Lott & Emmanuel
[2022] FedCFamC1F 297
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lott & Emmanuel [2022] FedCFamC1F 297
File number(s): MLC 7250 of 2020 Judgment of: HARTNETT J Date of judgment: 6 May 2022 Catchwords: FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest – order sought to restrain father’s solicitors from acting – application dismissed – no order as to costs Legislation: Family Law Act 1995 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 2.23
Cases cited: Holborow v Macdonald [2002] WASC 265
Kallinicos v Hunt (2005) 64 NSWLR 561
Margo & Margo [1989] FLC 92-005
McMillan & McMillan (2000) FLC 93-048
Osferatu & Osferatu (2015) FLC 93-666
Sellers & Bruns and Anor [2019] FamCAFC 113
Thevenez & Thevenz (1986) FLC 91-748
Division: Division 1 First Instance Number of paragraphs: 36 Date of last submission/s: 28 April 2022 Date of hearing: 22, 28 April 2022 Place: Melbourne Counsel for the Applicant: Mr Barbayannis Solicitor for the Applicant: G Lawyers Counsel for the Respondent: Ms Tulloch Solicitor for the Respondent: MST Lawyers Solicitor for the Independent Children's Lawyer: McGowan Family Law Counsel for the Independent Children's Lawyer: Mr Eidelson ORDERS
MLC 7250 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LOTT
Applicant
AND: MS EMMANUEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
6 MAY 2022
THE COURT ORDERS THAT:
1.The Application contained in the mother’s Response to an Application in a Proceeding filed 19 April 2022 is dismissed.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lott & Emmanuel is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
On 7 July 2020, the father filed an Initiating Application seeking final parenting orders.
On 10 August 2020, the mother’s then lawyers, C Lawyers, raised the mother’s objection to G Lawyers (“G Lawyers”) acting on the father’s behalf via correspondence to G Lawyers.
On 20 August 2020, G Lawyers responded to the correspondence from the mother’s lawyers denying that a conflict of interest existed and invited the mother to further particularise her claim if she maintained that a conflict existed.
On 21 August 2020, the mother filed a Response seeking differing parenting orders from those sought by the father in respect of the parties’ child X born in 2010 (“X”). No orders were sought in respect of G Lawyers acting as the solicitor for the father.
Approximately 16 months after the father engaged G Lawyers, and on 16 December 2021, the mother filed an Application in a Proceeding seeking to restrain G Lawyers from acting further for the father. The mother’s Application was made without notice to G Lawyers. This was the first time the alleged conflict issue had been raised by MST Lawyers, who commenced acting for the mother in May 2021, approximately seven months earlier.
On 9 March 2022, the mother filed a Notice of Discontinuance, withdrawing that Application in a Proceeding.
On 7 April 2022, the father brought an Application in a Proceeding seeking that the mother’s solicitors be restrained from acting further for the mother. The father then sought to withdraw that Application in a Proceeding at the hearing on 22 April 2022. An order was made by the court to that effect.
On 19 April 2022, the mother, by way of Response to the father’s Application in a Proceeding, sought again an order restraining G Lawyers from acting for the father. This Application was listed for hearing at the same time as the father’s Application to restrain the mother’s lawyers. The mother’s Application was premised on her claim that a conflict of interest existed as the father’s sister, Ms D (“the father’s sister”), is employed at the firm of G Lawyers. Counsel for the mother submitted this raised issues “of the public perception and the like…[and] the potential for a significant involvement lawyer to lawyer in relation to the matter, working in the same firm”. The Application was also made, as submitted by counsel for the mother, because “of the Application made by the father against [the mother]” and the mother responding in kind. It is this Application which is the subject of these reasons.
On 22 April 2022, the Independent Children’s Lawyer (“ICL”) was excused from the hearing of this Application in a Proceeding on the basis that the ICL sought no orders and did not seek to make any submissions regarding the issue.
RELEVANT BACKGROUND
The father is 33 years old. The mother is 31 years old. The parties commenced a relationship in 2008; did not live together; and separated in 2010, before the birth of X. The child currently lives with the father as a result of interim Orders made on 17 December 2021.
