LEKMAN and QUALMANN

[2023] FCWA 289

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: LEKMAN and QUALMANN [2023] FCWA 289

CORAM: COHEN J

HEARD: 12 DECEMBER 2023

DELIVERED : Ex tempore

FILE NO/S: 2992 of 2015

BETWEEN: MS LEKMAN

Applicant

AND

MR QUALMANN

Respondent

Catchwords:

FAMILY LAW – LEGAL PRACTITIONERS – Where the Respondent seeks an order that the Applicant’s solicitors (“the Legal Practice”) be restrained from continuing to act in circumstances where proposed counsel concurrently represented the Applicant and a material witness for the Respondent in that person’s child-related Family Court proceedings – Where counsel supervises and has direct oversight of other solicitors at the Legal Practice – Whether counsel and/or the Legal Practice are in possession of confidential information that is or may be relevant to the matter before the Court – Whether any real risk of misuse of confidential information – Inherent jurisdiction of the Court over its officers and to control its processes – Application successful – Case turns on its own facts.

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	[The Legal Practitioner]
Respondent	:	[Counsel A]
Independent Children's Lawyer	:	[Counsel B]

Solicitors:

Applicant	:	[The Legal Practice]
Respondent	:	[Law Firm A]
Independent Children's Lawyer	:	[Law Firm B]

Case(s) referred to in decision(s):

Cassidy v Murray (1995) FLC 92-633
Charisteas & Charisteas (2022) FLC 94-109
Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1
Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467
Hatzis & Hatzis [2022] FedCFamC1F 745
Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561
Kallinicos v Hunt (2005) 64 NSWLR 561
McMillan & McMillian (2000) FLC 93-048
Nasr v Vihervaara (2005) 91 SASR 222
Newman v Phillips Fox (1999) 21 WAR 309
Osferatu and Osferatu (2015) FLC 93‑666
Othonos and Costa-Othonos [2022] FCWA 16
Porter v Dyer (2022) 402 ALR 659
Re JTT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Sellers & Burns and Anor (2019) 59 Fam LR 593
Song and Song [2021] FCWA 125
Tandon & Farber [2023] FedCFamC2F 916
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98
Walthamstow Pty Ltd v Caratti (No 2) [2023] WASC 363
Worrall and Bartley [2023] FCWA 2

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lekman and Qualmann has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

COHEN J:

1The application that comes before the Court is the oral application made by the Respondent, [Mr Qualmann] ("the father") to restrain the solicitors for the Applicant, [Ms Lekman] ("the mother"), from further acting in the proceedings ("the restraint application").

2I refer to the parties as the mother and father simply to avoid any confusion which might otherwise arise from referring to them as applicant and respondent. I mean no disrespect in doing so.

3The substantive proceedings relate to the parenting arrangements for [Child A] born [in] 2013. Child A's interests in the proceedings are represented by an independent children's lawyer, [Counsel B] ("ICL").

4The trial in the parenting proceedings was previously listed on a rolling basis before me commencing [in] September 2023. Unfortunately, the trial was required to be vacated due to circumstances outside the parties' control. The trial is now set down for [a date in] 2024.

5The father was represented by [Counsel A], and the mother by [the Legal Practitioner]. Both parties and the ICL made oral submissions at the hearing; the ICL largely supported the father’s application.

6Counsel A made the restraint application at a status hearing on [in] September 2023. The application arises from the Legal Practitioner, who intends to act as the mother's counsel at trial, having previously acted for a witness for the father, [Ms B], including a period of concurrent acting.

7I heard the restraint application [in] December 2023.

8Whilst the restraint application was constrained to the Legal Practitioner, I queried with Counsel A at the hearing whether the Court should turn its mind to whether the entirety of the mother's firm of solicitors, [the Legal Practice], should be restrained from acting, as the material raised concern about the efficacy of an "effective information barrier" implemented by them; Counsel A confirmed the restraint was also sought against the Legal Practice. The Legal Practitioner advised the Court that if it were minded to make the injunction as sought, the injunction would need to include the Legal Practice as he supervises all other solicitors within his firm; the Court recorded its gratitude to the Legal Practitioner for this concession.

9It is important to note at the outset that my decision on the restraint application is wholly distinct from consideration of whether a legal practitioner has complied with their professional obligations.

10This Court has no disciplinary jurisdiction over legal practitioners, save and except for costs, which is a compensatory jurisdiction and not punitive.[1] That jurisdiction is exercised by other judicial and administrative bodies in accordance with the Legal Profession Uniform Law (WA), its predecessors, and the relevant subsidiary legislation.

[1] See Cassidy v Murray (1995) FLC 92-633, 82,365 (Forgarty, Kay and Hase JJ) cited with approval in ReJTT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 [41] (Kirby J).

