Gavan & Mickell
[2021] FedCFamC1F 280
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gavan & Mickell [2021] FedCFamC1F 280
File number(s): PAC 3555 of 2019 Judgment of: RIETHMULLER J Date of judgment: 10 December 2021 Catchwords: FAMILY LAW – PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – Duties and Liabilities – Solicitor and client – Conflicts of interest – Where a solicitor of the firm representing the father previously acted for the mother in the same matter – Where the solicitor in question had direct dealings with the mother including taking instructions, drawing affidavits and attending upon counsel – Where the solicitors of the father provided an undertaking to establish and maintain effective information barriers – Where father only engaged the solicitors recently and the mother objected at first possible opportunity – Whether there was a real risk of disclosure of any confidential information – Whether in the interests of justice that solicitors be restrained from acting – Solicitors restrained from acting Cases cited: Antony & Joyce [2020] FamCA 150
Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2007] NSWSC 350
Beryl and Beryl [2020] FCWA 116
Childers & Childers [2021] FCCA 581
Corrigan & Bambridge [2021] FedCFamC1F 31
D & J Constructions Pty Ltd v Head & Ors trading as Clayton Utz (1987) 9 NSWLR 118
Foley and Foley [2016] FCWA 41
Gillam & Gillam [2017] FCCA 64
Harlen & Hellyar [2020] FamCA 21
Kallinicos & Hunt [2005] NSWSC 1181
Manner & Manner [2012] FamCAFC 6
McKay & Forrest [2018] FCCA 2287
Montague & Montague [2017] FCCA 2747
Naczek & Dowler [2011] FamCA 179
Oram & Lambert and Ors (No 2) [2018] FamCAFC 161
Osferatu & Osferatu [2015] FamCAFC 177
Prince Jefri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222
Redden & Pennington [2017] FCCA 194
Sacca v El Saafin [2021] FCA 383
Salsano & E & S Projects Pty Ltd (No.2) [2020] FCCA 1125
Thevenaz & Thevanz [1986] FamCA 48
Tobias & Tobias [2017] FCCA 654
Wong & Shen & Ors [2016] FCCA 1143
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 19 November 2021 Place: Parramatta Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Zahr Partners Counsel for the Respondent: Ms Eldershaw Solicitor for the Respondent: Coleman Greig Lawyers Solicitor for the Independent Children’s Lawyer: Ms Newland of JLM Family Lawyers Pty Ltd ORDERS
PAC 3555 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MICKELL
Applicant 2
AND: MR VEGA
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
Other
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
10 DECEMBER 2021
THE COURT ORDERS THAT:
1.That Coleman Greig Lawyers be restrained from continuing to act for the Respondent father in these proceedings.
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 Gavan & Mickell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE RIETHMULLER:
INTRODUCTION
The mother seeks orders to restrain the father’s solicitors, Coleman Greig Lawyers, from continuing to act for him on the basis that a solicitor previously instructed by the mother to act on her behalf in these proceedings, Ms T, is now in the employment of Coleman Greig Lawyers.
BACKGROUND
The primary proceedings concern parenting issues. The mother and the father commenced a relationship in 2013 and were married in early 2014. There are two children of the marriage, a boy aged seven and a girl aged six. The parties separated on a final basis in October 2018 following the father experiencing a drug overdose on Endone and cocaine.
In July 2019, while the mother was overseas, the father retained the children in his care causing the maternal grandmother to commence proceedings in the Federal Circuit Court of Australia (as it was then known) seeking an urgent Recovery Order. Subsequently, urgent orders were made requiring the children to be returned to the grandmother’s care until the mother arrived home, at which time the children were to live with the mother.
In November 2019, interim orders were made with the consent of the parties for the children to spend time with the father for three hours each alternate Sunday at a supervised contact centre and for the parties to undertake a hair follicle test.
In April 2020, an Independent Children’s Lawyer (“ICL”) was appointed and an order was made requiring the father to undertake a further hair follicle test.
In June 2020, further interim orders were made with the consent of the parties requiring the father to participate in drug and alcohol counselling, to undertake regular hair follicle tests no more than once per three months and for the parties and children to attend various family counselling programs. Orders were also made on that day increasing the children’s time with the father to five hours each alternate Sunday supervised by a private supervision agency and for the children to have FaceTime communication with the father once per week. A Family Report was also ordered on this day.