The father’s sister is employed at the father’s solicitor’s firm. G Lawyers commenced acting for the father in the proceeding on 6 August 2020 with the filing of a Notice of Address for Service, nearly a month from the date of the father filing his Initiating Application. The father’s sister, has been employed by G Lawyers since 2 May 2019. In her affidavit of evidence the father’s sister deposes to her employment at G Lawyers being as follows:
6.My experience in legal practice and my role within [G Lawyers] is […] as follows:
"[Ms D] joined [G Lawyers] in 2019 and has since excelled in her role. Having graduated from [B University] with a Bachelor of Laws in 2014, [Ms D] was soon admitted to practice in the Supreme Court of Victoria in […] 2015. Soon after, [Ms D] was admitted to practice in the High Court of Australia in […] 2015. [Ms D's] practise is complimented by a vast range of previous experience and qualifications, including a [business qualification] and experience working [in northern Australia]. She has worked on various high-profile cases throughout her career. […]. [Ms D] is a member of the Law Institute of Victoria, the Victorian Women Lawyers Association and has been a Committee Member for the [H Association] since 2017. [Ms D] has been honoured […] for her contribution in providing pro bona legal services to the local community. […]. [Ms D] practises in the areas of Wills and Estates, Probate, Guardianship and Administration, Victims of Crime and Family Law. "
I confirm the contents of this summary to be true and correct.
7.Whilst I have previous experience in family law, my predominant area of practice for the past two (2) years has been in the area of Wills, Estate Planning and Deceased Estate litigation. In December 2019, I became head of the Wills and Estates department at [G Lawyers]. I am currently enrolled to commence [further studies] in 2022, specialising in the area of Wills and Estates.
MATERIAL RELIED UPON
The mother relied upon the following documents:
(1)Response to Application in a Proceeding filed 19 April 2022;
(2)Amended Outline of Case (Interim Hearing) filed 27 April 2022;
(3)affidavit filed 19 April 2022;
(4)paragraphs 11 to 16 and annexure ‘W 1’ of her affidavit filed 27 April 2022; and
(5)affidavit of Ms E filed 19 April 2022.
The father relied upon the following documents:
(1)affidavit filed 7 April 2022; and
(2)affidavit of Ms D filed 27 April 2022.
The father also referred the court to annexures ‘W1’ and ‘W2’ attached to the mother’s affidavit filed 19 April 2022 being correspondence from the mother’s former lawyers, C Lawyers, to G Lawyers dated 10 August 2020, and the response to that correspondence, dated 20 August 2020, from G Lawyers.
LEGAL PRINCIPLES
It is well established that the court has the power to restrain a solicitor and/or firm from acting in proceedings.[1] The principles are summarised by the Full Court in Sellers & Burns and Anor [2019] FamCAFC 113 (“Sellers”) relevantly as follows:
[1] See Osferatu & Osferatu (2015) FLC 93-666; McMillan & McMillan (2000) FLC 93-048; Margo & Margo [1989] FLC 92-005; Thevenez & Thevenz (1986) FLC 91-748.
97.Following an extensive review of the relevant authorities in Kallinicos v Hunt, [2005] NSWSC 1181; (2005) 64 NSWLR 561 Brereton J summarised the relevant principles at [76]:
•[During the subsistence of a retainer, where the court’s intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court’s jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests
•Once the retainer is at an end, however, the court’s jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure)
•After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court’s intervention, such duty having come to an end with the retainer.]
•However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice.
•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.
(Citations omitted)
98.It is important too to here note what was said by Heenan J in Holborow v Macdonald Rudder [2002] WASC 265:
26.Consequently, when an application is made to restrain a legal practitioner from acting in a cause for reasons other than the risk of disclosure or misuse of information provided to the practitioner in confidence by the former client, it is of importance to identify precisely what obligation towards the former client or to the court may be breached or imperilled by the practitioner acting in the cause or against the former client. This approach is important because, otherwise, there may imperceptibly develop an expectation that the freedom of a client to engage a legal practitioner of his or her own preference, and the freedom of a legal practitioner to act even against a former client, where such a course does not involve any breach of his fiduciary obligations arising from the earlier retainer, is open to adventitious challenge as a means of harassing an opponent in a cause.
The relevant principles that are particularly applicable on the facts of this case are those going to the inherent jurisdiction of the court. This is because, as accepted by the parties, there is no risk of disclosure or misuse of confidential information in the sense described above, nor is there any suggested breach of fiduciary duty.
SHOULD G LAWYERS BE RESTRAINED FROM ACTING?
The mother submitted in support of her Application that: a) the father’s sister practices in family law at G Lawyers; b) it is unclear who has carriage of the father’s matter at G Lawyers, or, in the alternative, there is nothing to suggest that Mr F does not discuss this proceeding with the father’s sister, and indeed there is some evidence to the contrary in the father copying his sister in to correspondence had by him to his solicitors; and c) the father’s sister could be a material witness in the proceeding. Further, counsel for the mother submitted that the solicitor for the father has “been overly aggressive, demeaning of the mother and lacks objectivity”.
