Gillam & Gillam
[2017] FCCA 64
•19 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILLAM & GILLAM | [2017] FCCA 64 |
| Catchwords: FAMILY LAW – Legal practitioners – conflict of interest – grounds to restrain solicitor from acting against former client – inherent jurisdiction or implied power of court to supervise and control the conduct of legal practitioners as officers of the court – danger of misuse of confidential information – continuing duty of loyalty – relevance of "getting to know you" factors – conclusion that wife's solicitor should no longer act for her in current proceedings. |
| Legislation: Family Law Act 1975 (Cth), s.106A Powers of Attorney Act 1998 (Qld), s. 87 |
| Osferatu & Osferatu (2015) FamCAFC 177 Kallinicos v Hunt (2005) NSWSC 1181 Smith & Glegg (2004) QSC 443 Thevenaz & Thevenaz (1986) FLC 91-748 McMillan & McMillan [2000] FamCA 1046 Magro & Magro (1989) FLC 92-005 Karapataki & Karapataki [2011] FMCAFam 6 Manner & Manner (2012) FamCAFC 6 L & L (2003) FamCA 777 |
| Applicant: | MS GILLAM |
| Respondent: | MR GILLAM |
| File Number: | TVC 705 of 2016 |
| Judgment of: | Judge Coker |
| Hearing date: | 30 November 2016 |
| Date of Last Submission: | 30 November 2016 |
| Delivered at: | Townsville |
| Delivered on: | 19 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Page QC |
| Solicitors for the Applicant: | The Brad Robins Legal Centre |
| Counsel for the Respondent: | Mr Collins |
| Solicitors for the Respondent: | McDonald Leong Lawyers |
ORDERS
That the Applicant Wife be restrained and an injunction issue restraining the Applicant Wife from providing any further instructions to The Brad Robins Legal Centre, Mr Bradley Mark Robins or any other partner, associate or employee of The Brad Robins Legal Centre to act on her behalf in relation to Family Law proceedings number TVC705/2016.
That within fourteen (14) days of the date of these orders, the Applicant Wife:
(a)File a Notice of Address for Service advising the Court and the Respondent as to her updated Address for Service; and
That the legal representatives for the husband file and serve written submissions within 14 days of the date of this order in relation to the issue of costs to be claimed and the amount of costs as may be claimed by them.
That the legal representatives then on the record for the wife within 28 days of the date of this order file any written submissions in relation to the question of costs as may arise in relation to the proceedings.
That unless otherwise requested in writing, the determination of the issue of costs be dealt with in chambers
That the substantive application be otherwise be listed for mention at 10.00am on 28 February 2017.
IT IS NOTED that publication of this judgment under the pseudonym Gillam & Gillam is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 705 of 2016
| MS GILLAM |
Applicant
And
| MR GILLAM |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION:
On 18 July 2016 Ms Gillam, whom I shall refer to as the wife, filed an application in this Court seeking orders with regard to a property settlement to be effected between her and Mr Gillam. For convenience I shall refer to the respondent as the husband.
It is not necessary for me in this matter to detail the nature of the application made in relation to property settlement. Suffice it to say that the wife sought orders with regard to an adjustment of property as between her and the husband, which included orders related to the transfer of various properties and the payment of certain moneys, as well as the retention by each party of entitlements in relation to superannuation and the like.
Additional orders were sought on a final basis with regard to what I might call boiler plate type arrangements, which included the provision of an order pursuant to the provisions of section 106A of the Family Law Act for the registrar of the Family Court and/or the Federal Court of Australia, but I presume the Federal Circuit Court of Australia, to be appointed to execute documents in the event of the failure by one party or the other to attend to such signings.
Additionally, orders were sought with regard to various interim arrangements, in relation to property. Again, it is not necessary to detail what those orders might specifically be, other than to say that they related to the operation of the company and business of the (omitted), as well as the business that was operated by the parties, trading as (omitted business).
Orders were also sought with regard to spousal maintenance being paid by the husband to the wife and then various orders were sought with regard to the valuation of the company and business, as well as the valuation of property including real property as may be disputed between the husband and the wife.
