GILL and WYNNE
[2016] FCWA 40
•10 JUNE 2016
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GILL and WYNNE [2016] FCWA 40
CORAM: WALTERS J
HEARD: 18 APRIL 2016
DELIVERED : 10 JUNE 2016
FILE NO/S: PTW 147 of 2015
BETWEEN: MS GILL
Applicant
AND
MR WYNNE
Respondent
Catchwords:
FAMILY LAW – INJUNCTIONS – Legal practitioners – where solicitor moved from firm representing wife to firm representing husband – application to restrain husband's solicitors from continuing to act for him – confidential information – significance of "getting to know you" factors – effectiveness of "information barrier" – consideration of Full Court's decision in Osferatu v Osferatu (2015) 53 Fam LR 433 – application dismissed
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr Hooper SC
Respondent: Dr Dickey QC
Solicitors:
Applicant: Law Firm B
Respondent: Law Firm A
Case(s) referred to in judgment(s):
Billington & Billington (No 2) [2008] FamCA 409
Black v Taylor [1993] 3 NZLR 403
Fields v Smith [2015] FamCAFC 57
Holborow v Macdonald Rudder [2002] WASC 265
In the Marriage of R A and E Thevenaz (1986) 11 Fam LR 95
Ismail-Zai v The State of Western Australia (2007) 34 WAR 379
Kallinicos v Hunt (2005) 64 NSWLR 561
Karapataki & Karapataki [2011] FMCAfam 6
Mancini v Mancini [1999] NSWSC 800
Martin v MacDonald Estate (Gray) [1991] 1 WWR 705
McMillan & McMillan [2000] FamCA 1046
Mintel International Group Limited v Mintel (Australia) Pty Ltd [2000] FCA 1410
Osferatu v Osferatu (2015) 53 Fam LR 433
PhotoCure ASA v Queen's University at Kingston [2002] FCA 905
Pond & Thurga (No 2) [2007] FamCA 587
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222
State of Western Australia v Ward and Ors (1997) 76 FCR 492
Stewart & Stewart (unreported, Family Court of Australia, Lindenmayer J, 17 April 1997)
Yunghanns v Elfic Ltd (Unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)
Zalfen v Gates [2006] WASC 296
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1This is an application for orders restraining a firm of solicitors from continuing to act for their client in these proceedings. The applicant is [Ms Gill]. The firm of solicitors is [Law Firm A].
2Ms Gill was in a de facto relationship with [Mr Wynne] for many years. They have two children, one of whom is an adult. The other is seven years of age. Both children reside with Ms Gill.
3Although they never married, I shall refer to Ms Gill and Mr Wynne as "the wife" and "the husband" because it is more convenient and less confusing than referring to them in other terms. I mean them no respect by doing so.
4After the wife and the husband separated, the wife retained [Law Firm B] to represent her. A short time later, the husband instructed [Law Firm A] to act for him. The dispute between them relates to both parenting and property issues. The dispute regarding property issues is a substantial one, not least because the assets forming the subject of it have a total value in excess of $100 million. I shall refer to the dispute as "the family law dispute".
5Correspondence then passed between the two firms of solicitors. Similarly, discussions and negotiations occurred.
6[Ms K] was employed at Law Firm B – as a law clerk, and subsequently as a lawyer – from July 2010 to February 2016. During the course of her employment, she communicated with and had contact with the wife.
7After leaving Law Firm B, Ms K commenced employment with Law Firm A.
The wife's case
8According to the managing director of Law Firm B, [Mr D], the firm's practice is generally for a director or senior solicitor to accept instructions in a case and then allocate specific tasks to subordinate employees, including junior lawyers and law clerks.
9Mr D said that he first received instructions to act on behalf of the wife in January 2015. Since then, work on the file has primarily been undertaken by himself, [Ms T] and Ms K.
10In his affidavit1, Mr D states that Ms K "undertook work on the file totalling 351 units of billable time" between mid-April 2015 and mid-February 2016. In the same period, Mr D and Ms T undertook work on the file totalling 313 units and 429 units respectively.
11Mr D also states that the work done by Ms K was as follows:
•[Ms K] reviewed court documents and was briefed about the major issues in the matter prior to commencing work on the file. It is not the practice (of [Law Firm B]) to bill clients for junior lawyers familiarising themselves with a case or for inter-office discussions.
•[Ms K] undertook a review of Family Court authorities in relation to the so-called category of cases known as "special contribution cases", given the briefing given to her by [Ms T] that this was the primary issue in the case as identified in discussions with the husband's solicitor, comments made by [the husband] to [the wife] and later as detailed in his responsive documents.
•[Ms K] reviewed disclosure documents provided by [the wife] initially comprising eight archive boxes of documents (47 lever arch files) and, later, numerous further lever arch files. This process involved examining each file and determining whether a document was relevant to the case and should be included in [the wife's] disclosure list. In addition, it involved reviewing explanatory schedules and/or notes (which accompanied some of the files) prepared by [the wife] for [Law Firm B] which are privileged communications.
•Having reviewed the disclosure, [Ms K] drafted memoranda with respect to the documents which included notes identifying information or documents of note and further lines of enquiry which may advance [the wife's] case.
•[Ms K] prepared correspondence to [Law Firm A] and a single expert witness.
•[Ms K] assisted in the preparation of [the wife's] affidavit and [application in a case] filed 30 December 2015 which remains undetermined…
12In addition to the above work –
•… [Ms K] assisted [Ms T] with the final settlement of [the wife's] affidavit sworn 8 December 2015… The draft affidavit had been prepared by [[Mr D]] and [Ms T] about a week prior. [The wife] was in attendance at [the offices of [Law Firm B]] from about 9 a.m. to 1 p.m. on 8 December 2015. [Ms K] had personal contact with [the wife] during this consultation.
•[Ms K] was instructed by [Ms T] to make amendments to the affidavit and source further information from documents and file notes for the body of the affidavit and also to locate and identify exhibits. The amendments were hand written by [the wife] and [Ms T] on the draft documents, amended electronically by [Ms K] and then re-presented to [the wife] for further review.
