Grieves & Tully
[2011] FamCA 617
•24 August 2011
FAMILY COURT OF AUSTRALIA
| GRIEVES & TULLY | [2011] FamCA 617 |
| FAMILY LAW - LEGAL PRACTITIONERS – Conflict of interest – Where the wife asserted that the husband’s solicitor had a conflict of interest and sought an order restraining the solicitor and his firm from acting – Where the husband’s solicitor had a long standing friendship with the husband – Where the firm previously ceased to act for the husband in family law proceedings in 2006 on the wife’s then assertion of bias after the husband’s solicitor joined that firm – Where the firm then denied any conflict – Where the solicitor resumed acting for the husband in 2011 in relation to incidental parenting matters following final orders in 2008 – Whether the husband’s solicitor should have continued to act after the wife’s assertion of conflict FAMILY LAW - JURISDICTION – Inherent – Whether the Court in its inherent supervisory jurisdiction, and in aid of the due administration of justice, should restrain the husband’s solicitor and firm from acting – Whether a reasonably informed fair-minded lay observer would conclude that the proper administration of justice and the appearance of justice requires the practitioner to be prevented from acting – Where the jurisdiction is exceptional, to be exercised with caution and with due consideration of the public interest that a litigant should not lightly be deprived of his or her choice of representation – Where the wife did not bring the application or raise the conflict issue in correspondence at the earliest possible time – Whether the wife’s delay is fatal to her application – Whether aspects of the affidavit of the husband’s solicitor raised a reasonable doubt in relation to the practitioner’s capacity to exercise independent judgement – Whether in all the circumstances the husband’s solicitor should be restrained from acting |
| Family Law Rules 2004 (Cth), r 8.03 Professional Conduct and Practice Rules 2005 (Vic) |
| A v B (1990) FLC 92-126 Oceanic Life Ltd v HIH Casualty and General Insurance Ltd [1999] NSWSC 292 Prothonotary v Jackson [1976] 2 NSWLR 457 |
| APPLICANT: | Mr Grieves |
| RESPONDENT: | Ms Tully |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 4331 | of | 2009 |
| DATE DELIVERED: | 24 August 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Young J |
| HEARING DATE: | 15 August 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O’Shannessy |
| SOLICITOR FOR THE APPLICANT: | Law Firm 1 |
| COUNSEL FOR THE RESPONDENT: | Ms Stewart |
| SOLICITOR FOR THE RESPONDENT: | Adrian Abrahams Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Victoria Legal Aid |
Orders
That the solicitor for the husband, Mr D, and the firm Law Firm 1, be and are hereby restrained from continuing to act on his behalf in these proceedings.
That all parties make, file and serve any written submission as to the award of costs of, and incidental to, this hearing within seven (7) days, such submissions to be limited to no more than three (3) pages.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.
IT IS NOTED that publication of this judgment under the pseudonym Grieves & Tully is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: MLC 4331 OF 2009
| Mr Grieves |
Applicant
And
| Ms Tully |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The single issue for hearing and determination in this judgment is identified by the wife at paragraph 18 of her Amended Response to the Initiating Application of the husband, filed 1 August 2011. In paragraph 18, and for the first time since the commencement of these further proceedings, the wife’s solicitors on her behalf sought the following order:
“18.That the husband’s solicitor, [Mr D incorrectly spelt] (sic) of [Law Firm 1] be forthwith restrained from continuing to act on behalf of the husband in this matter due to issues of conflict.”
Leave was granted at the commencement of the proceedings for Ms Stewart, who appeared as Counsel on behalf of the wife, to amend that order sought to both correct the spelling of the name of the husband’s solicitor, Mr D, and to extend the scope of the orders sought to include Law Firm 1 so that that firm was also sought to be restrained by its partners, or employees, from continuing to act on behalf of the husband in these proceedings. There was no objection to such leave being granted, other that to note the delay in seeking the amendment, and thereafter the submissions and hearing proceeded on the basis that what was sought by the wife was, in effect, a transfer of the file both from Mr D and Law Firm 1 to an independent firm of solicitors to continue acting on behalf of the husband in the proceedings that remain for determination before this Court.
The husband was represented by Mr O’Shannessy of Counsel and he opposed the order sought by the wife both against his client and, by extension Law Firm 1 (although the firm was not separately represented) restricting the right to act on behalf of the husband.
The Independent Children’s Lawyer was represented by Ms Boymal of Counsel and she was instructed to make no submissions and was not actively involved in this aspect of the hearing.
The orders sought and the evidence submitted on behalf of the wife were identified in the following documents which were relied upon and which I have carefully read and evaluated:
(a) the wife’s Response to Initiating Application, filed 5 May 2011;
(b)the wife’s Amended Response to Initiating Application, filed 1 August 2011;
(c)the wife’s affidavit, filed 1 August 2011, and the substantial annexures thereto;
(d)the wife’s further affidavit, filed by leave 15 August 2011.
The orders sought and the evidence submitted on behalf of the husband were identified in the following documents which were relied upon and which I have carefully read and evaluated:
(a) the husband’s Initiating Application, filed 16 March 2011;
(b)the husband’s affidavit, filed 16 March 2011 and the various annexures thereto;
(d)the affidavit of the husband’s solicitor, Mr D, filed 5 August 2011.
There were no documents filed by or on behalf of the Independent Children’s Lawyer.
The background facts to the marriage can briefly be summarised as follows:
(a)the husband and wife married in South America in 1992;
(b)there are two children of the marriage E, born in June 1996 (15 years old) and J, born in December 2001 ( 9 years old);
(c)the parties separated on 18 April 2005 and their divorce was granted on 30 June 2009.
Final parenting and property orders were made by consent and pronounced by Justice Bennett on 7 March 2008. In those proceedings the husband was represented by Mr Fildes, then of Middletons Solicitors, and the wife was represented by Mr Parker of Lander & Rogers.
Proceedings next came before the Court when the husband, as applicant, filed an Initiating Application on 31 December 2010 seeking a recovery order for the two children on the basis that he was entitled to have each of them living with him over the Christmas and New Year holiday period pursuant to the final orders of March 2008. At the hearing of that discrete issue on 4 January 2011 the husband then represented himself and filed a short supporting affidavit.
