Garwood & Shipton (No 8)
[2024] FedCFamC1F 208
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garwood & Shipton (No 8) [2024] FedCFamC1F 208
File number: ADC 4460 of 2023 Judgment of: TREE J Date of judgment: 28 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks the husband’s counsel be restrained from continuing to act for him – Application of the test in Porter v Dyer (2022) 402 ALR 659 – Assertion of abuse of process – Where there is no evidence to suggest counsel was aware of the non-disclosure of the husband – Legal professional privilege – Where there was no waiver – Conflict of interest – Where the asserted conflict is with solicitors that are no longer instructing counsel – Where neither independently nor cumulatively none of the contentions of the wife are elevated beyond the theoretical – Application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (Cth) rr 6.03, 6.09, 6.17 Cases cited: Abigroup Ltd v Atkins (1997) 42 NSWLR 623
Apple Inc v Samsung Electronics Co Limited (No2) [2012] FCA 1358
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Charisteas & Charisteas (2022) FLC 94-109
DSE Holdings Pty Ltd v Intertan Inc (2003) 127 FCR 499
Harris v Caladine (1991) 172 CLR 84
Jones v Dunkel (1959) 101 CLR 298
Nine films and Television Pty Ltd V Ninox Television Ltd (2005) 65 IPR 442
Porter v Dyer (2022) 402 ALR 659
Division: Division 1 First Instance Number of paragraphs: 81 Date of last submissions: 14 February 2024 Date of hearing: 6 and 7 February 2024 Place: Heard in Adelaide, delivered in Cairns Counsel for the Applicant: Mr Rice KC and Mr Manatta Solicitor for the Applicant: Angela Ferdinandy Counsel for the Respondent: Mr Cox KC and Ms Hume Solicitor for the Respondent: Mills Oakley ORDERS
ADC 4460 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHIPTON
Applicant
AND: MR GARWOOD
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.Paragraph 4 of the Applicant’s Further Amended Application in a Proceeding filed 13 August 2023 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 the pseudonym Garwood & Shipton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
By Further Amended Application in a Proceeding filed 13 August 2023, Ms Shipton (“the mother”) sought a variety of relief against Mr Garwood (“the father”) including that:
4.The [father’s] senior counsel [Ms AP] SC cease to act for the [father] in these proceedings.
By his Response to Application in a Proceeding filed 20 October 2023, the father sought that paragraph 4 be dismissed. On 6 and 7 February 2024, I heard that aspect of the parties’ dispute, and reserved my judgment. This is that decision and the reasons for it.
BACKGROUND
The mother is presently 54 years of age, and a business woman. The father is presently 50 years of age and a business manager.
The parties met in 2014 when the father commenced working as an executive of the mother’s business, although not long afterwards he took another executive position. The father says that he and the mother commenced a sexual relationship in 2015, and that from mid-2015 were in a de facto relationship. The mother denies that the parties were ever de facto partners, but appears to accept that they were in some kind of relationship.
In December 2017 the parties separated (according to the father).
In 2018 the mother gave birth to a child conceived as a result of IVF, in which the father’s sperm fertilised an egg obtained from a third party, with the resulting zygote having been implanted in, and gestated by, the mother.
In 2018 the father’s employment ceased, with him being made redundant.
On 30 November 2018 the father commenced parenting proceedings against the mother, which were later amended to include a property settlement claim as well. AQ Lawyers were his solicitors, and Ms AR had carriage of his file.
In due course the trial of those proceedings commenced before Kari J on 5 September 2022, and proceeded for some 9 days, albeit by 20 September 2022, only the mother had given evidence, and indeed her cross-examination had not completed. While the parties have since come before Kari J on an alarmingly regular basis to determine various interlocutory disputes between them, the trial has not yet resumed.
It is not in dispute that whilst an executive of the mother’s business, the father obtained financial benefits beyond his salary, including the payment of private legal fees. The father says these financial benefits were agreed to by the mother, and paid by methods which (likely illegally) saw no tax paid by the father on them, or indeed any tax paid in relation to them. The father further contends that the mother and he agreed to conceal the true nature of the payments from the business’ bookkeeper, which again the mother denies. A significant issue at the trial became whether the father had the mother’s authority to cause her business to pay for his private legal bills.