13Mr D says that Ms K was present when discussions about the property aspect of the family law dispute took place "between all the lawyers in ([Law Firm B])", and that they "included confidential information". Similarly, Mr D says that he and other employees of Law Firm B (including Ms K) have discussed matters relating to "the emotional state and personality" of the wife. Although these matters "may not directly impact on the financial dispute" between the parties, Mr D says that they "are likely to be relevant to child-related issues (which are contested) and the conduct of negotiations generally".
14Ms T has sworn an affidavit2 corroborating Mr D's evidence. She says Ms K asked her if she (Ms K) could be "involved in the file". The request was made in or about April 2015.
15Ms T says that Ms K –
… was the solicitor tasked with carrying out discrete tasks which included managing the electronic brief, disclosure issues, research and providing assistance with preparing and settling affidavit material and correspondence.
16Ms K had a number of conversations with Ms T "about the matter and the issues in dispute". Ms T recalls that these conversations included "one lengthy conversation":
We discussed [the wife's] position in the matter and what evidence would be required in support of her case. We also discussed the relevant issues in the matter as Ms K was to review a large volume of potential disclosure documents and prepare a disclosure list.
17The tasks associated with disclosure were significant. The wife provided a substantial number of documents to Law Firm B. The documents had to be "assessed for relevance and privilege" before they could be disclosed. This assessment process was undertaken by Ms K predominantly. Ms T says Ms K created a file "on which she placed the documents she determined should not be disclosed".
18One of the matters discussed between Ms T and Ms K involved the effect of the Full Court's decision in Fields v Smith [2015] FamCAFC 57 ("Fields v Smith"). Relevantly, the two lawyers discussed "the implications" of the decision for the wife. It is not to the point whether such discussions were billed or not billed. The significance of the discussion lies in the fact that Ms T and Ms K were clearly part of a team of lawyers working for the wife's benefit.
19Ms T says that she spoke with Ms K on a number of occasions regarding the wife's "emotional state and personality". In particular, such a conversation followed a full-day mediation which took place in November 2015. Ms T attended the mediation with the wife. Ms K did not attend. Ms T deposes follows:
During the course of the mediation I made a number of observations about the parties' personalities, emotional reactions and frailties and in particular how this might affect negotiations and/or the parties as witnesses if the matter proceeded to trial. I also had a number of confidential conversations with [the wife] during breaks in which she provided me with information as to her emotional state and which further revealed aspects of her personality (and that of [the husband] and children). I discussed these matters with [Ms K] upon my return from the mediation, because of her involvement with the file.
20The wife objects to Law Firm A continuing to act for the husband. In her affidavit3 she summarises her objection as follows:
I object to [Law Firm A] continuing to act in this case as during the course of my engagement with [Law Firm B], [Ms K] has had access to my files and been privy to discussions which contain confidential information provided by me to my solicitors and advice given by my solicitors to me. As child related issues are now in dispute, I am concerned that having met and interacted with me, [Ms K] may also have knowledge of my emotional state and other matters which are not directly relevant to financial issues but which may be very relevant to issues concerning our son… who is almost 8 years of age.
21Although the wife recalls meeting Ms K, she does not provide any details of confidential information that she (personally) provided to Ms K.
22In his Outline of Submissions, Mr Hooper of SC (for the wife), emphasises that the primary solicitors involved in the "team" of lawyers representing the wife at Law Firm B were Mr D, Ms T and Ms K. He adds at [11] and [12]:
•In the course of her involvement in the matter, [Ms K] was involved in reviewing primary disclosure documents, having received direction and engaging in discussion with other members of the team about the major issues and "what to look for" in terms of relevance.
•In addition, [Ms K] had discussions with [Ms T] in which confidential information with respect to the parties' respective emotional state and personality, and strategic matters were communicated to her.
The husband's case
23The husband opposes the injunction sought by the wife. In his affidavit4 he says little of relevance to the wife's application. He contends that there are "no confidential documents" in the wife's disclosure, which comprised "effectively the contents of (his) office". That may be so, but the husband has no knowledge of documents which may have been omitted from the wife's disclosure.
24The husband does not deal, in any way, with the practical consequences of a decision being made to the effect that Law Firm A must no longer represent him. In other words, he does not suggest that such a decision would lead to increased costs, inconvenience or delay from his point of view. He does no more than confirm that he wishes to retain [Ms P] and [Mr G] as his lawyers.
25Ms P is a consultant at Law Firm A. She has the conduct of the husband's file. Mr G is instructed as counsel to represent the husband.
26According to Ms P5, the husband has been a client of Law Firm A since 24 March 2015. Ms K commenced employment with the firm on 25 February 2016.
27Ms P emphasises that she is an experienced family law practitioner and an Accredited Family Law Specialist, and that Law Firm A is a Quality Assured Law Firm recognised as such by the Law Society of Western Australia. She also emphasises that all staff of the firm are required, as part of their employment contract, to adhere to strict confidentiality at all times. Such a requirement is "part of the firm's Quality Assured Policy and Practice Manual which must be read and signed by all staff when they commence employment" with Law Firm A.
28Although Ms P refers to some of the matters deposed to by Mr D, she cannot know of her own knowledge whether confidential information was imparted (directly or indirectly) to Ms K by anyone other than herself.
29Of far more significance is Ms P's evidence regarding the establishment and operation of what has been described as an "information barrier" within Law Firm A. She says:
13.[On] the afternoon of the day [Ms K] commenced employment with the firm on 25 February 2016, the Directors [of [Law Firm A]] all became aware of the alleged conflict issue on this matter.
14.Once [Ms K's] employment with the firm was announced to all staff, all the staff of the firm were informed that [the husband's] matter could not be discussed with [Ms K] in any way, and they were told to ensure that no private or confidential information was to be passed to [Ms K] for any reason.
15.In relation to electronic storage of information, there is limited access to only particular staff members to the network drive containing [the husband's] electronic file. The file was moved to limited access before [Ms K] commenced employment with the firm.…
16.[Ms K] has not been granted access and will not be granted access to this limited network drive storing the electronic file of [the husband] and [the wife].