In September 2020, a letter was sent by solicitors then acting on behalf of the father to the mother’s solicitor indicating that the father no longer sought parenting orders and a Notice of Discontinuance would be filed and served in due course. The father’s previous solicitors filed a Notice of Withdrawal as Lawyer on 23 October 2020, however, no Notice of Discontinuance was filed by the father.
On 15 July 2021 the mother filed a Further Amended Initiating Application in which she sought sole parental responsibility for the children, that the children live with her, and that she be permitted to relocate with the children to Country B. The mother now seeks orders that the children spend supervised time with the father in Australia each alternate Sunday during all Country B school holiday periods, with such time graduating to unsupervised time three times per week after a period of 12 months and that all time with the children be subject to the father returning a clean hair follicle test.
On 29 July 2021, the father’s current solicitors, Coleman Greig Lawyers (“Coleman Greig”) wrote to the mother’s solicitors advising that they had ‘met with [the father] in relation to parenting proceedings’, noting a forthcoming call-over to be held on 12 August 2021, and advising that they would attend to filing a Notice of Address for Service and the Call-over Information Form by 3 August 2021.
On 2 August 2021, the mother’s solicitors responded to Coleman Greig’s letter, objecting to Coleman Greig acting for the father on the basis that one of their family law solicitors had previously not only worked at the firm representing the mother but had been involved in the conduct of the case on behalf of the mother, particularising the solicitors involvement as including:
•Having day to day carriage of the matter under the supervision of the partner;
•Was copied into all incoming or outgoing correspondence;
•Met with the Applicant Mother on numerous occasions, taking her instructions;
•Communicated with and attended meetings with Counsel;
•Prepared and finalised documentation in relation to the parenting issues, including affidavits and applications in the matter.
On 5 August 2021, a Notice of Address for Service was filed on behalf of the father by his current solicitors, Coleman Greig. In a letter on the same day, Coleman Greig responded to the mother’s solicitors, advising:
1.Ms T works in our Sydney CBD office, whilst Mr C and myself [the principal lawyer of Coleman Greig] primarily work in our Parramatta offices.
2.An information barrier, also known as a ‘Chinese Wall’ is in place that prevents Ms T from accessing this file using our firm’s document management system.
3. Mr C has not and will not discuss the matter with Ms T.
4. I have not and will not discuss the matter with Ms T.
The mother maintained her objection, following which a solicitor from Coleman Greig advised, on 10 August 2021, with respect to Ms T:
1.That she will not disclose any information that she may be aware of concerning either [the mother], or the proceedings before the Federal Circuit Court of Australia between [the mother] and [the father] to any other person.
2. In that regard, she will undertake not to:
(a)Speak with [the father] or any person at Coleman Greig concerning any information she may have concerning [the mother] or her proceedings;
(b)Disclose directly or indirectly any information that she may have in my possession or control concerning [the mother] and her proceedings;
(c) Have any involvement with the proceedings;
(d)View any correspondence files, tax invoices, briefs or emails either sent to Coleman Greig or received by them, nor be involved in the matter in any manner whatsoever in the future (noting that she already is unable to do so through the information barrier);
(e)Convey to any person any information about the affairs of [the mother] which she may have as a result of her employment with Zahr Lawyers.
On 16 August 2021, a further letter was sent by Zahr Partners to Coleman Greig confirming the mother’s position that she did not consent to them representing the father (including not accepting the proposed undertaking) and indicating that if a Notice of Withdrawal as Lawyer was not filed by 5.00 pm 20 August 2021 an application would be filed on the mother’s behalf seeking to restrain them from acting in the proceedings.
On 24 August 2021 Coleman Greig informed Zahr Partners by letter that they would not be withdrawing from the proceedings and stated that their representation of the father is an issue that requires judicial determination.
On 1 September 2021 the present application was filed on behalf of the mother.
The mother’s dealings with Ms T
In her affidavit filed in support of the present application the mother gives a history of her dealings with Ms T while she was in the employment of Zahr Partners.