11For the Reasons that follow, I consider the restraint application must be granted and the mother's solicitors restrained from further acting in the proceedings.

The evidence

12The evidence in this matter is discrete and brief.

13The father relies on the affidavit of [Solicitor C] filed 22 September 2023. During the hearing, the Legal Practitioner objected to the content of [16] of Solicitor C's affidavit but not to the annexure referred to in the body of the paragraph. Whilst it did not make a material difference to the outcome of my decision, I have only considered the annexure and not Solicitor C's summation of it.

14The mother relies on the affidavit of the Legal Practitioner filed 21 November 2023.

15I have also had regard to the witness affidavit of Ms B filed 11 April 2022 for the purposes of trial insofar as it informs me about the materiality of her evidence to the substantive proceedings and any matter relating to these proceedings.

Solicitor C's affidavit

16The following salient facts are extracted from Solicitor C's evidence.

17In April 2022, Solicitor C was made aware of a potential conflict affecting the Legal Practitioner. The father informed Solicitor C that the Legal Practitioner had previously acted for Ms B in her Family Court proceedings and was simultaneously acting for both women.

18On 8 April 2022, the father's solicitors wrote to the Legal Practice raising the issue of the potential conflict. The letter indicates:

(a)the father's solicitors understood the Legal Practice presently acted for Ms B in her Family Court proceedings;

(b)Ms B was the former de facto partner of the father and continued to maintain a close association with him;

(c)Ms B was a material witness in support of the father in the substantive proceedings;

(d)Ms B and the mother have adverse interests in the substantive proceedings which gave rise to a conflict of interest for the Legal Practice; and

(e)there was a real risk of prejudice arising from the possibility of passing confidential information.

19On 11 April 2022 at 1.35pm,[2] [Solicitor D], a lawyer, replied to the abovementioned letter on behalf of the Legal Practice which confirmed:

(a)Ms B was presently represented by the Legal Practitioner;

(b)the mother was represented by the Legal Practitioner and [Solicitor E];

(c)the mother and Ms B had been advised of the conflict and both gave their consent for the Legal Practice to continue to provide legal services, which is disputed by Ms B;

(d)the Legal Practice had "implemented an effective communication barrier to protect the confidential information"; and

(e)the mother's file had been internally transferred from the Legal Practitioner and Solicitor E to Solicitor D.

[2] I note the time here and note Ms B's affidavit was lodged on 11 April 2022 at 9:00am.

20Solicitor C continued to correspond with Solicitor D until [Solicitor F], another lawyer at the Legal Practice, took over the file. Solicitor C understood the reason for the same was Solicitor D ceasing her employment at the Legal Practice.

21As part of preparation for trial in September 2023, the father's solicitors and counsel attempted to communicate with the Legal Practice for the purpose of preparing a joint trial plan with the ICL (as directed by the Court) and other matters; Solicitor C did not receive any response to correspondence from Solicitor F.

22At around 4.30pm on [omitted] September 2023,[3] Solicitor C received a return call from the Legal Practice and was put through to the Legal Practitioner. It is Solicitor C's evidence that the Legal Practitioner did not explain "where [Solicitor F] was or that he was no longer acting on the file and that [the Legal Practitioner] had taken over the file over again.". The Legal Practitioner otherwise said he would sign a letter drafted by the ICL and would write to Solicitor C about other matters.

[3] The "not before" date allocated for the trial.

23The Legal Practitioner counter-signed the joint letter from the ICL.

24Solicitor C deposes he then inquired with Ms B, who advised "she had never given consent for [the Legal Practitioner] to act for both herself and [the mother]."

25Solicitor C annexed to his affidavit an email from Ms B to Legal Aid WA regarding the Legal Practitioner and the relationship between Ms B and the father. The email is directed to Legal Aid WA's compliance team, is dated [in] October 2022, and bears the subject line "Attn: [omitted] RE: Conflict of interest". The email is set out in full below:

As previously discussed. [the Legal Practice], namely [the Legal Practitioner] and [Solicitor E] were both acting for myself and [L] (appoint party in a close friends family court case).

I was telephoned in early March by [Solicitor E] from memory asking me basically if I was having sex with [Mr Qualmann]. I advised we were good plutonic friends and that I was close with his daughter [Child A]. She asked me if I would likely be a witness in the case and I advised her I would. I expressed my concern that this would impact her ability to represent me going forward and was assured they would continue to represent me. [Solicitor E] did not tell me whether it was a clear conflict of interest or not but advised that the team would need to work that out and assess the role they played with [L] That was in a nutshell the discussion I had around it.

