Full Court of this Court in the case of McMillan and McMillan (above) that two approaches have developed in this area concerning restraints on legal practitioners.  These were described by the trial judge in that case, Wilcek J, as the “narrow” or “English” approach and the “broader” or “family law” approach.  These were described as follows at pages 87,718 and 87,719:

   The first approach was described as being either the ‘narrow’ or ‘English approach’ with numerous authorities referred to, with a suggestion that a court would only intervene when it is convinced both that a confidence has been reposed in a lawyer by a former client, and that it is probable that this confidence will be used in the subsequent proceedings to the disadvantage of the former client.  On that approach the court would ignore theoretical risks.

   The second approach was referred to as being a ‘broader’ or ‘Family Law’ approach where it was said that the court will intervene if there is ‘a reasonable apprehension that confidential information has been given to a lawyer by a former client and that there is at least a theoretical possibility that this information might be used to the disadvantage of that client’.  To that end earlier decisions were referred to such as that of Justice Frederico in Thevenaz (1986) FLC 91-748, Rourke J in Magro (1989) FLC 92-005; Smithers J in A and B (1990) FLC 92-126; Mullane J in both Griffiths (sic) (1999) (sic) FLC 92-233 and Kozatz (sic) (1993) FLC 92-386.

4. In McMillan the Full Court undertook a quite detailed review of numerous authorities both in this Court and other Courts concerning restraint of legal practitioners.  Ultimately, the Full Court endorsed the “broader approach”.  It said at page 87,733 as follows:

   To the extent that it is necessary in this case for us to express a concluded view … we would support the application in this jurisdiction of the approach of Frederico J in Thevenaz (following Mills) which was adopted by Mullane J in Griffis and in Kossatz (and also by Lindenmayer J in the unreported case of Stewart to which we will shortly refer).  We would do so for the reasons related to the sensitive nature of the jurisdiction which were referred to by Bryson J in D & J Constructions and by Rourke J in Magro, and indeed also by Wilczek J in the present case.

1. Earlier in the judgment (at page 87,725) the Full Court had set out the essence of Frederico J’s approach in Thevenaz in the following passage:

   41. In Thevenaz, Frederico J was prepared (if required) to restrain a solicitor, Mr Dezarnaulds, from acting on behalf of the wife in property settlement proceedings against the husband where that solicitor had previously been in partnership with another solicitor, Mr Halliday, who had handled conveyancing matters for the husband and the wife.  In the course of his reasons for judgment, Frederico J said …

   “The problem, however, is that it is the practitioner's duty to put at his client's disposal, not only his skill but also his relevant knowledge, and if he is not prepared to make that knowledge available, he should not act.  (See Spector v Ageda (1973) 1 Ch 30.) Mr Dezarnaulds is thus under a duty to make available to his client such information as may appear from the files of the parties formerly kept by Mr Halliday which are in Mr Dezarnaulds’ possession or power.”

   In the Full Court of Queensland in Mills v Day Dawn Block Gold Mining Company Ltd; In re Marsland (1882) QLJ 62 at p 63 Lilley CJ said:

   “It was the duty of the attorney not to place himself in such a relation as might lead to there being even an unwitting breach of duty.  Here they found a man retained by a party who was in direct opposition to the interest of his client, an interest upon which he had previously actually advised, and Mr Mills was therefore entitled to the protection of the court.  Upon the main question, whether any confidence had in fact been imparted to Mr Marsland by Mr Mills, there was a conflict of testimony.  If they (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.”

   Thus ‘a practitioner who wishes to cease acting for one party and to continue to act for the other party will be restrained from doing so by the court if there is any evidence that confidential communications have been made to him by the party for whom he is ceasing to act. In such a case the court will not weigh conflicting evidence as to confidence. It will act upon the evidence of the client who swears that he has made the confidential communication’. (See Legal Profession Law and Practice in Victoria (Gifford) 1980 ed. at p 356.)

   I must say that at first sight it appeared to me that in a case of this nature the matter should be resolved by the relevant Law Society.  However, although Mr Dezarnaulds is entitled to practise in the Family Court of Australia pursuant to the provisions of Pt VIIIA of the Judiciary Act 1903, he has not sought to argue that the Court lacks power to restrain a solicitor from acting on behalf of a client.  Every court has control of its own procedure and it is apparent from the decision in Mills’ case to which I have referred, and from other cases arising in somewhat differing circumstances, that the Court has the power to restrain.

   It is my view that in this case Mr Dezarnaulds should not continue to act on behalf of Mrs Thevenaz.  It may well be that the risks were he to do so are more theoretical than practical.  However, it is asserted and not contradicted that material in the files does relate to confidences exchanged in the course of the former firm previously acting on behalf of both parties and would embarrass the husband.  It is of the utmost importance that justice should not only be done but should appear to be done.  In the circumstances of the present case, there is a risk which may well be merely theoretical but still exists, that justice might not appear to be done.”

