Harlen & Hellyar

[2020] FamCA 21

FAMILY COURT OF AUSTRALIA

HARLEN & HELLYAR [2020] FamCA 21

FAMILY LAW – PRACTICE AND PROCEDURE – Interlocutory Application – where applicant contended she had imparted confidential information to the respondent’s solicitors about her affairs when they were acting for her – Where applicant sought to restrain the respondent’s solicitors from acting for the respondent – Where respondent sought dismissal of application – Where respondent’s solicitor a witness to events in issue in the proceeding – Whether there had been undue delay in the bringing of the application – Whether the respondent would be prejudiced – Application granted.

Family Law Act 1975 (Cth) s 90UC
Family Law Rules 2004

Argyll v Argyll [1967] 1 Ch 302
Bowen v Stott [2004] WASC 94
Dalton & Dalton (2017) FLC 93-773
Davey v Silverstein [2019] VSC 302
Grimwade v Meagher [1995] 1 VR 446
Holborow v Rudder [2002] WASC 265
Kallinicos & Hunt 64 NSWLR 561
McMillan & McMillan (2000) FLC 93-048
Miller v Martin [2019] VSCA 86
Oram & Lambert (No. 2) [2018] FamCAFC 161
Osferatu & Osferatu [2015] FLC 93-666
Bolkiah, Prince Jefri v KPMG [1999] 2 AC 222
Sellers & Burns and Anor [2019] FamCAFC 113
Thevenaz v Therenaz (1986) FLC 91-748

APPLICANT: Ms Harlen

RESPONDENT: Mr Hellyar

FILE NUMBER: MLC 13634 of 2017

DATE DELIVERED: 28 January 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 2 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John QC

SOLICITOR FOR THE APPLICANT: Peter Szabo Family Law

COUNSEL FOR THE RESPONDENT:

Mr Geddes QC

Mr Ashley Richardson

SOLICITOR FOR THE RESPONDENT: Z Lawyers

Orders

1. That Z Lawyers in the State of Victoria, Solicitors, be restrained from acting on behalf of the respondent in these proceedings.

2. That the matter be listed before Registrar Sudholz on 14 February 2020 at 9:30 am for further directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harlen & Hellyar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13634 of 2017

Ms Harlen

Applicant

And

Mr Hellyar

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in this proceeding was in a relationship and cohabited with the respondent in the period 2012 to 2017. Amongst other things she seeks to have declared void, or to have set aside, a s 90UC Agreement purportedly executed on 10 February 2014 (“the 2014 Financial Agreement”). The respondent seeks the enforcement of the 2014 Financial Agreement as if it were an order of the Court pursuant to s 90KA(c) of the Family Law Act 1975 (“the Act”). Presently before the Court is that part of an Application in a Case dated 21 June 2019 by which the applicant seeks to restrain the respondent’s solicitors, Z Lawyers, from acting on behalf of the respondent in this proceeding.

2. The application is said to be based upon the facts that Z Lawyers has acted for the applicant previously, that Z Lawyers retains information of the applicant’s which is subject to an obligation of confidence, that the conduct of Z Lawyers is the subject of criticism and dissent in the proceeding, that one or more members of Z Lawyers are potential witnesses in the proceeding, and that the applicant’s credit is put in issue by both the respondent and Z Lawyers in the proceeding.

3. The applicant relies on the three established categories on the basis of which there could be an injunction restraining solicitors from acting identified in Kallinicos v Hunt (2005), 64 NSWLR 561. First, breach of confidence, where to permit the solicitor to continue to act would involve a risk that the solicitor might use, or be bound to use, information which the solicitor held subject to a duty of confidence to the former client. Secondly, breach of a duty of loyalty, where acting against a former client is inconsistent with the solicitor’s fiduciary obligation of loyalty to that former client (although it is to be noted that the applicant’s submissions do not develop this second category). And thirdly, the Court’s inherent supervisory jurisdiction over solicitors.[1]

   [1]Kallinicos, 570-571 [33].

4. The respondent contends that, insofar as the breach of confidence category is concerned, the applicant has not demonstrated with the requisite precision or detail the information that she has provided to Z Lawyers that is confidential. He says further that in any event, whatever information the applicant did disclose to Z Lawyers was not confidential, and even if it was confidential the applicant has waived any right to object by not taking the point earlier than she has done.