The wife likewise appeared in person and her Response was filed on the day of that hearing.
The matter came before me on 4 January 2011 as an urgent Duty List hearing and I made orders upon hearing from each of the litigants in person which had the ultimate effect of finalising the husband’s Application and concluding all proceedings before the Court. I directed that a transcript of those proceedings be taken out, placed upon the Court file and made available to the parties.
The transcript of proceedings of 4 January 2011 was referred to in proceedings this day by Ms Stewart in her submissions but otherwise it provides further background information to the plethora of further orders now sought by both the husband and wife in this continuing and somewhat inflamed matter.
The husband is applicant in the fresh proceedings filed before this Court on 16 March 2011. By that date the husband had re-engaged Mr D of Law Firm 1 and the fresh Initiating Application was issued on his behalf by that firm.
Both final and interim orders were sought under the umbrella of a preamble which identified that the husband sought the orders “as supplementary to and by way of clarification for the parties of the Orders made by Her Honour Justice Bennett on 7 March 2008”.
All of the orders sought remain extant and are not the subject of the hearing this day but will need to be heard and determined at a subsequent hearing. Primarily the orders related to children’s issues and focused on obtaining passports for the children, overseas holidays, school enrolment, additional time to be spent and a clearer definition of the timetable for changeover between the parents.
In support of that Initiating Application the husband had sworn and filed a substantial affidavit, filed 16 March 2011 with various annexures. One of those annexures, “RG1” was referred to and relied upon in these proceedings and that document was a letter dated 17 February 2011 written by Mr D on behalf of the husband to the wife’s then solicitor looking to enter into discussions and endeavour to resolve matters prior to the institution of proceedings, which occurred approximately four weeks later. The point of that letter, in the context of this proceeding, was that it identified to the wife and her then solicitor that the husband had re-engaged Mr D of Law Firm 1 to act on his behalf in the further and continuing proceedings.
The wife’s Response was filed by her recently engaged solicitor, Mr Adrian Abrahams on 5 May 2011 and sought substantial orders as to the passport and other official documents, the time to be spent by the husband with the children, notification issues, security for travel issues and school registration matters. Significantly, given that the previous letter dated 17 February 2011 was exhibited to the husband’s affidavit, no application was then sought by the wife to restrain Mr D or the firm Law Firm 1 from acting or continuing to act for the husband in the proceedings.
On the 5 May 2011 the proceedings were listed for a procedural Case Assessment Conference before Registrar Sikiotis. The conference was attended by Mr D for the husband and the wife was represented by Ms Wheeler of Counsel. No objection to his appearance was recorded. Orders were made referring the further hearing to the list of the Senior Registrar on 3 June 2011 and again no objection was raised on behalf of the wife.
On that further hearing day the Senior Registrar appointed an Independent Children’s Lawyer and adjourned all extant Applications to 9 August 2011 in the Judicial Duty List.
On 14 July 2011 the matter came before me in Chambers and I granted the oral application of the Independent Children’s Lawyer to issue subpoenas for the production of documents returnable on the adjourned hearing date.
The wife filed her Amended Response to the husband’s Initiating Application on 1 August 2011. In this document she sought orders that differed from those in her initial Response, filed 5 May 2011. The orders now sought for child support and related expenses and the issue as to the various names used by the husband for legal, corporate and financial documents are not before me for hearing.
It is in the interim orders, at paragraph 18, that the wife instructed her current solicitors to raise, for the first time in Court proceedings, or to the knowledge of the Court, the restraint sought personally against the husband’s present solicitor from continuing to act in the proceedings due to an alleged conflict of interest.
On the 9 August 2011, in the Judicial Duty List, the matter was stood over for hearing on the discrete issue of Mr D continuing to act as the solicitor for the husband to 15 August 2011. On 15 August 2011 the matter was heard and argument concluded subject to the filing of written submissions on a point of law.
The hearing occupied almost a full day and I reserved judgment and provided the opportunity to Counsel for each of the husband, the wife, and the ICL, to file further written legal submissions within three days on any reported authority where a solicitor sought to act for the same party, before the same Court in proceedings where she or he had earlier voluntarily withdrawn or had been restrained from acting by a Court. I reserved costs of and incidental to the hearing before me on that day.
It is a matter of significant background importance that the firm Law Firm 1 have previously withdrawn from acting for the husband in these proceedings after Mr D joined the firm in 2006, and it was in that circumstance that the husband engaged Mr Fildes of Middletons to act on his behalf in the defended proceedings from about 7 August 2006 until the pronouncement of final consent orders by Bennett J on 7 March 2008.
It is both helpful and important to understand the chain of correspondence and events that led to that decision being taken by Mr D and his firm.
Annexed to the wife’s primary affidavit in these proceedings, filed 1 August 2011, are three letters which passed between solicitors acting for the parties between 24 May 2006 and 7 August 2006.
The first of those letters is annexure “M” to the wife’s affidavit and it is a letter from her (then) solicitor Mr Parker, at Lander & Rogers, to Law Firm 1 on 24 May 2006. That letter reads as follows:
“We refer to the above matter and understand that [Mr D] has now joined your firm as a solicitor.
On our client’s instructions, [Mr D] has undertaken work on behalf of the parties in the past both personally and also in relation to their corporate affairs. Our client objects to your firm continuing to act, taking the view that [Mr D’s] engagement by your firm now places your firm in a conflict of interest.
Please confirm that your firm will now withdraw acting on behalf of [the husband]. Please note that we have advised you as soon as we became aware of [Mr D] having been engaged by your firm.
We note also that [Mr D] has had continuous social involvement with the parties and their children over a lengthy period of time. It appears to us clearly inappropriate that your firm should continue to act in this matter.”