Of course, ordinarily an issue relating to allegedly unauthorised benefits being received by the father would be irrelevant in parenting proceedings, but this is not an ordinary case. The issue has assumed prominence because in the current litigation, the mother raised the father’s receipt of the additional benefits as part of her chain of reasoning for why she no longer trusts him, which apparently is said to inform what parenting orders would be in the child’s best interests. The father has responded by claiming the payment of the benefits were authorised by the mother, and hence the mother’s claim that he took the benefits in some dishonest way, which has now been deployed as a contended basis to restrict his time with the child, shows that the mother has falsely invented the claim in an attempt to deprive him of a relationship with the child.
Standing back, one might well think that neither party’s contention as to how this issue informs the parenting litigation is soundly based or reasoned, but that is a matter for the trial judge, not me. The reality is that the parties are presently joined in mortal combat on the issue in the trial.
At the September hearing (and indeed since at least 22 October 2019), the father was represented by Ms AP SC who was instructed by AQ Lawyers. The complicating factor is that the relevant legal bills the subject of the dispute about authorisation, were incurred in family law proceedings between the father and his former wife, in which Ms AR (and AQ Lawyers) acted for the father, although Ms AP SC had no involvement in them.
In the September 2022 tranche of the trial, during cross-examination of the mother, Ms AP SC called for her to produce all documents relevant to the issue of the father’s authorisation or otherwise. In due course they were produced. The impact of their contents has proved vexed. That is because it seems reasonably clear that Ms AR was aware of the need to, at the least, not include information in the AQ Lawyers accounts to the father which might alert the bookkeeper to the identity of the true recipient of the legal services, namely the father, rather than the mother’s business. I say that because in several emails to the father, Ms AR evidences considerable malleability as to how AQ Lawyers accounts are cast, or amended.
Further, the father’s financial statement prepared by Ms AR filed in the first matrimonial litigation did not disclose the additional financial benefits which the father was receiving from the mother’s business in the form of payment of the accounts of AQ Lawyers.
In the September 2022 hearing then counsel for the mother appears to have not been aware of the contents of the documents produced by the mother, but rapidly realised their potential significance, particularly as regards Ms AR (and perhaps AQ Lawyers). The following exchange occurred:
[COUNSEL FOR THE MOTHER]: We’re well and truly in the quicksand and I’m about to bring Ms [AR] into it with me because later on in the document – your Honour only has the first - - -
HER HONOUR: Two pages. Yes.
[COUNSEL FOR THE MOTHER]: No. Your Honour has two versions of page 1.
HER HONOUR: Right.
[COUNSEL FOR THE MOTHER]: There are a number of further pages but one of the significant line items of what adds up to roughly 150,000 is 34,000-odd paid to [AQ Lawyers] from [the mother’s business] in respect of [the father’s] - - -
HER HONOUR: [the father’s former wife’s] previous - - -
[COUNSEL FOR THE MOTHER]: - - - earlier family court proceedings. So it gets worse.
HER HONOUR: It doesn’t get better. It gets worse. I’m not sure, though, that that puts [Ms AR] in a difficulty.
[COUNSEL FOR THE MOTHER]: Not necessarily, your Honour - - -
HER HONOUR: But maybe.
[COUNSEL FOR THE MOTHER]: - - - but in terms of whether, you know, that wasn’t – the dispute about whether it’s authorised or not, if she and/or her firm were receiving funds from [the mother’s business], whether there was any arrangement for that to happen with [the mother’s business’] consent. It may or may not make her a witness. I don’t know. I don’t know enough about what happened there.
[MS AP SC]: I can assure your Honour that we have covered that. Historically covered it. I’m absolutely certain my instructing solicitors are in no position where they would be embarrassed regardless of what the answers are. We’ve given – I’ve given advice, clear advice, in relation to those matters because of my client’s instructions.