5. The respondent also contends that insofar as the Court’s supervisory jurisdiction over its officers in order to control its processes is concerned, to rely on this ground to restrain Z Lawyers from acting because of the risk that a member of that firm is a potential witness would be exceptional, and must be balanced against several factors. These include the public interest in a litigant not being deprived of their lawyer of choice, the timing of the application, and the cost and inconvenience of the restraint. The respondent contends that all these factors favour him, rather than the applicant. The respondent says further that the application presumes that his solicitor will give evidence at the trial and will be a material witness, and that this view is entirely misconceived.

6. For the reasons which follow I consider that the principal of Z Lawyers, Mr J, is a witness to events in issue in the proceeding and that in one sense Mr J has an interest in the outcome of the litigation. In all the circumstances I consider that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Z Lawyers 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. Accordingly there will be an order that Z Lawyers be restrained from acting on behalf of the respondent in this proceeding.

Material Relied Upon

1. The applicant relies on the following documents:

   a)Application in a Case filed 21 June 2019;

   b)Affidavit of Peter Szabo dated 21 June 2019 pars 1-30 (inclusive) only;

   c)Affidavit of Ms Harlen dated 17 June 2019 pars 11, 31-40 (inclusive), 51-53 (inclusive), 84, 94, 98, 101-104 (inclusive) & 119-120 (inclusive);

   d)Affidavit of Peter Szabo dated 31 July 2019;

   e)Applicant’s Submissions as to Applicable Law filed 23 July 2019;

   f)Applicant’s Outline of Submissions filed 2 August 2019.

2. The respondent relies on the following documents:

   a)Response to Application in a Case filed 10 July 2019;

   b)Affidavit of Mr Hellyar dated 3 September 2018;

   c)Affidavit of Mr Hellyar dated 10 July 2019;

   d)Respondent’s Outline of Submissions filed 23 July 2019;

   e)Respondent’s Outline of Submissions in Reply filed 2 August 2019.

Relevant Facts

1. The applicant was born in Country B and has two daughters from a previous marriage in Country B. She separated from her former husband in Country B and came to Australia in July 2008 on a student-visa, while her daughters remained living in Country B. Upon arriving in Australia the applicant commenced employment in allied health. It was in the course of this employment that she met a Mr A. The applicant and Mr A married in 2010.

2. The applicant says that she met the respondent in March 2011 while she was working in allied health, and that the respondent became a regular client of hers. At this point in time the applicant was still married to Mr A, and the respondent was married to his former wife. The applicant says that the respondent discussed with her his unhappy marriage. She also says that by this time her own marriage to Mr A had become very unhappy, and that Mr A had become abusive towards her financially, psychologically and sexually.

3. In January 2012 the applicant and the respondent met one another in Country B and commenced an intimate relationship. In February 2012 the applicant separated from Mr A, and on 15 March 2012 the respondent separated from his first wife, whom he later divorced. From July 2012 and until the date of separation in 2017, the applicant and the respondent lived together in a de-facto relationship, never marrying.

4. In March 2012 the respondent purchased an established allied health business. The applicant states that she left her former job and began working full time at the new business. The parties travelled to Country B once again in April 2012 to visit the applicant’s family, where the respondent met the applicant’s daughters.

5. The parties commenced cohabitation in July 2012 in the respondent’s rented premises. The applicant says that at this point she had no assets or debts of significance and the respondent owned the allied health business and a luxury motor vehicle. The applicant says that otherwise she knew little about the respondent’s financial position, other than that he had some superannuation benefits and a four-bedroom apartment in G Town, Victoria that he received from his financial settlement with his former wife.

6. It appears to be common ground at least that later in 2012 the respondent took the applicant to see Mr J of Z Lawyers. The applicant says they went to see Mr J in about August 2012 to talk about problems arising from her separation from Mr A, including visa issues. The applicant says that Mr J told her that he could help her with problems concerning her marriage to Mr A, but that he would have to have a migration lawyer, help her with her visa related matters.