Annexure “N” is a further letter from Mr Parker addressed to Law Firm 1 in which the previous work undertaken, and involvement with the family by Mr D was identified, including that he was initially a director of the family business prior to the wife’s appointment in his place. Very much the purpose of that letter was to request or require Mr D to disclose all of his work and other associations with the husband and in that regard it was asserted, in paragraph 6, of the letter of 17 July 2006 that:
“Your [Mr D] has clearly acted on behalf of our client. As such he has an obligation to our client. It is therefore clear that your [Mr D] must volunteer to our client (as he clearly has an obligation to her as a previous client), all work which he has undertaken involving our client and/or the corporate entities of which he was a shareholder and/or director. For your [Mr D] to hide behind any assertion that it is up to our client to establish the work undertaken, is with respect, without foundation. Your [Mr D] has a clear obligation (and by virtue of having now become an employee of your firm, we believe it is your firm’s obligation to conduct that inquiry), to confirm all work which has been undertaken involving our client’s interests and/or our client personally. Please provide those particulars without delay.”
The penultimate paragraph of that letter is a matter of some significance and it read:
“As it is likely that the conflict issue cannot be addressed at the hearing of this matter on 24 July 2006 you are put on the clearest of notice that in the event that that issue needs to be litigated, and your firm’s continuing involvement will take place in the face of our client’s assertion that your firm is now in a conflict of interest.”
The reply by Law Firm 1 to that letter is annexure “O” to that affidavit and it is a letter dated 7 August 2006 written and signed by Mr L, Senior Associate, Law Firm 1 and forwarded to the wife’s then solicitors and it read as follows:
“Even though we reject your client’s assertion that there is a conflict in this matter [Mr D] referred [the husband] to our firm as he was not comfortable acting for a good friend. He continues to be uncomfortable when his presence at this firm has the potential to disrupt the timely progress of this matter to a resolution.
In those circumstance we no longer act for [the husband].
[The husband] has informed us that he will be meeting with a number of lawyers in the next few days and we would imagine that the lawyer that he appoints will contact you shortly thereafter.”
By way of background Mr D was not a solicitor in the employ of Law Firm 1 at the time that he referred the husband as a client to that firm. Mr D then made the decision that he would not, in his then firm, represent the husband in these proceedings. However, after the commencement of those family law proceedings in 2006 Mr D joined the firm of Law Firm 1 and it was in those circumstances that the letters now identified and annexed to the wife’s affidavit were written and the concerns in regard to a conflict of interest were raised. It is not clear whether the annexures form the full record of correspondence between the then solicitors for the wife and Law Firm 1 in relation to the 2006 assertion of conflict of interest, but that was not pursued or addressed by Counsel for the wife or husband at the hearing on 15 August 2011.
Notwithstanding that observation what I find to be a matter of very considerable significance and importance is that, as at 7 August 2006 Mr D was “not comfortable in acting for a good friend” and that his presence at Law Firm 1 then acting for the husband was stated to have “the potential to disrupt the timely progress of this matter to a resolution”.
The case put by Mr O’Shannessy on behalf of the husband was that there is no basis for his removal as a solicitor in the hearing on the basis of the conflict of interest as alleged by the wife as no such conflict of interest existed, and as a secondary argument, that even if such a conflict could be shown to exist the decision to restrain Mr D from acting for the husband is discretionary and subject to a satisfactory explanation by the wife’s solicitors of her delay in failing to bring this application until the filing of her Amended Response on 1 August 2011 which then sought the removal of Mr D and subsequently on the 15 August 2011, Law Firm 1.
As part of the evidence adduced to the Court Mr O’Shannessy tendered a search of the husband’s company, C Pty Ltd as obtained from Australian Securities & Investments Commission (“ASIC”). That search is exhibit “H1” in the proceedings.
The document illustrated that the husband was appointed a director of C Pty Ltd on 19 October 1988 and ceased to be a director on 15 June 1993.
The wife was appointed a director on 15 June 1993 and her resignation date was 12 August 1996.
Mr D was one of the initial directors of the company, appointed 19 October 1988 and he remained a director until 15 June 1993 when the wife was appointed a director. The other initial directors had been appointed for the purposes of the establishment of that company, effectively as a shelf company and the appointment and resignation date of those directors were both the date of its incorporation on 19 October 1988.
It was conceded by the husband’s Counsel that Mr D, whilst a director of the company, undertook limited corporate and commercial work for the company and the specific example given to the Court was that he prepared a commercial lease for the company along with other legal activities which were not more fully identified. It is not clear whether Mr D was remunerated for this work.
The further affidavit relied upon by the husband was that of Mr D, sworn and filed 5 August 2011. The affidavit was prepared by Mr D and he is the deponent. It is an affidavit which I regard as of central significance in this proceeding. I have very carefully examined and made findings upon this document as relevant to the conflict of interest issue before me for determination.
The affidavit commences with the confirmation that Mr D is now a director of the firm of solicitors, Law Firm 1, and that he has the care and conduct of this matter on behalf of the husband.
Mr D categorically denied that he has now or had at any time in the past a conflict of interest in acting for the husband in these proceedings or in previous Family Court proceedings in 2006. That position is difficult to balance in view of the letter of 7 August 2006 from Law Firm 1 to the wife’s (then) solicitors, written at a time when it was said that Mr D was not comfortable for the firm with whom he was then working to act for the husband and remained uncomfortable once he had joined Law Firm 1. The present scenario involves the same parties and the same Court, and raises a substantial concern as to the change in approach or reasoning of Mr D since 2006.
Mr D confirmed that the husband is well known to him and that they have been friends since both attending university together in the 1970’s. He acknowledged that he had acted for the husband in commercial and other matters in the early 1990’s and that he had been a nominal or token director of C Pty Ltd but stood aside approximately six months after the husband’s marriage to the wife.
Paragraph 7 of his affidavit is one that I regard to be important in that it identified a particular telephone conversation between Mr D and the wife shortly after the parties’ marriage. Whatever the reason for that telephone call and the matters discussed, Mr D deposed that during the call the wife made “malicious but unfounded and incoherent allegations about a former girlfriend of mine who was known to [the husband] and [the wife]”. A date is not provided for that alleged conversation but it does underline the attitude of Mr D towards the wife as he deposed that “From that time I largely withdrew from any social involvement with the Wife”.
