Huda and Huda & Anor - [2017] FamCAFC 17

FAMILY COURT OF AUSTRALIA

HUDA & HUDA AND ANOR

[2017] FamCAFC 17

FAMILY LAW – APPLICATION IN AN APPEAL – LEGAL PRACTITIONERS –Where an employee of the solicitors for the respondent to an appeal resigned and commenced employment with the solicitors for the appellant – Where the respondent in the appeal seeks orders restraining the solicitors from continuing to act – Where the employee in question did have access to the file during employment with the solicitors – Where there was no evidence that the employee received confidential information from the client – Where the applicant has failed to identify the nature of the information received or likely to have been received – Where mere access to a file does not meet the evidential threshold – Application dismissed.

APPEAL – COSTS – Where the respondent foreshadowed filing an application for costs against the solicitors of the applicant personally – Where such application must be filed within the timetable prescribed in the orders.

Griffis & Griffis (1991) FLC 92-233
McMillan and McMillan (2000) FLC 93-048
Osferatu & Osferatu (2015) FLC 93-666
Stewart (unreported, Family Court of Australia, Lindenmayer J, 17 April 1997)
Thevenaz and Thevenaz (1986) FLC 91-748

APPLICANT:

Ms Huda

FIRST RESPONDENT:

Mr Huda

SECOND RESPONDENT:

Mr Laham

FILE NUMBER:

BRC

1238

2015

APPEAL NUMBER:

2016

DATE DELIVERED:

16 February 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

15 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 June 2016

LOWER COURT MNC:

[2016] FCCA 1256

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shoebridge

SOLICITOR FOR THE APPLICANT:

Firm X

COUNSEL FOR THE FIRST RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Firm Y

FOR SECOND RESPONDENT:

No appearance

Orders

The Application in an Appeal filed 14 September 2016 is dismissed.
The respondent file and serve an application seeking costs together with written submissions in support of the application for costs on or before 4.00pm 10 March 2017.
The applicant (and her solicitors should an application be filed seeking costs against the solicitors) file and serve written submissions in relation to costs on or before 4.00pm 31 March 2017.

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 Huda & Huda and Anor 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA47 of 2016 and NA49 of 2016
File Number: BRC 1238 of 2015

Ms Huda

Applicant

And

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Huda and Huda & Anor

Details

AGLC: Huda and Huda & Anor [2017] FamCAFC 17
Case: [2017] FamCAFC 17
Decision Date: 16 February 2017

CaseChat Overview and Summary

In Huda and Huda & Anor, the Court addressed an application in an appeal concerning the employment of a former employee of the respondent's solicitors, who had resigned and joined the solicitors for the appellant. The respondent sought orders to restrain the appellant's solicitors from continuing to act due to the former employee's access to the file. The central issue before the Court was whether the former employee's access to the file constituted a breach of confidentiality that would warrant the restraint of the solicitors from continuing to act.

The Court examined the legal principles governing the restraint of legal practitioners from acting in cases where there is a potential conflict of interest due to the former employee's access to confidential information. It noted the established test that a practitioner who ceases to act for one party and continues to act for another must be restrained if there is evidence that confidential communications have been made by the former client. The Court emphasised that the threshold for proving such confidential communications is relatively low and that the former client need only demonstrate a prima facie case that confidential information may have been disclosed.

The Court found that the respondent had failed to meet the required threshold. There was no evidence presented that the former employee had received confidential information from the client, and the respondent could not identify the nature of the information that might have been received. The Court concluded that mere access to a file did not suffice to establish a breach of confidentiality. Consequently, the application to restrain the appellant's solicitors from continuing to act was dismissed.

The Court also addressed the issue of costs, noting that the respondent had foreshadowed an application for costs against the applicant's solicitors personally. The Court ordered the respondent to file and serve an application for costs, together with written submissions, by a specific date. It further ordered the applicant, and her solicitors if an application for costs were made against them, to file and serve written submissions in relation to costs by another specified date. The form of the orders was subject to their entry in the Court's records.

Orders

Orders of the court

The Application in an Appeal filed 14 September 2016 is dismissed.

The respondent file and serve an application seeking costs together with written submissions in support of the application for costs on or before 4.00pm 10 March 2017.

The applicant (and her solicitors should an application be filed seeking costs against the solicitors) file and serve written submissions in relation to costs on or before 4.00pm 31 March 2017.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

The McMillan judgment reviewed relevant authorities in significant detail (see 87,725 – 87,735). Both McMillan and Oserferatu make reference to the test articulated by Frederico J in Thevenaz in the following passage at 75,447: Thus “a practitioner who wishes to cease acting for one party and to continue to act for the other party will be restrained from doing so by the court if there is any evidence that confidential communications have been made to him by the party for whom he is ceasing to act. In such a case the court will not weigh conflicting evidence as to confidence. It will act upon the evidence of the client who swears that he has made the confidential communication.” (See Legal Profession Law and Practice in Victoria (Gifford) 1980 ed. at p. 356.)(Emphasis added) At 87,733 of their Reasons, the Full Court in McMillan confirmed that as the relevant test, stating the following: …To the extent that it is necessary in this case for us to express a concluded view … we would support the application in this jurisdiction of the approach of Frederico J. in Thevenaz (following Mills) which was adopted by Mullane J. in Griffis and in Kossatz (and also by Lindenmayer J. in the unreported case of Stewart to which we will shortly refer). We would do so for the reasons related to the sensitive nature of the jurisdiction which were referred to by Bryson J. in D & J Constructions and by Rourke J. in Magro, and indeed also by Wilczek J. in the present case. In terms of the degree of proof required to demonstrate confidential information may have been communicated, their Honours referred to views expressed by Mullane J in Griffis & Griffis (1991) FLC 92-233, where his Honour said at 78,601 “[that] the former client be required only to prove a prima facie case as to the confidential material, the disclosure or use of which by the solicitor in the course of the conduct of the current proceedings for the present client would be prejudicial…”. Followed and reformulated another way, the Full Court in McMillan also made reference to the unreported decision in Stewart, and quoted the following passage: 56.…“… All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings. Accordingly, I propose to accede to the application of the wife.”(Original emphasis) It is helpful to consider the evidence put forward in McMillan, which can be summarised as follows: a)The husband’s affidavit specifically stated he communicated instructions directly to the law clerk/secretary (“the clerk”) in question; b)The husband’s affidavit stated that he believed the clerk “could make those instructions or information available for the use by the Wife against me…” (at [8]); andc)The above was corroborated by the solicitor instructed by the husband, and who in turn instructed the clerk.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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