HER HONOUR: received by - - - any number of questions that might flow from that. Anyway–
[MS AP SC]: I have spoken – I have taken instructions and there is nothing that would cause me concern as counsel in relation to that matter, your Honour.
HER HONOUR: That might be so but that doesn’t prevent what is the nub of [counsel for the mother’s] submission and that is there is the potential for your instructor to be called as a witness somewhere. Is that right?
[MS AP SC]: Yes…
(Transcript 7 September 2022, p.314 line 24 to p.315 line 29) (emphasis added)
After the trial adjourned on 20 September 2022, on 13 February 2023 the mother terminated the retainer of her then legal team, and self-represented for some weeks. On 6 March 2023, a new solicitor filed a Notice of Address for Service, and progressively an entirely new legal team was engaged.
By Application in a Proceeding filed 3 August 2023, her new solicitor challenged the ongoing representation of the father by Ms AR and AQ Lawyers, and after Ms AR and AQ Lawyers ceased to act for the father on 7 August 2023, on 13 August 2023 amended the application to extend that challenge to Ms AP SC too.
As to Ms AR, the mother says that her knowledge (or otherwise) of the father’s contention that her accounts were being paid to the father’s benefit by the mother’s business with her authority, makes her a likely witness in the father’s case. Immediately prior to the father terminating his retainer of AQ Lawyers at a hearing before Kari J on 7 August 2023, Ms AR had been seeking leave to withdraw. This was not, it seems, opposed by the mother, although she demanded Ms AR explain the justification for her withdrawal, which demand apparently precipitated AQ Lawyers’ termination. It may be that Ms AR agrees she is a likely witness in the father’s case, but I do not know.
The mother also contends Ms AR is likely to face civil claims, costs claims, and professional disciplinary action arising from her conduct. Some, if not all, of that seems feasible.
I will detail the mother’s claims against Ms AP SC later.
The mother’s new legal team has also been firmly pressing for the production of further documents by the father. Indeed that aspect of the matter was at earlier dates listed before me, but resolved by consent, with the consequence being that the father produced some 396 pages of previously undisclosed material on 16 November 2023.
At the ultimate hearing before me of the relief sought by paragraph 4 of the mother’s Further Amended Application in a Proceeding, Ms AP SC did not appear, but rather the father was represented by a silk and junior, neither of whom had appeared at the trial.
THE APPLICATION
The mother’s application to restrain Ms AP SC relies upon 4 “grounds” as follows:
1.Ms [AP] SC should be restrained from appearing as that is necessary for the protection of the proper administration of justice;
2.There is a mandatory duty on Ms [AP] SC to return her brief, as there are reasonable grounds to believe her own professional conduct may be attacked;
3.There is a mandatory duty on Ms [AP] SC to return her brief, as her personal interests conflict with those of the father;
4.There is a mandatory duty on Ms [AP] SC to return her brief, as there are reasonable grounds to believe she may, as a reasonable possibility, be a witness in the case.
(Mother’s Case Summary filed 13 December 2023)
However those 4 “grounds” are intertwined, in that the 3 contended mandatory duties to return Ms AP SC’s brief are also factors relied on as also founding the argument advanced as ground 1.
RELEVANT LEGAL PRINCIPLES
In Porter v Dyer (2022) 402 ALR 659 (“Porter”) Lee J (with whom Besanko and Abraham JJ relevantly agreed) authoritatively adopted statements in two earlier single judge decisions which discussed the legal principles engaged when considering the restraint of a lawyer from acting for a party, as follows:
113.The primary judge correctly identified the relevant principles. They have been comprehensively summarised by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 (at 582 [76]) and Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 (at [39]). Justice Griffiths’ summary was as follows:
The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:
(a)The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).
(b)The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).
(c)Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).
(d)This basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information (Dealer Support Services at [96] per Beach J).
(e)This basis for disqualification is an “exceptional one” and is “to be exercised with appropriate caution” (Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404; 237 ALR 612 at [35] per Young J).
(f)A legal practitioner may be restrained from acting in a matter not only where the practitioner has a conflict of interest viz a viz a former client, but also viz a viz a person who is “as good as” a client (Macquarie Bank Ltd v Myer [1994] VicRp 22; [1994] VR 350 at 359 per J D Phillips J).