The husband’s response in relation to the wife’s application was filed on 23 September 2016. There the husband sought orders in relation to the property settlement to be effected between he and the wife on a generalised basis of a division providing for the wife to receive 30 per cent of the matrimonial pool, and the husband to receive 70 per cent. It was also sought that an order should be made with regard to cost as was the case with the wife’s application and otherwise, that any other orders as may be deemed appropriate be made.
More particularly, however, on an interim basis the husband sought orders again with regard to financial disclosure between he and the wife as required, pursuant to the rules of Court, though I note that whilst the proceedings are before this Court, the orders that were sought with regard to financial disclosure related to orders in accordance with the Family Law Rules. It is not necessary that I should address that error at this time other than to note with frustration the ongoing confusion relating to the rules of the two Family Law Courts.
More particularly, however, the husband sought orders with regard to a restraint being placed upon the wife and an injunction issuing which restrains her from providing instructions to her current legal representatives. The terms of the orders, 1 and 2 as contained within the interim orders in the response of 23 September 2016, were in these terms:
1. The Applicant Wife immediately be restrained and an injunction issue restraining the Applicant Wife from providing any instructions to The Brad Robbins Legal Centre to act on her behalf in relation to these proceedings;
2. Within fourteen (14) days of the date of these orders, the Applicant Wife:
2.1 File a Notice of Address for Service advising the Court and the Respondent as to her updated Address for Service; and
2.2 Pay the Respondent Husband’s costs of and incidental to this hearing in relation to the injunction pursuant to Order 1 in the Fixed Sum of $5,000.00 with such payment to be made payable to McDonald Leong Lawyers Trust Account.
The wife replied to the husband’s response, and in particular, to the interim orders that were sought by the husband in a reply filed on 29 November 2016. There the wife sought orders in these terms:
1. That the application filed by the respondent husband on 23 September 2016 be dismissed,
2. That the respondent husband pay the application wife’s costs of and incidental to the application as an assessed on an indemnity basis.
Again, if I were to take a more pedantic approach in relation to the matter, I would be concerned that the reply lacks specificity in that it seeks the dismissal in its entirety of the response filed on the part of the husband, rather than what was actually the subject of the dispute before the Court, which was in relation to the discrete issue of the husband’s application that the wife’s current solicitors be restrained from acting on her behalf.
ARGUMENT:
The application came before the Court on 30 November 2016. As was appropriate at the time, it was the case that the legal representatives for the husband seeking the injunctive relief proceeded with their application first.
Counsel for both parties addressed me in relation to the application, and a number of issues were raised by the parties, not the least of those, at least from the perspective of the husband, was the fact that the parties separated, the wife says in October 2015, and by January 2016, only a matter of some three months or so after separation was effected, the legal representatives acting for the husband raised the issue of concern that they held with regard to The Brad Robins Legal Centre, acting on behalf of the wife. And suggested that the appropriate course to follow was for those legal representatives to step back from the proceedings and to have others act on her behalf.
It is noteworthy that prior to the issue of the proceedings on 18 July 2016, correspondence was forwarded by the husband’s legal representatives to the solicitors for the wife on 27 January 2016, 4 May 2016, 11 May and 11 July 2016. Notwithstanding those concerns, the legal representatives for the wife indicated that they were not of the view that any conflict arose, and that is was therefore not necessary nor appropriate for them to not continue to represent the wife.
From the perspective of the husband, it was argued that there were a number of bases upon which it could be suggested that a conflict did arise, and that certainly on the face of it, there was sufficient reason for there to be a concern as to the continued representation of the wife, by The Brad Robins Legal Centre. Those particular issues included:
a)The fact that The Brad Robins Legal Centre had previously acted for the husband in setting up business interests as well as in commercial matters related to a subdivision of property;
b)The Brad Robins Legal Centre had acting for the husband in relation to civil and other personal legal matters;
c)Mr Bradley Mark Robins had been nominated in the husband’s will of 2 August 2013 as an alternate executor to the wife;
d)Mr Bradley Mark Robins had accepted appointment as an attorney for the husband on 27 August 2013, in relation to both financial and personal/health matters pursuant to an enduring power of attorney which took effect as and from 27 August 2013, and;
e)That the enduring power of attorney of 27 August 2013 was operative and continued as at the date of filing of the proceedings in this Court on the part of the wife, 18 July 2016.