Dealing first with the last matter stated above. The father submitted that the particular matters upon which the mother relied, being paragraphs 11 to 16 of her affidavit filed 27 April 2022, were irrelevant to the question of whether G Lawyers should be restrained from acting for the father.
Save paragraph 13, in particular paragraph 13(a) and (c), I agree. Paragraph 13 was relevantly as follows:
13. In particular I refer to the following emails and letters (“the correspondence”):
a)Letters from [G Lawyers] dated 14 February and 22 March 2022;
b)Emails from the ICL received 14 February, 18 March, 22 March and 24 March 2022; and
c) My Solicitor’s email dated 25 March 2022.
Such correspondence was put by counsel for the mother as evidence of a lack of objectivity by the solicitor for the father. Counsel for the father submitted that such correspondence did not disclose the claimed lack of objectivity. Rather the correspondence, together with that referred to as emanating from the ICL’s emails in paragraph 13(b), went toward the parenting orders sought in respect of X and other related matters. In my view, whilst the contents of the father’s solicitor’s emails and letters are lengthy, the parenting matters being addressed are complex. The correspondence from G Lawyers and the ICL are not inappropriate, not unfair, nor irrelevant. Such communications are not evidence of a lack of objectivity by the solicitor of the father.
Turning to the other matters as set out in paragraph 17.
It is accepted by the court that the father’s sister “practices in the areas of Wills and Estates, Probate, Guardianship and Administration, Victims of Crime and Family” as outlined on the firm’s website. It is further accepted, that since December 2019, the father’s sister has been and continues to be the “head of the Wills and Estates department” which has been her predominant practice area. In addition, the father’s sister affirms in her affidavit filed 27 April 2022, that she does not act nor have carriage of the father’s matter and that she does not actively have carriage of any family law matters at G Lawyers. The mother puts no probative evidence to the contrary as to these matters. Indeed, the mother has no real knowledge of the father’s sister’s employment. I accept the evidence of the father’s sister as to this matter.
Litigants have the freedom to engage a legal practitioner. A party is not prohibited from relying on their family and friends for support through the litigation process and, in particular, nothing prevents the father from speaking to his sister about his case, or copying her in to his correspondence to his solicitors in the manner in which he has on the evidence before me.
Where a legal practitioner does not breach or imperil any obligations they may owe to the court and/or their clients, the legal practitioner may represent that litigant.[2] G Lawyers has been on record as the father’s lawyers for almost two years. It is clear that Mr F has carriage of the father’s matter. Mr F’s signature has appeared on all correspondence between the parties’ respective firms, and he has appeared before this court at numerous court events in his capacity as the father’s lawyer. I accept that Mr F has had carriage of the father’s case since the father approached G Lawyers in August 2020. Between 21 August 2020 and 16 December 2021, the mother, and her solicitors, did not raise any issue with G Lawyers, or the court, about the mother’s concern as to the father’s sister being a lawyer at G Lawyers. Mr F had responded, on 20 August 2020, to an earlier suggestion by the mother’s then lawyer of a conflict of interest. Mr F had asserted in reply there was no conflict of interest. The relevant parts of that correspondence were as follows:
….We are instructed that [Ms D] did not have a close personal relationship with your client prior to the parties’ separation and that she was merely acquainted with your client through her connection to our client. At no point during the parties’ relationship did [Ms D] or your client spend time together alone and at no point did your client confide in [Ms D] any personal or sensitive information.
…the parties separated more than ten years ago and that the purported meaningful interactions between [Ms D] and your client occurred prior to [X’s] birth as such. We are instructed that since the parties’ separation, [Ms D] has had fleeting interactions with our client at the minimal family gatherings to which your client has permitted [X] to attend. …[for] no more than two or three occasions for no more than one to two hours at a time, over the course of the past decade…[there has been] no other contact or communication between [Ms D] and your client whatsoever.
… [Ms D] is not acting on our client’s behalf nor has she or our firm ever acted on behalf of your client….the last interaction between [Ms D] and your client was prior to [Ms D’s] admission to the legal profession. Neither [Ms D] nor our firm holds any confidential information in respect of your client….