2. In my respectful view, the following passage in McMillan (at page 87,734) is also instructive:

   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 D] 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 D], 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.”

3. In the present case, it is clear that at no time was there any formal arrangement between Mr J and the wife as solicitor and client respectively.  In fact, as indicated above, Mr J had informed the wife, both at the conference when her affairs were discussed and in his letter dated 8 April 2002 Mr J had informed the wife that she should seek independent legal advice in relation to matters about which she was concerned.

4. In my view, however, it is clear that the wife has imparted to Mr J confidential information which, even though many years have passed, might well be relevant in the substantive proceedings between the parties.  What the significance of such information might be in negotiations between the parties or, indeed, if it became evidence in the proceedings is far from clear at this point.

5. In any event, in my view, it is not essential to the wife’s case that Mr J had acted as the wife’s solicitor in a formal sense.  Such would have been necessary in order for the wife to be able to bring her case within the first of the three bases of power to restrain legal practitioners as referred to by Mr Twigg at paragraph 18 above.

6. I accept the submissions of learned solicitor for the wife that the wife’s case falls within the second and third bases referred to by him.  As indicated above, the second of these is that a Court has power to restrain a practitioner where there is a risk that confidential information conveyed to the practitioners by a person, usually a former client, may be used against that person.  The third is the Court’s inherent jurisdiction to supervise legal practitioners in the public interest of maintaining confidence in the proper administration of justice.  That is that justice will be seen to be done.

7. In addition to the passage from Holborow (above) cited by learned solicitor for the wife and referred by me at paragraph 19 above, this third principle can be illustrated by the following passage in the judgment of Austin J in the case of Oceanic Life Ltd v HIH Casualty and General Insurance Ltd (1999) NSWSC 292.

   In addition to fiduciary duties and the duty not to misuse confidential information, a solicitor who acts in litigation owes a relevant legal duty to the court, as well as an ethical duty.  The duty to the court arises from the court’s concern that it should have the assistance of independent legal representation for the litigating parties:  see D A Ipp, “Lawyers’ Duties to the Court” (1998) 114 LQR 63,93.  In the realm of conflicts of interest and conflicts of duty, the solicitor’s duty to the court may not be much different from his or her fiduciary duties to former and present clients.  However, the duty to the court tends to be expressed in such a way as to emphasise the public interest in preserving confidence in the administration of justice, and therefore in the appearance as well as the reality of independence, and the court’s practical approach to its supervisory discretions …

8. At this point I shall deal with the submission by learned counsel for the husband that the information in the emails sent by the wife to Mr J can no longer be regarded as confidential because the wife has put this material into the public arena by annexing the emails to her affidavit and tendering emails in these proceedings.  It is submitted that in these circumstances the relevant principles of law cannot apply.

9. I must say I am not persuaded by this submission.  In my view, there are difficulties with it.  If this submission was correct, it is difficult to see how a person in the position of the wife could establish a case without putting the relevant material in her evidence.  Also, as I indicated during the course of submissions, in an appropriate case the Court could make orders in effect quarantining the material so that at least to some extent it was not able to be used against the wife.  In any event, the emails did not contain the entirety of the material about which the wife is concerned.  So that in my view, the principles still have application in this case.

10. Having determined that the wife’s case comes within the relevant principles which enable the restraint to be ordered I am mindful that the Court has a discretion whether or not to make the order sought.

11. In this regard it has been submitted on behalf of the husband that the wife has not acted with appropriate diligence in making her objection known to the firm. 

12. Learned counsel for the wife referred to the decision of the Full Court of this Court in the case of McGillivray v Mitchell (above).  In that case the husband had sought an order restraining the wife and her solicitor from instructing a certain practitioner from representing the wife in circumstances where the practitioner had previously acted for the husband.  The Full Court upheld the trial judge’s refusal to make the order.  But this was clearly on the basis that in the exercise of the Court’s discretion, the Court decided that the husband had delayed in taking steps to have the practitioner restrained.

13. At page 85,304 the Full Court said as follows:

    34.  In the present case we consider that the husband’s failure to make any protest to the other side regarding Mr Dowding’s involvement, or to take steps to have Mr Dowding restrained from acting for the wife, at or very close to the point in time when he became aware of Mr Dowding’s involvement, is a most relevant consideration which would have to be taken into account adversely to the husband on whichever approach was adopted. 