While the above statements alone may not form the basis of a concern sufficient to give rise to a perception of conflict, they are of more significance when read within the context of paragraphs 2, 5, 6 and 7 of the husband’s affidavit, filed 16 March 2011, which was personally drawn and settled by Mr D on behalf of his client. I do both understand and carefully acknowledge that the evidence in that further affidavit is of the husband and that it was prepared for him by Mr D upon his instructions. Nevertheless the language is likely inflammatory and excessive, such expressions as “relentlessly”, “poison their attitudes” and further that the wife “has an outrageous and uncontrolled temper”.
Returning to the affidavit of Mr D, paragraph 8 is also of significance where it records, in relation to the 2006 asserted conflict of interest, that:
“[The husband] requested that I act on his behalf in about 2005 in family law proceedings with his wife as he was concerned that other solicitors may not have a full appreciation as to the difficulties he experienced in dealing with his Wife. It was my preference at that time however to provide [the husband] with support as a friend and not to refer the legal proceedings on to other solicitors, namely [Law Firm 1]. I was not aware at that time that I would eventually join them as an employee in May of 2006 and later as a director.”
Clearly then the husband sought Mr D to represent him in 2005 partly due to his particular knowledge of the wife from time, issues and events either spent with her or conveyed to him on social occasions by the husband. The inference is that the husband believed that Mr D knew of the wife and her personality and other issues and would have a more thorough appreciation of the difficulties experienced by the husband. If so that is not a basis upon which a solicitor should allow themselves to be engaged to act in proceedings in this Court and at that time Mr D quite rightly referred the husband to Law Firm 1.
In paragraph 9 Mr D sought to deal with the letter dated 7 August 2006 annexed to the wife’s affidavit. He identified that at the time he continued to be “uncomfortable” when his employment at Law Firm 1 continued to disrupt the progress of the matter between the parties and then proceeded in paragraph 10 to elaborate by providing a more detailed explanation of an incident that had presumably occurred at or about that time that added to Mr D’s discomfort. Although this explanation is frank and detailed, it provides further concern as to Mr D’s ongoing friendship and involvement with the husband and personal knowledge of past events and the behaviour of the wife, in the context of the asserted conflict of interest and Mr D’s current role as solicitor for the husband. In summary Mr D accepted a lift home from the city from the husband and they stopped at the K Club for a short time. At that time Mr D deposes that he observed that the wife drove into the car park of the K Club with the children in the car and then left, and on Mr D’s account, drove carelessly and/or dangerously. It appears from paragraph 10 that the husband and Mr D observed the wife’s driving from a side street after her vehicle left the car park in the same direction as the husband’s car. Mr D then incorporated a concern which placed himself potentially in the position of a witness where, in the last sentence to that paragraph he observed:
“I was very concerned for the safety of the children in the vehicle when witnessing the way in which the Wife was executing u-turns and the excess of speed she was driving at.”
In paragraph 11 the position of Mr D is underlined where he deposed that:
“Although I was reluctant to become involved in the current proceedings, I did so at the urging of the Husband.”
Thereafter in paragraph 12 Mr D deposes that he had formed the view that at no time was there confidential information of which he was possessed which would give rise to a conflict of interest. Further, and of significance, it was emphasised that previous conflict allegations in 2006 related only to financial issues and that any conflict of interest would not extend to children’s issues.
That situation must now of course be re-assessed within the context of the orders sought in the Amended Initiating Application and Response before the Court, relating almost entirely to the children, their holidays and travel, time spent, passport, schooling and related peripheral issues.
In paragraph 13 of his affidavit Mr D identified the issue of delay and expressed his surprise when he read the wife’s allegations of conflict of interest given that no allegations were raised at the Case Assessment Conference and at the listing of the matter before the Senior Registrar that he attended.
Finally in the concluding paragraph Mr D re-emphasised his attention to financial issues and the lack of any conflict of interest which could possibly arise in that regard but does not acknowledge or address the applications now before the Court insofar as the application relates to his longstanding friendship with the husband and, of significance to my finding, the reasons why he is not now uncomfortable acting for the husband as a friend as contrast with his position in August 2006 that resulted in Law Firm 1 ceasing to then act for the husband.
The final affidavit which I have read and carefully evaluated is that filed by consent and with the leave of the Court on the hearing day. The wife is the deponent and the affidavit was prepared by her instructing solicitor Mr Abrahams.
The purpose of the affidavit is to respond to the recently filed affidavit of Mr D which I have considered and made findings upon.
The wife initially takes issue with paragraph 7 of Mr D’s affidavit and provides a different background and reason for that telephone call suggesting that she sought Mr D’s advice in relation to alleged physical violence perpetrated by the husband. I cannot make a finding on that issue nor is it relevant to the determination of the conflict of interest. The importance now is the continuing conflict and dispute.
In paragraph 3 of her affidavit the wife detailed the various social occasions at the former matrimonial home where it is said that Mr D attended and interacted with the family of the husband and wife. It is alleged that he, not as a solicitor but as a friend of the husband, and an acquaintance of the wife, had “interacted with our children and is privy to information regarding our matrimonial breakdown and issues arising out of time spent with our children”.
The wife asserted that Mr D has remained a close friend of the husband and that he continued to visit the residence of Mr D including when the children of the marriage were spending time with the husband at that residence and those facts and the many other matters placed in evidence by the wife leads her to the conclusion that, in her belief, Mr D “has a clear conflict in this matter if he continues to act on behalf of the husband”.
In paragraph 5 the wife deposed that notwithstanding having stood aside as the husband’s solicitor in the primary matrimonial (children’s and property) dispute Mr D has subsequently witnessed the husband’s Application for Divorce, filed 18 May 2009 and had also prepared, witnessed and was named as Executor and Trustee in the husband’s Will during the course of the parties’ marriage.
As to the issue of delay it is asserted, with significant force, by Mr O’Shannessy that, aside from their denial of any conflict of interest, the wife and her solicitors have delayed bringing the conflict of interest application to restrain Mr D and Law Firm 1 from continuing to act for the husband. The conflict issue was first raised in the Amended Response, at paragraph 18, filed 1 August 2011. It is submitted by Mr O’Shannessy that the wife’s delay, and that of her solicitor, in properly raising and prosecuting this issue is, in any event, fatal to its success.
