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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GILL and WYNNE

Details

AGLC: GILL and WYNNE [2016] FCWA 40
Case: [2016] FCWA 40
Decision Date: 10 JUNE 2016

CaseChat Overview and Summary

The case involves Gill and Wynne, where a legal practitioner moved from a firm representing the wife to another firm representing the husband. The wife sought an injunction to prevent the husband's solicitors from continuing to act for him, citing potential disclosure of confidential information. The court had to determine whether the solicitors could continue to represent the husband without breaching any duty of confidentiality owed to the wife. The significance of the "getting to know you" factors in the context of the legal practitioner's transition was considered, as well as the effectiveness of the "information barrier" implemented by the firms. The court referenced the Full Court's decision in relevant cases to guide its reasoning.

The primary legal issue was whether the solicitors could continue to act for the husband without breaching any duty of confidentiality to the wife. This involved assessing the nature and extent of confidential information that might have been shared between the legal practitioner and the wife during their prior representation. The court also had to consider the effectiveness of the "information barrier" established by the firms to prevent any such information from being disclosed. Furthermore, the court needed to weigh the "getting to know you" factors, which referred to the relationship and familiarity developed between the legal practitioner and the wife during the previous engagement.

The court found that the solicitors could continue to act for the husband, provided they adhered strictly to the "information barrier" that had been established. The "getting to know you" factors were deemed insufficient to impose a duty of confidentiality that would prevent the solicitors from representing the husband. The court relied on the Full Court's decision, which held that the transition of the legal practitioner to a new firm, coupled with the implementation of an effective "information barrier", was sufficient to mitigate any risk of confidential information being disclosed. The court concluded that the wife's application for an injunction should be dismissed.

The final orders of the court were that the husband's solicitors could continue to act for him, subject to the maintenance of the "information barrier" as implemented by the firms. The wife's application for an injunction was dismissed, and no order was made as to costs. The court's decision provided clarity on the circumstances under which a legal practitioner's move between firms would not result in an automatic bar on acting for the new client, provided appropriate measures were taken to prevent the disclosure of confidential information.

Orders