(Emphasis in original).
It was not in dispute before me that, as regards the preferred test in (b), “might” imposes a lower threshold than “would.”
The Full Court embraced this test in Charisteas & Charisteas (2022) FLC 94-109 at [37] accepting that while the Federal Circuit and Family Court of Australia (Division 1) has no inherent jurisdiction, it was not in dispute that it can restrain who appears before it as part of its ability to control its own processes and proceedings (Harris v Caladine (1991) 172 CLR 84).
Notwithstanding the quite different facts in Porter and Charisteas, the above statement of principle is nonetheless applicable to the application before me.
THE IMPUGNED CONDUCT
Overview
The mother relies upon the aggregation of several individual justifications for Ms AP SC’s restraint, perhaps implicitly conceding the possibility that individually some, or even none may, of themselves, provide sufficient justification. I will nonetheless consider them individually and then collectively.
Abuse of process
The contended abuse of process is the husband’s pressing his claim of authority whilst having failed to disclose all relevant documents pertaining to that issue, and particularly:
(a)email communications between the father and Ms [AR] about the [AQ Lawyers] accounts;
(b)email communication between the father and the mother’s business’ bookkeeper;
(c)the 396 pages of documents produced by the father on 16 November 2023.
It is said that the abuse of process is particularly egregious because the documents now produced substantially undermine his claim of authority, and hence his case at trial for the parenting orders which he seeks.
As to (a) and (b), they may be swiftly dealt with since, because the emails were sent and received on the father’s work email account, these documents were all on the mother’s business computer servers or other databases, and after his employment was terminated in 2018, no longer directly accessible by the father. Hence whilst they ought to have been disclosed by him as documents which had been, but were no longer, in his possession or under his control (rr 6.03(a) and 6.09(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (Cth) (“the Rules”) they could not have been produced by him.
Indeed, once the issue of the father’s authority became live in these proceedings (it was agreed that was on 19 April 2019) they should have been disclosed and produced for inspection by the mother since, as the call for them showed, they were in her possession and under her control.
There is a question about whether the email communications between the father and Ms AR about the AQ Lawyers accounts, retained by AQ Lawyers, were documents under the father’s control, in the sense that he had a right to demand them. However, at the end of the day, they were all in the mother’s possession anyway, which makes any claim of abuse of process in relation to non-disclosure of those documents retained by AQ Lawyers fraught in any event.
As to (c), clearly these documents should have been produced earlier than they were, and particularly after 19 April 2019 when the issue of authority was first raised by the father. However, the evidence would not permit me to even reasonably suspect that Ms AP SC (who it appears only became involved in the case around October 2019) was aware of any inadequacy in her client’s disclosure. For example, there is no evidence of her being briefed to settle the father’s list of documents. Common experience suggests that silk will rarely be engaged to do that which is ordinarily quintessentially a solicitor’s sole responsibility.
It seems clear that some of the documents upon which Ms AP SC’s cross-examination of the mother was based, had not in fact been disclosed. However, even assuming that Ms AP SC’s brief included those documents, that does not in any way suggest that she was aware they had not been disclosed by the father to the mother.
Thus the allegation made by paragraph 133 of the mother’s Case Outline filed 13 December 2023 that “the [father’s] counsel … knew documents evidencing [the 7] matters [enumerated at paragraph 133.1–133.7] had not been disclosed” is not made out. Of course, Ms AR may be in a quite different situation.
However the failure to disclose has now been remedied, and in that sense, any abuse of process constituted by litigating a claim without providing complete disclosure of documents relevant to it, is historic, and not continuing. Although the mother’s counsel contended that the public interest would be served by nonetheless imposing the restraint on Ms AP SC, because it would generally encourage compliance with obligations of disclosure in this court, such a response would be wholly disproportionate, especially given I could not possibly be satisfied that Ms AP SC in fact knew of any relevant non-disclosure.
