Lakey and Lakey - [2008] FMCAfam 827

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAKEY & LAKEY

[2008] FMCAfam 827

FAMILY LAW – PRACTICE & PROCEDURE – Legal representation – application to restrain a party’s lawyer from continuing to act for that party.

Mills v Day Dawn Block Goldmining Company Limited; in re Marsland (1882) 1 QLJ 62,
Rakusen v Ellis, Munday and Clarke [1912] Ch 831
Farrow Mortgage Services Pty Ltd v Mendall Properties Pty Ltd [1995] VR 1
McMillan (2000) FLC 93-048
Whisprun Pty Ltd v Dixon 200 ALR 447

Applicant:

MS LAKEY

Respondent:

MR LAKEY

File Number:

CAC 830 of 2007

Judgment of:

Brewster FM

Hearing date:

8 July 2008

Delivered at:

Canberra

Delivered on:

8 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr Millar

Solicitors for the Applicant:

Farrar Gesini and Dunn

Counsel for the Respondent:

Mr Brzostowski

Solicitors for the Respondent:

Dobinson Davey Clifford Simpson

ORDERS

That Dobinson Davey Clifford Simpson be restrained from continuing to act for the husband in this matter.
That Farrar Gesini & Dunn be restrained from continuing to act for the wife in this matter and each member of that firm is restrained from having any involvement in this matter or discussing this matter with any member of Consensus Family Lawyers.
That this matter be listed for final hearing on a primary basis on 15 and 16 July 2009 at 10.00am.
That evidence in chief at the hearing is to be by way of affidavit and oral evidence in chief will only be permitted by leave.
That the wife file and serve any further affidavits upon which she intends to rely by close of business on 17 June 2009.
That the husband file and serve any further affidavits upon which he intends to rely by close of business on 1 July 2009.
That the wife file and serve any affidavits in reply by close of business on 8 July 2009.
That at the commencement of the hearing each party hand up a list of assets and liabilities, a chronology, and a Minute of Orders sought, if those orders are different to those sought in that party’s application or response.
That if either party proposes to rely upon any affidavits other than those filed pursuant to these Orders that party is to file and serve a list of the affidavits relied upon by 8 July 2009.
That subpoenas be returnable no later than 9 July 2009.
That if either party seeks a splitting Order in relation to superannuation that party is to notify the Trustee of that scheme of the Orders sought at least 28 days prior to the hearing.

IT IS NOTED that publication of this judgment under the pseudonym Lakey & Lakey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 830 of 2007

MS LAKEY

Applicant

And

MR LAKEY

Respondent

REASONS FOR JUDGMENT

Introduction

This case involves an application by the wife for property settlement, spousal maintenance and child maintenance. The child maintenance issue arises because the husband lives overseas. It was listed for hearing on 8 July 2008. The matter did not proceed on that day.

This was because the wife’s lawyers filed an application seeking orders that the husband’s lawyers be restrained from acting for him.

The husband’s lawyers sought that this application be dismissed but that, in the event that I were to grant it, the wife’s solicitors in turn should be restrained from acting for the wife.
The wife is represented by Farrar Gesini & Dunn and the husband by Dobinson Davey Clifford Simpson. For convenience, and without I trust causing offence, I will refer to these firms as Farrars and Dobinsons respectively.

