LUTHRA & BETTERLEY
[2015] FamCA 1080
•4 December 2015
FAMILY COURT OF AUSTRALIA
| LUTHRA & BETTERLEY | [2015] FamCA 1080 |
| FAMILY LAW – INJUNCTIONS – Application to restrain a solicitor from acting – Where the applicant engaged in counselling sessions with the mother of the solicitor acting for the respondent – Where the applicant disclosed confidential information to the psychologist in such counselling sessions – Where the applicant argues that there is a risk that his confidential information will be imparted to the respondent’s solicitor – Where the psychologist gave evidence that she had never discussed anything the applicant said to her with the respondent’s solicitor – Where the applicant caused a subpoena to be served on the psychologist which required her to produce relevant documents to the Court – Where leave was given for the parties to inspect such documents, and confidentiality was lost – Whether the Court should exercise its implied powers to supervise a solicitor appearing in the Court – Where it was found it was not necessary for the respondent’s solicitor to be restrained from continuing to act – Where the application was dismissed. |
| Family Law Act 1975 (Cth) – s 21(2) |
| Billington & Billington (No 2) [2008] FamCA 409 Cadwallader v Bajco Pty Ltd and Ors [2002] NSWCA 328 DJL v The Central Authority [2000] 201 CLR 226 D & J Constructions (1987) 9 NSWLR 118 Drover & Glasson and Anor [2014] FamCA 714 Everingham v Ontario (1992) 88 DLR (4th) 755 Griffis & Griffis (1991) FLC 92-233 Grimwade v Meagher [1995] 1 VR 446 Jones & Dunkel (1959) 101 CLR 298 Kallinicos v Hunt (2005) 64 NSWLR 561 Kossatz & Kossatz (1993) FLC 92-386 Magro & Magro (1989) FLC 92-005 Mann v Carnell (1999) 201 CLR 1 McMillan & McMillan (2000) FLC 93-048 Moore & Moore (2014) FLC 93-595 Osferatu & Osferatu (2015) FLC 93-666 Prince Jefri Bolkiah v KPMG(A Firm) [1999] 2 AC 222 Thevanez & Thevanez (1986) FLC 91-748 Walters & Walters [2007] FamCA 832 |
| APPLICANT: | Mr Luthra |
| RESPONDENT: | Ms Betterley |
| FILE NUMBER: | SYC | 6671 | of | 2013 |
| DATE DELIVERED: | 4 December 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 4 February 2015 and 30 June 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Connor |
| SOLICITOR FOR THE APPLICANT: | Argyle Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth |
| SOLICITOR FOR THE RESPONDENT: | Rebekah Dorter Family Lawyer |
Orders
That the application at paragraph 2 of Annexure “A” to the husband’s Application in a Case filed on 12 December 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Luthra & Betterley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6671 of 2013
| Mr Luthra |
Applicant
And
| Ms Betterley |
Respondent
REASONS FOR JUDGMENT
During the course of substantive proceedings between Mr Luthra and Ms Betterley, to whom for convenience I shall refer as “the husband” and “the wife”, the husband has sought an order that the wife’s solicitor Rebekah Dorter forthwith be restrained from acting on behalf of the wife in the proceedings.
The application for the restraining order is opposed by the wife.
Background
The husband 56 years and the wife 46 years commenced cohabitation in May 1994. They married in 1995.
The parties separated for three months in March 1997, for three years from July 2000 to August 2003 and finally in November 2011.
There is one child of the marriage, B born in 2009. There is a younger child of the wife, C born in 2010. The husband is not the biological father of this child.
The husband is an health care professional. The wife works in the media.
The parties encountered difficulties in their marriage in approximately 2005/2006. They commenced attending confidential counselling sessions with Ms D (“Ms D”), psychologist, in 2006. They attended a number of sessions with Ms D. Some of the sessions were joint sessions and some were individual sessions.
In approximately 2011 the husband started to have concerns that he might not be the biological parent of the child C. A parentage report in approximately October 2011 made it clear that he was not. This caused significant marital strain and, sudden sadness and shock for the parties. The wife turned to Ms D for further counselling assistance and support on what appears to have been 31 October 2011. The husband again became involved in such counselling. Again they had individual and joint counselling sessions.