Moreover, if there was an abuse of process by the father, the primary remedy is to stay the proceedings, or some aspect of them relevant to the non-disclosure (r 6.17 of the Rules), but no such application has been brought by the mother, although she foreshadowed it will be raised at trial (Mother’s Case Outline filed 13 December 2023, paragraph 96).
I am not satisfied that “a fair minded, reasonably informed member of the public might conclude that the proper administration of justice,” requires Ms AP SC to be prevented from acting for the father “in the interests of the protection of the integrity of the judicial process, and the appearance of justice” (which test hereafter I shall, for brevity, refer to as “the test”) solely on the basis of the mother’s allegations that the father engaged in an abuse of process by advancing his parenting case without having made proper disclosure of documents which related to it.
Ms AP SC is a potential witness or is personally interested in case
The mother contends that:
(a)A central issue in the trial is whether the father had her authority to pay his private legal fees from the mother’s business;
(b)In that respect the father is a critical witness;
(c)Ms AR might be a critical witness as well, as regards her manipulation of the AQ Lawyers accounts, and communications with the father about doing so are not subject to legal professional privilege, as they were made in the furtherance of a fraud. That manipulation might suggest that the father was also trying to conceal the payment from the mother, which would support her claim that he did not have her authority to pay them with business funds;
(d)Ms AP SC might (and perhaps her case is must) have been briefed by Ms AR about the circumstances of the payment of the father’s earlier accounts to AQ Lawyers with business funds, and hence she might also be a relevant witness.
In the context of this allegation, the advice which Ms AP SC gave takes centre stage. I have already recited her statements to Kari J. Whilst what formed the factual basis for any advice would be a relevant matter, that, and Ms AP SC’s advice, would ordinarily be subject to legal professional privilege.
Thus the question becomes whether that privilege was waived by Ms AP SC’s statements to Kari J, notwithstanding it was not her privilege to waive.
It is useful to carefully consider precisely what Ms AP SC said to Kari J. Specifically it was:
(a)The she had historically covered “that”, although precisely in the case what “that” was is unclear, but perhaps was whether Ms AR might be a witness;
(b)That she (ie Ms AP SC) is satisfied that Ms AR (and perhaps AQ Lawyers more generally) will not be professionally embarrassed;
(c)That her client gave her instructions, although who her client then was is unclear, and what their instructions comprised was not divulged.
(d)Ms AP SC believes she has no reason for professional concern as counsel, although whether that is personally, or in presenting the father’s case, is unclear.
The following principles may be drawn from the authorities dealing with waiver of privilege:
·The onus of establishing waiver is on the party so asserting[1];
·To establish waiver, there must be conduct by the party entitled to the privilege which is inconsistent with the maintenance of the confidentiality of the communications[2];
·Whether the waiver should be found to have occurred will be informed partly by the forensic unfairness of allowing a claim to proceed without the disclosure of the otherwise privileged communication[3];
·Thus, for instance, the partial production of a document for a forensic purpose, which could have the consequence of creating a false representation as to the document, and consequently an injustice, requires the opposite party and the court to be given the opportunity of satisfying themselves that the proffered parts of the document represent the whole of the material relevant to the issue in question[4].
[1] Nine films and Television Pty Ltd V Ninox Television Ltd (2005) 65 IPR 442 at [21] per Tamberlin J.
[2] DSE Holdings Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58] per Allsop J (as his Honour then was).
[3] DSE Holdings Pty Ltd V Intertan Inc (supra) at [58] per Allsop J (as his Honour then was), Attorney-General (NT) v Maurice (1986) 161 CLR 475.
[4] Attorney-General (NT) v Maurice (supra) at 482 per Gibbs CJ, Apple Inc v Samsung Electronics Co Limited (No 2) [2012] FCA 1358 at [84] per Cowdroy J.
Applying these principles to the above dissection of what Ms AP SC said, as to (a), to state that advice has been given about a topic does not even to begin to disclose the substance of the advice, nor infringe confidentiality.
Next, as to (c), that statement does not disclose what the instructions were, much less the advice. It is not conduct inconsistent with confidentiality being maintained.
