Kennon and Anor and Public Trustee of the Australian Capital Territory
[2008] FamCA 919
•1 October 2008
FAMILY COURT OF AUSTRALIA
| KENNON AND ANOR & PUBLIC TRUSTEE OF THE AUSTRALIAN CAPITAL TERRITORY | [2008] FamCA 919 |
| FAMILY LAW – INJUNCTIONS – INJUNCTION TO RESTRAIN SOLICITOR – Coronial proceedings may be instituted after coronial inquiry – solicitor for the Public Trustee a potential witness in relation to the possible coronial and criminal proceedings – application to restrain solicitor on basis of being a material witness – where solicitor would not be a witness in the Family Court proceedings – where the coronial proceedings are to be concluded before the Family Court proceedings commence substantively – reasonable observer would not conclude that solicitor unable to perform his duties or that administration of justice would be compromised – application dismissed |
| Family Law Act 1975 (Cth) Legal Profession (Solicitors) Rules 2007 (ACT) |
| Mitchell v Burrell [2008] NSWSC 772 Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181 |
| APPLICANT: | Ms Kennon |
| SECOND APPLICANT: | Ms Bancroft |
| RESPONDENT: | Public Trustee of the Australian Capital Territory |
| FILE NUMBER: | CAC | 1695 | of | 2007 |
| DATE DELIVERED: | 1 October 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks J |
| HEARING DATE: | 1 October 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Tonkin |
| COUNSEL FOR THE SECOND APPLICANT: | Ms Tonkin |
| SOLICITOR FOR THE APPLICANT: | Mrs Yeend |
| COUNSEL FOR THE RESPONDENT: | Mr Nash |
| SOLICITOR FOR THE RESPONDENT: | Mr Howard |
Orders
The application in a case filed on 22 September 2008 by Ms Bancroft and Ms Kennon is dismissed.
Ms Bancroft and Ms Kennon will pay equally the costs of the Public Trustee, of and in relation to these proceedings, noting that the parties' lawyers at least were otherwise required to attend Court on this day for a short time in any event.
The interim matter is removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Kennon and Anor & The Public Trustee of the ACT is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1695 of 2007
| MS KENNON and MS BANCROFT |
Applicants
And
| PUBLIC TRUSTEE OF THE AUSTRALIAN CAPITAL TERRITORY |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Barralet represents the wife’s mother Ms Bancroft who is one of the respondents in the primary action, and of course, the applicant in these proceedings. In her affidavit she sets out in a variety of forms a conversation that she had with Mr Howard, the solicitor for the Public Trustee in this matter, in the Court precincts after or before a previous attendance in this Court in relation to this matter.
In essence, and I do not at this stage attempt to make a finding as to the accuracy of the reporting of either Ms Barralet or Mr Howard about the conversation, the conversation was that Mr Howard indicated that he had heard from the deceased husband, Mr Kennon, certain words which Ms Barralet, at least, construed as saying that there had been a threat to kill him by her client and her mother for the benefit of their attaining the property that belonged to the husband and to the wife, Ms Kennon.
It is complained about, but nevertheless irrelevant to the conduct of this (interlocutory) matter this day, that a response was not filed until 30 September 2008, some eight days after the filing of the application. The response is commendably terse and seeks only that the application be dismissed and that the respondent, (for which one would read applicant in this case), pay the costs of the parties in relation to the interlocutory application.
The affidavit accompanying the response is from Mr Howard setting out in some detail his recollection of the conversation with the husband and his further recollection about the conversation with Ms Barralet.
He also, among other things, passed opinions as to what might be the likely significance of his evidence before the Coroner's Court. But at the end of both affidavits, I am left in this position: I have contested evidence between two practitioners about a conversation which took place in circumstances which would ordinarily be regarded as public about a matter which was before this Court. The evidence before me as to who most accurately recalls that conversation could only be the subject of further testing by cross-examination, and I believe that is inappropriate both in the circumstances of this matter and generally.
The thrust of the conversation is reasonably clear. The facts as I see them and as are relevant appear to be these. Notwithstanding all opinions to the contrary held by nearly all the practitioners in this matter, it appears that the circumstances relating to the husband’s death may have involved some deliberate killing of him, either by himself or by some other person or persons. This is because of the (now) acknowledged facts that his body was found with a wound to the back of his head and the weapon … near his body. In those circumstances, there is potential for a person to be found guilty of his murder, or his manslaughter, at some point in the future.
The significance of the comments apparently made by the husband in the presence of Mr Howard and other persons is that it may be construed by, or may have been the opinion of the husband that the wife and her mother, Ms Bancroft, were considering killing him to obtain the benefit of the house. The comments reported by Mr Howard in his sworn evidence do not carry that implication, nor do they include a direct threat. The husband of course is unavailable to explain what in fact the exact words used [by others] were that allowed him to come to that conclusion.