The mother has been represented by Zahr Partners since February 2020 and deposes that when she first instructed Zahr Partners, Ms T was the sole family law solicitor employed within that firm. The mother deposes that she has provided instructions about her case directly to Ms T and has had direct telephone and email communication with Ms T to do so. Such communication includes providing Ms T with documents relevant to her case by email. The mother deposes that another family law solicitor was employed by Zahr Partners in May and June 2020 with whom she had communication, however, Ms T remained copied into all emails between the mother and that new solicitor. The mother deposes to having email correspondence with Ms T on no less than 21 occasions.
In the course of instructing Zahr Partners, the mother deposes to providing Ms T directly with evidence, such as messages between the mother and the father, which is crucial to the mother’s case. The mother deposes to having a face-to-face conference with Ms T on 7 February 2020 where there was discussion regarding the progression and conduct of the mother’s case.
On 18 March 2020 the mother and Ms T together attended a conference with counsel whom were to be instructed for an upcoming interim hearing. The mother deposes that at that conference there was discussion about the preparation of the mother’s evidence and relevant subpoenas which were required to be (and subsequently were) issued by Ms T. Ms T was also responsible for preparing and settling the affidavits relied upon by the mother in that interim hearing. The mother annexes to her affidavit her trial affidavit (for interim hearing) and an affidavit of the maternal grandmother (also relied upon at the interim hearing) which clearly state that those affidavits were prepared by Ms T.
The mother deposes that the last time she communicated with Ms T in relation to the proceedings was on or around 2 July 2020.
The mother is concerned that Ms T is in possession of confidential information that is relevant to the issue in dispute in this case, that being the children’s time with the father and is concerned that such information is not sufficiently being protected by Coleman Greig. The mother also raises concerns that such information may already have been imparted from Ms T to the solicitor with carriage of the matter at Coleman Greig as Coleman Greig did not become aware of the potential conflict of interest until the mother notified them of such conflict in August 2021.
Protections offered by Coleman Greig
An affidavit has been sworn by Mr C, the solicitor with carriage of the matter at Coleman Greig, in support of such order sought. In that affidavit Mr C deposes that Coleman Greig is a large firm whose family law team is split into sub-groups across five offices in various areas of Sydney. He explains each sub-group reports to different supervising solicitors. Mr C and Ms T work in different offices and as a result they are part of different sub-groups. Mr C deposes that he is not involved in any matters which would require him to work with either Ms T or her supervising solicitor, and further due to the COVD-19 pandemic and the requirement to work from home, has not worked with either of those people for some time.
Mr C says that before taking the father on as a client, an email was sent to all employees in the family law team enquiring whether there was a conflict of interest, which was the normal course at that firm. No reply was received to that email. No explanation is given as to why Ms T did not reply to this email. Mr C also conducted a conflict search on the Coleman Greig database and found no conflict existed with either the mother or father.
Mr C appears to have become aware of the conflict as a result of the letters from the mother’s solicitor. Upon becoming aware of the conflict, Mr C deposes that he contacted the Information Technology department of the firm who took steps to implement an information barrier so that Ms T would be unable to access any information in relation to the proceedings through the firm’s Document Management System. Mr C annexes to his affidavit a screenshot of the Workspace Access List which states Ms T does not have access. Mr C says that the information barrier was implemented within an hour of Coleman Greig becoming aware of the conflict, and that the firm does not currently have a physical file or any physical copies of any documents related to the proceedings. If a physical file were to be created such file would be stored securely.
The fact that Ms T did not respond to the email asking solicitors about possible conflicts does not assist a great deal in the context of this case as there is no affidavit from Ms T addressing the reason for her failure to respond to the email. If the name of the matter alone did not prompt her memory of the case it does little to assist as it is common for lawyers to forget the name of a case, yet have a flood of memories once they are reminded of a salient feature of a case. It could also be argued that the system of making conflicts enquiries of the solicitors in the Sydney office with respect to files in the Parramatta office demonstrates an underlying view that the offices are sufficiently closely linked as to cause a conflict. Such standard conflicts checks should not be taken as some form of admission by the solicitors, at least in the context of this case.