Mr O’Shannessy tendered exhibit “H2” which constituted correspondence passing between Mr D and Mr Abrahams, dated 24 May 2011 (two letters of that date) and a response letter of 1 August 2011 where it is said that the present allegation of a conflict of interest could and should have been raised.
Ms Stewart, on instructions from her solicitor and client responded that the wife had initially acted for herself in the early months of these proceedings between March and May 2011. It was submitted that the wife had approached the law office of Mr Abrahams only very late in April and, after executing a Costs Agreement, Mr Abrahams was engaged and the wife’s Response was filed on 5 May 2011, the date of the Case Assessment Conference before Registrar Sikiotis in this Court. It was Ms Stewart’s submissions that the great bulk of the records and file of the previous proceedings on all issues were retained by Lander & Rogers, the wife’s previous solicitor, and the substantial discussion of, and information concerning the conflict of interest claim became apparent when her solicitor was preparing the wife’s substantial affidavit sworn and filed 1 August 2011, to which the correspondence referred to above was annexed.
In circumstances where the Notice of Address for Service, filed by the solicitor for the wife on 5 May 2011, by leave, and at the later hearing before Senior Registrar Fitzgibbon on 3 July 2011 orders were made by consent for filing and service of amended documents and affidavits, it is plausible that the conflict issue was only raised by the wife or came to the attention of her solicitor after 3 July 2011.
I agree with the submission of Mr O’Shannessy, that the wife’s solicitors should have raised the conflict issue in correspondence at the earliest possible date, and this did not occur.
I had reserved to counsel the opportunity for each of them to file further written submissions. Ms Stewart advised the Court by letter that she had not located any other reported cases upon which she intended to rely and thus filed no further written submissions, as did Ms Boymal and Mr O’Shannessy.
As I have cited and discussed other reported decisions, that are set out subsequently in these reasons for judgment, that were not discussed in Court with counsel, my chambers contacted counsel and in correspondence advised of these further reported decisions and requested any further submissions thereon.
Ms Stewart for the wife provided a succinct submission indicating that Grimwade v Meagher [1995] 1 VR 446 and Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 elaborated on the test set out in Kallinicos v Hunt (2005) 64 NSWLR 561 at 586, paragraph 76, point e, of the “fair-minded reasonably informed observer”. In particular, Ms Steward highlighted that in the decisions of Grimwade v Meager (supra) at 455 and Kooky Garments Ltd v Charlton (supra) at 590, discussed the question of a lack of objectivity on the part of a solicitor or counsel in the application of the fair-minded observer test, and that in view of Mr D’s friendship with the husband, the previously imposed restrain from acting in 2006, and the “style and nature” of his affidavit of 5 August 2011, that the test was satisfied and Mr D should be restrained. No further submissions were received.
Legal Principles
In the decision of McGillivray v Mitchell (1998) FLC 92-818 (a Full Court constituted by Ellis, Baker and Finn JJ) the husband appealed against the decision at first instance refusing an application to restrain a practitioner who acted for the husband in his divorce from his first wife from representing his second wife in their subsequent divorce proceedings. The husband argued that the Family Court’s approach to the law of conflict was broader than that of other superior courts (see Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 applying Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831 at 835) and that the primary judge should have applied the law in accordance with the reasoning of the decisions of Thevenaz v Thevenaz (1986) FLC 91-748, Magro v Magro (1989) FLC 92-005, A v B (1990) FLC 92-126; Griffis v Griffis (1991) FLC 92-233 and Kossatz v Kossatz (1993) FLC 92-386.
The Full Court held that it was unnecessary for the court to determine the correctness or otherwise of the approach taken in various decisions at first instance in regard to the question of when it is appropriate to restrain a practitioner from acting as, on either approach, the court has a discretion to determine whether the practitioner should be restrained in all the circumstances of the particular case.
The Full Court specifically highlighted that it was relevant that the husband did not immediately make any protest or take any steps on becoming aware of the practitioner’s involvement, and that this must occur where a restrain is sought, at least in correspondence, at the earliest possible opportunity. The practitioner in question appeared for the wife in ex parte proceedings in November 1996, and in interlocutory proceedings on six occasions between February and August 1997, prior to the husband raising his concern in relation to the practitioner’s conflict before a Registrar in July 1997, followed by the filing of an application by the husband seeking an order restraining the practitioner in August 1997. The Full Court stated at 85,304 that:
“It is our opinion that if a family law litigant has a genuine concern about a former legal adviser acting against him or her in later family law litigation, the litigant must take the point at least in correspondence with the other side at the earliest possible opportunity. If he or she does not do so, then he or she is possessed of a weapon which can later be used as a delaying tactic at some point in the proceedings convenient to his or her position. Furthermore a failure to take the point initially must also cast doubt on the bona fides of any later complaint concerning the existence of confidential information in the practitioner in question, and on the bona fides of any alleged apprehension regarding the possible mis-use of such confidential information.”
Although as stated in McGillivray the decision to restrain a practitioner from acting is a discretionary decision, there are three grounds upon which the injunction may be sought, as set out by Brereton J in the decision of Kallinicos v Hunt (2005) 64 NSWLR 561. The first basis relates to a breach of confidence arising from the law of contract and equity, the second as derived from a solicitor’s fiduciary duties in accordance with equitable principles, and the third due to a superior court’s inherent supervisory jurisdiction over its officers (see also Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501).