Background

The husband was previously represented by Mr Chris Crowley of the firm Crowley Clifford Simpson. That firm was dissolved in about the middle of last year. Mr Crowley went to Farrars and a number of the other solicitors in that firm went to Dobinsons. The husband’s file went to Dobinsons. Dobinsons gave some consideration to the difficulties that this might cause. They wrote to Farrars and subsequent correspondence ensued which I need not dilate upon. They received assurances from Farrars that Mr Crowley would not impart any confidential information to his new firm. They decided to raise no objection to Farrars continuing to act for the wife.
The wife has always been represented by Farrars. At first her solicitor was Mr Luke Akele from that firm and upon his leaving the firm her matter was assigned to Mr Paul Glass.
In May 2008 a member of Farrars, Ms Alison Osmand, left that firm and joined Dobinsons. Ms Osmand had never been directly involved with the wife but during the time Mr Akele had the carriage of her matter she was Mr Akele’s supervisor. She was never Mr Glass’ supervisor but she would have continued to hear about the case as Farrars has a system whereby their lawyers conferred regularly about all the cases being handled by the firm.
Mr Glass told Farrars’ Managing Partner, Mr Jim Dunn, in late June that he intended to leave the firm and go to Dobinsons. It appears that he may have expected to continue working for Farrars until after the hearing of this matter but that was not to be. He was directed to leave the firm the day he announced his resignation.
Consequent on these events Farrars made a decision to file an application seeking that Dobinsons be restrained from further acting for the husband. At the stage this decision was made Mr Glass’ position was irrelevant. He was not due to take up employment with Dobinsons until after the date for the hearing of the matter. The decision was made on the basis of Ms Osmand’s involvement in the case. In the event however Mr Glass’ position became relevant because the decision made to seek the injunction meant that the final hearing could not proceed as scheduled.
Mr Crowley gave an undertaking to the Court that he would not disclose any confidential material as to the husband’s case to his colleagues at Farrars and, as a result of discussions with me, agreed to expand that undertaking to encompass any discussion whatsoever of this case. Mr Phillip Davy, a partner of Dobinsons, filed an affidavit. He indicated that he was in charge of ensuring that in matters such as this proper standards were observed by members of the firm.

He indicated that the firm has put in place various protocols to ensure that in cases such as the present confidential information is not disclosed. He annexed to his affidavit undertakings by Ms Osmand and the two solicitors who are handling the case and said that Mr Glass would be required to sign a similar undertaking when he commences employment with the firm. It is clear that Dobinsons take their responsibilities in this area very seriously but in my opinion the protocols put in place are not relevant to the issues in this case.

The undertakings given to the court cannot be strengthened by such measures. If a lawyer is minded to breach an undertaking to the court then the firm’s protocols will be of little moment.