Ms D informed the parties during the sessions that all counselling would be confidential.
During the course of an individual counselling session the wife asked Ms D whether she could recommend a lawyer to assist her to pursue a property settlement. Ms D suggested that the wife contact the firm of family lawyers with whom her daughter worked as a solicitor, Reid Family Lawyers. The wife did so and, in December 2011, she retained that firm to act for her. The solicitor who assisted her was the daughter of Ms D, Ms Rebekah Dorter (“Ms Dorter”).
In June 2014 Ms Dorter left Reid Family Lawyers and established her own legal practice. The wife continued to instruct Ms Dorter.
At approximately this time Ms D retired from her professional work.
The relationship between the wife’s solicitor and Ms D was unbeknown to the husband until late November 2014. On 28 November 2014 the husband’s solicitor wrote to the wife’s solicitor requesting that Ms Dorter immediately cease to act for the wife or an application would be filed for an order to restrain her from so acting. The letter asserted a conflict of interest in the circumstances.
Credit
There were some important factual matters which were in issue between the parties. Accordingly, in my view, it is appropriate to make some observations about the credit of each of the witnesses.
The husband
Generally the husband gave his evidence in a forthright and responsive manner. But this was not always the case.
The husband had difficulty providing responsive answers to questions concerning an old mobile phone of the wife which had come into his possession in circumstances where the wife had sent it with their daughter to download some games during time spent between father and daughter. After some spirited questioning during cross-examination and some prevarication on the part of the husband, the husband conceded that he had deliberately opened message screens on the wife’s old telephone and used material therefrom to assist him in these proceedings.
In these circumstances I have some reservations about accepting the reliability of the husband’s evidence.
The wife
The wife was reasonably responsive in her answers to questions during cross-examination. The wife was challenged about the accuracy of paragraph 11 of her affidavit. This read as follows:
[Mr Luthra] made further remarks about Ms Dorter in November 2014. [Mr Luthra] stated “Bring on February 2nd and Rebekah will be gone! Then you can get a decent lawyer and we can get this settled.”.
The wife had to concede that in fact she had included the wrong date in this paragraph. I shall refer to this matter again below.
It is also the case that the wife had to acknowledge that the husband was not the biological father of her younger daughter following the results of scientific parentage testing. The wife said that she was shocked to learn of this, yet in my view, this must also be a matter which affects her credit.
Accordingly, I also have reservations about the reliability of the wife’s evidence.
Ms D
Ms D is the psychologist who assisted the parties with counselling over some years in relation to aspects of their marriage breakdown, including their distress following receipt of the parentage testing report about C. As indicated above, she is also the mother of the wife’s solicitor, Ms Dorter. Although Ms D is known as Ms F in her personal life for convenience I shall refer to her by her professional appellation “Ms D”.
Ms D gave her evidence in a forthright and responsive manner.
She was challenged about parts of her professional notes having been torn off various pages. She said that she was a registered nurse and sometimes a client would ask her to suggest a vitamin, a health product or something and she would write it on the bottom of a page of her notes, tear it off and give it to the client. I regarded her account and explanation for this as plausible.
Of all the witnesses, I regard Ms D as the witness in whose evidence the Court could place the most confidence. I regard her as a witness of the truth.
The Applicable Law
It is settled law that where an injunction is sought to restrain a solicitor from acting against his or her client or former client, there are three bases for granting the injunction.
These were confirmed by the Full Court of this Court in Osferatu & Osferatu (2015) FLC 93-666.
The first is breach of confidence, where permitting a solicitor to continue to act would involve a risk that the solicitor might use information held by the solicitor subject to a duty of confidence to the former client, to the disadvantage of the client. The second is breach of a duty of loyalty, where acting against a client would be inconsistent with the solicitor’s fiduciary obligation of loyalty to such former client. The third is the inherent supervisory jurisdiction of a court over solicitors and to control its process.
It is this third basis which learned counsel for the husband submits is available on the facts of this case to enable the Court to grant the injunction to restrain the wife’s solicitor from continuing to act for her in these proceedings.