In his Honour’s reasons for judgment the authorities relevant to all three grounds, and particularly the third ground of inherent jurisdiction, were discussed at length. Brereton J, at 582, paragraph 76, summarised the authorities as establishing that:
“a.During the subsistence of a retainer, where the court’s intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court’s jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests (Prince Jefri Bolkiah).
b.Once the retainer is at an end, however, the court’s jurisdiction is
not based on any conflict of duty or interest, but on the protection of
the confidences of the former client (unless there is no real risk of
disclosure) (Prince Jefri Bolkiah).c.After termination of the retainer, there is no continuing (equitable or
contractual) duty of loyalty to provide a basis for the court’s
intervention, such duty having come to an end with the retainer
(Prince Jefri Bolkiah; Belan v Casey; PhotoCure ASA; British
American Tobacco Australia Services Ltd; Asia Pacific Telecommunications Ltd; contra Spincode Pty Ltd; McVeigh; Sent).d.However, the court always has inherent jurisdiction to restrain
solicitors from acting in a particular case, as an incident of its
inherent jurisdiction over its officers and to control its process in aid
of the administration of justice (Everingham v Ontario; Black v
Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v
Pattern Holdings; Spincode Pty Ltd; Holborow; Williamson v Nilant;
Bowen v Stott; Law Society v Holt). Prince Jefri Bolkiah does not
address this jurisdiction at all. Belan v Casey and British American
Tobacco Australia Services Ltd are not to be read as supposing that
Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications
Ltd appears to acknowledge its continued existence.e.The test to be applied in this inherent jurisdiction is 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 (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications Ltd).f.The jurisdiction is to be regarded as exceptional and is to be
exercised with caution (Black v Taylor; Grimwade v Meagher;
Bowen v Stott).g.Due weight should be given to the public interest in a litigant not
being deprived of the lawyer of his or her choice without due cause
(Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen
v Stott).h.The timing of the application may be relevant, in that the cost,
inconvenience or impracticality of requiring lawyers to cease to act
may provide a reason for refusing to grant relief (Black v Taylor;
Bowen v Stott).”
In accordance with Kallinicos the timing of the application is one of a number of considerations to be taken into account in applying the inherent jurisdiction test of whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice, including the appearance of justice, requires that a practitioner be restrained from acting in a particular matter, and delay will usually be, but is not necessarily, fatal to an application, dependent on all the circumstances of the case.
Other decisions of this Court have discussed circumstances in which it is appropriate to restrain a solicitor from acting.
In Thevenaz v Thevenaz (1986) FLC 91-748 the husband applied to have the solicitor for the wife restrained from acting in circumstances where the solicitor had previously acted for the couple in relation to a number of conveyances, including the conveyance relating to the matrimonial property. Frederico J held that it was the practitioner’s duty to put at his client’s disposal not only his skill but also his relevant knowledge and that he was “under a duty to make available to his client such information as may appear from the files of the parties which were in his possession or power”. The court held that the solicitor could not continue to act in the circumstances, as there was a risk that “may well have been merely theoretical but which still existed” that justice may not appear to have been done.
In Magro v Magro (1989) FLC 92-005 the wife’s former solicitor was employed with the firm of solicitors that was acting for the husband. Rouke J applied Thevenaz and granted the wife’s application to restrain the husband’s solicitor from acting. His Honour observed, at 77,191, that:
“...it is reasonable to infer that [the husband’s solicitor], by dint of his lengthy retainer, is in possession of at least some privileged material belonging to the wife which could be put to good use by the husband. This might only consist of impressions of the wife’s personality gained after many hours of confidence, which could be exploited by a skilful advocate presented with those impressions.”
The court held that there was a probability of a real risk of injustice being done to the wife if the husband’s solicitor were allowed to continue to act and it was reasonable to infer that the husband’s solicitor was in possession of some privileged material belonging to the wife and in the circumstances the appearance of justice would not “survive any general impression that lawyers can readily change sides” (see D & J Constructions Pty Ltd v Head & Ors (1987) 9 NSWLR 118).
In the decision of D & J Constructions, Bryson J stated at 123, in relation to Family Law litigation, that:
“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.”
In the decision of the Full Court in McMillan v McMillan (2000) FLC 93-048 at 87,736, Finn, Kay and Moore JJ adopted the reasoning of the minority judgment of the Supreme Court of Canada in Martin v MacDonald Estate (Gray) [1991] 1 WWR 705, in relation to the need to maintain public confidence in the legal system:
“Neither the merger of law firms nor the mobility of lawyers can be permitted to adversely affect the public’s confidence in the judicial system. At this time, when the work of the courts is having a very significant impact upon the lives and affairs of all Canadians, it is fundamentally important that justice not only be done but appear to be done in the eyes of the public.
. . .
…The necessity of selecting new counsel will certainly be inconvenient, unsettling and worrisome to clients. Reasonable mobility may well be important to lawyers. However, the integrity of the judicial system is of such fundamental importance… that it must be the predominant consideration in any balancing of these three factors.”
In the later Full Court decision of Bransdon v Gilbert (2007) FLC 93-328, (Faulks DCJ, Coleman and Boland JJ) the issue was a concurrent conflict arising from one firm of solicitors acting for the wife and her parents in circumstances where her evidence and that of her father were in conflict. The Full Court stated, at paragraph 70, that:
“The court should only restrain the appearance of a legal representative in a clear case where the practitioner concerned is in a position where he or she is fixed with an interest which conflicts with his or her duty to the court and that that interest is one of such a nature that the legal practitioner may fail in his or her overriding duty to the court. This was not a clear case.”
There have been a number of other significant decisions relating to the inherent jurisdiction of a superior court to restrain a practitioner from acting.
In the decision of Grimwade v Meagher [1995] 1 VR 446 the Supreme Court of Victoria held that the Court’s inherent jurisdiction to protect the integrity of the judicial process and ensure the due administration of justice extended to preventing counsel from appearing for a party in order for justice to be done and be seen to be done and that the objective test to be applied that of the reasonably informed fair-minded member of the public, having regard to the public interest that litigants should not be deprived of their choice of counsel without due cause. Mandie J at 450 to 452 discussed the New Zealand Court of Appeal decision of Black v Taylor [1993] 3 NZLR 403 and the decision of Thomas J in Kooky Garments Ltd v Charlton [1994] 1 NZLR 587.