Discussion

There are two divergent streams of authority in relation to this issue. The first is found in Mills v Day Dawn Block Goldmining Company Limited; in re Marsland (1882) 1 QLJ 62. The second is Rakusen v Ellis, Munday and Clarke [1912] Ch 831. I need not discuss these cases in detail. Mills set the bar to be surmounted if an injunction were to be granted at a very low level. It is authority for the proposition that it is sufficient to found an injunction if a party deposes that he or she has conveyed confidential information to his or her solicitor and believes that that may be used to his or her disadvantage in proceedings. Furthermore it is authority for the proposition that there only needs to be a theoretical risk of prejudice and there need not be actual proof of prejudice. Rakusen however posited a more robust test. It is authority for the proposition that the Court will only grant an injunction of this type if it is satisfied that real prejudice will follow if it were not granted. The Mills stream has flowed into the family law area and the family law area alone. The Rakusen stream has flowed into all other areas of law although it has changed its nature somewhat and it appears to have diverged into an English stream and an Australian stream. The law in Australia is probably encapsulated in the judgment of Hayne J in Farrow Mortgage Services Pty Ltd v Mendall Properties Pty Ltd 1995 VR 1 where at page 5 he said that an injunction should be granted if “there is a real and sensible possibility of the misuse of confidential material”. It is unnecessary for me to consider this. For reasons which will become apparent, if this matter were res integra I would refuse to grant an injunction in this case. However the matter is not res integra. The Full Court of the Family Court comprehensively examined this issue in McMillan (2000) FLC 93-048. I am bound by that authority and I propose, albeit reluctantly, to follow it. I do not believe that I need go outside the four walls of McMillan in deciding this case. McMillan is authority for the following propositions:
a)The Mills test is the appropriate test.
b)A person in the position of the wife in this case need not disclose the nature of the alleged confidential information in the possession of her former solicitor nor explain what prejudice might be occasioned were that material revealed to the other side.
c)Undertakings to the court such as have been proffered in this case will not be considered a sufficient firewall to justify refusing an injunction.
The wife in this case has deposed to the fact that she has given confidential information to Mr Akele and Mr Glass and that she believes that it could be used to her disadvantage were it to come to the knowledge of the husband’s solicitors. She has not given any indication of the nature of this information except to say that some of it has been of “a distressing and very personal nature.” She has not indicated why she might suffer prejudice if it came to the knowledge of those acting for the husband. As I have indicated she is not required to do so.
If the case had only involved Ms Osmand I perhaps could have distinguished McMillan and dismissed the wife’s application although I imagine I would have been hard pressed to do so. I need not decide this. As I have explained, Mr Glass is now in the frame. Under those circumstances the present case is indistinguishable from McMillan.
Given that I am reluctantly granting an injunction in this case I have decided to take the liberty of outlining the problems I have with McMillan. I trust it will not be thought unduly presumptuous that I do so.
McMillan was a case involving a dispute as to property division. As I have indicated, it is not materially distinguishable from the present case. I point out at this stage that some of the comments that follow are confined to financial cases. Different issues may arise in children’s cases.
McMillan was an appeal from Wilczek J. who acceded to an application by the husband that the wife’s solicitors be restrained from continuing to act for her. The Full Court dismissed an appeal from this decision.
In the proceedings before Wilczek J a submission was made on behalf of the wife by her counsel that the court should have regard to the fact that family law proceedings involve a requirement for full and frank disclosure. I assume that this submission was to the effect that such disclosure is required in financial matters. It is not required in children’s matters. The Full Court described the proposition advanced by the wife’s counsel as “a somewhat obscure submission”. It was apparently to the effect that as full and frank disclosure is required in family law proceedings there could be no confidentiality in information given by a client in a family law matter to his or her solicitor. The Full Court then quoted, with apparent approval, Wilczek J.’s comments on this issue. These were as follows:
Another submission made by (the wife’s counsel) was based on the proposition that even if Mr McMillan had some information available to him then that information requires to be disclosed by the husband either to the Court, or in the course of negotiations, having regard to the fact that the family law system requires parties to make full and frank disclosure. I do not see any merit in that submission by (the wife’s counsel) either. Certainly, with regard to family law litigation, there is a requirement to make full and frank disclosure such as of one’s financial circumstances in property settlement proceedings and the like. However there is no obligation to make disclosure of a number of sensitive matters which are contained in solicitors’ files such as advice given by the solicitor as to settlement propositions and/or tactics etc.
For my part I believe there is merit in the submission made by counsel for the wife in that case. Save for one issue which I will discuss later in this judgment I find it difficult to imagine how material which could be considered confidential, and which could be damaging to a party if it came into possession of the other side, can be a factor in a property case. It may be otherwise in a children’s case. For example if a father confided to his solicitor that he was a heroin user the solicitor would be perfectly entitled, if instructed to do so, to conceal that information, though it be highly relevant to the issues in the case, from the other side. The solicitor of course could not allow evidence to be given by the father that he was not a heroin user. It is difficult to imagine information directly relevant to the issues in a financial case being kept a secret. If for example a party to a property litigation discloses that he or she has assets which have not been included in his or her financial statement the solicitor is under a positive obligation to either disclose this matter or to refuse to act for his or her client.
I raised this issue with Mr Millar who appeared on behalf of the wife. The only example that he could give would be if a person in the position of the wife had disclosed to her lawyer that she was in a relationship with another man, albeit not a live-in relationship. For my part I would regard this information, if it came into the possession of the other side, as being quite innocuous. Such a relationship is irrelevant to financial proceedings. In any event, as I mentioned to