Even if Mr Howard were to conclude, or even if the Coroner were to conclude, that the husband believed that someone wanted to kill him, it does not follow that the Coroner will necessarily accept that that person did want to kill him, let alone did kill him. Those are areas or potential gaps in logic which need to be filled in any appropriate consideration of this matter.
Restraint of solicitor
In any event, the issue before me relates to whether in circumstances where it is agreed that Mr Howard might be a potential witness before the coronial inquiry, and subsequently, if it were found to be appropriate, criminal proceedings brought against the first or the second respondent in these proceedings, he should be enjoined from continuing to act for the Public Trustee in these proceedings.
Legal Profession (Solicitors) Rules 2007
I was referred by both parties to the Legal Profession (Solicitors) Rules 2007, and in particular to R 12, which reads, (I am told) as follows:
"A practitioner must not appear as an advocate, and unless there are exceptional circumstances justifying the practitioner's continuing retainer by the practitioner's client, the practitioner must not act, or continue to act, 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."
That Rule, which of course is not directly binding on me in any event, would seem to confine this application to matters that are currently before the Court in which the practitioner is acting. Nevertheless, by analogy or extrapolation, it is feasible to conclude that it would also relate to relevant and related proceedings in another Court at the same time.
To determine whether or not that would be possible would require a consideration of the matters in issue and the likely underlying principles upon which the apparent restraint is imposed by the Rule. However, prior to attempting such an analysis, it is nevertheless to be commented that the Rule requires a practitioner not to act in circumstances where the practitioner, "will be required to give evidence … to the issues before the Court."
In this matter there is no evidence at all that Mr Howard will be required to give evidence. Mr Howard's opinion is that he should not be required to give evidence because there is another person (Ms S) who has related but similar evidence, who could give evidence of the same sort that Mr Howard might and could give other evidence as well.
As a matter of logic, Mr Howard's analysis is compelling, nevertheless, that would not prevent a prosecutor in criminal proceedings, or counsel assisting the Coroner, or the Coroner himself or herself, from requiring that Mr Howard give some form of corroborative evidence of the matters said by the deceased husband in Mr Howard’s presence and in the presence of Ms S.
It is therefore possible that Mr Howard might be required to give evidence. The issue at the moment is that he has not so far been required to give evidence.
For that reason alone, it seems to me that this current application is premature and should therefore, (and I accept the submission of Mr Nash on this point) be dismissed in its present form. This is on the basis that such a dismissal would not in itself preclude the reinstitution of an application if at some time in the future, Mr Howard became required to give evidence.
Potentially to give Evidence?
However, such a potential consequence is unsatisfactory and I will therefore give some consideration to the second arm of the proposition, namely whether if Mr Howard were to be required to give evidence, whether that should properly, in the circumstances, preclude him from continuing to act in the family law proceedings before this Court.
Before turning to that, however, I would wish to dispose of the cogent and forceful submissions put to me by Ms Tonkin in relation to the authorities which would suggest that even if Mr Howard were to be a potential witness this would be sufficient in itself to require the Court at least, even if the Solicitors Rules would not have required it otherwise, to make an order for him to be prevented from acting.
In my opinion, notwithstanding the careful consideration of these issues by his Honour Brereton J in the decisions of Mitchell v Burrell[1] and in Kallinicos v Hunt,[2] while it would be a matter to be determined in relation to each particular case, the circumstances in this case would not in themselves cause me to take the view that simply because Mr Howard was a potential witness, that that would necessarily give rise to an injunction notwithstanding the requirements of the rule.
[1] [2008] NSWSC 772
[2] [2005] NSWSC 1181
In summary, for those two matters therefore, in my opinion, the application of the Rule itself would neither require or, in my opinion correctly permit me to enjoin Mr Howard from continuing to act in this matter for the Public Trustee. If I were to take the Rule as a matter or guidance and look to the decisions to which I previously referred, which would permit that in certain circumstances at least, a potential requirement to be a witness would be sufficient to ground an injunction to prevent a practitioner from acting before the Court, then in my opinion, the circumstances of this matter do not give rise to such a finding.
What if the solicitor IS required to give evidence?
That then leaves the issue about whether if, in the circumstances of this matter, Mr Howard were required to give evidence, that ought therefore in any event to preclude him from acting. This comes in two matters: one, I accept that the test is, as his Honour Brereton J has indicated, what a reasonably informed member of the public would conclude about the administration of justice in these circumstances as an observer. That precludes, as Ms Tonkin conceded, my taking a view that the subjective fears or apprehensions of her client - clients in this matter - would necessarily be, in themselves, an appropriate basis for imposing such an injunction.