LAW AND DISCUSSION
The law in this area is identified in Osferatu & Osferatu [2015] FamCAFC 177. There are three bases upon which a solicitor may be restrained from acting. First, where the person alleged to have a conflict is in possession of confidential information, and where there is a real risk that the confidential information may be disclosed (taking into account any protections that may have been put in place). Secondly, where there is a breach of fiduciary duty. Thirdly, where in the circumstances as a whole ‘a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner be prevented from acting in the interests of the protection of the integrity of the judicial process, and due administration of justice, including the appearance of justice’: Kallinicos& Hunt [2005] NSWSC 1181, [76].
In this case it was not argued that there is a potential breach of fiduciary duty.
Confidential Information
There is no dispute that the solicitor, Ms T, was privy to confidential information with respect to the mother, having worked directly on the mother’s case, including taking instructions from the mother and preparing affidavit materials. It was not disputed that the solicitor is in possession of confidential information which satisfies the first test.
The father argues that there is no real risk of information disclosure as a result of the steps taken by the father’s solicitors, given:
(a)That the solicitor, Ms T, works in the firm’s Sydney office, whereas the solicitor with responsibility for the conduct of the father’s case works in their Parramatta office in the western suburbs of Sydney.
(b)That the supervisors for each of the solicitors are different people.
(c)That an electronic information barrier is in place to prevent Ms T from accessing the father’s file within the firm.
(d)That Ms T has offered an undertaking not to disclose information about the case.
There is a surprising number of cases on these issues, including:
(a)Salsano v E & S Projects Pty Ltd (No.2) [2020] FCCA 1125 where a firm was not restrained from acting in circumstances where another lawyer in the firm had acted for the other party in an unrelated matter;
(b)Cases where solicitors were restrained from acting where the solicitors had acted for the other spouse over a lengthy period in business and personal matters: Manner & Manner (2012) FamCAFC 6; Gillam & Gillam [2017] FCCA 64; Antony & Joyce [2020] FamCA 150; in a family law dispute with a previous partner: Corrigan & Bambridge [2021] FedCFamC1F 31; and a migration matter, Wong & Shen & Ors [2016] FCCA 1143. However, not where they had acted for a relative of a party in previous proceedings and since destroyed the file due to the time that had elapsed: Oram & Lambert and Ors (No 2) [2018] FamCAFC 161.
(c)Restraining a solicitor from acting where they are likely to be a witness central to the litigation: Harlen & Hellyar [2020] FamCA 21.
(d)Restraining firms from acting where a solicitor who had previously acted for the other party joins the firm whilst proceedings are pending: Tobias & Tobias [2017] FCCA 654; or even a para-legal who had significant direct involvement with the party in the conduct of the pending matter: see Childers & Childers [2021] FCCA 581. However, not where the solicitor had left the firm prior to the application being heard and where there was no evidence of disclosure of confidential information: Montague & Montague [2017] FCCA 2747, nor where the other party had simply been an employed solicitor at the firm in the past: McKay & Forrest [2018] FCCA 2287.
The central question is whether there is a ‘real risk’ of disclosure of confidential information: Osferatu & Osferatu [2015] FamCAFC 177 at [39].
In this case there could be little doubt that the risk would be ‘real’ if the solicitors were in the same office. Thus, the geographical distance between the offices was a significant plank of the submissions. In Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2007] NSWSC 350 Bergin J noted, (as cited with approval in Foley and Foley [2016] FCWA 41) that:
33.… The fact that the file is locked away in a cabinet and access to the electronic information is restricted is only one aspect of the consideration of whether there is a real risk of disclosure or misuse of the confidential information. However it is an important aspect of such consideration.
34.There is also the knowledge in each of the solicitors who acted in the Retainer that needs to remain quarantined from the solicitors acting for the defendant in the present proceedings. The success of that quarantine depends upon the vigilance of not only the solicitors who acted in the Retainer, but also the solicitors who act for the defendant in the present proceedings adhering to the system and structure that is designed to prevent the inadvertent disclosure of confidential information. There will always be an element of some risk of disclosure where its prevention depends upon human conduct because people make mistakes. The lack of a real risk of disclosure or misuse will depend upon the design of the information barrier...
