House and Altimas

In *House & Altimas* [2012] FamCA 625, Mr House, the applicant, sought to restrain Ms Altimas’ solicitor from continuing to represent her in defended property settlement proceedings before the Family Court of Australia. The dispute arose from the fact that the respondent’s solicitor had previously acted for both parties approximately 14 years earlier in relation to matters stemming from a road accident, including a traffic offence and personal injury claims. The applicant contended that he had imparted confidential and privileged information to the solicitor during that prior retainer, which could be used to his disadvantage in the current proceedings.

The primary legal issue before the court was whether the respondent’s solicitor should be restrained from acting for Ms Altimas. This required the court to consider the test for restraining a legal practitioner, which involves determining whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires such a restraint to protect the integrity of the judicial process and the appearance of justice. Specifically, the court had to assess whether the applicant had established that the solicitor possessed confidential information from the prior retainer, the disclosure or use of which in the current proceedings would be prejudicial to the applicant.

Justice Ryan applied the principles established in cases such as *Prince Jefri Bolkiah v KPMG* and *McMillan & McMillan*, noting that for a former client seeking to restrain a practitioner, the sole extant duty is to preserve confidentiality, and the applicant must demonstrate the possession of confidential material. The court found that while the solicitor had acted for the applicant in relation to the traffic offence and the personal injury claims, these retainers were joint in nature. Consequently, any information imparted by the applicant to the solicitor in that context was not confidential in relation to the respondent, as privilege had been waived due to the joint retainer. The court was not satisfied that the applicant had communicated confidential material to the respondent’s solicitor that could be used to his disadvantage, nor was there a reasonable basis for the assertion that the solicitor might be required to give evidence.

Accordingly, the application by Mr House for an order restraining the respondent’s solicitor from continuing to act for Ms Altimas was dismissed.