7. However the applicant also says that at the time she and the respondent visited Mr J in about August 2012, the respondent had discussions with Mr J about a document which Mr J would prepare concerning what she and the respondent would each receive if their relationship was to end. She says that later, on 14 October 2012, she and the respondent attended at Mr J’s offices in D Street, Suburb E and signed such a document. The applicant recalls that an interpreter was present at the offices of Mr J on this occasion and that, after a short time, another solicitor, Mr F, arrived and with the assistance of the interpreter Mr F explained the main paragraphs of the agreement to her. The applicant says that after she had signed the document, which she did not really understand and felt compelled to sign, she was given a copy of it by Mr F but that copy was later taken off her by the respondent. The applicant no longer has a copy, despite having requested a copy of it from Mr F. The applicant says that the respondent told her that Mr F was a good friend of Mr J.

8. According to the applicant Mr J continued to act on her behalf in relation to difficulties arising from her marriage to Mr A, and she saw Mr J many times in his office, always accompanied by the respondent. She says she gave Mr J detailed instructions about her relationship with Mr A, and her personal history. In November 2012 Mr J appeared for the applicant against Mr A on an application for an intervention order in the Magistrates’ Court.

9. The respondent recalls these events somewhat differently. He says that he first took the applicant to a migration agent, C Associates, also in D Street, Suburb E, sometime after he and the applicant began living together in order for her to receive advice about obtaining permanent residency in Australia. The respondent says that C Associates advised that the applicant should apply to the Magistrates’ Court for an intervention order against her former husband, and suggested that Z Lawyers, which was located in the same building, might be able to help with this.

10. The respondent says that in or about November 2012 he took the applicant to the offices of Z Lawyers for the sole purpose of obtaining advice about making an application for an intervention order against Mr A. The respondent says that Z Lawyers assisted the applicant to obtain the intervention order against Mr A. The respondent does not mention who at Z Lawyers, to his recollection, obtained the intervention order and gave advice to the applicant in relation to these matters. However the respondent does accept that, as the applicant says, Mr J continued to act on the applicant’s behalf in relation to difficulties arising from her marriage to Mr A many times thereafter. The respondent denies that any financial agreement was executed by him and the applicant in October 2012.

11. The respondent also recalls that later in January 2013 he took the applicant to see Mr J to obtain legal advice in relation to a motor vehicle accident of which she had been a victim some years earlier, and that he retained Z Lawyers to act on the applicant’s behalf in relation to this matter. Ultimately the matter was not pursued. The respondent says that at all times that the applicant attended at the offices of Z Lawyers, for whatever purpose, he accompanied her and that, accordingly, there would be no information in the possession of Z Lawyers that was not also in his possession. This, he says, deprives any information given to Z Lawyers by the applicant of any confidential character because it was given in his presence and he is aware of the information.

12. The applicant says that the respondent took her to the offices of Z Lawyers again on 10 February 2014 to sign a document that he told her was similar to a will. She says that when she arrived at the offices of Z Lawyers with the respondent, only Mr J was present. The applicant says that she was handed a document which looked similar to the 2012 Agreement she said she had signed at that time, but that she could not read or understand it. The applicant says that the respondent told her to sign it, and that Mr J did not speak to her. The applicant says she signed the document in the presence of the respondent and Mr J and all the pages that she was asked to sign, and that there were no other signatures on the document when she signed it. She says that the respondent then signed the document, and told her that other people would come to sign it later. The applicant says that she was nervous, felt pressured to sign the document, and had no real choice but to sign it.

13. Once again, the respondent has a different version of events. He says that he and the applicant executed the agreement at the offices of Z Lawyers on 10 February 2014 and that at the time the applicant was represented by Mr F and had the assistance of an interpreter. He says that at the time the applicant conferred with Mr F and the interpreter and executed the 2014 Agreement, neither the respondent nor anyone from Z Lawyers was present in the room given to Mr F and the applicant.

14. The applicant denies emphatically that she was advised by Mr F in relation to the 2014 Agreement, and that there was an interpreter present on the day that she signed it. She says that the interpreter said by the respondent to have been present on 10 February 2014 was in fact the interpreter who attended the offices of Z Lawyers on 14 October 2012, when she signed the 2012 Agreement. The applicant says that the only witnesses to her signing the 2014 Agreement were the respondent and Mr J.

15. On 27 December 2017 the respondent filed an Initiating Application seeking to enforce the 2014 Financial Agreement. The applicant’s position was that she had not seen the 2014 Agreement since she signed it in 2014, in the presence of Mr J and the respondent.