Most of the cases which have come before this Court for determination about whether the Court should restrain a lawyer from acting for a person have involved the first of the three bases, namely breach of confidence. These include Osferatu (above), Drover & Glasson and Anor [2014] FamCA 714, Billington & Billington (No 2) [2008] FamCA 409, McMillan & McMillan (2000) FLC 93-048, Kossatz & Kossatz (1993) FLC 92-386, Griffis & Griffis (1991) FLC 92-233, Magro & Magro (1989) FLC 92-005 and Thevanez & Thevanez (1986) FLC 91-748.
This first basis for ordering restraint would not be available in the present case, in my view. This is because it applies where a confidence has been given to a lawyer (or a law clerk as in McMillan (above)) and that lawyer (or law clerk or a lawyer in the same firm) has subsequently commenced acting for a party who has interests inconsistent with those of the party who gave the confidence.
As was observed by Brereton J in Kallinicos v Hunt (2005) 64 NSWLR 561 at 571 the breach of confidence basis for restraint:
… involves a claim to enforce a contractual or equitable right, namely, the protection of a confidence which the solicitor was bound by the contract of retainer and/or in equity, to maintain, even after termination of the retainer. It depends on ordinary contractual and equitable principles.
The present case is quite different from those cases because in the present case, the husband gave confidential information to a psychologist, not a lawyer, and in my view, the necessary contractual relationship fundamental to the first head of power does not exist.
Nor in my view, would the second basis for ordering restraint, namely, the breach of duty of loyalty where acting against a client, be available because the husband has never been the client of the wife’s solicitor.
But the third basis for restraint, which is what counsel for the husband relies on, is much wider. It was described by Mandie J in Grimwade v Meagher [1995] 1 VR 446 in the following terms (at page 452):
… this court … has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.
In Grimwade the plaintiff had been tried for criminal offences involving alleged commercial dishonesty. The Court of Criminal Appeal directed a verdict of acquittal. The defendant had been senior counsel for the prosecution in the committal and in two trials of the plaintiff.
There was a related civil proceeding brought against the plaintiff by various parties. The defendant was retained to act for these parties. The plaintiff sought an order to restrain the defendant appearing for those parties.
Mandie J held that the “unique, extraordinary and exceptional” circumstances of the case including the “dedicated zeal and degree of personal involvement” of the defendant in advancing to the Court of Criminal Appeal an allegation of conspiracy by the plaintiff which the Court described as “fanciful” and expressed “regret that the Crown saw fit to make it”, were such as to:
… cause a fair minded observer to apprehend a real risk that the … defendant would be unable to appear in the said action and act with that objectivity and detachment which the court expects of counsel appearing before it and a real risk that the … defendant would be unable to properly distinguish or avoid a conflict between his personal interests and his duty to his clients …
His Honour also said:
… there is a real and sensible risk of a lack of objectivity by the … defendant which not only gives rise to an undue risk of unfairness or disadvantage to the plaintiff but gives rise to a substantial concern that a fair trial would not be had and hence gives rise to a concern for the integrity of the judicial process and the due administration of justice.
In the Canadian case of Everingham v Ontario (1992) 88 DLR (4th) 755 the Full Court of the Ontario Divisional Court applied inherent jurisdiction to restrain a solicitor from acting as counsel.
In that case a mental patient was suing the Crown in respect of his detention. On the afternoon before a Crown solicitor was to cross-examine the patient about his affidavit, by coincidence, that Crown solicitor met the patient and spoke to him only to reassure him about the reasons for his presence. The Full Court upheld the order of the lower court which removed the Crown solicitor as counsel even though there was no evidence that he had approached the patient in relation to the subject matter or the process of the litigation.
The Full Court said that:
The issue was … whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor, the goal being to protect not just the interests of the individual litigant but more importantly public confidence in the administration of justice.
In Kallinicos (above) Brereton J undertook a detailed review of authorities relevant to the power of courts to make orders which restrain a solicitor from acting for a person. In respect of the third established basis for the making of such orders his Honour said as follows (at page 582):
·… 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 (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v Pattern Holdings; Spincode Pty Ltd; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt). …
·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 (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications Ltd).