35.… It is not part of every day legal practice for a lawyer to have his or her knowledge from a case quarantined from another lawyer within the same section of the firm. The system of justice permits this unusual process in instances where the client’s right to have the lawyer of choice is not outweighed by a real risk of disclosure of confidential information of a former client to the present client. The quarantining of such knowledge is a somewhat ethereal concept that is not second nature to a lawyer and when it is permitted it needs very special care.
In D & J Constructions Pty Ltd v Head & Ors trading as Clayton Utz (1987) 9 NSWLR 118 at 123, Bryson J, as his Honour then was, noted that:
... it is not realistic to place reliance on such arrangements in relation to people with opportunities for daily contact over long periods, as wordless communication can take place inadvertently and without explicit expression, by attitudes facial expression or even avoiding people one is accustomed to see, even by people who sincerely intend to conform to control.
In the context of this case the practical risk does not lie in the possibility of Ms T seeing the father’s file as the father has no concerns with respect to Ms T. Rather, the practical risk is that Ms T may inadvertently disclose something from her memory of acting for the mother. It is for this reason that the submissions placed significant weight upon the geographical distance between the two offices of the firm. However, the extent to which the solicitors may have dealings with each other within the firm is not clear from the material. At best the affidavit material (at para 6 of the Affidavit of Mr C sworn 27 September 2021) set out that:
I do not have any matters where I am required to work with or consult with [Ms T’s supervisor] and Ms T in the Sydney office of Coleman Greig. In the context of the Greater Sydney Lockdown arising from COVID-19, I have not worked with them for some time on account of the requirement to work from home.
Counsel for the father, perhaps unsurprisingly, avoided being drawn on the point at which the geographical distance may be sufficient in a case such as this, for example, different floors of the same building, different offices in nearby suburbs, offices in different cities, etc. Such hypothetical differences in such geographic distances highlight the underlying issue that must be considered: the extent of the practical risk of inadvertent disclosures of information by the mother’s former solicitor. Such a risk is clearly greater if the solicitors are working in the same office compared to, for example, a suburban Sydney office and a London office (if the firm had an office in London). The reason for such a difference is not simply the number of kilometres between offices but the extent to which the solicitors may have interactions with each other, either discussing their work formally, or more often, on an informal basis. Whilst the material from the father’s solicitors does address the supervision of the father’s solicitor and Ms T, that is only the formal workplace structure. The material does not address the extent of the interactions that the family law solicitors from the firm have from time to time, nor in particular the interactions that these solicitors are likely to have as a result of the informal arrangements (save for noting the limitations that were imposed due to COVID restrictions, which are unlikely to continue).
On the material before me I am not persuaded that the steps taken reduce the risk of disclosure to the level of no longer being a real risk in the context of this case. On this basis I would exercise the discretion to restrain Coleman Grieg from continuing to act for the father.
Inherent Jurisdiction
In considering the inherent jurisdiction to restrain a solicitor from acting the relevant test is, as identified above (see Kallinicos& Hunt [2005] NSWSC 1181, [76]):
… whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner be prevented from acting in the interests of the protection of the integrity of the judicial process, and due administration of justice, including the appearance of justice …
In considering the public interest in the administration of justice it is well accepted that there must be real weight given to the importance of not depriving a litigant of their solicitor of choice. However, this is not the only consideration. One must also have regard to the:
… overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest. (Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52; [1999] 2 AC 222 at [236]).
As Anastassiou J said in Sacca v El Saafin [2021] FCA 383 at [33]:
The Court’s inherent jurisdiction has been variously described as “exceptional” or “extraordinary”: see, eg, Dealer Support Services at [97] (Beach J); Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561 at [76] (Brereton J) and the cases cited therein. It is a discretionary jurisdiction which requires the Court to consider whether a lawyer changing sides might subvert the appearance of justice being done. This consideration is to be balanced with the cost, inconvenience and impracticality of requiring lawyers to cease acting, particularly at a late stage of the proceeding: Re IPM Group Pty [2015] NSWSC 240 at [51] (Black J).