16. On 15 February 2018 final orders were made by Johns J on the basis of the 2014 Financial Agreement. The applicant now says that she did not appreciate that final orders were being made that day, and that she wanted to challenge the 2014 Agreement as she disputes its validity. She says she was informed by her solicitor that the Court would deal with the validity of the 2014 Agreement on another day, and that her solicitor informed her that the orders made by consent on that day reflected this and were of an interim nature only.

17. The applicant says that shortly afterwards she sought to obtain a copy of her file from Mr F, which was not provided by him until 27 July 2018 – some five months after it was first requested.

18. Thereafter, on 7 August 2018, the applicant filed her Initiating Application seeking interim and final orders for spousal maintenance and final orders for property settlement, together with her supporting affidavit and financial statement. The respondent’s position is that this application should be dismissed, that the provisions of the 2014 Agreement should be enforced, and that the orders of Johns J made on 15 February 2018 should remain in full force and effect.

19. In the period between November 2018 and June 2019 the proceedings have been interrupted by various subpoena issues, the applicant having sought access to documents from Z Lawyers. The applicant’s present solicitor says that it was not until about April 2019, when he viewed copies of accounts for legal services from Z Lawyers to his client, that he came to appreciate that Z Lawyers had previously acted for the applicant. He subsequently obtained instructions from the applicant, who had not herself appreciated the significance of this fact. It is in this context that the applicant brings the present application for the removal of Z Lawyers.

Should Z Lawyers Be Restrained From Acting?

1. Much of the written and oral submissions made by senior counsel for the applicant focused upon the alleged confidentiality of information imparted by the applicant to Z Lawyers. The applicant submits that the fact that Z Lawyers had information of hers which she asserts is confidential provides a sufficient basis for the Court to enjoin Z Lawyers from continuing to act. She refers to rule 8.03 of the Family Law Rules, and to Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, 234-235; Kallinicos, 582; Thevenaz v Therenaz (1986) FLC 91-748, 75,447; McMillan v McMillan (2000) FLC 93-048; Osferatu & Osferatu (2015) FLC 93-666, 80,411-80,415; Dalton & Dalton (2017) FLC 2017 93-773, 77,236; Oram & Lambert and Ors (No. 2) [2018] FamCAFC 161, [10]-[14]; as well as other authorities.

2. Although at one level this submission is not without force, the difficulty lies in identifying the information said to be confidential, whether it is in fact confidential by reason of the fact that it appears to be common ground that any information disclosed by the applicant to Z Lawyers was disclosed in the presence of the respondent, and whether any information disclosed is actually relevant to the subject matter of the current proceeding. On this latter point the applicant says that detailed instructions given in many conferences as to her personal history and circumstances including in relation to her former husband Mr A is “relevant to the current proceedings as to the employment she undertook, the nature of the relationship, her complaints about Mr A’s behaviour, etc”. It is also submitted that her emotional state, general life dislocation and financial position throughout the time she was involved with the respondent at the time she says she signed the 2012 Agreement and the 2014 Agreement is relevant in the present proceeding, as is the fact that the respondent was paying her legal fees. These factors are said to be potentially relevant including because “unconscionability will inter alia be alleged as a ground to set aside the 2014 Agreement (if it is found to not be void or unenforceable)”.

1. The respondent, with some justification, is critical that the applicant does not specify with sufficient particularity those aspects of her instructions to Z Lawyers at various times which she says give rise to concern in the context of the present proceeding. The applicant says in response that “to specify with great particularity involves a disclosure of itself”.

2. It may be accepted that the applicant’s contention that Z Lawyers is in possession of confidential information of hers which is of significance for the purposes of this proceeding is attended by, at least, problems of definition. Were this to be the only basis of the present application difficult questions in relation to the confidentiality of the relevant information, its relevance, and whether any confidentiality had been waived, would require determination. On the existing state of the evidence an application on this basis alone may be difficult to sustain.[2]

   [2] See in particular, Osferatu & Osferatu (2015) FLC 93-666, 80,415 [41] and the authorities to which reference is earlier made.