A reasonable and objective observer would be concerned in the ordinary course of events, if a solicitor were to be a witness in a proceeding before the Court and continued to act for the person involved. However, even [that eventuality] must be [subject to] qualification.
For example, if the solicitor were to be called to give evidence that he or she had formerly witnessed a document that had been executed in the proceedings, it would be, in my opinion, absurd to suggest that the solicitor could not thereafter continue to act, notwithstanding that he or she had been a witness in the proceedings.
On the other hand, if the solicitor had been a direct witness relating to a primary matter relating to the establishment of the issues in dispute before the Court, it would be a matter of some concern in the administration of justice, adopting the phrase used by his Honour Brereton J, that a primary witness should also be acting for one of the parties and there may be a concern that his or her objectivity would be in question. Again, a matter of circumstances.
In this particular matter, the evidence proposed to be given is even more removed than that. The proceedings in which Mr Howard might be called to give evidence are proceedings before a Coroner. Potentially, he might also be called to give evidence before the Supreme Court or the Magistrates Court in relation to some criminal charge arising from the coronial inquiry or parallel to it. Neither of those proceedings is a matter before this Court, or potentially a matter before this Court, either by cross-vesting or otherwise, and in those circumstances, it is a matter of some conjecture as to whether his giving of such evidence would carry with it the same pejorative connotations as it would if he were involved in giving evidence in this Court itself.
In addition, it is agreed that either the parties' lawyers will collectively conclude that the coronial proceedings will not be relevant to these proceedings; or alternatively, the coronial proceedings should be concluded before these proceedings commence, in which case any involvement by Mr Howard will inevitably have been concluded before these proceedings are able to go forward in any substantive way.
A reasonable observer’s concern about the Administration of Justice
The question therefore arises: would a reasonable outside observer, noting that Mr Howard had given whatever evidence he might have been required to give (if he should indeed required to give it) in proceedings in a different Court preceding the substantive development of these proceedings, call into question, in a reasonable way, the administration of justice.
First, there is no element of objective advice, relevantly being given by Mr Howard to a living client who has a direct interest in the proceedings before the Court. His role is advising a public officer in circumstances where that public officer is fulfilling a public duty. In my opinion, it would not be reasonable for an outside observer to conclude that Mr Howard would necessarily be prejudiced or unable to fulfil his function as a practitioner. His ability to fulfil his function of a practitioner is what the Rule is directed to in the first place, or, what the rules [in a wider sense of the term], as analysed by his Honour Brereton J in relation to the conduct of practitioners before this Court, are designed to achieve.
Second, it is suggested that Mr Howard's involvement would in some way have caused him to bring about a delay in the finalisation of proceedings before this Court, because of his connexion with the husband’s statements that I have referred to above. There is no evidence, that would or could reasonably support that proposition, because of the proper attitude taken by the lawyers in this matter, when they have previously considered the matter before me.
The third possibility is this: that the wife’s mother and the wife could conclude that if Mr Howard were acting for the Public Trustee, he would be driven by his personal conviction about their involvement in the husband’s death to conduct the proceedings in this Court in a way which would be disadvantageous to them or which would cause them, in the words used by Ms Tonkin, to be intimidated. I do not accept that this is a reasonable interpretation of what would happen, given that the very issue upon which Mr Howard's opinion might, in those circumstances I have described be relevant, would then have been concluded, or will have been concluded before these proceedings go ahead.
Accordingly, it seems to me that even if there were grounds for saying at present that there would be a basis for requiring Mr Howard not to proceed in this matter, because he would be a potential witness before the Court, that ground, in my opinion, fails.
Accordingly, in my opinion, the application in its present form should be dismissed for those collective reasons, but not the least because, in my opinion, even if he were to be called to give such evidence, it would not be reasonable to restrain him from continuing to act for his client.
Costs
In relation to the question of costs, the primary prescription under the Family Law Act, as is well known, (s 117) requires, broadly speaking, each party to pay his or her own costs in relation to the proceedings before the Court. Sub-section (2) of that section provides an exception where if matters set out under s 117(2A) are found to be applicable, the Court may make an order as to costs or for costs, as the Court considers to be appropriate.
In this matter, in no way do I impugn the motive or integrity of Ms Barralet in instituting these proceedings. However, it seems to me that notwithstanding that it took nearly an hour and a half for me to reach the conclusions I did, ultimately, the application was ill-founded.
In my opinion, it is appropriate that there should be an order for costs and in those circumstances, I make an order. I note in that, that if the parties are unable to reach agreement about the quantum of costs, that there should be some allowance made for the fact that it was intended that there should be some attendance by the parties at Court today, although, in my opinion, that would have been an attendance for about a quarter of an hour, not for the hour and a‑half that was involved.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks
Associate:
Date:
4
2
0