Grieves & Tully

In the Family Court of Australia, the wife sought an order to restrain the husband's solicitor and his firm from continuing to act for him in family law proceedings. The wife asserted that the solicitor had a conflict of interest due to a long-standing friendship with the husband. This assertion followed a previous instance in 2006 where the wife had raised a similar concern about bias after the solicitor joined his current firm, leading the firm to cease acting for the husband at that time. The solicitor had resumed acting for the husband in 2011 concerning parenting matters.

The court was required to determine whether the husband's solicitor should be restrained from acting, considering the wife's assertion of a conflict of interest. This involved examining the court's inherent supervisory jurisdiction, exercised in aid of the due administration of justice, to ascertain if a reasonably informed, fair-minded lay observer would conclude that the proper appearance of justice necessitated the solicitor's removal. Key considerations included whether the wife's delay in bringing the application was fatal, whether aspects of the solicitor's affidavit raised doubts about his capacity for independent judgment, and ultimately, whether the circumstances warranted restraining the solicitor from acting.

Young J reasoned that while the court's inherent jurisdiction to restrain a practitioner is exceptional and to be exercised with caution, the public interest in a litigant not being lightly deprived of their chosen representation must be balanced against the appearance of justice. The court found that the solicitor's long-standing friendship with the husband, coupled with certain aspects of his affidavit, created a reasonable doubt regarding his capacity to exercise independent judgment and could lead a fair-minded observer to question the impartiality of the proceedings. Consequently, the court concluded that the solicitor and his firm should be restrained from continuing to act for the husband. The court ordered that the solicitor and his firm be restrained from acting for the husband and directed parties to make written submissions on costs.