17.In relation to hardcopy material, this is stored either in my office, the office of [an identified law clerk] or a spare office at the rear of the premises. The spare office at the rear of the premises is locked at all times. The other two offices are locked when we are not in the office.
18.[Ms K] and I print to separate printers in different locations in the office. Each time I print anything on this matter, I remove it promptly from the printer.
19.[Ms K] and I do not share a secretary.
20.My secretary and [the identified law clerk] have been instructed to save all work on [the parties' matter] to the limited network drive to which [Ms K] does not have access.
21.[Ms K] does not sit in an office next to [Mr G’s] office, my office or [the identified law clerk's office].
22.[Ms K] has been informed that she cannot enter my office or [the identified law clerk's office] for any reason and she has not done so.
23.[Ms K] has been instructed that she must not discuss either [the wife] or her case with any member or employee of the firm.
24.I have not discussed [the husband's] file with [Ms K].
30Ms P adds that she is prepared to give an undertaking to the Court in relation to the conduct of the husband's matter. Relevantly, she is willing to undertake not to have communication with Ms K about the matter at any time.
31Ms K says6 that she was admitted to practice in December 2014 and is a Restricted Practitioner. She confirms that she worked at Law Firm B until 19 February 2016 and commenced employment with Law Firm A on 25 February 2016.
32She describes doing some very superficial work on the wife's file at Law Firm B, such as downloading and printing copies of two recent Full Court decisions dealing with what might be described as "special contributions" and "collating the wife's disclosure list". In relation to the latter task, Ms K says that, although the documents were voluminous, she "primarily collated the documents into order so as to prepare them for a disclosure list" and then compiled the disclosure list. This was a time-consuming process "which was conducted over many days".
33She speaks of updating the wife's disclosure list on at least one occasion and drafting non-contentious letters.
34In essence, Ms K says that she did not take instructions from the wife (whether directly or indirectly). Although she made amendments to the wife's trial affidavit, her role was to "engross handwritten amendments" made by Mr D.
35Although she met the wife at the offices of Law Firm B, she emphasises that the meeting did not involve any personal interaction beyond a polite greeting.
36Finally, Ms K says that Ms T asked her "to assist her ([Ms T]) with a review of the parties' expenditure from bank statements and schedules of transactions [the wife] had drafted", and that she provided such assistance.
37Ms K provides the following summary at [35]:
•I did not have day to day conduct of this matter.
•I was not copied in to all incoming or outgoing correspondence.
•I did not meet with [the wife], telephone her or take her instructions (apart from [the polite greeting referred to above]).
•I did not attend any meetings with counsel.
•I did not attend any court hearings.
•I did not prepare any documentation in relation to parenting matters. I assisted another solicitor with the finalisation of [the wife's trial affidavit].
38Ms K corroborates the arrangements comprising the "information barrier", as described by Ms P and adds that she has abided by all of the protocols inherent within the maintenance of the "information barrier".
39Ms K has also given a formal undertaking (dated 7 April 2016) in the following terms:
I undertake to the Court, to [Law Firm B] and [the wife] that I will not disclose any information that I may be aware of concerning either [the wife] or the proceedings before the Family Court of Western Australia between [the wife] and [the husband] to any other person.
In that regard, I undertake not to:
1.speak with [the husband] or any person at [Law Firm A] concerning any information I may have concerning [the wife] or her proceedings;
2.disclose directly or indirectly any information that I may have in my possession or control concerning [the wife] and her proceedings;
3.have any involvement with the proceedings;
4.view any correspondence files, tax invoices, briefs or emails either sent to [Law Firm A] or received by them, nor be involved in the matter in any manner whatsoever in the future;
5.convey to any person any information about the affairs of [the wife] which I may have as a result of my employment with [Law Firm B].
The law
40I discussed the law dealing with the bases upon which a solicitor may be restrained from acting against his or her former client in Karapataki & Karapataki [2011] FMCAfam 6 ("Karapataki"). Omitting the majority of footnotes, I said:
28.There is no absolute rule that a legal practitioner who has acted for a client in a particular matter must not act against that client in the same or any other matter. It was said in Kallinicos v Hunt(2005) 64 NSWLR 561 ("Kallinicos v Hunt"), however, that there are three possible grounds for restraining a legal practitioner from acting for a party to litigation:
a)the inherent jurisdiction or implied power of the court to supervise and control the conduct of legal practitioners as officers of the court (in order to safeguard the due administration of justice);
b)a breach of a supposed fiduciary duty of loyalty not to act against a client, or against a former client, in the same matter or a closely related matter; and
c)the danger of misuse of confidential information.
29.I shall refer to the first of the above grounds as "the supervision and control ground". I shall refer to the second and third grounds as "the duty of loyalty ground" and "the confidential information ground" respectively.
30.An application to restrain a legal practitioner from acting for a party to litigation must be made without delay, and failure to take the point at an early stage might well cast doubt on the validity of any subsequent complaint.
The supervision and control ground
31.Leaving aside any questions relating to whether this Court has inherent jurisdiction, as opposed to "an implied incidental power to make orders necessarily incidental to express powers", the test to be applied in relation to the supervision and control ground seems to be "whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting – in the interests of the protection of the integrity of the judicial process and the due administration of justice (including the appearance of justice)".7 Such jurisdiction or power as is inherent in the supervision and control ground should be regarded as exceptional, and must be exercised with caution, with "due weight" being given to the public interest in a litigant not being deprived of his or her lawyer of choice without a good reason.
32.In State of Western Australia v Ward and Ors (1997) 76 FCR 492 the Full Court of the Federal Court said:
… the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information, and a real risk of lack of objectivity and of conflict of interest and duty … The present case (i.e. State of Western Australia v Ward) is only another example of situations in which the "integrity of the judicial process", the "interests of justice" and the "need to preserve confidence in the judicial system", to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is "an important value". … It is a serious matter to prevent a party from retaining its chosen lawyer. … But … particular circumstances may require some modification of the public interest in the ability of a litigant to have a lawyer of its choice.