From the perspective of the wife, it was argued that whilst there may have been some occasions in the past where Mr Robins had had some passing or peripheral involvement in the personal or joint affairs of the husband and the wife, the issue related to whether any information that may have been provided by the husband to Mr Robins was material to the matters that would now be required to be considered before the Court.
It was further argued, that there was little if any information other than of the most generalised nature that was provided by the husband to Mr Robins, and in any event, the majority of any exchanges that might have involved Mr Robins or other legal representatives of The Brad Robins Legal Centre, were communicated by the husband to Mr Robins or other legal representatives in the presence of the wife and therefore, there was no confidentiality in any information that might have been disclosed, as between the husband and Mr Robins or those other legal representatives.
It was argued in particular, that as the wife was a partner in the business and a shareholder in the company as well as from the obvious fact that the parties had lived together, that the wife had a very specific and wide ranging knowledge of the operation of the business and of the company and of the reasons for any meetings that were affected between Mr Robins and the husband. The argument, therefore, that there may have been confidential disclosures made by the husband to Mr Robins was rebutted, it was said, upon the basis that any information provided by the husband to Mr Robins was not of a confidential nature, as it was already known to the wife.
In that respect it was also strongly argued that there was no evidence of confidential information being exchanged between the husband and Mr Robins and that therefore what might have been the subject of any discussions constituted only what might be called common knowledge or knowledge that was held by each party and therefore not personal or confidential to one party or the other.
Interestingly, it was also argued that, as the family law rules and of course the federal circuit rules also require full and frank disclosure by each party, even if it were the case that there had been disclosure of confidential information, which was strongly denied on the part of Mr Robins and his employees, it was a case of there being a necessary requirement for disclosure of such information such that, even if it had been disclosed to the legal representatives now acting for the wife previously, it was not something that would be able to be used against the husband, as he would have had the obvious obligation to make such disclosure.
From the perspective of the husband, it was argued far more specifically, that whether there had been disclosure of information that was confidential but which would otherwise be required to be subsequently disclosed or whether there had not been anything of a specific nature, there were characteristics of the relationship between the husband and Mr Robins which gave rise to the absolute need for there to be a preclusion on Mr Robins or his firm acting on the part of the husband.
In that regard, responding to the argument that a special relationship existed, an undertaking was provided under the hand of Bradley Mark Robins, dated 25 November 2016. There Mr Robins provided the following undertaking.
I undertake that I will not speak to either Ms Gillam or any person employed by the Brad Robins legal centre about Mr Gillam’s affairs. I will not in any event participate in or seek information concerning the litigation of the family law property settlement claim occurring between Mr and Ms Gillam in the Federal Circuit Court of Australia.
The giving of an undertaking by Mr Robins in terms of that detailed above is both appropriate and understandable. It reinforces the assurances given, that Mr Robins will not discuss the current proceedings with the wife or others including particularly Mr Davis. What it also acknowledges however, is that there is a genuine concern expressed by the husband in relation to the possibility of information of a confidential nature passing between Mr Robins and either the wife or her legal representative within The Brad Robins Legal Centre. If that were not the case there would be no need or reason for such an undertaking and whilst it may be an action more to assuage any concern held by the husband it clearly examples the issues the arise in situations such as this.
In support of the reliance that could be placed upon that undertaking Mr Robins filed affidavits on both 17 October 2016 and 29 November 2016. Accompanying the affidavit of 17 October 2016 were affidavits under the hand of two solicitors employed by the Brad Robins legal centre, Shane Aaron Boyle and Paul Davis.
Mr Boyle’s affidavit related more to the past dealings of the Brad Robins legal centre with the husband and the wife when they remained a couple. Mr Boyle detailed his involvement in various matters that were raised with the Brad Robins legal centre by Mr Gillam or he and his wife. They included advice and work performed in 2007, 2010, 2011 and finally in 2013, with respect to the preparation of mutual wills and enduring powers of attorney. Mr Boyle particularly noted that wills and enduring powers of attorney in favour of each party by the other were executed by the parties on 2 August 2013. Mr Robins completed his part of the enduring power of attorney as the second attorney on 27 August 2013. It is clear, therefore, that the power of attorney, at least insofar as the appointment relates to Mr Robins, was effective as and from 27 August 2013.