Obviously I advised [Mr Qualmann] who was not comfortable taking any risk that this would cause issue in his case and to my knowledge he sought clarification through his legal team by which [the Legal Practice] wrote claiming I had given consent for them to continue acting for both [L]. And myself. I wish to advise that I was never asked if I consented to anything and I did not feel I had any control or opinion in the matter.

I have held concerns which I have shared with [Mr Qualmann] that this has impacted the way [the Legal Practitioner] has treated me going forward as he obviously had a bias and I was not the "paying client" as [L] was. This has also come up in a telephone conversation between [the Legal Practitioner] and myself when I expressed frustration that he would work so hard on menial matters but not on the big ones in my case. [The Legal Practitioner] was rude and blunt and made minimal effort. I felt uncomfortable speaking on the phone with [the Legal Practitioner] preferring to keep communications in writing and was so anxious about attending a meeting with him in July that I expressed this with [Mr Qualmann] and asked the receptionist if I was able to do it via telephone or have someone else present. Whenever [the Legal Practitioner] did communicate with me he made me feel like an inconvenience and as if I was being difficult in my views.

(emphasis added)

26I have no doubt that "[L]" is the mother, Ms Lekman.

27At 3:59pm [the day after the phone call between Solicitor C and the Legal Practitioner], Solicitor C wrote to the Legal Practitioner requesting a response indicating whether he was acting for the mother, whether he acknowledged the conflict, and whether he would cease to act. It is unclear whether this was this initially raised in the phone call the day prior.

28At approximately 6.18pm the same day, the Legal Practitioner replied to Solicitor C. I again set out that email in full below:

I have recently taken over conduct of this file, which at this stage has been limited to:

1.preparation to represent the mother at trial;

2.liaising with the WA Bar Association in respect of the issue you raised in your letter;

3.speaking to you yesterday in respect of the letter of the ICL; and

4.speaking to the ICL in respect of availability.

In relation to point 2, the subject of your letter, noting that I am not able to locate your '... correspondence dated 8 April 2023 ...' referred to in your letter (and would be obliged if you could send it to me) and that raising a conflict issue does not automatically give rise to interests being affected, I advise as follows:

1.[Senior Counsel] has provided me with advice in respect of the issue;

2.I will be representing the mother at the trial; and

3.I will be raising this issue with Her Honour Justice Cohen as part of housekeeping (or alternative the proposed status hearing), noting that:

3.1.it is within Her Honour powers to determine a direction to overcome this issue; and

3.2.the fallback position is for me to not cross-examine [Ms B] at trial, which raises a prejudice issue for the mother [that is clearly to no detriment of the father].

29Solicitor C then sought further clarification from Ms B about the extent of her engagement with the Legal Practitioner. Ms B advised he had acted for her between at least May 2021 through July 2022, which was just before the trial.[4] She advised Solicitor C that she and the father would confide in each other, including about their "deep understanding of the trauma of Family Court and protracted litigation". Ms B confirmed she had a concern about a conflict of interest and how that might impact on her; she said she was "assured that it would not". As already noted, Ms B contacted Legal Aid WA via email and advised that she had never consented to the Legal Practitioner acting for both herself and the mother.

[4] Ms B does not know why the firm ceased acting for her and was never given a reason. The Legal Practitioner addressed this at the hearing, but I have not turned my mind to the same as the evidence from the bar table was rightly objected to by Counsel A.

30In Ms B's email to Solicitor C dated [the following day], whereby she provides the information set out in the preceding paragraph, she also provides him with information about the nature of her relationship with the father and Child A. In addition to advising him about her relationship with the father, Ms B also advised Solicitor C that she spends one‑on-one time with Child A and that she and Child A have had discussions about the mother. Ms B said, “She has openly spoke to me about her mother and sought advice and reassurance on multiple occasions.”

The Legal Practitioner's affidavit

31The Legal Practitioner's affidavit is very concise and only gives evidence on two points.

32 First, the Legal Practitioner does not consider he has ever received confidential information from Ms B. Regardless, he considers any risk could be mitigated by not cross-examining Ms B. He says he has discussed the matter with his client, who wishes for him to be his counsel. He otherwise asserts that the only prejudice that arises is against his client in not cross-examining Ms B.

33 Second, the Legal Practitioner deposes to having sought advice from the WA Bar Association and received advice from Senior Counsel which led to his position of not intending to cross-examine Ms B.

34The Legal Practitioner does not refer to any of the facts deposed to by Solicitor C.

Ms B's trial affidavit

35Ms B is one of two people who have given an affidavit in support of the father.

36She has three children aged around 19, 16 and 6 years old. Her youngest is around two years younger than Child A.