Mr Miller, if I had been the wife’s lawyer I would have urged her to disclose this relationship as it always creates a better impression if a party appears to be completely frank and upfront.
In relation to Wilczek J’s observation that there is no obligation to disclose matters such as advice given by the solicitor as to settlement propositions and/or tactics I have the following comments:
a)With respect his Honour is turning the position on its head. Cases such as Mills address the issue of confidential information given to the solicitor by a client, not the other way round.
b)I cannot imagine how the other side’s learning of advice given by a solicitor as to settlement propositions could be damaging to that party’s case. Presumably, if such advice were accepted, it found its way into an offer of settlement. If the advice were rejected I cannot imagine what use could be made of it by the other side.
c)
In relation to tactics I find it difficult to envisage what might fall under this heading in financial cases. Of course one may well have a plan as to the tactics to be employed in cross examination of the other party but it is unlikely in the extreme that there would be file notes dealing with this. And how could this information be of value to the other side? I cannot see that Ms Osmand’s views, if any, as to tactics would be of any value to the husband’s solicitor, Ms Osmand now having left the firm. I assume

Mr Glass was not going to conduct the hearing of the matter himself and so his views as to possible lines of cross examination would be bye the bye. In any event, even if he were proposing to conduct the case himself, I cannot imagine how his new firm would derive any benefit, or the wife suffer any detriment, were he to choose to regale them about how he would have conducted the case had he continued to act for the wife.
The Full Court at paragraph 87 addressed the converse position to that posited by Wilczek J. This paragraph reads as follows:
… the client need only give evidence that he has provided confidential information to the solicitor……. The client does not have to divulge the content of that information. ……… In the present case we consider it sufficient, as we said earlier, that the husband has sworn that he had given instructions to Mr Pitts as to how he wished his “matter to be conducted and the position to be put to the wife”. It is obvious that such matters would come within the description of “confidential information”.
My comments on this passage are as follows:
a)I am not sure what is meant by the words “how he wished his matter to be conducted”. If this is a reference to tactics then I cannot imagine how a lay person’s opinion on tactics would be of the slightest value to the other side. Speaking for myself however when I was in practice I cannot recall having a lay client presume to give me advice on tactics. I cannot imagine what other material that would come under the rubric of “how he wished his matter to be conducted” would be of any assistance to the other side. In any event if the client’s wishes had been acceded to presumably the way the case was to be conducted would have become obvious to the other side by the way it had been conducted.
b)The second matter concerns “the position to be put to the wife”. I assume this relates to an offer to be put to the wife. In any event it obviously refers to material provided by the husband to his lawyers with specific instructions that that material should be conveyed to the wife. One would assume that such matters had been conveyed to the wife. The Full Court considered that it was obvious that this was “confidential information”. All I can say is that this is far from obvious to me.
The Full Court also considered the issue of what in some of the cases has been described “Chinese walls”. It is fair to say that the Full Court is not alone in viewing such walls with a great deal of scepticism.

The phrase comes from the financial services area and these walls are widely accepted as effective within that industry. In general however this attitude has not been shared by the courts when it comes to trusting lawyers. In McMillan the Court cited, with apparent approval, two cases which addressed this issue. These were D & J Constructions Ltd (1987) 9 NSWLR 118 and Magro (1989) FLC 92-005.
In D & J Constructions Bryson J. said as follows:
I would think that the Court would not usually undertake attempts to build walls around information in the office of a partnership, even a very large partnership, by accepting undertakings or imposing injunctions as to who should be concerned in the conduct of litigation or as to whether communications should be made among partners or their employees. A new client would have to join in such an arrangement and give up his right to the information held by such parties and staff as held it. Enforcement by the Court would be extremely difficult and it is not realistic to place reliance on such arrangements in relation to people with opportunities for daily contact over long periods, as wordless communication can take place inadvertently and without explicit expression, by attitudes, facial expression or even by avoiding people one is accustomed to see, even by people who sincerely intend to conform to control.
In Magro Rourke J made the following observations:
If one scrutinises the undertakings individually given by Mr M and Mr B in relation to their future conduct in these proceedings, those undertakings amount to just the sort of artificial “walls around information in the office of a partnership” referred to by Bryson J. in [D & J Constructions]. With the best will in the world, it would be difficult in my view for Mr M not to stumble upon some confidential information possessed by his tight-lipped and ethical employee.