·The jurisdiction is to be regarded as exceptional and is to be exercised with caution (Black v Taylor; Grimwade v Meagher; Bowen v Stott).
·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 (Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott).
In Kallinicos (above) Brereton J found that the solicitor the subject of the restraint application would “almost certainly” be a witness in the relevant proceedings and “might well be exposed to suit, and he has an interest in how the evidence turns out”. His Honour considered that a fair-minded, reasonably informed member of the public would conclude that the independent objectivity of the solicitor, as solicitor and/or witness, was compromised by conflicts between his obligation of loyalty to his client, his role and knowledge as a witness of material facts, and his potential personal interest. His Honour made the restraining order.
In cases where this Court has been considering application of the first basis for restraining a solicitor from acting for a party, a particular approach has developed. This was described in McMillan (above) as being a “broader” or “Family Law” approach where the Court will intervene:
… if there is ‘a reasonable apprehension that confidential information has been given to a lawyer by a former client and that there is at least a theoretical possibility that this information might be used to the disadvantage of that client’.
This was a somewhat more sensitive approach to the applicant client than what was described as the “narrow” or “English” approach where a court would intervene only when it was convinced that both a confidence has been reposed in a lawyer by a former client and it was probable that the confidence would be used to the disadvantage of the client.
In Osferatu (above) the Full Court reconsidered its use in McMillan of “theoretical” to describe the risk as now being unhelpful. They preferred the phrase “any real risk” to be more meaningful. But they acknowledged that they would not necessarily accept this as representing a departure from McMillan.
I have referred to the above cases only for the purpose of noting the “Family Law” approach taken and not forgetting that those cases involve the first basis for restraint rather than the third.
And, in my view, it is also relevant to observe, as the Full Court did in McMillan the relevance of observations of Bryson J in D & J Constructions (1987) 9 NSWLR 118 where his Honour referred to this Court’s decision in Thevenaz & Thevenaz (above) and observed (at pages123-124)
[The Family Court] took the view that restraint is justified if there is a risk that confidential communications on relevant matters have been made by the party for whom the solicitor has ceased to act, even if the risk may be more theoretical than practical. It seems natural that a particularly careful view would be taken in family law business, as such litigation tends to be about highly confidential facts and a very wide range of facts and circumstances can conceivably be relevant; the sensitivity which even the most reasonable people feel about such litigation when they are engaged in it calls for careful measures to secure not only that justice is done but also that it is apparent that it is done, an appearance which would not survive any general impression that lawyers can readily change sides.
(Emphasis added)
Although these cases did not involve application of the third basis for making an order to restrain a solicitor from acting, in my view, their relevance is to remind the Court of the sensitivity involved in family law proceedings and the need for justice to be seen to be done. In my view, these are matters clearly relevant to the exercise of the discretion.
Before leaving the applicable law, I also note that for this Court to describe the third basis for restraint as being part of the Court’s inherent jurisdiction over solicitors who appear before it and to control its process in aid of the administration of justice, would be inaccurate. This is because the High Court has rejected the concept that Federal Courts have jurisdiction which might be described as inherent.
In DJL v The Central Authority [2000] 201 CLR 226 the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said as follows (at 240-241):
The Family Court is … not a common law court as were the three common law courts at Westminster. Accordingly, it is "unable to draw upon the well of undefined powers" which were available to those courts as part of their ‘inherent jurisdiction’. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred". It would be inaccurate to use the term "inherent jurisdiction" here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.
(Emphasis added)
Kirby J said as follows at page 268:
… I agree with the joint reasons that it is desirable, in relation to courts created by statute, that the expression "inherent powers" should not be used. That appellation may be appropriate to courts originally created out of the Royal Prerogative. It is not apt to a court, such as the Family Court, which is created by federal legislation. In such a case it is necessary to attribute the power (where it is not conferred expressly by or under such legislation) to an implication derived from the legislation establishing the body. It may also be implied from the character of the court as a court of the designated kind, and from the place which it enjoys in the Judicature of the Commonwealth for which the Constitution provides. There is no difficulty in ascribing these implications to the Family Court within the field of its jurisdiction.