3. However, the applicant also contends that in all the circumstances there is no question but that Mr J would need to be called as a witness in relation to the circumstances in which she signed the 2014 Agreement. It is submitted that it is difficult to conceive of a case where a solicitor could be more involved in the subject matter of the litigation, and his conduct the subject of greater criticism and attack, than that of Mr J in this case. The applicant submits that a primary issue in the proceeding is how many financial agreements there were – the applicant says two; the respondent (and, it may be presumed, Mr J) say there was one. Senior counsel for the applicant contended at the hearing of this application that Mr J drew the 2014 agreement and on the applicant’s case witnessed the applicant sign it and arranged for Mr F and the interpreter to provide the necessary certifications after the fact.

4. Although it is not clear on the existing state of the evidence whether Mr J arranged for Mr F to represent the applicant and organise the interpreter for the purposes of the 2014 Agreement, on the applicant’s case Mr J was at least present with the respondent when the applicant signed the 2014 Agreement in the absence of legal advice, and in the absence of an interpreter. On the applicant’s case he must subsequently have been involved in procuring signatures and certifications as to advice and translations not in fact given to the applicant.

5. Senior Counsel for the applicant submits that if what the applicant says is true, that is that the 2014 Agreement was signed by the applicant in the presence of the respondent and Mr J, without the applicant having had the document translated or being given any legal advice, and were the document to have been later (falsely) certified by Mr F and the interpreter, this would amount to the most serious professional misconduct on the part of Mr J. In this sense then it is said that Mr J has a vested interest in the litigation, and that Mr J’s evidence would be critical to any finding concerning the validity and enforceability of the 2014 Agreement and the existence of the 2012 Agreement.

6. In circumstances where there is highly contradictory evidence, involving issues as to the credibility and the professional conduct of Mr J and the propriety of the respondent’s conduct, the applicant invokes the Court’s inherent jurisdiction to restrain a solicitor 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: Kallinicos, 582-583 [76]; Grimwade v Meagher [1995] 1 VR 446, 452; Osferatu, 80,411 [20]. The applicant says that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Z Lawyers should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

7. While accepting that the test to be applied is that set out by Brereton J in Kallinicos at [76], the respondent says that it would be oppressive to remove his solicitor and that the applicant has waited too long to seek to do so. He points to several matters in this respect. First, the fact that the applicant knew that Z Lawyers was representing the respondent as early as 18 October 2017 when they sent her the separation declaration. Secondly, that the applicant’s solicitor informed Z Lawyers around the time of the respondent’s enforcement application (15 February 2018) that the applicant intended to challenge the validity of the 2014 Agreement. Thirdly, that at the respondent’s enforcement application neither the applicant nor her solicitor challenged the involvement of Z Lawyers. Fourthly, that at the first return of the present application a registrar squarely raised with the parties’ legal representatives the issue of a possible conflict. Fifthly, that the applicant filed her material in the proceeding on 17 June 2019, and notwithstanding all this the applicant only brought this removal application on 21 June 2019. The respondent refers to Miller v Martin [2019] VSCA 86, at [60] on the significance of a delay in bringing an application such as the present one, and to a decision in Davey v Silverstein [2019] VSC 302 where an Associate Justice of the Supreme Court of Victoria also considered the late stage at which a removal application had been made.

8. On the subject of the applicant’s so-called presumption that a representative of Z Lawyers will give evidence at the trial and will be a material witness, and that this presumption is “entirely misconceived”, the respondent says that consideration should be given to the matters which the applicant must prove. He asserts that Mr F and the interpreter will both say that they did not attend at Z Lawyers on 14 October 2012, but that they did attend at Z Lawyers on 10 February 2014. The respondent proceeds on the basis that the parties will give evidence consistently with the evidence they have given to date, and that it is “most unlikely” that a representative of Z Lawyers would be required to give evidence.

9. In this respect the respondent refers to the recent decision of the Full Court in Sellers & Burns and Anor [2019] FamCAFC 113, where the Full Court reversed a decision of a trial judge that a solicitor should be restrained from acting because there was a “real possibility of the solicitor being required to give evidence”.[3] In Sellers & Burns the Full Court took the view that while it might be that evidence from the solicitor could cast light on particular facts, that evidence would not be determinative. In this sense the solicitor was not regarded as a material witness. The Full Court allowed the appeal in circumstances (unlike the present) where the husband had indicated that he would not call his solicitor.

   [3]Sellers & Burns, [113].

