Garrey & Crosby

In the Family Court of Australia at Sydney, Ms Garrey (the wife) applied to restrain the firm of solicitors, J and Partners, and Mr J (the firm) from continuing to act for Mr Crosby (the husband) in substantive property proceedings. The wife contended that the firm, and specifically Mr J, had previously provided her with legal advice and received confidential information from her, creating a conflict of interest and a risk of prejudice to her in the current proceedings. The husband opposed this application, arguing that no formal solicitor-client relationship existed between the wife and the firm, and that any information provided by the wife was either general, not confidential, or had been made public.

The court was required to determine whether the firm should be restrained from acting for the husband, considering the wife's assertion that she had imparted confidential information to Mr J. This involved assessing whether a solicitor-client relationship, even an informal one, had been established, and whether the principles governing the restraint of legal practitioners in family law proceedings were engaged. Specifically, the court had to consider the "broader" or "family law" approach, which allows for intervention based on a reasonable apprehension of prejudice from the potential misuse of confidential information, rather than requiring proof of actual prejudice. The court also had to consider the husband's submission that the wife had delayed in raising her objection.

The court found that Mr J had provided legal advice to the wife, particularly in a letter dated 8 April 2002, and that the wife had imparted confidential information concerning her financial circumstances and health to him. Applying the principles established in cases such as *McMillan and McMillan*, the court determined that the wife had established a case for restraint, as there was a theoretical possibility that this information could be used to her disadvantage. The court rejected the husband's argument that the information was no longer confidential due to its inclusion in affidavits, finding that such a rule would make it impossible for parties to establish such cases. Furthermore, the court found that the wife had not unduly delayed in bringing her objection, distinguishing the circumstances from those in *McGillivray v Mitchell*, particularly given the parties' relationship status at the time of the earlier communications.

The court ordered that J and Partners, and Mr J, be restrained from acting further for the husband. Consequently, the conciliation conference appointed for 13 July 2007 was vacated, and a new conference was appointed for 20 September 2007, with leave for parties to request a different date if necessary.