Accordingly, I propose to refer to the third basis for restraint as being part of this Court’s implied powers, which flow from the establishment of the Court as “a superior court of record” pursuant to s 21(2) of the Family Law Act 1975 (Cth).
The Issue
In my view, the issue is whether, on the facts of this case, this Court would exercise its implied powers to supervise a solicitor appearing in the Court and to ensure the due administration of justice, and protect the integrity of the judicial process by making the order sought to restrain the solicitor from acting for the wife.
The Husband’s Case
The submissions on behalf of the husband were to the following effect.
There is no issue that this Court has power to grant an injunction to restrain a solicitor from acting for a party to proceedings. The Court would do so on the basis of the public interest in preserving the appearance of justice, fairness and the integrity of the justice system.
The husband had individual counselling sessions with Ms D and during such sessions he disclosed many confidential matters to her particularly his feelings about the child C.
He was open and forthcoming in things that he said to Ms D because she had assured him that their counselling was on a confidential basis.
The husband said that he does not know the extent of communications between Ms D and her daughter or whether Ms D has disclosed to her daughter being the wife’s solicitor, confidential information provided by him to Ms D.
The husband has a serious concern that because of the close familial relationship between Ms D and the wife’s solicitor, and because they are in regular and frequent contact with one another, there is a risk that things which he said in confidence to Ms D could be disclosed to the wife’s solicitor, even inadvertently, perhaps in an unguarded moment. And there is a risk that confidential information could be used by the wife’s solicitor to his disadvantage in the proceedings.
It is clear from SMS messages which the husband discovered on the wife’s old phone that the wife was continuing to communicate with Ms D. There was SMS correspondence between the wife and Ms D in August 2014 in which Ms D informed the wife that Ms D was in Country G. There was subsequent SMS correspondence between Ms D and the wife on 4 November 2014 in which Ms D said: “Spoke to Rebekah - - - back Thursday - - call me say Saturday xxx [Ms D]”. The wife replied “Ok! Lovely to hear from you [Ms D]. Yes, the nightmare continues …. The man is obsessed! Speak Sat xx”.
This continuation of communication between the wife and Ms D is an ongoing concern of the husband.
The wife has failed to file any affidavit by her solicitor, Ms Dorter, which might have shed some light on whether Ms Dorter is in possession of confidential information of the husband. The Court should draw an inference that, on the principle in Jones v Dunkel (1959) 101 CLR 298, any evidence by the solicitor would have been unhelpful to the wife’s case.
The husband rejects any suggestion that he has brought this application for the purposes of harassing the wife or as a tactic to delay the proceedings. In particular he denies the wife’s assertion at paragraph 11 of her affidavit sworn on 30 January 2015 that in November 2014 the husband said to her:
Bring on February 2nd and Rebekah will be gone! Then you can get a decent lawyer and we can get this settled.
He could not have been aware of the return date of 2 February 2015 until at least 12 December 2014 when his application was filed because this return date was not allocated until then. So clearly the wife’s assertion in this regard was incorrect.
In any event, there is no issue about any delay on the part of the husband in bringing these proceedings because he filed his application within weeks of becoming aware of the familial relationship between the wife’s solicitor and Ms D.
Although the husband’s relationship with Ms D was not a solicitor/client relationship the relevant principles have been extended to a case in which confidential information had been provided to a firm of accountants (Prince Jefri Bolkiah v KPMG (A Firm) [1999] 2 AC 222).
It is unnecessary for the husband to establish that confidential information has been actually imparted to the wife’s solicitor. It is sufficient to establish a theoretical risk that such information could be so imparted. And the husband does not have to prove “the probability of mischief”.
A fair-minded, reasonably informed member of the public, upon hearing the facts of this case, would consider that because the wife’s solicitor is the daughter of the psychologist to whom the husband has given confidential information, and they have a close relationship, there is a risk that the husband’s confidential information might find its way to the solicitor and could be used against the husband.
The Wife’s Case
The submissions on behalf of the wife were to the following effect.