33.It is, of course, settled law that legal practitioners have duties to the court, as well as duties to their clients, and that the former necessarily override the latter. Put another way, a legal practitioner's duty to the client is subordinate to his or her duty to the court – which duty remains paramount even if the client gives instructions to the contrary. Indeed, unlike a legal practitioner's duty to a client (which can be waived or ratified by a properly informed and advised client who is not under any disability), a legal practitioner's duty to the court cannot be waived.
34.The practical implications of legal practitioners' overriding or paramount duties to the court were described by Heenan J in Holborow v Macdonald Rudder [2002] WASC 265:
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.
35.The inherent jurisdiction or implied incidental power referred to in the supervision and control ground has been invoked in cases where there was a potential that the legal practitioner might become a witness in the proceedings, and where the subject matter of litigation was likely to involve an evaluation of the legal practitioner's conduct. It has also been held that it may be appropriate to invoke the jurisdiction or power in a case where the practitioner might feel impelled to justify or defend his or her conduct in representing a client, or where the legal practitioner's credibility could be at stake.
36.The potential misuse of information which might not comfortably be described as "confidential information" also falls within this general category. For example, legal practitioners can often learn a great deal about a client's personality, weaknesses or strengths, honesty (or perhaps dishonesty), fears and reactions (including reactions to pressure or tension). Similarly, legal practitioners can learn much about a client's attitude and approach to litigation. In Yunghanns v Elfic Ltd (Unreported, Supreme Court of Victoria, Gillard J, 3 July 1998), Gillard J described these considerations as "getting to know you" factors.
37.In a case where a former client's credibility becomes a matter of significance, his or her former legal practitioner's knowledge of the "getting to know you" factors can become a powerful weapon at the disposal of the practitioner's new client. Irrespective of the actual effectiveness of the weapon, it can be anticipated that the former client would feel anxiety about the potential of being cross-examined by a practitioner who might be perceived as being in a position of unfair superiority – or by Counsel instructed by such a practitioner. In Black v Taylor [1993] 3 NZLR 403, for example, Richardson J said, (in the context of proceedings involving a family solicitor potentially acting for the estate of a deceased family member in proceedings brought against it by another family member):
… it would not be unreasonable for a family member to feel chagrin and concern to find a lawyer who had built up knowledge of that kind was able consciously or unconsciously to draw on it when acting against (the family member).
38.In McMillan & McMillan [2000] FamCA 1046 ("McMillan"), at [65] the Full Court adopted the following passage from the minority judgment of the Supreme Court of Canada in Martin v MacDonald Estate (Gray) [1991] 1 WWR 705, at 728-729 – which was a decision (although not in the family law jurisdiction) dealing with an employed solicitor changing firms:
In preparing for the hearing of a contentious matter, a client will often be required to reveal to the lawyer retained highly confidential information. The client's most secret devices and desires, the client's most frightening fears, will often, of necessity, be revealed. The client must be secure in the knowledge that the lawyer will neither disclose nor take advantage of these revelations.
Our judicial system could not operate if this were not the case. It cannot function properly if doubt or suspicion exists in the mind of the public that the confidential information disclosed by a client to a lawyer might be revealed.
39.It is very important, however, not to elevate the significance of the "getting to know you" factors. Indeed, it is crucial to evaluate and inform their relevance in the broader context of the inherent jurisdiction or implied power of the court to supervise and control the conduct of legal practitioners as officers of the court (in order to safeguard the due administration of justice). Thus, and as Heerey J said in Mintel International Group Limited v Mintel (Australia) Pty Ltd [2000] FCA 1410 ("Mintel"), at [44]:
Insofar as reliance is placed on the "getting to know you" principle, a moment's consideration of the way that litigation is conducted in Australia shows that this cannot be accepted too literally, especially in relation to counsel. There are many bodies such as Commonwealth and State government entities, banks, insurers, media companies and many others which are constantly engaged in litigation. Counsel retained to act on behalf of such bodies inevitably acquire information, not confidential information in the strict sense, but experience as to the corporate culture of the clients, their internal policies, the way they deal with litigation, tactics, the personalities of important decision-makers and so forth. I do not accept that general experience of that kind would impose what presumably on the respondent's argument would be lifetime restraints on counsel from acting against such a body. Indeed it is a feature of an independent Bar that counsel might appear one day on behalf of such a body and the next day against it. While perhaps strange to observers from countries where the legal profession is organised differently, this freedom enhances the independence of counsel and their capacity to give objective and sometimes unwelcome advice. The cab rank rule works both ways. The driver is obliged to accept the fare, but the fare does not buy the service of the driver beyond the stipulated journey.
The duty of loyalty ground
40.It is likely that any supposed fiduciary duty of loyalty owed by a legal practitioner to his/her client does not survive the termination of the retainer. In Ismail-Zai v The State of Western Australia (2007) 34 WAR 379, Steytler P said:
23.In my opinion, the weight of authority currently supports the proposition that the duty of loyalty does not survive the termination of the retainer. Moreover, some of the cases which support the existence of a continuing duty of loyalty seem … to draw no clear distinction between a fiduciary obligation of that kind, on the one hand, and the court's inherent supervisory jurisdiction to protect the integrity of the judicial process, on the other. …
24.In any event, … there may be little distinction, for any practical purpose, between the question whether there is a breach of the continuing duty of loyalty, on the one hand, and the question is whether there is a real risk of a breach of confidence and whether there is or will be other impropriety of a kind that is likely to undermine the integrity of the judicial process and the due administration of justice (which comprehends the appearance of justice), on the other hand. … I find it difficult to envisage circumstances in which a lawyer who acts in the same or a closely related matter against a former client will neither be in a position in which there is a real risk of a breach of duty of confidence nor be acting in such a way as to undermine the integrity of the judicial process or the due administration of justice.