Mr Davis in his affidavit notes that the wife attended upon Mr Robins on 15 February 2016 to give instructions to Mr Robins and that Mr Davis was then introduced to the wife and Mr Robins immediately handed over the conduct of the matter to Mr Davis.
It is noteworthy, however, that whilst it would appear to be a typographical error, paragraph 3 of the affidavit of Mr Davis notes that he has had sole carriage of the wife’s matter since 15 February 2015. That apparently typographical error simply reinforces the difficulties that arise when there is conflict of the nature that is currently identified, in relation to these proceedings. It also reduces or nullifies any suggestion that there cannot be reliance placed upon the evidence of the husband, in relation to the proceedings because of the reference in the husband’s material to having had Mr Robins act on his behalf since 1996, which was said not to be correct.
The fact that typographical errors or otherwise arise in the material of both parties, simply reinforces the need for there to be clear delineation between the representation provided to each of the parties in relation to matrimonial proceedings, as well as the need to recognise the concerns held, at least in this instance by the husband, as a result of previous representation of him by Mr Robins.
The argument by the husband in relation to this matter was detailed comprehensively in the outline of argument provided to the court under the hand of the husband’s counsel, dated 29 November 2016. There, a detailed examination was entered into with respect to the various considerations that need to be looked at in relation to whether or not it would be appropriate for a solicitor or a firm of solicitors to continue representation of one party or the other in family law proceedings when there had been previous proceedings involving that firm or solicitor and the other party to the family law proceedings.
In Osferatu & Osferatu (2015) FamCAFC 177, the Full Court in a joint judgment handed down by Finn, Ainslie-Wallace and Aldridge JJ noted under the heading “Applicable law” the following.
There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. They are: breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its offices and to control its process. Each category has its own principles which guide its operation. The third category may be involved in conjunction with either of the first two, so there is clearly an overlap; nonetheless, the basis for the exercise of the discretion in each is different (Kallinicos v Hunt (2005) NSWSC 1181).
Interestingly, the first of the three established categories which are suggested to give rise to a basis upon which solicitors may be restrained from acting against a former client, relates to a breach of confidence followed by a breach of fiduciary duty. In this matter, however, it is strongly argued on the part of the husband that what looms large, in relation to any determination, is the existence of a fiduciary duty, arising pursuant to the power of attorney.
It is clearly acknowledged that the appointment of Mr Robins as power of attorney or an alternative to the wife remained in existence at the time that proceedings were commenced in this court. More particularly, it is clear that earlier in time the appointment as alternative attorney remained live, and that whilst the power of attorney remained live and the obvious fiduciary duties therefore continued in existence, a request was made by the husband for Mr Robins and his firm to withdraw.
Section 87 of the Powers of Attorney Act 1998 (Qld) provides a rebuttable presumption of undue influence in any transactions between an attorney and a principal. Section 87 is in these terms:
87 Presumption of undue influence 87 Presumption of undue influence
The fact that a transaction is between a principal and 1 or more of the following—
(a) an attorney under an enduring power of attorney or advance health directive;
(b) a relation, business associate or close friend of the attorney;
gives rise to a presumption in the principal's favour that the principal was induced to enter the transaction by the attorney's undue influence.
The operation of section 87 of the Powers of Attorney Act 1998 (Qld) was also the subject of comment, and I was referred to the decision of Philip McMurdo J. in Smith & Glegg (2004) QSC 443 at paragraph 39 where his Honour said:
39. Absent s 87, a presumption of influence would not arise in the context of every transaction between a principal and an attorney, or between a principal and a relation, business associate or close friend of the attorney. Applying only the principles of equity, many of those transactions would not give rise to the presumption, because they would not fall within a recognised category of presumed influence or involve circumstances in which a relation of influence could be proved. The interpretation for which the plaintiff contends would undoubtedly impose the presumption in many cases where it would not otherwise arise. But that is the apparent purpose of s 87. Because of a perceived risk of undue influence in the context of principal and attorney, the evident intent is to provide strong protection against the risk of some misconduct by an attorney, by requiring the recipient in all cases to justify the transaction.