Turning then to (d), it is a statement which many counsel have made to many judges over many years. I do not construe it as comprising any kind of waiver of the contents of her advice. It is merely a contribution to the efficient running of the court.
That then only leaves (b).
The context which generated that statement is critical. Kari J was obviously concerned about the implications for the case if Ms AR became a witness. All that Ms AP SC told her Honour was that she was “absolutely certain” that her “instructing solicitors” won’t face professional embarrassment.
Another way of saying that might have been “I have considered that” without more, or “I don’t perceive any problems will arise” and indeed viewed dispassionately, that is all Ms AP SC in fact said. In my view, properly construed, what Ms AP SC told Kari J was nothing more than an assurance that the issues relating to Ms AR, and perhaps AQ Lawyers, will not impact the trial.
I am not satisfied that the limited – very limited – statements by Ms AP SC to Kari J are inconsistent with the maintenance of the confidentiality of the communication with her client (whoever it was).
Even if I am wrong as to that, I can discern no forensic unfairness in allowing this litigation to proceed without the detail of the advice being disclosed. Particularly the forensic purpose of everything Ms AP SC said to Kari J was, as I have indicated, simply to reassure her that the “matter” had been considered and would not professionally embarrass Ms AR and/or AQ Lawyers. What forensic unfairness does that occasion the mother? The answer plainly is none, and certainly not any unfairness of a magnitude which would warrant the serious step of stripping otherwise privileged communications of that protection.
There is therefore little prospect of Ms AP SC being a witness in the proceedings. Whoever it is that was her client in respect of the advice, it is plainly privileged, and only the client/s, rather than Ms AP, can waive it. That is also the answer to the Jones v Dunkel[5] point which was discussed during the hearing; unless and until her client waived privilege, Ms AP SC can give no evidence of substance, and her failure to give evidence before me therefore wholly explicable.
[5] Jones v Dunkel (1959) 101 CLR 298.
I am not satisfied that the remote possibility of Ms AP SC being a witness requires her to be restrained from acting for the father, so as to protect the actuality or appearance of the integrity of the judicial process, or otherwise ensure the due administration of justice. The test is simply not satisfied.
As to any personal interest which Ms AP SC has in the case, whilst it seems that she gave advice about some aspect of Ms AR’s conduct, or AQ Lawyers’ situation, that is not liable to make her interested in the outcome of the case, any more than a barrister who gives advice as to prospects is thereafter personally interested in the outcome of the litigation. Again, the test is not met.
This aspect of the mother’s case fails.
Civil liability
As to this, the mother says in her Case Outline filed 13 December 2023:
221.But, from the statements in Court on 7 September 2022, it appears that senior counsel merely gave advice to the applicant’s solicitor that:
221.1.there was no possibility that the applicant’s solicitor would have to withdraw from the case; and
221.2.there was nothing raised by the material that gave senior counsel any concern.
222.With respect, senior counsel is at obvious risk of claims of negligence, breach of contract, breach of fiduciary duty and/or breach of professional obligations.
However no explanation, based on evidence, was able to be cogently advanced as to how Ms AP SC could be civilly liable in a way which makes it in the broader public interest to restrain her from acting for the father. Particularly it impacts not at all upon the due administration of justice, nor the integrity of the judicial process, such that the test is clearly not satisfied. The contended civil liability proffered by the mother if made good would then extend to every advice given by any trial counsel, and to impose such a requirement by making them all give up their briefs would not serve the administration of justice; to the contrary, such an imposition would cause unworkable mayhem.
Professional liability
On the evidence, it is no more that a theoretical possibility that Ms AP SC breached her professional duties in some way by giving the advice she did, or by not giving other advice. Even if she did, it is quite another matter to then restrain her from further acting for the father, 9 days into a long and fraught trial, which remains part heard. The public interest is unlikely to be served by such a draconian response, and certainly neither the due administration of justice, nor the protection of the integrity of the judicial process, requires it, such that the test is again plainly not satisfied.