41.I agree with the above analysis, and conclude that the second ground for restraining a legal practitioner from acting against a former client (being the duty of loyalty ground) is, in essence, a restatement of the first and third grounds (being the supervision and control ground and the confidential information ground) in omnibus form. Put another way (per Heenan AJA in Ismail-Zai v The State of Western Australia (supra), at [63]):
… because of the frequent recourse to the term "duty of loyalty" …, it is necessary to emphasise that that eloquent, but elastic, term is not itself precise. The measure of the obligation upon the former (legal practitioner) should not be deduced from that description alone but, rather, from an examination of the principles on which courts have acted to regulate or restrict actual or anticipated conduct of former legal advisers.
The confidential information ground
42.Generally speaking, cases dealing with applications to restrain a legal practitioner from acting in family law proceedings have focused on the confidential information ground, and less frequently on the duty of loyalty ground. The leading authority is the decision of the Full Court in McMillan.
43.The confidential information ground, and the effect of McMillan, were summarised by O'Ryan J in Pond & Thurga (No 2) [2007] FamCA 587, at [213] (footnotes omitted):
Prior to (McMillan) it was uncertain whether a narrow test of actual prejudice (arising from the possible misuse of confidential information) or the broader test of theoretical risk of prejudice was to be applied. … The Full Court ultimately adopted the broad approach in Mills v Day Dawn Block Gold Mining Company Ltd and Thevanaz of a theoretical risk of prejudice rather than proof of actual prejudice. The Full Court found that the narrow or English approach which requires 'real mischief or prejudice' to follow in order to justify court intervention (an approach stemming from Rakusen v Ellis, Munday & Clarke) was inappropriate for the family law jurisdiction. The Full Court … cited with approval the summary of the law provided by Lindenmayer J in Stewart (unreported, 17 April 1997):
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.
44.His Honour continued at [214]:
Importantly, the adoption of the stricter approach in the family law jurisdiction was borne out of cases concerning practitioners that had acted for both husband and wife and reasons specific to this factual situation. In these cases the reasons for adopting this test have been based on the sensitive nature of the jurisdiction and the in-depth factual inquiries that the court was often required to make into parties' financial history, conduct and contributions. …
41More recently, the Full Court has dealt with the subject in Osferatu v Osferatu (2015) 53 Fam LR 433 ("Osferatu"). Referring to Kallinicos v Hunt , their Honours said at [20] that there are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. These are:
a)breach of confidence (which I have described as "the confidential information ground");
b)breach of fiduciary duty (which I have described as "the duty of loyalty ground"); and
c)the inherent jurisdiction of a court over its offices and to control its process (which I have described as "the supervision and control ground").
42Their Honours added that the third category "may be involved in conjunction with either of the first two so that there is clearly an overlap".
43The Full Court was only concerned with the confidential information ground, and did not discuss the other two grounds.
44In relation to the confidential information ground, their Honours said (footnotes omitted):
22.The manner in which a client's confidential information is to be protected in family law proceedings was clearly explained by the Full Court in McMillan where the Full Court extensively reviewed existing authorities in the Family Court and in many other courts. The following statement of Frederico J in In the Marriage of R A and E Thevenaz (1986) 11 Fam LR 95 ("Thevenaz") was expressly adopted by the court:
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". (Reference omitted).
23.The following passage from Thevenaz was also expressly adopted by the Full Court in McMillan:
It is my view that in this case [the lawyer] should not continue to act on behalf of [the wife]. 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.
24.In an unreported decision of Stewart & Stewart (unreported, Family Court of Australia, Lindenmayer J, 17 April 1997) ("Stewart") Lindenmayer J said:
… 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…
25.Of that passage the Full Court in McMillan said at [87]:
In other words, the client need only give evidence that he has provided confidential information to the solicitor (or in this case, the law clerk/secretary). The client does not have to divulge the content of that information… In the present case, we consider it sufficient, as we said earlier, that the husband has sworn that he had given instructions to Mr Pitts as to how he wished his "matter to be conducted and the position to be put to the wife". It is obvious that such matters would come within the description of "confidential information".
26.It is, however, important to recognise that McMillan, as were Thevanez and Stewart, was a case where the applicant was seeking to restrain a solicitor or a clerk to whom they had recently, and directly, given instructions from acting, or the firm to which they had moved, from acting, in those proceedings. Because the applicants in those cases had given instructions to the solicitor about the very matter in issue, it follows easily that there would be a finding that the solicitor who had moved was in possession of confidential information which is or may be relevant to that matter. It is for that very reason that the passage of Lindenmayer J in Stewart commenced with the words "All that is necessary is that …". His Honour was simply saying that, in such circumstances, the burden borne by the applicant was discharged by such evidence. Nothing that appears in Stewart, Thevanez or McMillan obviates the need for an applicant seeking such relief from discharging his/her burden of proof by adducing cogent and persuasive evidence. This is particularly so where, as here, the circumstances differ from McMillan. In this case Mr F had never taken instructions from the wife.
27.In Mancini v Mancini [1999] NSWSC 800 ("Mancini") Bryson J said at [7]:
It is of importance to observe that information generally is not protected; the protection available relates to confidential information, and is available to the person entitled to the confidence. No circumstances were put forward in which Mrs Mancini herself is entitled to the protection of the law against the use of any particular information by Mr Mancini or by the lawyers whom he has chosen to retain. It is not possible to address in any clear way and to come to a decision on protection of any alleged confidential information without identifying what the confidential information is in a sufficiently specific way to enable it to be identified. Without doing that it is not possible to come to a conclusion on whether the information truly is confidential, to consider and appraise the circumstances in which it came into existence and was communicated, to come to any conclusion about whether protection is appropriate, or to make any enforceable order. A case about confidential information cannot be nebulous. Confidential information which once existed may no longer be confidential; it may no longer be available although it was communicated in the past; it may not be material to any use which might now be proposed to be made of information. Without specificity a claim to protection cannot be defended or decided on any fair procedural basis, and a general allegation of the kind put forward here to the effect that from the nature of the past legal business confidential information must have been communicated should not in my opinion be upheld. (Emphasis added)
28.The need for this proof is obvious. In Billington & Billington (No 2) [2008] FamCA 409 ("Billington") Coleman J said at [43]:
As the authorities make clear, the jurisdiction to grant relief of this kind "is to be exercised with caution". The court understands caution to be exercisable in relation to the totality of the evidence, and the matters relevant to the exercise of the jurisdiction, and not to be referrable only to the interests of the party seeking the relief. Relevant in that context is the need to give appropriate weight to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. Also relevant in this context is the cost and inconvenience of requiring the wife to retain new lawyers. Quite apart from the work required to be undertaken by solicitors familiar with the case to adequately represent the wife's interests before the Full Court, realistically, were new solicitors now to be instructed, a far greater level of reading and preparation would be required, and at greatly increased expense to the wife.