    35.  We take this view because it seems to us that if the husband genuinely believed that Mr Dowding had information concerning his affairs (imparted to him by the husband when they were in a solicitor-client relationship) or that Mr Dowding had gained insights into his character or personality, and that such information or insights could now be used against the husband, the husband would not have permitted Mr Dowding to be involved in the settlement negotiations.  It is difficult to see why the husband would not feel equally at risk (if his fears and apprehensions are genuine) whether Mr Dowding was acting for the wife in settlement negotiations or in court proceedings - indeed it could well be argued that the husband should  have been more uncomfortable having his former solicitor acting against him in settlement negotiations.  Questions must also arise concerning the genuiness of the husband’s alleged apprehensions regarding Mr Dowding’s knowledge and insights, when regard is had to the fact that a number of appearances by Mr Dowding in interlocutory proceedings went unchallenged.

    36.  It is our opinion that if a family law litigant has a genuine concern about a former legal adviser acting against him or her in later family law litigation, the litigant must take the point at least in correspondence with the other side at the earliest possible opportunity.  If he or she does not do so, then he or she is possessed of a weapon which can later be used as a delaying tactic at some point in the proceedings convenient to his or her position.  Furthermore a failure to take the point initially must also cast doubt on the bona fides of any later complaint concerning the existence of confidential information in the practitioner in question, and on the bona fides of any alleged apprehension regarding the possible mis-use of such confidential information.

14. In the present case, learned counsel for the husband submitted that, on the basis of this authority the wife should have informed Mr J of her objection to him acting for the husband at the time she was instructing … Family Lawyers in relation to negotiations about the binding financial agreement.  This was in 2002.

15. I must say, notwithstanding what was said in McGillivray, I do not accept that the failure of the wife to take objection to Mr J in 2002 stands properly in the way of her now taking such objection.  Each case is to be considered on its own facts.  In my view, the facts in McGillivray are different from those in the present case.

16. In 2002, the wife had different solicitors acting for her.  At that time, the wife was endeavouring to negotiate with the husband who was at that time the person with whom she was living apparently in a serious intimate relationship and a relationship which became solemnised by marriage the following year.  The subject of their negotiation was whether or not they would enter into a binding financial agreement and the terms of such agreement.  As it turned out, they did not make a binding financial agreement.

17. In my view, this is quite a different situation from that in McGillivray.  In McGillivray the parties had separated and were clearly involved in litigation.  The Full Court did say that it was difficult to see why the husband in McGillivray would not feel equally at risk whether the practitioner was acting for the wife in settlement negotiations or in court proceedings.  With respect to the Full Court, I think there can be some differences.  But in the present case, as I have said, in my view, settlement negotiations between the husband and the wife six years ago about a different matter from their current litigation, when their relationship was intact, is a quite different situation from that which was before the Full Court in McGillivray.

18. In relation to the submission that the wife failed to raise her objection within a reasonable time after the parties separated, as I have said the parties separated in September 2006, there was correspondence between solicitors commencing in December 2006 and the wife raised her objection in March 2007, that is less than three months after correspondence commenced.  Bearing in mind that this period fell across the traditional Christmas / January holiday period, in my view, it cannot properly be said that the wife has delayed in acting to bring about restraint of Mr J.  The position in McGillivray was quite different.  In that case the practitioner concerned had been appearing in court hearings over a period of some seven months before his involvement was objected to.  Clearly the complainant in that case had let the proceedings develop over considerable time before raising his complaint. 

19. Clearly a part of the concept of the delay or laches goes to the importance of a person in the position of the wife in these proceedings not using delay as a weapon to be used against the husband in the litigation in the sense of permitting him to go to the expense and inconvenience of preparing his case to an advanced stage and then raising the objection as part of a strategy to cause delay or inconvenience or as a bargaining tool in negotiations.  I have no sense of that here.

20. But clearly the Court must take into account the fact that the husband should be free to choose his legal representatives and the extent to which constraint on him to do this might cause him prejudice.  Mr J acted for the husband in relation to the breakdown of his first marriage.  They have been associated as solicitor and client over quite some years.  The husband’s case in the present substantive proceedings has been prepared to the point where the husband is ready to participate in a financial conciliation conference.  I understand that there is some level of complexity about the husband’s financial affairs.  Having said this, clearly the husband’s case has not been prepared for trial and one would anticipate that if the parties are unable to resolve it soon, a considerable further amount of preparation will be required. 

21. In these circumstances, while the restraint sought by the wife would cause inconvenience, perhaps even considerable inconvenience, to the husband there is sufficient time for other legal representatives to be retained and instructed.  Unfortunately the financial conciliation conference appointed to be held within days will have to be vacated. 

22. I would not regard the loss of the firms’ knowledge and the inevitable inconvenience which would be caused to the husband by making the order sought as being oppressive.

23. In my view, there is a higher interest which must be served than the husband’s right to maintain his representatives of choice and that is the importance of the proper administration of justice.

24. In all these circumstances, in my view, the wife has established her case for the injunctions.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judicial Registrar W P Johnston.

Associate:     ____________________

Date:              12 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GARREY & CROSBY