Kennon and Anor and Public Trustee of the Australian Capital Territory

In the Supreme Court of the Australian Capital Territory, Faulks J heard an application brought by Ms Bancroft and Ms Kennon against the Public Trustee of the Australian Capital Territory. The core of the dispute concerned whether a legal practitioner, Mr Howard, should be precluded from continuing to act for the Public Trustee in family law proceedings due to his potential status as a witness.

The court was required to determine two primary legal issues. Firstly, whether the application of the relevant Solicitors' Rules, even if not strictly requiring it, would necessitate an injunction preventing Mr Howard from acting, given he was a potential witness. Secondly, the court had to consider whether, in the specific circumstances of the case, Mr Howard being required to give evidence would properly preclude him from continuing his role as legal representative.

Faulks J reasoned that while the authorities, including decisions of Brereton J in *Mitchell v Burrell* and *Kallinicos v Hunt*, acknowledge that a solicitor being a potential witness can, in certain circumstances, ground an injunction, the facts of this case did not warrant such an order. His Honour found that the application of the Rule itself did not compel an injunction. Furthermore, even considering the Rule as guidance and looking to the case law, the circumstances did not support the conclusion that Mr Howard should be enjoined. The court applied an objective test, considering what a reasonably informed member of the public would conclude about the administration of justice, and determined that simply being a potential witness would not necessarily preclude a practitioner from acting, particularly if the evidence to be given was of a formal or uncontroversial nature, such as witnessing a document.

Consequently, the application by Ms Bancroft and Ms Kennon was dismissed. They were ordered to pay equally the costs of the Public Trustee, and the interim matter was removed from the pending cases list.