My comments on these matters are as follows:
a)
I do not agree with Bryson J’s statement that the new client would have to join in an arrangement such as he envisages. The duty a lawyer has to promote his or her client’s interests is not absolute and co-exists with a duty to the court and a raft of ethical constraints. In the present case this is irrelevant in any event as the husband’s solicitors have had him execute a limitation of retainer such that the confidences, if any, possessed by

Ms Osmand and Mr Glass would be kept from their new firm. This in turn is irrelevant as Ms Osmand has given and Mr Glass will give written undertakings to the Court as to these matters.

It cannot possibly be contended that a solicitor’s duty to his or her client could take precedence over such undertakings.
b)I cannot imagine how any useful information could be conveyed to the husband’s solicitors by “wordless communication” or “facial expressions” or by “avoiding people”. The issue of facial expressions could only be relevant if the solicitor acting for the husband asked a question of Ms Osmand or Mr Glass concerning the case and was minded to read something into their facial expression when the question was asked. For my part I can well imagine what that facial expression would be. It would doubtless be one of shock that a practitioner could engage in such grossly improper conduct. And I have no idea what inferences could be drawn if either Ms Osmand or Mr Glass took to avoiding the solicitor acting for the husband. Insofar as inadvertent disclosure is concerned I do not regard this as a realistic possibility. I have no doubt that neither Ms Osmand or Mr Glass would forget that the Lakey matter was off limits and accidentally let something slip. In any event I have little doubt that the lawyer having the carriage of the husband’s matter would keep the disclosure a secret and not use it in the case.
c)
In relation to Rourke J.’s observations I cannot imagine how those acting for the husband could “stumble upon some confidential information” in the possession of Ms Osmand or

Mr Glass. This would assume that they have taken with them written material involving confidences imposed on them by the wife. I consider this to be a totally fanciful notion.
For my part I would give great weight to the firewall that has been put in place in this case. For confidential information to come into the possession of the solicitor acting for the husband two lawyers would have to be guilty of an outrageous breach of professional ethics.

It would require a breach by both the imparter of the information and by the lawyer acting for the husband in allowing that information to be conveyed. Whilst, as Bryson J. observed in D & J Constructions, enforcement of undertakings might be difficult, or detection might be difficult, the consequences of a discovery of the breach would be catastrophic. It would undoubtedly involve the practitioners concerned being struck off not to mention any sanctions the Court might impose for breach of an undertaking.
In my opinion one should take a hard nosed and realistic approach.

The judges in some of the cases in this area have shown considerable imagination in devising ways in which confidential information could conceivably pass from one lawyer to another. Let us consider the realities in this case. For confidential information capable of prejudicing the wife to pass from, say, Mr Glass to the lawyer having the conduct of the husband’s matter the following would have to occur.
(a)Mr Glass would have to be in possession of such material. Whilst I do not know what information he actually has, as will emerge I consider that it would be a rare case where this would occur.
(b)Mr Glass would have to be totally devoid of any ethical or moral principles.
(c)He would also have to be malevolent. Why otherwise would he wish to pass on confidential information? In my experience lawyers tend to empathise with their clients and I cannot see why this would change with a change of employment.
(d)He would also have to be foolish in the extreme. He would be running a grave risk that, if he approached the husband’s lawyer and offered to pass on confidential information, the lawyer would report his conduct to Mr Davey. I have no doubt that he would then face instant dismissal. And if he had gone further and actually imparted confidential information Mr Davey would doubtless report the matter to the court. That would be the end of his career in the law.
(e)The husband’s lawyer would also have to be totally devoid of any ethical or moral principles. What are the chances of a firm having two such lawyers on its staff?
In my opinion the chances of all these planets aligning would, to put it mildly, be very small indeed. The test suggested by Hayne J in Farrow would not be satisfied. But of course that is not a test I can apply in the present case.
In my opinion the chances of one side obtaining confidential information is much greater if we include the bar in the equation.