29.These are serious and weighty considerations which must, of course, be balanced against the competing interests of the client which were described by Lord Millett in Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at 236 ("Prince Jefri") as follows:
…It is of 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.
30.…
31.This conveniently leads to the next point. Once the client has discharged the onus of proving that the solicitor is in possession of confidential information which is, or may be relevant to the new matter, that is not the end of the case.
32.The next step involves a consideration of the risk that the relevant confidential information will be disclosed. The risk of disclosure "must be a real one, and not merely fanciful or theoretical. But it need not be substantial": Prince Jefri at 237.
33.How is this to be determined? It is by the consideration of the risk and of any protective measures taken or proposed by the solicitor or his or her new firm. The evidentiary burden on this issue falls squarely on the lawyer or the firm to which he or she has moved. As Lord Millett said in Prince Jefri at 237–8:
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. There is no rule of law that Chinese walls or other arrangements of a similar kind are insufficient to eliminate the risk. But the starting point must be that, unless special measures are taken, information moves within a firm. In MacDonald Estate v Martin 77 DLR (4th) 249, 269, Sopinka J said that the court should restrain the firm from acting for the second client "unless satisfied on the basis of clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur." With the substitution of the word "effective" for the words "all reasonable" I would respectfully adopt that formulation.
34.We agree with Goldberg J in PhotoCure ASA v Queen's University at Kingston [2002] FCA 905 ("PhotoCure") where he said at [50] and [51]:
50.It is apparent from Lord Millett's judgment that there are three stages which need to be considered:
•whether the firm is in possession of information which is confidential to the former client;
•whether that information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
•whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.
51.The burden of establishing the first two propositions is upon the former client but the burden of establishing the third proposition moves to the firm proposing to act once the first two propositions are satisfied…
35.A balancing of the nature of the information against a consideration of the person to whom the information was given, when the information was given, the relevance of that information to the current proceedings, the risk of disclosure and any proposed protective measures is required before any determination can be made as to whether any relief is required and, if so, what is the appropriate relief.
36.…
37.None of this conflicts with what was said in McMillan. At [93] their Honours said:
…We accept that the mere fact of access to confidential information is not the test. Rather the issue is whether the former client actually imparted confidential information to a solicitor (or clerk) who is now employed by the solicitors acting on the other side of the litigation.
38.The risk, and management of the risk, were not issues in McMillan, although the authorities quoted there deal with that aspect of the law in the manner we have described.
39.Before leaving this discussion we wish to refer to the statement in McMillan that even "a theoretical risk of the misuse of the confidential information" is sufficient to found relief. The phase "a theoretical risk" was echoed in Prince Jefri in the passage quoted earlier. For our part, we find the word "theoretical" unhelpful. There is indeed a continuum of risk from obvious to remote. In Asia Pacific, Bergin J described the risk of disclosure or misuse as "probably real and not fanciful" (at [41]). In Billington Coleman J referred to "any real risk" (at [37]). That phrase was also used by Goldberg J in PhotoCure (at [78]). This is a more meaningful phrase. The consideration should be whether there is a real risk of misuse as opposed to one which is merely fanciful. To the extent that what we have said may be seen to represent a departure from McMillan (which we do not necessarily accept), it is to accord with more recent authority and provides a clearer test.
40.We return finally to Lord Millett in Prince Jefri:
Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters. But given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case… (Emphasis added)
41.It follows from the above discussion that the law requires that an applicant seeking to restrain a solicitor from acting must adduce evidence that establishes the confidential information and the risk of the misuse of that information in the circumstances. The weight and persuasiveness of any evidence adduced depends, of course, on the precision of the evidence called, the nature of the confidential information and the nature of the risk of disclosure.
45In summary:
a)In considering whether to grant injunctive relief of the nature sought in the current application, the Court must balance two serious and weighty considerations:
i)the obligation to ensure that a lawyer in possession of confidential information cannot act in any way that puts (or that might appear to put) that information at risk of coming into the hands of someone with an adverse interest; and
ii)the need to give appropriate weight to the public interest in a litigant not being deprived without due cause of the lawyer or law firm of his or her choice (thereby avoiding the potential of the litigant having to incur the additional cost and endure the inevitable inconvenience associated with retaining a new lawyer or law firm).
b)The party seeking the restraint ("the applicant") must adduce cogent and persuasive evidence that either –
i)the applicant has provided confidential information to the lawyer who has changed firms ("the departing lawyer"); or
ii)the departing lawyer has come into the possession of confidential information through his/her previous employment with the applicant's lawyers.
c)The information asserted to be confidential information must be identified with some degree of specificity (to satisfy the Court that it remains both confidential and relevant to the extant proceedings). Where an applicant has recently, and directly, given instructions to the departing lawyer "about the very matter in issue", however, a finding that the departing lawyer is in possession of confidential information which is or may be relevant to that matter "follows easily". In other words, evidence of this nature – in and of itself – will ordinarily discharge the burden borne by the applicant to adduce "cogent and persuasive evidence" that confidential information has been passed to the departing lawyer.
d)If the requirements in (b) and (c) above have been met, the Court must give consideration to the nature (or character) and gravity of the risk that the relevant confidential information will be disclosed. The risk need not be substantial, but it must be real (and not merely fanciful or theoretical).
e)If the Court is satisfied that the relevant information is indeed confidential information and that there is a real risk that it will be disclosed, the Court must then consider any protective measures taken or proposed by the departing lawyer and/or the law firm that the departing lawyer has joined. In this regard, the evidentiary burden falls squarely on the departing lawyer or the firm to which he or she has moved, because the starting point is that, unless special measures are taken, information will be recognised as moving within a firm – or, put another way, the knowledge of one lawyer within the firm will be imputed to all other lawyers within the firm.
f)Nevertheless, there is no rule of law that "information barriers" will inevitably be insufficient to eliminate the risk of confidential information moving within a firm. An "information barrier" will be deemed sufficient to eliminate the risk of confidential information moving within a firm if the Court is satisfied on the basis of clear and convincing evidence that effective measures have been taken to ensure that no disclosure will occur.
g)In considering the above matters, the Court is required to consider and balance –
i)the nature of the information the disclosure of which is at risk;
ii)the past and present role of the departing lawyer;
iii)when the information was provided or otherwise came into the departing lawyer's possession;
iv)the relevance of the information to the current proceedings; and
v)the character and gravity of the risk of disclosure of that information (including in the light of any proposed protective measures).