37Ms B and the father met in early 2018 through a [social media site] and commenced a relationship in late February, which ran until June 2018. They remain very close friends.

38Ms B first met Child A in February 2018, when Ms B and the father took their children to [Attraction A]. She will have known Child A for 5 years by the time of trial. She described Child A as being able to quickly make herself at home when visiting Ms B.

39It is Ms B's evidence that she has also been in long standing litigation in this Court.

40She deposes to having "bounced ideas and feelings off [the father] and getting his input as a father to get his views and opinions" in respect of their respective family law matters.

41She has picked Child A up from handovers at the paternal grandparent’s home and lives some [short distance] from the father’s home. As of April 2022, she believed she was facilitating the majority of the handovers, with the balance shared with her adult child and the father, who has to take an Uber.

42Ms B's evidence addresses various issues in respect to Child A's health, the direct and indirect conflict between the parties, and deposes to various comments made by Child A which Ms B believes (if not told directly) came from the mother. She comments on Child A's transition between households and Child A's distress at handover time. Ms B also has some knowledge of Child A's medical concerns, having discussed them shortly before drafting her trial affidavit.

43Towards the end of her affidavit, Ms B deposes to the March 2022 telephone call with Solicitor E, her lawyer at the time, who asked her whether she was "seeing anyone romantically", if she was "in a relationship with [the father]", and the nature of their friendship. She recalls expressing her intention to give evidence in these proceedings as she is "closely involved in [Child A's] life".

44Ms B's evidence is that Solicitor E was concerned about a conflict of interest but advised "it would not affect [Ms B's] case as neither [the father or mother] were a party in [Ms B's] matter."

Relevant law

45The Court has injunctive power to restrain a legal practitioner from further acting in a matter.[5]

[5] See e.g., Charisteas & Charisteas (2022) FLC 94-109.

46There are three recognised bases upon which the Court may restrain a legal practitioner from acting:[6]

1.breach of confidence;

2.breach of fiduciary duty (or loyalty); and

3.the inherent jurisdiction of a Court over its officers and to control its own process.

[6] Osferatu and Osferatu (2015) FLC 93‑666 [20] (Finn, Ainslie-Wallace and Aldridge JJ)

47The three bases may be plead in conjunction with each other; they have separate jurisdictional origins and require different jurisdictional facts to be granted. Relief may be founded on concurrent bases, for example, breach of confidence and the inherent jurisdiction.[7]

[7] See e.g., Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641; Porter v Dyer (2022) 402 ALR 659.

48The second basis, breach of fiduciary duty, arises when a legal practitioner concurrently acts for two clients. However, the duty of loyalty is broadly accepted to terminate with the retainer,[8] and finds no application in this case, as the retainer between Ms B and the mother's solicitor, and the duty of loyalty which arises from the same, has been terminated since July 2022. Had this application been brought before July 2022, then that ground may have been relevant.

[8] Kallinicos v Hunt (2005) 64 NSWLR 561 [35] (Brereton J) citing Bolkiah v KPMG [1999] 2 AC 222.

49The other two grounds are not so constrained and require separate consideration.

50There is a strong but rebuttable presumption that information moves within law firms.[9] The result of this presumption is that other solicitors of a law firm can be taken to have imputed knowledge of confidential information held by one solicitor, absent evidence an "effective information barrier".[10]

Breach of confidence

[9] Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98, 110–110 (Ipp J). But for a modern large firm, see Newman v Phillips Fox (1999) 21 WAR 309, 316–317 (Steytler J).

[10] The practical aspects of an information barrier and the concerns of the same are discussed in Walthamstow Pty Ltd v Caratti (No 2) [2023] WASC 363 [107]–[109] (Lundberg J). As will be seen later in these Reasons, this decision does not hinge on the practical aspects of the purported information barrier.

51The first basis is founded on the duty owed by legal practitioners to preserve their client’s confidential information, a duty which survives the termination of the retainer.[11]

[11] Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252 [36] (Beach J).

52In such cases, the Court is asked to intervene for the purpose of protecting confidences and will act to prevent a legal practitioner from acting for a subsequent client when there is risk of misuse of the first client's confidential information.[12]

[12] Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1, 5 (Hayne J).

53The question of whether a more sensitive approach to risk of misuse is appropriate to adopt in Family Courts has been the subject of debate.

54In McMillan & McMillian (2000) FLC 93-048, the Full Court of the Family Court of Australia considered that a broader approach to risk of misuse was justified. Their Honours required only "a reasonable apprehension" that a lawyer has received former client confidential information and that there is "at least a theoretical possibility" of the said information being used to the disadvantage of that client to warrant intervention.[13] The Full Court considered restraint justified when a party has conveyed confidential information to a practitioner, and the party believes, not unreasonably, the information may be used to their disadvantage in the proceedings. [14]

[13] McMillan [18] (Finn, Kay and Moore JJ).