Turning then specifically to the 3 “grounds” which the mother contends require Ms AP SC to return her brief:
(a)The attack on Ms AP SC’s own professional conduct primarily stems, it seems, from her alleged involvement in any abuse of process. There is simply no reason to think she gave advice to, or negligently failed to give advice not to, make proper disclosure, or otherwise was knowingly involved in any abuse. In any event, any abuse of process is now historical;
(b)I will discuss the allegations of conflict separately hereafter, but as shall be seen, they have no substance.
(c)I have sufficiently addressed the unlikelihood that Ms AP SC will be a witness earlier.
In his submissions, the father also contended that counsel for Ms AP SC has not complied with her duty to identify to the Court which of the father’s affidavits is untrue.
The father has clearly given differing accounts under oath of his historical income – in the earlier proceedings he did not disclose the financial benefits he received when working in the mother’s business beyond his salary, whereas in these proceedings he has given evidence that they were to a value of about $30,000 per year.
The first point is that, as I have already noted, Ms AP SC was not involved in the father’s litigation with his former wife, and there is simply no reason to think she was aware of his failure to disclose the additional benefits in that litigation.
But in any event, it is now clear that the father concedes that his evidence in the earlier proceedings was untrue, insofar as it omitted reference to his additional benefits. There is nothing left for Ms AP SC to correct.
There is no justifiable basis for contending that any potential professional liability of Ms AP SC requires her not to appear. The test is not met.
Costs liability
It may be taken as accepted that all those responsible for knowingly prosecuting proceedings which are an abuse of process are ordinarily liable to a costs order in favour of the victim of the abuse. However any abuse here is historical, and would in any event have to be viewed against a seemingly profound failure to disclose relevant documents by the mother herself.
As I have explained earlier, there is simply no reasonable basis to suspect that Ms AP SC was involved in any abuse of process (if there was one), in a way which would likely see her mulcted with a costs order.
Conflict with father’s interests and interests of former solicitor
In her Case Outline the mother says:
223.Fourthly, if advice was to be sought by the applicant’s solicitor on her professional and ethical obligations, the advice should not have been obtained from the applicant’s senior counsel:
223.1.the applicant’s solicitor and applicant’s senior counsel owed fiduciary duties to the applicant, including the duty not to put themselves in a position of conflict;
223.2.as the relationship between lawyer and client is of a fiduciary character (a relationship of trust and loyalty), a lawyer must not engage in situations where his or her own interests conflict or may conflict with the duty owed to the client (absent the client's fully informed consent) ("no conflict" duty). Issues relating to "concurrent" client conflicts are generally grounded in fiduciary law (while those relating to "successive" client conflicts are generally grounded in protecting the confidentiality of information);
223.3.the applicant’s solicitor was in an obvious position of conflict;
223.4.the applicant’s senior counsel could not act for both the applicant and the applicant’s solicitor – that, in itself, was a concurrent client conflict; there was an obvious risk that the interests of her instructor and her client would become adverse or potentially adverse in the future given their involvement in the Alleged Tax Fraud Scheme and the potential for future claims and counter- claims between her instructor and her client;
223.5.further, it was likely that the giving of the advice might affect whether or not the applicant’s senior counsel decided to call the solicitor at trial or not (or influence advice to the applicant on that question) or otherwise affect the conduct of the applicant’s case given senior counsel’s divided loyalties from that point, especially given the civil and criminal liabilities to which her instructor and her client were exposed;
223.6.by:
223.6.1.engaging the applicant’s senior counsel to provide advice about the personal position of the applicant’s solicitor;
223.6.2.the applicant’s senior counsel providing the advice, and
223.6.3.the applicant’s solicitor acting on it,
this simply compounded the already-existing conflicts of interest;
223.7.each of the applicant’s solicitor and senior counsel now appear exposed to claims of negligence, breach of fiduciary duty, and breach of contract;
223.8.further, the applicant’s senior counsel appears exposed to claims by the applicant’s solicitor of negligence and breach of contract for the advice she gave;
223.9.the prospect of allegations and counter-allegations among the applicant, the applicant’s previous solicitor and the applicant’s senior counsel seems highly likely. While the applicant’s previous solicitor cannot avoid responsibility herself and should have considered her own position herself (perhaps with independent advice from another solicitor or counsel), there is the clear potential for counsel and the former solicitor (now as witness) to blame each other now, for the client to blame them both, and for both of them to blame the client for incomplete or dishonest instructions.