In Canberra, and I daresay elsewhere as well, each side is often represented by barristers who share chambers. In my time at the bar we would leave our briefs unsecured in our chambers which were in turn not secured from other members of chambers. I am not aware of any change in this. All one needs here is one renegade barrister who could easily gain access to the other’s brief. Are we to require counsel to secure their briefs? But surely this is an inadequate measure if one is to accept what appears to have been accepted in McMillan. Barristers frequently socialise in chambers and might inadvertently let something slip. Or there could be inferences drawn from “wordless communication” or “facial expression” or one barrister avoiding the other. The logical extension of McMillan is to prohibit barristers from the same chambers being involved in the same case.
There is one other matter that I believe was given insufficient attention by the Full Court. That is the issue of mobility within the legal profession. The Full Court did not directly comment on this but did quote, with apparent approval, a decision of the Supreme Court of Canada in Martin v McDonald Estate (Gray) [1991] 1WWR 705. In that case the Court observed that “reasonable mobility may well be important to lawyers”. This is true but in my view there is also a public interest involved. The law of contract recognises that there is a public interest in mobility of employment. I believe that this is a serious issue which should be included in the balancing exercise that these types of cases should require. In Canberra the family law profession is divided into two large firms, Farrars and Dobinsons, and a number of small firms, or small sections of larger firms. In my opinion it is entirely possible that a person in the position of Ms Osmand or Mr Glass who wished to leave a large firm like Farrars, or who was dismissed by that firm, might find that there were few firms with vacancies or that wished to expand. Another firm which might have been willing to offer employment might well decline to do so if the consequence might be that an application may be made which could lose that firm a valued client or clients. In fact a lawyer in the position of Ms Osmand might find it impossible to find other employment as she would, by reason of her participation in the conferences to which I have referred, have had an involvement in cases handled by most, indeed I would imagine probably all, the family law firms in Canberra. The position would be worse in a country town. For example I imagine that a family law solicitor employed by a firm in Wagga Wagga would have many cases with every other family law firm in town.
In my opinion these are important considerations.
I had earlier indicated that there was one area where confidential information might be given to a lawyer in a financial matter which could, if it came into the possession of the other side, be of significant value to the other side and prejudicial to the client, but would not have to be disclosed. This would be if information relevant to credit only was involved. For example if a client in the position of the wife told her lawyer that after separation she had been convicted of social security fraud, and if credit were an issue in the case, she might well be worried about a leak if her lawyer joined the other side. I have to say that such a situation would be very rare. I practised in family law from the commencement of the Family Law Act in 1975 until my appointment to this court in 2000. I have searched my memory banks and cannot recall ever being given such instructions in circumstances where the information, as it usually would be, was not known to the other side.
The upshot of this is that I believe it would be a rare case indeed where confidential information would be disclosed to a lawyer which, if it came to the knowledge of the other side, would cause significant prejudice. It might also appear presumptuous if I were to suggest how such matters should be approached. But I will venture an opinion anyway. Given what I have said at the commencement of this paragraph I regard it as unsatisfactory that a litigant in the position of the wife can baldly state that she has imparted confidences to her lawyer, and that she would suffer prejudice if they became known to the other side, and not give any details. I would suggest that details should be given in an affidavit which is not shown to the other side. The notion of a judicial officer sighting material concealed from a litigant is not a novelty. It used to be relatively commonplace under the Matrimonial Causes Act. I refer here to the filing of a “discretion statement”. Nowadays it can happen if objection is taken in relation to a subpoena. If this course had been taken in the present case, and if truly prejudicial confidences were involved, I would have disqualified myself from the further hearing of the matter.
I now turn to the husband’s application.
Save for one matter there is no material difference between the positions of the parties. The only material difference is the fact that Dobinsons initially chose not to object to Farrars continuing to act for the wife. It is essentially on this basis that it is contended that the Court should not now accede to an application restraining Farrars from continuing to represent the wife.
It appears that Dobinsons took the position they did mainly because they trusted Mr Crowley to conduct himself in an ethical manner. I agree with that assessment. But it is not appropriate for me, even if I were so inclined, to “play favourites” and treat Mr Crowley in a different way to Ms Osmand or Mr Glass. I infer however that there were probably a number of factors which impinged on their decision. They doubtless did not wish to derail the case and cause delay. At the time they made their decision the matter had not been set down for hearing and so the term “derail” is perhaps an overstatement. However, to continue the railway analogy, there would have doubtless been a delay whilst the points were changed and they may have taken the pragmatic view that a wholly theoretical risk of prejudice did not justify causing any delay. I consider it unjust that they should be mulcted by reason of their earlier decision now that the wife has chosen to genuinely derail the proceedings. There may have been other factors impinging on Dobinsons’ decision. Perhaps they were concerned to maintain a good relationship with Farrars. Perhaps they foresaw the implications for the profession in Canberra if firms took a hard line in such matters. Perhaps they appreciated that what comes around goes around and were concerned, to paraphrase the prophet Hosea, that if they sowed the wind they might one day reap the whirlwind. In any event I do not believe that in the circumstances they should be held to their earlier decision. The husband would doubtless feel a sense of injustice in such circumstances. And I believe he would be justified in feeling aggrieved. In 2007 Farrars asked him for bread and he gave them bread. In 2008 he asked Farrars for bread and was given a stone. I propose to order that neither Dobinsons nor Farrars continue to act in this matter.
The decision made by the wife to make this application has unfortunate consequences. It has delayed the finalisation of this litigation by about twelve months. Given that the husband resides overseas it must be listed as a primary matter and there are long delays at present in allocating such hearings. This is particularly unfortunate for the wife. She suffers from depression and a report from her treating psychologist indicates that the continued litigation is exacerbating her condition.