[14] McMillan [56].

55Their Honours considered assurances of not discussing the subject proceedings insufficient, as theoretical risk of inadvertent disclosure remained and the information required protection.[15] This approach was deemed appropriate in family law matters due to the "sensitive nature of the jurisdiction",[16] which tends to be about "highly confidential facts and a very wide range of facts and circumstances [which] can conceivably be relevant".[17]

[15] McMillan [59].

[16] McMillan [54].

[17] McMillan [43] quoting D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118, 122–123 (Bryson J).

56The Full Court was asked to reconsider this approach in Osferatu and Osferatu (2015) FLC 93-666. The Full Court comprised of Finn, Aislie-Wallace and Aldridge JJ regarded "theoretical risk of misuse" as unhelpful and preferred the characterisation of "any real risk". To the extent this was a departure (which their Honours did not believe it was), it brought the "family law approach" in line with other jurisdictions.[18]

[18] Osferatu [39].

57The uniformity in approach is clear from decisions of this Court, such as Sutherland CJ's decision in Song and Song [2021] FCWA 125, and in both divisions of the Federal Circuit and Family Court of Australia.[19]

[19] See e.g., Tandon & Farber [2023] FedCFamC2F 916; Hatzis & Hatzis [2022] FedCFamC1F 745.

58The applicable test in determining whether to restrain a practitioner for breach of confidence grounds is therefore whether there is a "real and sensible possibility of the misuse of confidential information.",[20] as opposed to a "merely fanciful or theoretical" risk.[21]

[20] Farrow Mortgage Services 5 (Hayne J).

[21] Bolkiah 237 (Lord Millett).

59Justice Lee, in his Honour's separate judgment in Porter v Dyer (2022) 402 ALR 659, set out with approval the primary judge's approach to determining whether there was a real and sensible risk of misuse. The approach involves answering the following questions:

(1)What is the relevant information?

(2)Is that information confidential?

(3)Does the legal practitioner have possession of that information?

(4)Is the legal practitioner proposing to act “against” the former client in the requisite sense?

(5)Is there a real risk that the confidential information will be relevant?

(6)Is there no real risk of misuse of the confidential information?

I will refer to this framework as the Porter framework.

60It is important the Court does not derogate from the actual test and only use the Porter framework as an analytical tool to guide the Court's determination of whether there is a real and sensible risk of misuse of confidential information.

61The burden of proof in respect of (1) to (5) of the Porter framework is on the party seeking the injunctive relief, while the burden in respect of (6) lies with the opposing party.[22]

Inherent jurisdiction

[22] Porter [75] (Lee J).

62The grant of relief as an exercise of the inherent power of the Court is concerned with the proper administration of justice and the need to protect the integrity of the judicial process.[23]

[23] Walthamstow [40] (Lundberg J).

63An exercise of the inherent jurisdiction requires the balancing of various principles, which were authoritatively articulated by Brereton J in Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561 at [76] as follows:

•The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

•The jurisdiction is to be regarded as exceptional and is to be exercised with caution.

•Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.

•The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.

(emphasis added, citations omitted)

64His Honour's summary is routinely applied by this Court and its federal counterpart in applications of this kind.[24] I accept the same as an accurate statement of the law.

[24] See e.g., Worrall and Bartley [2023] FCWA 2 [202] (O'Brien J); Charisteas [34], [58] (Alstergren CJ, McClelland DCJ and Aldridge J); Othonos and Costa-Othonos [2022] FCWA 16 [34] (Tyson J); Sellers & Burns and Anor (2019) 59 Fam LR 593 [97] (Altstegren CJ, Ainslie-Wallace and Kent JJ).

65The Court must turn its mind to the totality of prejudice to the party whose legal representative is sought to be restrained and must not constrain itself to one facet of the prejudice.[25]

[25] See Sellers [162] (Alstegren CJ, Ainslie-Wallace and Kent JJ) quoting Dalton & Dalton (2017) FLC 93‑773 [62].

66I also have regard to the summary of the jurisprudence set out by Thawley J of the Federal Court of Australia in Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 at [133] to [138]. His Honour's conclusions which justified the grant of relief included that fair minded members of the public would:[26]

(a)think the restrained lawyer's client might gain an advantage from confidential information, even if there was no real risk of misuse of confidential information;

(b)have less faith in the outcome of the substantive proceedings given the circumstances; and

(c)conclude the interests of the former and current clients were inconsistent in respect of matters over which they respectively sought advice.

[26] Dyer [140]–[142] (Thawley J).