In Black v Taylor (supra) at 406 Cooke P reasoned that “[t]he jurisdiction extends to the propriety of a representative appearing in a particular case: it is not then a question of the right of practice generally… but a question concerning what is needed or may be permitted to ensure in a particular case both justice and the appearance of justice.” Richardson J in that decision stated that although the right of choice of counsel is important, it is not absolute, and in circumstances where the administration of justice and the integrity of the judicial process are affected by counsel’s representation of a party in proceedings, disqualification would ordinarily be the appropriate remedy. At 412 his Honour concluded:
“The decision to disqualify is not dependent on any finding of culpable conduct on the lawyer’s part. Disqualification is not imposed as a punishment for misconduct. Rather it is a protection for the parties and for the wider interests of justice. The legitimacy of judicial decisions depends in large part on the observance of the standards of procedural justice. Where the integrity of the judicial process is perceived to be at risk from the proposed or continuing representation by counsel on behalf of one party, disqualification is the obvious and in some cases the only effective remedy although considerations of delay, inconvenience and expense arising from a change in representation may be important in determining in particular cases whether the interests of justice truly demand disqualification.” (My emphasis)
In Kooky Garments Ltd v Charlton (supra), Thomas J held that the Court’s inherent jurisdiction to supervise the conduct of counsel included the ability to intervene to restrain a practitioner from acting and at 590 stated that:
“The Court is entitled to assume that solicitors and counsel appearing before it possess that independence. Solicitors not only owe a duty to their clients to do the best for them but also owe an overriding duty to the Court… As part of their professional responsibility, therefore, solicitors and counsel must ensure that they do not appear in a matter in which they have an actual or potential conflict of interest or where, by reason of their relationship with their client, their professional independence can be called in question.” (My emphasis)
This issue was discussed by Austin J in the decision of Oceanic Life Ltd v HIH Casualty and General Insurance Ltd [1999] NSWSC 292, at paragraph 48, where his Honour observed that solicitors acting in litigation owe a duty to the court in addition to their duties to the client and that:
“…a solicitor who acts in litigation owes a relevant legal duty to the court, as well as an ethical duty. The duty to the court arises from the court’s concern that it should have the assistance of independent legal representation for the litigating parties: see D A Ipp, “Lawyers’ Duties to the Court” (1998) 114 LQR 63, 93. In the realm of conflicts of interest and conflicts of duty, the solicitor’s duty to the court may not be much different from his or her fiduciary duties to former and present clients. However, the duty to the court tends to be expressed in such a way as to emphasise the public interest in preserving confidence in the administration of justice, and therefore in the appearance as well as the reality of independence, and the court’s practical approach to its supervisory discretions:Freuhauf Finance Corporation Pty Ltd v Feez Ruthning (1991) 1 Qd R 558; Murray v Macquarie Bank Ltd (1991) 33 FCR 46; Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307; Macquarie Bank Ltd v Myer [1994] VR 350; Kooky Garments Ltd v Charkon [1994] 1 NZLR 587; Watson v Watson (Supreme Court of New South Wales, Equity Division (Santow J), unreported, 25 May 1998).” (My emphasis)
In Holborow v Rudder [2001] WASCA 91, Hennan J discussed the paramount duty of legal practitioners to the court and stated, at paragraph 28, that:
“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 - Clay v Karlson (supra); Wan v McDonald (1992) 33 FCR 491; National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 and Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASCA 372.”
In the matter before the Court, the wife contends that the husband’s solicitor may have, due to his longstanding personal relationship with his client, and social interaction with the parties, knowledge of the wife’s personality, attitude and approach to litigation as discussed in Thevenaz and Magro. Additionally, the wife submitted that on the fair-minded observer test the husband’s solicitor, as a close friend of the husband, had entered into “the fray” as evidenced in the use of emotive language in his affidavit, filed 5 August 2011, and his decision to act for the husband despite the fact that the firm previously withdrew when a conflict of interest was raised by the wife in 2006 due to his employment with that firm.
Although rule 8.03 of the Family Law Rules 2004 (Cth) relating to conflicts of interests states that a “lawyer acting for a party in a case must not act in the case for any other party who has a conflicting interest” the Professional Conduct and Practice Rules 2005, published by the Legal Services Board of Victoria, provides further guidance for solicitors in relation to their duties to the court and clients. Rule 30 requires a practitioner not to engage in conduct which is calculated or likely to a material degree to be prejudicial to the administration of justice, diminish public confidence in the administration of justice or adversely prejudice a practitioner’s ability to practise according to the Professional Rules.
Rule 3 relates to confidentiality, rule 4 relates to conflicts that may arise when acting against a former client (“successive conflicts”) and rule 8 relates to conflicts that arise between two current clients of the solicitor (“concurrent conflicts”). These particular rules are not, as stated, applicable in the current matter.
Rule 9 relates to the duty to avoid a conflict of interest between that of the practitioner and their client (“solicitor-client conflicts”). However, that rule as stated seems to relate largely to pecuniary interests, as do the following rules 10 and 11, and appear directed to conflicts like that in Law Society of New South Wales v Harvey [1976] 2 NSWLR 154, which may in some circumstances be resolved by full and frank disclosure by the practitioner and fully informed consent by the client, subject to the client obtaining independent legal advice (see O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204).
However, this general proscription relating to solicitor-client conflicts extends to situations where a lawyer acts for a family member, a de facto partner or business associate (see Woolley v Ritchie (1999) ANZ Conv R 385). These rules do not have direct application in the matter before the Court as the husband is not a current business associate of Mr D. Although Mr D’s prior business association with the husband in relation to C Pty Ltd, the fact that he held, for some years, a position as a director of that company and conducted limited commercial and legal work in the form of a lease, whether paid or unpaid, is relevant to the characterisation of the relationship between Mr D and the husband in view of the wife’s allegations.
Rule 13 of the Professional Rules, in the section relating to advocacy and litigation rules, relates to independence and the avoidance of personal bias and at 13.3 it states that a practitioner, except as required by law or a court, must not “make submissions or express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the practitioner’s personal opinion on the merits of that evidence or issue”. At 13.4 the Professional Rules state that a practitioner must not, unless exceptional circumstances warrant otherwise, appear for a client at a hearing or continue to act for a client in a case in which it is known, or becomes apparent that the practitioner will be required to give evidence material to the determination of contested issues before the court. However, these rules are subject to the duty for practitioners to be frank in their disclosures to the court, per rule 14. These rules give rise to the question of what is a “material issue”, but ultimately underpinning Rule 13 and 14 is a practitioner’s paramount duty as an officer of the Court which requires the practitioner to exercise independent judgment in the conduct and management of the case.