What is argued by the husband, as a result of that statement in relation to the presumption of influence and the possible rebuttal of that presumption, is that the fact that the presumption is rebuttable, it is of itself indicative of the existence of a fiduciary duty which arises out of the relationship of principal and attorney. And it is further contended that the duty extends to the attorney’s business associates. Such a contention clearly arises from the understanding of the statements of Philip McMurdo J., with regard to the fact that there is an acknowledged relationship whether it gives rise to a presumption of influence, not only between the principal and the attorney but between the principal and relations, business associates or close friends of the attorney.
It is contended, therefore, that Mr Boyle, but perhaps more particularly here, Mr Davis are business associates and fall within the same constraints, if they are applicable, as would be the case with regard to Mr Robins. It is important that that be recognised as specific in relation to this matter, because both Mr Robins and Mr Davis, but particularly Mr Robins as a result of the undertaking given, have indicated that there would not be exchange of information or discussion between them in relation to the proceedings. But the fact is that whether such an undertaking is given or whether such a position is taken is irrelevant, in relation to the existence of the fiduciary duty and the obligations that arise as a result of that.
It is also clear that what might be considered confidential information by the husband may be, as suggested in this case on the part of the wife and Mr Robins, information more of the character or nature of common knowledge or knowledge held with regard to each of the parties. But that, with respect, is not a basis upon which any restriction could be placed upon a legal representative. In Thevenaz & Thevenaz (1986) FLC 91-748, Frederico J commented:
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.
It is clear here that the husband deposes to confidential exchanges between he and Mr Robins. The fact that Mr Robins deposes to a very different nature of exchange or exchanges between the husband gives rise to the very real possibility of Mr Robins being required as a witness, in relation to these proceedings. It fails also to acknowledge that it is not Mr Robins’ recollection of what might or might not have been exchanged between he and the husband which is the determinant in relation to these proceedings, but rather, there is the requirement to act upon the evidence of the husband, who swore that he made the confidential communications.
In McMillan & McMillan [2000] FamCA 1046, the Full Court analysed previous authorities and cited with approval the statement of Frederico J in Thevenaz & Thevenaz (supra). The Full Court in McMillan (supra) also went on to cite with authority various decisions including those outside the realm of the family law. At paragraph 43, they specifically said:
Cautious conduct by the Court is appropriate, because the spectacle or the appearance that a lawyer can readily change sides is very subversive of the appearance that justice is being done. The appearance which matters is the appearance presented to a reasonable observer who knows and is prepared to understand the facts. The Court should weigh the facts and assess the risks in the eye of reality. Theoretical risks should be disregarded and when, as here, there is no confidential information available and there never was a relationship of solicitor and client with any partner, the appearance of the matter is not a basis for the Court to assume control over the retainer.
It is clear that the assessment to be made, if it was simply in relation to the exchange of confidences or confidential information, relates to whether there would be an appearance to a fair-minded member of the public of a possible conflict arising. Thereafter, the Full Court in McMillan (supra) went onto comment about the statements of Frederico J in Thevenaz (supra) and noted:
That Court took the view that restraint is justified if there is a risk that confidential communications on relevant matters have been made by the party for whom a solicitor has ceased to act, even if the risk may be 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 of facts and circumstances can conceivably be relevant; the sensitivity which even the most reasonable people feel about such litigation when they are engaged in it calls for careful measures to secure not only that justice is done but also that it is apparent that it is done, an appearance which would not survive any general impression that lawyers can readily change sides.
Insofar as the issue of whether there might or might not have been disclosure of confidential information to Mr Robins or to his associate, Mr Boyle, is also relevant in relation to this matter, though, as I have already noted, Frederico J specifically recognised the fact that it was not a contest of recollection or a weighing of conflicting evidence between the parties, but rather action to be taken upon the evidence of the party who swears that there has been confidential communication.
Rourke J in Magro & Magro (1989) FLC 92-005 at 77, 191 specifically noted that it was proper to infer that a solicitor, by length of his lengthy retainer:
[i]s in possession of at least some privilege material belonging to the wife” (as it was in that case) which could be put to good use by the husband. This might only consist of impressions of the wife’s personality gained from many hours of confidence, which could be exploited by a skilful advocate presented with those impressions. In these circumstances, the appearance of justice will, to borrow Bryson Js words, not long “survive any general impression that lawyers can readily change sides”.