67Justice Thawley further went through the discretionary factors which may require the Court to refuse relief, which included delay, denial of choice of legal representative, time, costs.[27]

Is there a real and sensible possibility of the misuse of confidential information?

[27] Dyer [144]–[151] (Thawley J).

68The father bears the onus of establishing that the Legal Practice is in possession of confidential information imparted by Ms B, that the Legal Practice are proposing to act against Ms B in the relevant sense, and that there is a real risk the confidential information will be relevant to these proceedings. The burden of establishing there is no real risk of misuse is on the mother as the resisting party.

What is the relevant information, is it confidential, and does the legal practitioner have possession of that information?

69The mother's primary contention is that her solicitors either never received or do not hold confidential information from Ms B, which cannot feasibly be correct. Ms B was engaged in contested Family Court proceedings, on the trial pathway, which would have required forensic decisions to be made about her litigation generally and trial preparation, including but not limited to, the issuing of subpoenas and drafting trial material. For the Legal Practice to discharge its professional obligations to Ms B, her solicitors (which included the Legal Practitioner) would have had discussions with her about matters material to her life.

70On Ms B’s evidence, she is a significant person in Child A's life, which is a big factor in why she is giving evidence. I do not doubt that Child A and the father were significant people to Ms B's children, and the father's involvement in Ms B's would conversely have been relevant information for the purpose of Ms B’s litigation.

71Given the nature of her relationship with the father, both as an intimate partner and close friend, the shared activities they and their respective children routinely undertook together, the specific role she undertook in Child A's life, which included facilitating handovers, I cannot accept the Legal Practice was not privy to confidential information that cut across both sets of proceedings. It is the specific nature of the respective proceedings, namely that they are both child‑related, which informs my view in this regard.

72Solicitor C's evidence, which is supported by correspondence from the Legal Practice and which has not been opposed, challenged or disputed in any manner,[28] indicates that as of April 2022, the mother's solicitors had formed the view they were in possession of confidential information imparted by Ms B. During the hearing, the Legal Practitioner submitted this was a concession made to address Solicitor C's concern but was not an acceptance of the merit of it, which I cannot accept based on the information set out in the preceding paragraph. However, even if I am wrong about this, it was an assurance relied upon by Solicitor C and his client, which I address later in these Reasons.

[28] Noting the hearing was conducted on affidavit evidence with no formal testing of evidence.

73The email from the Legal Practice dated April 2022 makes it clear as of that date, the firm was alive to the issue of confidentiality. Solicitor D email referred to "the conflict" and "the confidential information" in a manner which, in conjunction with the measures seeming taken, leaves a reasonable inference that the Legal Practice had accepted there was a conflict and acted on the same. Those measures allegedly were:

(a)advising each client of "the conflict" and seeking their informed consent to continue to act;

(b)adopting an effective information barrier (although the specific features of the same are not in evidence); and

(c)reassigning the matter to other legal practitioners within the firm.

74When considering the two positions adopted by the Legal Practice, namely the position adopted in April 2022 versus that adopted in November 2023, I am of the view the Court should prefer the position adopted by it that was contemporaneous with the issue first being raised.

75Rule 14 of the Legal Profession Conduct Rules 2010 (WA) (as then applied)[29] was in the following terms:

[29] Which were repealed on 1 July 2022 and applied as at the date of the letter.

14. Conflict of interest concerning current clients

(1)A practitioner and the practitioner’s law practice must avoid conflicts between the duties owed to 2 or more clients of the practitioner or the law practice.

(2)A practitioner must not provide, or agree to provide, legal services for a client if —

(a)the practitioner or the practitioner’s law practice is engaged by another client in the same or a related matter; and

(b)the interests of the client and the other client are adverse; and

(c)there is a conflict or potential conflict of the duties to act in the best interests of each client.

(3)Subrule (2) does not apply if —

(a)each client is aware that the practitioner or the practitioner’s law practice is also providing legal services to each other client; and

(b)each client has given informed consent to the practitioner or the practitioner’s law practice providing the legal services to each other client; and

(c)an effective information barrier has been established to protect the confidential information of each client.

76The measures articulated by the Legal Practice in the April 2022 email are directly attributable to each condition to the proviso to the prohibition on providing legal services in r 14(3).

77Despite the Legal Practice's assertion to the contrary, it appears to be Ms B's position that she never provided her informed consent to the Legal Practice in respect to the Legal Practice representing both women in their Family Court proceedings. During the hearing, the Legal Practitioner was unable to provide the Court with any formal document signed by Ms B which acknowledges that the Legal Practice explained the conflict of interest to her and that she had provided her informed consent in respect to the Legal Practice's ongoing involvement with her proceedings. Having regard to the seriousness of this issue, one might have expected this to be formally documented and appropriate records maintained in respect of the same. What is clear from Ms B's emails is she was concerned about the potential conflict of interest issue and how this may impact on her and her proceedings.