They each have their own personal interests to protect now, and the capacity of the applicant’s senior counsel to provide disinterested, professional advice has been lost.
(Mother’s Case Outline filed 13 December 2023)
The simple answer to all this, at least as regards the father, is that firstly, it is difficult to see how Ms AP SC’s interests conflict with his, and secondly, even if they do in some way conflict, plainly the father wants her to nonetheless continue to act for him, in full knowledge of all the facts, and when he is presently being advised by a completely different legal team to that which included Ms AP SC. It is difficult to see how the mother can legitimately complain of any conflict in those circumstances.
If Ms AP SC’s interests are in conflict with those of Ms AR, or AQ Lawyers, then that is not a matter which now speaks to any restraint being imposed on her, they no longer being her instructors. If Ms AR becomes a witness, Ms AP SC could require replacement counsel be engaged to undertake any cross-examination of her.
The test is not met.
May not exercise any independent judgment or comply with duties to court
It is trite to observe that this allegation can be raised, at least in theory, against every barrister appearing in a case, and sadly, on occasion demonstrably correctly. However, there is nothing on the evidence to suspect that, in the case of Ms AP SC in these proceedings, that is even slightly elevated beyond the theoretical. The test is plainly not satisfied.
Cumulative consideration
Here the facts are the facts, and the allegations are the allegations. The various threads to the mother’s arguments are really, when viewed from a distance, the same issues differently expressed. The cumulative consideration of them does little in the way of aggregation – the facts remain the facts. I am not satisfied that a consideration of all the matters she relies upon reaches a point where the test is satisfied.
Moreover, even if the test was satisfied by the concerns which may nonetheless hover around Ms AP SC’s continued involvement in the proceedings, such that the discretion to restrain Ms AP SC arises, those concerns are vastly outweighed by:
(a)The fact that the trial has now run for nine days, and the cost of alternate senior counsel coming up to speed likely to be vast, a matter which goes directly to the due administration of justice;
(b)The fact that from the time her then lawyers became aware of the material on which the claim is now grounded, it took the mother nearly a year to bring her application to restrain Ms AP SC. Worse, most of that material has been in the mother’s possession at all material times since its creation, and had not been disclosed.
It is, as Porter acknowledges, an exceptional thing to restrain a legal practitioner from appearing, here all the more so where the client, separately represented by eminent lawyers, nonetheless wants to have his barrister of choice continue to appear for him. This is not one of those exceptional cases, and whether the allegations are viewed individually or collectively, not only is the test not satisfied, but there are weighty matters which would strongly tell against any restraint of Ms AP SC in any event.
Finally, I should advert to the claim made by the father that the mother’s application was tactical in two respects. Firstly, it was said to be an attempt to create an outcome where the father would be obliged to find a new barrister to act for him in the part-heard trial, thus occasioning him great expense. In common parlance it was said to be trying to “run him out of petrol.” Secondly, it was said that the mother, over her nine days in the witness box, gave such a poor performance that she wanted a new legal team for herself (and has that) a new solicitor acting for the father (and has that) and now wants a new barrister acting for the father (hence this application), and a new judge (she has on foot applications for Kari J to recuse herself).
In other words she is using all means at her disposal to expunge any memory of her bad performance as a witness, and wants to start over with a clean slate.
The simple answer it that whilst they are both possible, the evidence could not, at least at present, satisfy me of either, or indeed that the mother’s performance in the witness box was as contended. Further, even if they were established, it was conceded they do not comprise any abuse of process. Precisely what I was therefore supposed to do about them remains unclear.
OUTCOME
The onus being on the mother, I am not satisfied that Ms AP SC should be restrained as the mother contends. Paragraph 4 of her Further Amended Application in a Proceeding filed 13 August 2023 will be dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 28 March 2024
Abigroup Ltd v Atkins (1997) 42 NSWLR 623 at 634 per Bainton J
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