In considering those various decisions and trying to bring together some general statement in relation to the approach to be taken with regard to such matters, the Full Court in McMillan (supra) said at paragraph 87 the following:
[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: see Mills and also Lindenmayer J in Stewart. 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”.
More recently Walters FM, as he then was, in Karapataki & Karapataki [2011] FMCAFam 6, applied the principles as he considered them arising from McMillan (supra) and commented at paragraph 37 as follows:
[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.
Walters FM then went on to specifically make reference to the “getting to know you” factors, noting particularly as I have in these reasons that the husband specifically makes reference to the initial attendances between he and Mr Robins as relating to banter with respect to what they got up to in their youth, matters relating to previous relationships and, noteworthy from the perspective of the husband, details of his business. The husband detailed that that was the nature of the exchanges between he and Mr Robins, though Mr Robins suggests that the exchange between he and the husband was of a fundamentally businesslike character and that there was no exchange of the nature of “getting to know you”. It again is necessary to keep in mind that there is no weighing of the positions taken in this instance between the husband and Mr Robins, but rather a general acceptance of the evidence of the husband. In that regard Walters FM said:
[65] The “getting to know you” factors would not be sufficient in themselves to justify a decision to restrain Mr Koutsoupias from acting for the wife, but those factors serve to reinforce the conclusions that I have reached in these Reasons. Although Mr Koutsoupias’ relationship with the husband and the wife was not built up over an extended period of time, he saw them both — in the role of their legal adviser — at a time of obvious tension for each of them. It is understandable that the husband would feel anxiety about Mr Koutsoupias’ role as the wife's legal representative, and that he would perceive him as being in a position of unfair superiority.
[66] I find that the husband has indeed raised a prima facie case that he provided confidential information to Mr Koutsoupias, and that Mr Koutsoupias purported to provide him with legal advice based on that information.33. I find, as well, that the confidential information could be used to the advantage of the wife (and the disadvantage of the husband). Indeed, the matters deposed to in Mr Koutsoupias’ affidavit reveal that the information has already been used in this way.
I do not for a moment suggest that any information that may have been provided, as deposed to by the husband, has been used to the disadvantage of the husband, but the perception remains that there is a conflict arising from information provided by the husband to Mr Robins, at least arising from the evidence of the husband and that that gives rise to a very real concern in respect of the continued representation of the wife by solicitors previously acting in any respect, on the part of the husband.
Finally it was submitted on the part of the husband, that the decision of McMillan (supra) was followed and reinforced in the Full Court’s decision of Manner & Manner (2012) FamCAFC 6, where the decision of the court in first instance not to restrain a wife from instructing the husband’s former solicitors was overturned on appeal. There the firm had acted for the husband in the past for a number of years in relation to business matters, but the Full Court was satisfied that, even in such circumstances relating specifically to business affairs entirely removed from those relating to the parties’ matrimonial relationship, it would still have been the case that confidential information about the husband would have been passed, which could possibly have been used to the wife’s advantage. There the Full Court cited the decision of Kay J in L & L (2003) FamCA 777, where at paragraph 52 Kay J said:
I think that it is better to err on the side of caution in these proceedings, and as regrettable as it may seem to the wife in the proceedings, I think the injunction must flow.
I have a similar view in relation to these proceedings. It is clear from Mr Robins’ own affidavit and from those of his associates that there has been a business relationship between the husband and the Brad Robins legal centre for nearly a decade, Mr Robins indicating that he first met the husband when the husband attended at his office on 22 August 2006. There is in my assessment a proper basis upon which the concerns raised by the husband, with regard to representation of the wife by Mr Robins or any of his associates, can be seen, and in the circumstances it is appropriate that there be an injunction granted.
Additional and I think of even greater significance, however, is the fact that there was a personal relationship of trust and familiarity between the husband and, it would also seem, the wife with Mr Robins, such that he was chosen to act as an alternative executor and attorney for both the husband and the wife and that Mr Robins agreed to do so. There was a fiduciary duty therefore in existence, even at the time of the institution of proceedings before this court, and whilst it is not necessary for me to specifically make a finding in relation to the effect of an existing fiduciary duty, I am satisfied that that is a factor which also needs to weigh heavy in relation to these proceedings.
Accordingly the Orders of the Court are as detailed at the commencement of those reasons.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 19 January 2017
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