78Having regard to the evidence before the Court, I am satisfied that as of April 2022, the Legal Practice and the Legal Practitioner were in possession of confidential information imparted by Ms B.

79There are no facts in evidence which suggest that some event or series of events occurred between April 2022, and at or around September 2023, which removed the confidential nature of the information which the Legal Practice had protected by way of an "effective information barrier". The information remained confidential throughout that period.

80However, I cannot be satisfied the information barrier was effective. There is no evidence before me about what actual measures were taken to protect Ms B's confidential information other than the bare assertion. The Legal Practitioner's resumption of the conduct of the mother's file is a significant breach of any information barrier put in place by the Legal Practice, as the primary confidentiality issue was his conduct of both women's files.

81In such circumstances, it is appropriate to apply the presumption of imputed knowledge and assume the entirety of the Legal Practice is in possession of Ms B's confidential information.

Is the legal practitioner proposing to act "against" the former client in the requisite sense?

82Using the language of Lee J in Porter, whether the Legal Practitioner, and by extension the Legal Practice, proposes to act "against" Ms B in the requisite sense, does not depend upon her being a witness called in litigation or as a party to the dispute. When looking at this issue, the Court is required to consider whether Ms B was prepared for the possibility that any of the information she had provided to the Legal Practice would be used without her consent for any other purpose. To do so without her consent would be to act against her interests in the requisite sense.[30]

[30] Porter [92].

83Regardless, Ms B is a material witness for the "opposite side". For all intents and purposes, she is joined with the father in support of his application and there is likely to be an overlap or commonality in their respective evidence, which may go to the Court’s determination of credibility of the parties and Ms B.

84Based on the information before the Court, in particular her complaint to Legal Aid WA, I can only conclude Ms B was not prepared for the Legal Practice to use any information provided by her without her consent for any other purpose.

85I am satisfied the Legal Practice proposes to act against Ms B in the requisite sense.

Is there a real risk that the confidential information will be relevant?

86I am unable to reach any other conclusion than there is a real risk that the confidential information will be relevant.

87The father relies on her evidence, which is highly relevant, given her first-hand experience of the father and Child A, their relationship, Child A's personality and functioning, Child A's conversations with her about the mother and how Child A is managing her parents' separation and their conflict.

88Irrespective of decisions made by the Legal Practitioner in respect of managing the conflict of interest issue, there is a real likelihood that either the ICL or the mother will need to test Ms B’s evidence to properly advance their respective cases.

Is there no real risk of misuse of the confidential information?

89The mother's alternate submission is that there is no real risk of misuse of information as her counsel proposes to elect not to cross examine Ms B. The decision as to whether a witness is cross-examined is ultimately one for the client which should be informed by taking legal advice on the issue.

90In his email reply to Solicitor C, which is set out at [28], the Legal Practitioner clearly recognises the potential prejudice to the mother should he be restrained from cross-examining Ms B. Whilst he is correct that in so doing, there is no prejudice to the father, it is this "fallback position" that highlights the nub of the issue.

91Whilst repetition does not add weight to these Reasons, it is Ms B's role in these proceedings that is highly relevant; she is an important witness. Having carefully considered her affidavit, she provides evidence which goes to important issues likely to impact the Court’s considerations and determination; namely, and this is not exhaustive:

(a)the mother's capacity to foster a relationship between Child A and the father;

(b)whether either parent has acted in ways, which have (or may) pose a risk of emotional or psychological harm to Child A; and

(c)how she perceives Child A navigating her parents' conflict.

92When considering this issue, it is important to recognise that it is not just words spoken or documents disclosed that become relevant. As her solicitor, the Legal Practitioner would have developed a professional relationship with Ms B, albeit it does not appear to have been a positive one, which would have enabled him to understand her as a person, which is sometimes referred to as "getting to know you" factors.[31] The Legal Practitioner proposes to be counsel for the mother at the trial and would be responsible for cross-examination. I readily accept the "getting to know you" factors would provide him with an important advantage in cross-examining Ms B.

[31] Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467, 480.

93I also accept that other confidential information imparted by Ms B may have a forensic purpose in being put to the father. By way of example, comments made by Ms B about the father in formal or informal conversation throughout their retainer may be adverse to the father's position in these proceedings, even if such a comment was inadvertent.

94Counsel A made a submission at the hearing which goes directly to the issue raised in the preceding paragraph, namely, it may not be sufficient simply to restrain the Legal Practitioner from cross-examining Ms B; it may also necessitate a restraint preventing him from cross‑examining the father, as the Legal Practitioner and/or the Legal Practice would have confidential information available to them via their representation of both women, which may provide The Legal Practitioner with an advantage when cross-examining him.