… no conflict arises under either Regulation 10 or 11. Regulation 12 concerns the issue of conflicts between the personal interests of a solicitor and the interests of their own client. Again, no conflict arises under this Regulation…
…we have further sought the advice of the Law Institute of Victoria Ethics Committee and confirm that the writer [Mr F] recently spoke [with them]. We confirm [the Ethics Committee] did not consider there to be a conflict of interest and was satisfied for both the writer and our firm to continue acting on behalf of our client.
[2] Holborow v Macdonald [2002] WASC 265 at [26] cited with approval in Sellers & Bruns and Anor [2019] FamCAFC 113 at [98].
No further correspondence on the matter, nor any other action, was taken by the mother’s solicitors until some 16 months later, on 16 December 2021, when the mother filed her Application in a Proceeding. The mother discontinued that Application and has re-enlivened that Application in her Response filed 19 April 2022.
There is no evidence before the court that the father’s sister will be called as a material witness in the proceeding. The fact that she is X’s aunt and is a close sibling of the father does not mean that she will be called as a witness. The father’s sister deposed to her intention to not file any further affidavits in this proceeding, and she had not filed any affidavits prior to her affidavit filed 27 April 2022. Such affidavit was filed in response to allegations made by the mother as to the relationship between the father’s sister and the mother that allegedly existed many years go. The father’s sister and the mother have not interacted for approximately a decade. Who the parties call as a witness is ultimately a matter for them, however there is nothing before me at this time which suggests that the father’s sister would be called to give evidence.
The timing of the mother’s Application is relevant. The father’s lawyers have acted for a considerable amount of time, at considerable cost. Those costs incurred by the father being approximately $100,000 to the time of this hearing. It would be prejudicial to the father to, at this stage of the proceeding, require him to secure other legal services by reference to the further costs he would need to incur in briefing other solicitors and the impracticality after such a lengthy institution of the proceeding.
The mother’s submissions that the father’s sister has access to confidential information about the mother’s “physical and mental health” arose from the mother’s evidence of her relationship with the father’s sister, a relationship which, in terms of its intensity and frequency is denied by the father’s sister. What is agreed is that the two women knew each other and mixed socially up to 2011 and on a limited number of occasions met in the company of others up to 2013. Counsel for the mother, in submissions, could not specifically describe what relevant confidential information the mother asserted the father’s sister had acquired in the relevant period, but noted the mother’s evidence alleged a close personal relationship between the two women where various confidences had been exchanged, including matters of the mother’s health and mental health functioning. There certainly could be no information of any sort as to the mother’s mental health functioning and health that the father’s sister could have obtained from the mother post 2013.
I note that in the material placed on the court file there are numerous expert reports going toward the mother’s health and mental health functioning. None of this information is available to the father’s sister. There is no current or relevant information as to the mother’s mental health functioning and health that the father’s sister is privy too.
I am satisfied that on an application of the test as described in Kallinicos v Hunt (2005) 64 NSWLR 561, namely “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”,[3] there is no conflict of interest in G Lawyers acting for the father, and that firm should not be prevented from so acting.
[3] Kallinicos v Hunt (2005) 64 NSWLR 561 at [76].
COSTS
Pursuant to s 117 of the Act each party shall bear their own costs. The father sought no order as to costs in respect to each parties’ Application to restrain their respective solicitors from acting for them.
The orders made on the 22 April 2022 were as follows:
1.The Applicant Father have leave to withdraw his Application in a Proceeding filed 7 April 2022.
2.The Application of the Respondent Mother filed 19 April 2022 is adjourned part-heard to 28 April 2022 at 9.30am before the Honourable Justice Hartnett.
The mother sought a costs order whether successful or unsuccessful in her Application, submitting that the hearing on 22 April 2022 was required to be adjourned to 28 April 2022 as a part heard matter because the father’s solicitors had not put the father’s sister on affidavit by 22 April 2022. It was counsel for the mother’s submission that this caused unnecessary cost to the mother and this fact, coupled with the father not proceeding with his Application, warranted a costs order in her favour.
I do not accept those submissions. The mother’s Application to restrain G Lawyers was served upon the father on 20 April 2022, with the hearing listed to the morning of 22 April 2022. In accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021,[4] the father could not file any material that close to a hearing. Short service of the mother’s Application resulted in the adjourned hearing being required. Otherwise, the mother has been unsuccessful in her Application, as essentially was the father in his Application.
[4] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 2.23(5).
When looking further to the matters the court is required to consider in s 117(2A) of the Act, I note that neither party is legally aided, and both are privately funding their litigation. Each have incurred costs in the vicinity of $100,000 and both have limited income receipt.
In these circumstances, I am satisfied no order as to costs should be made.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 6 May 2022
0
2
0