Discussion
46I begin by recognising the need to balance the two "serious and weighty" considerations referred to above. On the one hand, the husband should not be deprived without due cause of the law firm of his choice. On the other, the Court must do its best to ensure that any confidential information in Ms K's possession does not come into the hands of the husband or those who represent his interests.
47Mr Hooper submits that it is "obvious" that Ms K has received confidential information from the wife and that the content of Ms K's affidavit confirms as much. I do not agree. I have summarised Ms K's evidence elsewhere in these Reasons. In my opinion, it is not apparent – from that evidence alone – that the wife has provided confidential information to Ms K. Nor is it apparent – from that evidence alone – that Ms K has come into the possession of confidential information through her previous employment with Law Firm B. A fortiori, Ms K's evidence does not amount to "cogent and persuasive evidence" that she has had confidential information (regarding the wife's case) in her possession.
48Ms P is unable to give useful evidence regarding Ms K's possession of confidential information from the wife's point of view. If such evidence exists, it is to be found in the affidavits of the wife, Mr D and Ms T.
49Mr D says that Ms K –
a)was briefed about the major issues in the proceedings between the husband and the wife prior to commencing work on the file;
b)reviewed court documents;
c)did some legal research relating to "special contribution cases", which research was clearly directly related to the family law dispute and the particular nature of that dispute;
d)reviewed disclosure documents and determined which documents were relevant to the case and should be included, and those which should be excluded; and
e)prepared memoranda suggesting "further lines of inquiry which may advance (the wife's) case".
50Mr D also says that Ms K assisted with the final settlement of the wife's affidavit sworn 8 December 2015. In my opinion, however, the evidence falls short of demonstrating that this work involved more than strictly clerical duties on Ms K's part.
51Ms T says that –
a)Ms K carried out certain discrete tasks associated with the conduct of the wife's file at Law Firm B, including tasks associated with disclosure and some research;
b)she discussed with Ms K "the wife's position" in relation to the issues in dispute between the wife and the husband, and "what evidence would be required in support of her case";
c)included in the discussions referred to above were the meaning and effect of the Full Court's decision in Fields v Smith, and the implications of that decision for the wife; and
d)she spoke with Ms K a number of times about the wife's "emotional state and personality", and, it would seem, the wife's "frailties".
52Given that no attempt was made to challenge the evidence of Mr D and Ms T in any material respect, I have no reason to reject it.
53As was made clear in Thevanez, McMillan and Osferatu, in cases of this nature the Court will not weigh conflicting evidence as to confidence: it is sufficient if the client swears to having provided confidential information. Further, and as the Full Court said in Osferatu at [26], in cases where an applicant "had recently, and directly, given instructions" to a solicitor who has moved firms "about the very matter in issue, it follows easily that there would be a finding that the solicitor who had moved was in possession of confidential information which is or may be relevant to that matter". Their Honours also explained that, although the applicant must adduce "cogent and persuasive evidence" that he or she has provided confidential information to the lawyer who has changed firms, "the burden borne by the applicant was discharged by such evidence".
54In this case, however, the wife has little to say about the subject. To the extent that her evidence purports to relate to the conveying of confidential information to Ms K, it is neither cogent nor persuasive.
55I am satisfied that Ms K was a member of the "team" at Law Firm B tasked with representing the wife. I am not satisfied, however, that the information that came into her possession in the performance of that role was confidential information. In my opinion, the information asserted to be confidential information has not been identified with any degree of specificity. In essence, the Court has been asked to draw an inference that Ms K has come into the possession of confidential information. It cannot do so, however, because (amongst other things) the evidence relied upon in support of the assertion is insufficiently cogent and persuasive.
56In case I am wrong, however, I turn now to consider the nature (or character) and gravity of the risk that the relevant confidential information (assuming it exists) will be disclosed. Although the risk of disclosure need not be substantial, it must be real.
57Ms P has described, in detail, the "information barrier" erected at Law Firm A with a view to ensuring that any confidential information possessed by the firm does not fall into Ms K's hands, as it were. That may be of assistance to the husband (who has been a client of Law Firm A at all relevant times), but is of little assistance to the wife: it is the wife's confidential information (and not the husband's confidential information) that should be perceived as being at risk of coming into the hands of someone with an adverse interest.
58In reality, the only protections offered by Law Firm A against the possibility of Ms K supplying confidential information about the family law dispute to members of the firm whose interests are adverse to those of the wife comprise –
a)the instructions given to Ms K that she must not discuss either the wife or the wife's case with any member or employee of Law Firm A;
b)the general instructions given to all staff at Law Firm A that the husband's matter should not be discussed with Ms K in any way; and
c)the formal undertaking given by Ms K on 7 April 2016.
59Mr Hooper submits that Family Court proceedings, whether involving parenting or property issues, are "deeply personal". He argues that the range of relevant issues is wide and that lawyers become privy to their clients' attitudes to particular issues, and to their fears and vulnerabilities. To this can be added clients' honesty (or perhaps dishonesty), priorities, and willingness (or unwillingness) to compromise on certain matters. As discussed above, these considerations have been referred to as "getting to know you" factors. They comprise a form of information which cannot comfortably be described as "confidential information", but which can nevertheless become a powerful weapon at the disposal of those with adverse interests. It would be perfectly understandable for a client to feel trepidation about the potential of being cross-examined by an opponent with such a weapon at his or her disposal (or by counsel instructed by that opponent). For all that the significance of the "getting to know you" factors should not be elevated, it is difficult to ignore that Family Court proceedings are very different to the corporate or commercial litigation to which Heerey J referred in the passage from Mintel cited above.