In circumstances where a court doubts the solicitor’s capacity to exercise independent judgement the court may restrain a practitioner from acting (see Holborow v Rudder (supra) at 30) as the integrity of the judicial process is undermined if solicitors lack the objectivity and independence that their duty to the court requires (see Bowen v Scott [2004] WASC 94 at 52).
In circumstances where a solicitor has a personal or business relationship with a client, and the solicitor would find it difficult to maintain professional independence and objectivity, the solicitor should not act (see Bar Association (Qld) v Lamb (1972) 45 ALJR 712). In the decision of Lamb the solicitor acting for the wife had an extra-marital sexual relationship with her prior to the determination of the custody and maintenance matters and inappropriately communicated with witnesses to be called by the husband.
Other examples have arisen in criminal law proceedings in circumstances where there is no pre-existing relationship between the client and solicitor but the solicitor has become involved in the matter to a degree that influences their independent professional judgement. In Prothonotary v Jackson [1976] 2 NSWLR 457, the solicitor acting for the accused independently approached discharged members of the jury. The New South Wales Court of Appeal stated at 462 that the solicitor “permitted himself to become involved in his client’s case to a degree that unbalanced his professional judgment”.
There are a scarce number of decisions that specifically relate to a solicitor acting for a friend in circumstances where it has influenced the solicitor’s independent judgement.
In the decision of Kossatz v Kossatz (1993) FLC 92-386 the question of whether prior social contact can form the basis of an injunction restraining counsel from acting arose. Mullane J noted that there was no professional rule limiting a practitioner from acting against a friend or former friend and reasoned that in the circumstances of that case where the “relationship ha[d] not been close or familiar” and did not constitute “what one might expect [the wife] to regard as a friendship” and was “casual contact only”, the relationship could not form the basis of an order restraining counsel from acting in the proceedings.
That decision can be contrast to the decision of Legal Practitioners Complaints Committee v Chang [2007] WASAT 86 where a practitioner received cheques from a client for advice in relation to family law matters, and on the clients instructions, with written authority, deposited the cheques into her own personal account. The Western Australian State Administrative Tribunal stated that:
“Mr McCusker in his submissions on behalf of the practitioner acknowledges on her behalf that what happened here in the handling of these cheques was not something that happened through her ignorance of the usual requirements concerning the handling of money by a practitioner, but is to be explained by reference to the fact that the practitioner was acting for a person who was a friend of her family, who had requested her to handle the moneys in a certain way - principally so that there would be less likelihood of her client’s husband discovering that she was taking advice in relation to a family law matter. That, at least, is the explanation for that conduct that the Tribunal has been given.
In the Tribunal’s view, however, none of that in a practical sense excuses the conduct complained of. The reasons these professional standards are imposed is to ensure that clients are always fully protected and that the highest standards of professional conduct are maintained. The situation is no different when one is acting for a friend. Indeed, as Mr McCusker observed, when acting for a friend, by reason of the friendship sometimes the relationship can cause a deviation from the usual requirements. It might even be said that acting for a friend accentuates the need to comply more rigorously with professional standards because, if one does not and the relationship is muddied, the fallout and the consequences of the breach of the ethical relationship can be worse than in other cases. There simply is no separate rule when one acts for a friend.”
Although the above decision relates to trust money, and therefore the fiduciary obligations of a solicitor, the observations of the Tribunal are relevant to the matter before the Court.
In my view Mr D, in his affidavit responding to the wife’s allegations of conflict, particularly in paragraphs 7 and 10, appears to have exercised a lack of objectivity in detailing his social interactions, or the reasons for a lack thereof, with the wife. Although I appreciate the onus and duty on practitioners to be full and frank in their disclosures and responses to the Court, I am of the opinion that the duty in these circumstances did not necessitate the use of language that could be regarded as less than impartial, in a manner that suggests that it is Mr D’s opinion, as opposed to a factual recollection of the circumstances surrounding his interactions with the wife.
The above consideration in conjunction with the fact that, by letter of 7 August 2006, the firm then acting for the husband (that Mr D was and is employed with and which formed the basis of the wife’s earlier 2006 objection) withdrew from earlier proceedings between the husband and wife, leads me to reasonably question Mr D’s capacity to exercise independent judgement in these proceedings.
I am of the view that a fair-minded, reasonably informed lay observer would conclude that the proper administration of justice, the integrity of the judicial process, and most relevantly in this matter, the appearance of justice, requires that Mr D and the firm of Law Firm 1 be restrained from acting for the husband in these proceedings.
In concluding thus I have given due weight to the public interest that a litigant should not, without due cause, be deprived of his or her choice of representation.
Although I acknowledge that the wife brought her objection much later than desirable by way of her Amended Response, filed 1 August 2011, in circumstances where the husband’s Initiating Application, filed 16 March 2011, clearly indicated that Mr D was acting for the husband, and having due regard to the fact that Mr D appeared for the husband at a Case Assessment Conference and a hearing before the Senior Registrar prior to the lodgement of that Amended Response, I accept that this was largely as a result of the wife obtaining legal representation in late April or May 2011 and her solicitor later raising the issue of conflict with the wife. In considering specifically when the application was first brought by the wife, while I acknowledge that there is significant force in the argument of counsel for the husband citing McGillivray, I have concluded that notwithstanding that consideration, in all the circumstances of this matter, particularly in view of Mr D’s duty to the Court to exercise independent judgement, that the integrity of the judicial process and the appearance of justice requires that Mr D and Law Firm 1 immediately cease to act for the husband.
As part of this determination I have had particular regard to the fact that the inherent supervisory jurisdiction of the Court is not only discretionary but exceptional and to be exercised with due caution. I have also considered the cost, inconvenience and impracticality associated with requiring the husband’s solicitors to cease acting, but in my view, these factors do not warrant a refusal to exercise the discretion in all the circumstances of this particular case. In respect of the cost of changing firms I note that Mr O’Shannessy submitted that the husband currently owes a sum of roughly $10,000 in legal fees to Law Firm 1 and a change of solicitors would likely cause a delay, at the most, of two to three weeks.
I certify that the preceding One Hundred and Six
(106) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 24 August 2011.
Associate: ……………………………………………………………
Date: …………………………………………………………………
15
15
0