10. I do not accept the respondent’s submission that it is misconceived for the applicant to presume that a representative from Z Lawyers (Mr J) will need to give evidence at the trial of the proceeding. Whether or not Mr F and the interpreter give evidence consistently with the respondent’s expectations, it is clear that Mr J is a witness to relevant events. Also, and as I have said, by reason of the questions the applicant’s case raises about Mr J’s professional conduct, Mr J has an interest in the outcome of the proceeding.

11. Whether or not Mr J is actually called to give evidence the fact is that, on the applicant’s case, he is the only person, other than the applicant and the respondent themselves, who was present on 10 February 2014 when the applicant says she signed the 2014 Agreement. Were the respondent not to call Mr J in support of his version of events the Court might draw the inference that Mr J’s evidence would not have assisted the respondent. The fact that the documentary evidence in the form of the signed and certified 2014 Agreement might be said to corroborate the respondent’s version of events (as the respondent contends) is not to the point. In circumstances where the applicant states definitively that she signed the 2014 Agreement in the presence only of Mr J and the respondent, inviting the conclusion that the relevant signatures and certifications were provided by Mr F and the interpreter falsely at a later time or date, Mr J is necessarily a witness. He is a witness on issues of substance which are plainly controversial and in respect of which questions of his own credibility and that of his client, the respondent, arise. It is not conceded here, as apparently it was in Sellers & Burns where the solicitor was not a material witness, that the respondent will not call Mr J. The respondent submits only that “it is most unlikely that a representative of [Z Lawyers] would be required to give evidence”.

12. If Mr J is called, and whether he is will be a matter for the parties, he may be in a position in which his client’s interest, his own interest, and his obligations to the Court may potentially be in conflict. He will owe obligations of loyalty to his present client, the respondent; he will have an interest in presenting the facts in a manner which exonerates himself; and he will have a duty to the Court to be frank.[4] It is undesirable, in these circumstances, for a practitioner in Mr J’s position to continue to act. For him to do so would risk compromising the integrity of the trial process. Where a practitioner’s credibility is at stake as a witness, his or her personal integrity may be put in issue and that may constitute a personal interest inconsistent with the practitioner’s duty to the Court and to the client.[5]

    [4] See the analysis in Kallinicos, 584 [86].

    [5]Bowen v Stott [2004] WASC 94 [53]; Holborow v Rudder [2002] WASC 265, [29].

13. Accordingly, in my view, a fair-minded, reasonably informed member of the public would conclude that the independent objectivity of Mr J as a solicitor in the case and/or a witness could be compromised by conflicts between his obligation of loyalty to his client, his role and knowledge as a witness of material facts, and his potential personal interest. Thus, the proper administration of justice requires that Mr J should be prevented from acting, in the interests of the protection of the integrity of the trial process and the due administration of justice, including the appearance of justice.[6]

    [6] See also the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rule 27.2. It may also have been open for the applicant to seek an injunction to enforce the Uniform Law, as applicable in Victoria. As to any injunction to enforce a statutory obligation, see Argyll v Argyll [1967] 1 Ch 302, 341-347.

14. In the circumstances of this case I do not accept that the fact that there has been some delay in the bringing of the application is a factor which, in the exercise of my discretion, should prevent Mr J from being restrained from acting. The facts here, involving as they do the materiality of Mr J as a witness to relevant events and as a solicitor, are rather different to the facts in Miller v Martin, Davey v Silverstein, and Sellers & Burns, where the relevant solicitor was not a material witness and different issues were in play. For obvious reasons one would not expect the applicant to have fully understood Mr J’s professional obligations and the difficulties presented by him being a witness in the case.

15. Ultimately however, whatever knowledge the applicant or her legal advisors had of Mr J’s involvement is not sufficient to overcome what I regard as the inappropriateness of him continuing to act in circumstances where he is a witness to events which lie at the heart of the applicant’s case and which are contested by the respondent. The prejudice to the administration of justice would be greater if Mr J continued to act.

16. Further, I do not consider that any prejudice which may be suffered by the respondent, in all the circumstances, is unmanageable. As the applicant has submitted, the preparation of the respondent’s substantive case is not well advanced and financial disclosure is still to come.

17. There will accordingly be an order that Z Lawyers in the State of Victoria, Solicitors, be restrained from acting on behalf of the respondent in these proceedings. There will also be an order that the matter be listed before Registrar Sudholz on 14 February 2020 at 9:30 am for further directions.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 28 January 2020.

Associate:     

Date:              28 January 2020