Counsel, in argument before me, agreed that this is an independent basis for restraining a solicitor from acting, even if there is not a ‘real risk’ of disclosure of confidential information. The concession was appropriately made, as the Full Court’s comments in Naczek & Dowler [2011] FamCA 179 at [61] make clear:
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. Preserving the integrity of the administration of justice, and in the appearance as well as the reality of independence, the duty underpins the court’s practical approach to its supervisory discretion.
In D & J Constructions Pty Ltd v Head & Ors trading as Clayton Utz (1987) 9 NSWLR 119 at 123 Bryson J said of the Family Court’s decision in Thevenaz & Thevanz [1986] FamCA 48:
That Court took the view that restraint was justified if there is a risk that confidential communications on relevant matters have been made by the party for whom the solicitor has ceased to act, even if the risk is more theoretical than practical. It seems natural that a particularly careful view would be taken in family law business, as such litigation tends to be about highly confidential facts and a very wide range and circumstances can conceivably be relevant; the sensitivity which even the most reasonable of people feel about such litigation when they are engaged in it calls for careful measures to secure that not only justice is done but also that it is apparent that it is done, an appearance which not survive any general impression that lawyers can readily change sides.
I do not understand Bryson J to be suggesting that there are different rules for family law litigation from other types of litigation. Rather, the nature of the litigation itself must be a factor in determining whether a restraint is justified in all of the circumstances. The rationale for this difference lies in the reality that in much family law litigation (not unlike criminal law litigation) there is far more at stake than property interests, leading to much more heightened sensitivities, both by litigants and in the perception of the fair minded and reasonably informed member of the public.
However, not all previous dealings would result in a solicitor’s firm being restrained from acting. For example, in Redden & Pennington [2017] FCCA 194 Brown J did not restrain the father’s solicitor from acting, even though a solicitor previously at a firm that the mother had engaged and who had had limited dealings with the mother (although had not any involvement in the matter for four years) had joined the firm representing the father. Similarly, in Beryl and Beryl [2020] FCWA 116 Sutherland CJ declined to restrain a firm from acting when a solicitor who had been the mediator in a mediation for the parties took over management of the firm of solicitors acting for the wife for a limited period of three months when the principal of that firm took a leave of absence for personal reasons. Notably, in both these cases the relevant firm had been acting for the party for some time, when a solicitor with limited involvement with the other party had joined the firm. In the present case the father has recently engaged Coleman Greig for the first time, despite Ms T being employed there long before the father engaged the firm, and Ms T had had considerable dealings with the mother.
In the present proceedings there is a number of factors that weigh in favour of the mother’s application:
(a)The solicitor concerned had not merely worked peripherally on the mother’s case, but taken instructions and prepared affidavits for the mother;
(b)The mother immediately notified the father’s present solicitors of her objection, before they commenced any substantial work;
(c)The father’s solicitors have not acted for him throughout the litigation, but only been engaged several months after he withdrew instructions from his previous solicitors;
(d)The solicitor concerned, whilst at the Sydney office, is one of the family lawyers in a firm that has various offices in the one city.
Against this the father points to the geographic distance between the suburban office, the different supervisors for the solicitor concerned and the solicitor with the carriage of the matter for the father, the solicitors proposed undertaking, and the IT restrictions put in place.
In substance, the point of distinction between this case and similar cases where injunctions have issued is that the solicitors are in different offices. However, it remains one firm within one city. Whilst an injunction restricts the father in his choice of lawyer, it does not remove his access to a lawyer who has been acting for him for some time, nor is the legal market in Sydney so small that he would not have plentiful alternatives for expert legal advice. The mother, on the other hand, can take no steps beyond seeking the injunction in order to protect her position: a change of lawyer by the mother does nothing to address the current problem.
In the overall circumstances of this case I am persuaded that it is in the interests of justice that Coleman Greig should be restrained from acting in the matter, even if there were not a ‘real risk’ of disclosure of confidential information by Ms T.
As I am satisfied that there is a real risk of disclosure of confidential information and independently that it would nonetheless be in the interests of justice that the father’s present solicitors be restrained from acting (even if there were not a real risk of disclosure of such information), I will make orders accordingly.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 10 December 2021
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