95Ultimately, the Court cannot ignore the risk of inadvertent disclosure and spontaneous recall, especially with the latent risk that the duty of confidentiality owed to Ms B is put into conflict with the duty to make all relevant information available for the mother.[32]

[32] Dyer [131] (Thawley J); Nasr v Vihervaara (2005) 91 SASR 222 [33] (Doyle CJ).

96Restraining the Legal Practitioner from cross-examining Ms B would not ameliorate this risk, nor would restraining the Legal Practitioner from acting as counsel entirely while permitting the Legal Practice to instruct alternate counsel, as the risks set out in the preceding paragraphs remain, although the latter is no longer a relevant consideration given the Legal Practitioner's concession.

97The only way the confidential information can be protected from the real risk of being misused is to restrain the Legal Practice, which self‑evidently includes the Legal Practitioner, from acting for the mother entirely. I would grant the injunction based on confidentiality grounds.

Does the proper administration of justice require the restrain application be granted?

98Even if I am wrong on the no real risk issue, in all of these circumstances, I am satisfied the fair-minded member of the public would take issue with a solicitor acting against a litigant where they had previously represented a material witness for the opposite party, particularly having regard to the sensitive nature of child-related Family Court proceedings where intimate, close relationships exist and the blending of children's families takes on significance.

99On an aside, when I consider this situation from the perspective of the fair-minded member of the public, I cannot escape my view that such a person would assume that partners and close friends would share intimate details about their respective lives, which would reasonably include information relevant to shared experiences, such as stressful litigation that each was involved in. Ms B acknowledged as much in her email to Solicitor C. It follows, that a fair minded member of the public may also assume that this information may be shared with their respective solicitors in various forms including formally and informally; the latter of which often features in rapport building and casual conversation between client and solicitor.

100Finally, the manner in which the Legal Practitioner recommenced acting is problematic. Whilst there is no allegation that the email sent by the Legal Practice in April 2022 compromised an undertaking, it was clear that it formed the basis for Solicitor C's election not to proceed with a restraint application at that time. Solicitor C's decision in this regard was in good faith and informed by the Legal Practice's acceptance of and taking measures to mitigate against the conflict of interests.

101At some undisclosed point, the Legal Practice ceased their performance of those measures and took no steps to notify the father or his solicitor. Ultimately, it was on the eve of trial, during conferral that the breach of the "effective information barrier" was revealed. I am concerned this was done in an attempt to present the Court with a fait accompli; whereby it had no choice but to accede to the situation given the impact on the Court's limited resources – and the parties themselves for that matter – should the trial not proceed.

Conclusion

102The Legal Practitioner represented Ms B and the mother in contested child-related Family Court proceedings; he had direct and regular contact with both women, and via this engagement, would have had access to and likely obtained information about the father and Ms B. When the conflict was brought to the Legal Practice's attention, which they clearly accepted at the time, they appropriately took measures to put in place effective information barriers designed to ameliorate the risk of confidential information being passed across files. One of the important aspects of the information barrier, was in my view, the removal of the Legal Practitioner from the mother’s file.

103The implementation of the effective information barrier was tantamount to an undertaking and was relied on in good faith by the father. Had such an arrangement not been implemented, an application to restrain the Legal Practitioner had been foreshadowed. The information barrier should have been maintained for the duration of the proceedings, save with the prior consent of the father and Ms B, which I am satisfied has never been provided, or via Court determination. It was effectively breached when the Legal Practitioner resumed the conduct of this matter on behalf of the mother. This factor has weighed heavily on my decision.

104Whilst I appreciate the mother wishes to continue to instruct the Legal Practitioner as her counsel of choice and is likely to incur additional costs in having to instruct another counsel, the public interest in a litigant not being deprived of the legal representation of his or her choice is not unqualified. If there is sufficient cause, then that public interest must be overcome. In this case, and seemingly through no fault of the mother, there is indeed sufficient cause.

105Having regard to all the matters raised above, I am satisfied the competing interests of the parties and the proper administration of justice weighs in favour of the Court making the injunctions as sought.

Proposed order

106Accordingly, I propose to make the following orders:

1.The Applicant, [MS LEKMAN], be restrained from instructing [the Legal Practitioner] and/or [the Legal Practice] to act for her in these proceedings.

2.[The Legal Practitioner] and/or [the Legal Practice] be restrained from providing any information confidential to [Ms B] to the Applicant or to any solicitors who may accept instructions to represent the Applicant in the future.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

MF

Associate

15 DECEMBER 2023