60Also cited above is the passage from the minority judgment of the Supreme Court of Canada in Martin v MacDonald Estate (Gray) (supra) which was adopted by the Full Court in McMillan – in which reference is made to clients revealing to their lawyer their "most secret devices and desires" and their "most frightening fears".
61The Full Court in Osferatu made no direct reference to the "getting to know you" factors, although it did not dismiss their relevance. On the other hand, and save for a preference for the expression "real risk" over the words "theoretical risk", their Honours qualified, but otherwise endorsed and applied McMillan. It follows that the "getting to know you" factors should not be ignored. They were not discussed in Osferatu because, as is apparent from the decision at [21], the Full Court was only concerned with the risk of the misuse of confidential information (properly so-called). It did not concern itself with the other established categories on the basis of which solicitors may be restrained from acting against a client or former client – namely, breach of fiduciary duty and the court's inherent jurisdiction over its officers and to control its processes (or, as I described them in Karapataki, the duty of loyalty ground and the supervision and control ground). As was recognised in Osferatu at [20], however, the confidential information ground (or breach of confidence ground), the duty of loyalty ground and the supervision and control ground overlap.
62It is sometimes suggested, in relation to both the confidential information ground and the so-called "getting to know you" factors, that the lawyer may have no recollection of confidential information or of discussions with or impressions of the client. Such suggestions are of little relevance. As Newnes M said in Zalfen v Gates [2006] WASC 296 at [98]:
It is a matter of common experience that recollection of something thought to have been completely forgotten may at a later time be triggered by some comment or event or simply come to mind. The fact that [a lawyer] currently has no recollection of [a relevant matter] is a factor to be taken into account, but cannot be regarded as establishing that any relevant information about the matter is lost to him forever.
63Even giving full weight to what have been described as the "getting to know you" factors, as I do, it is difficult to conclude that the risk of information of this nature (whether or not it can properly be categorised as "confidential information") falling into the hands of those with interests adverse to the wife is grave. Notwithstanding the number of billing "units" attributed to Ms K, her interactions with the wife were fleeting, or otherwise comparatively superficial. The wife did not give her instructions directly or seek her advice; nor did Ms K provide advice directly to the wife. If Ms K has any knowledge of the wife's personality, and her fears and concerns, then that knowledge was gained from others. On the basis of the evidence before me, it is fair to conclude that the wife has little to fear even if Ms K were to be minded to share her impressions of the wife with her colleagues at Law Firm A – although I accept, of course, that Ms K would do no such thing.
64In the particular circumstances of the case now before me, I am satisfied that the steps put in place by Law Firm A comprise effective measures to ensure that any relevant information in the possession of Ms K will not be shared with other members of the firm or with the husband. In forming that conclusion, I have taken into account the very limited scope of such information, the limited role played by Ms K within the team representing the wife at Law Firm B, the lack of specificity regarding what might be regarded as confidential information that may have come into her possession, the paucity of evidence regarding the relevance of such information to the dispute between the husband and the wife and the relatively remote risk that any information (of any nature) regarding the wife or the wife's side of the family law dispute that may have been in Ms K's possession will be disclosed to anyone whose interests may be adverse to the wife. I am satisfied that the risk of such information (if it exists) being disclosed is remote because of the assurances given by Ms P on behalf of Law Firm A and because of the undertaking given by Ms K. I make no finding as to whether such assurances and/or such an undertaking would have been adequate if Ms K had been other than a "bit player" (to use a colloquialism) in the wife's affairs while she was at Law Firm B, or if there had been clear evidence regarding Ms K possessing relevant confidential information while at that firm.
65During the course of submissions, Dr Dickey QC suggested that the Court should be cautious not to impede unduly the ability of lawyers to move from one firm to another. Among other things, he observed that Perth is a comparatively small city with a limited number of specialist family law firms. While that may be true, such considerations cannot fairly be regarded as "serious and weighty" and thereby worthy of being weighed in the balance with long-standing principles such as (on the one hand) the obligation to ensure that a lawyer in possession of confidential information cannot act in a way that puts that information at risk of coming into the hands of someone with an adverse interest and (on the other hand) the need to give appropriate weight to the public interest in a litigant not being deprived without due cause of the lawyer or law firm of his or her choice. If a lawyer (including a young lawyer) is in possession of adequately identified confidential information which remains relevant, if he or she accepts employment in a different firm which represents interests adverse to the client whose confidential information the lawyer holds and if there is a real risk that such information will be disclosed to the lawyer's colleagues at his or her new place of employment, then – unless the lawyer or the firm to which he or she has moved satisfies the court that effective measures have been taken to ensure that the confidential information will not be disclosed – the new firm will be restrained from acting.
Conclusion
66I am not satisfied that the wife has adduced cogent and persuasive evidence that Ms K is in possession of adequately identified confidential information which remains relevant. Further, I am not satisfied that there is a real risk of confidential information being disclosed by Ms K.
67In all the circumstances, I am satisfied that the protective measures to which I have referred (including, in particular, Ms K's undertaking – which the Court accepts) are effective to prevent the disclosure of whatever limited information may be available to Ms K.
68It follows that the wife's application in a case filed 24 March 2016 will be dismissed. I shall hear from counsel regarding any further or other orders which may follow from my ruling.
I certify that the preceding [68] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
10 June 2016
______________________________________
1 see Mr D’s affidavit sworn 22 March 2016
2 see Ms T's affidavit sworn 14 April 2016
3 see the wife's affidavit sworn 22 March 2016
4 see the husband's affidavit sworn 5 April 2016
5 see Ms P's affidavit sworn 6 April 2016
6 see Ms K's affidavit sworn 7 April 2016
7 See Kallinicos v Hunt (2005) 64 NSWLR 561
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