In retrospect it is possible that the one day estimate given by the parties’ lawyers was a little optimistic. To finish in that time would have required some discipline on the part of counsel and an acute awareness by them of the wisdom of the statement made by Gleeson CJ., McHugh and Gummow JJ. in Whisprun Pty Ltd v Dixon 200 ALR 447 at 452 that “the best advocacy is selective and economical.”

Be that as it may, the bulk of the case could have been heard on the date allocated and it is always easier to find some short additional time to finish a case than it is to find time to hear a case in its entirety.

In any event there is no doubt that the evidence of the wife would have been concluded. This would have reduced the risk because only

Ms Osmand would be a relevant factor. Any information Mr Glass might be minded to convey to his new employers would have by then become irrelevant. I make it clear, if it is not clear from the rest of this judgment, that I do not suggest for a moment that either Ms Osmand or Mr Glass do not have the highest of ethical standards. However it was the wife who decided to make this application and thereby throw away the hearing date so she cannot be heard to complain. In any event for more abundant caution I will allocate two days for the hearing.

Postscript

After preparing this judgment I had occasion to retrieve the court file to check some matters. I noticed that a Notice of Address for Service had been filed on behalf of the wife by a firm Consensus Family Lawyers.

I know very little as to this firm. I understand that it is comprised of lawyers who worked at Farrars and that it was set up by Farrars. I do not know what the association, if any, is between the two firms. I do not propose to enquire. I do not propose to re-visit my judgment. I do not propose to include Consensus Family Lawyers in my orders. There can be no harm in injuncting Farrars and I will enlarge the terms of my order to deal with this issue. It may be that no purpose is served by the injunction but I cannot be certain of this. For example there may end up being some mobility of lawyers or communication between the two firms or circumstances may change such that that firm will be re-absorbed into Farrars. The issue is of insufficient consequence to justify having the matter re-opened. It is a matter for the successors to Dobinsons to decide if they are satisfied with the new arrangement.

If they are not they can have the matter re-listed. I trust that they will deal with the matter in the objective and commonsense way that Dobinsons have dealt with it to date.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: 8 August 2008