In relation to the submission based on Jones & Dunkel (above) any such inference should not be drawn in this case. This was argued on several bases as follows.
The best evidence must come from Ms D. Her evidence is clear. This is that at no stage has she ever discussed with or disclosed to the wife’s solicitor anything the husband said to her or communicated to her in the sessions she conducted with him. Upon Ms D giving such evidence, the issue is not unclear and no evidence by the wife’s solicitor could take the issue further. Even if it was possible to draw the inference that any affidavit by the wife’s solicitor would not have assisted the wife’s case, it should not be drawn if it does not overcome the positive evidence (Moore & Moore (2014) FLC 93-595). The evidence must be such that it would have elucidated a matter (Walters & Walters [2007] FamCA 832).
The principle in Jones & Dunkel does not apply where the uncalled witness is a solicitor, where the untendered evidence is privileged and where the privilege has not been waived (Cadwallader v Bajco Pty Ltd and Ors [2002] NSWCA 328).
The husband bears an onus that a confidence has or might be passed on from Ms D to the wife’s solicitor. There is no such risk because Ms D made it clear that she has never disclosed or communicated to the wife’s solicitor anything said by the husband to her in the sessions she conducted with him.
Ms D is not in the position of a legal practitioner who might have acted for both parties but rather the alleged risk is of her passing a confidence to the wife’s solicitor because of their familial relationship. The Court has not accepted the risk as having been established by the mere existence of a social relationship which was the position in one of the aspects of Kossatz (above).
This is not a case where the wife’s solicitor had previously acted for the husband, where the Court might infer the passage of confidential information. But rather there is a further step. This is that the repository of the confidential information, Ms D, passed confidential information to the wife’s solicitor or that there was a risk of it passing. In these circumstances the onus moves to the husband to show firstly that there was confidential information imparted to Ms D and secondly that it passed from Ms D to the wife’s solicitor or that there was a risk that it would so pass.
It was conceded that the husband imparted confidential information to Ms D. But the Court would not be satisfied that either it passed from Ms D to the wife’s solicitor or that there was a risk of it so passing. This is because Ms D gave an emphatic denial of breaching any confidence and she gave evidence of clear knowledge of and adherence to the ethical guidelines about breach of confidence which apply to members of her profession.
Counsel for the wife referred to the test for restraint referred to in Kallinicos and also Grimwade as referred to above including the discretionary considerations as well as the relevance of the timing of the applications.
There is an onus on the husband to establish a prima facie case that the wife’s solicitor obtained confidential information about the husband (Kossatz at page 4).
In the present case there was no evidence that any information about the husband, confidential or otherwise, was imparted to the wife’s solicitor. This distinguishes the present case from all the authorities where a solicitor may have acted at some point in time for both parties. Absent that evidence there is simply no confidence to protect. The risk referred to in the authorities such as Kallinicos is that the solicitor might use, or be bound to use, information which he or she held subject to a duty of confidence. The real risk is whether Ms D might disclose confidential information. The only basis submitted is the familial or social relationship she has with the wife’s solicitor and there is no evidence that confidential information ever passed to the wife’s solicitor. There is no evidence that confidential information passed from Ms D to anybody.
In relation to the SMS messages between Ms D and the wife’s solicitor referred to above (in the husband’s case) it was submitted that the SMS messages demonstrate that Ms D did not engage with the wife following a criticism by the wife to the effect that the husband was “obsessed”. This was consistent with her assertions that at all times she acted professionally and did not divulge any confidence of the husband.
The husband’s case fails at the most basic level because it has not been demonstrated that the wife’s solicitor has received any confidential material of the husband.
But in any event, whatever confidential material has been given by the husband to Ms D is no longer confidential. This is because the husband caused a subpoena to be served on Ms D which required her to produce her file and related documents about the husband and the wife. Ms D has produced relevant documents including her clinical notes of her sessions with the parties including the husband. Leave was given to both parties to inspect the documents produced, they have been inspected and thereby the confidentiality has been lost.
Discussion and Conclusion
In my view, in the present case the relevant basis of these three bases for making an order to restrain a solicitor from acting for a party in proceedings as referred to in Osferatu (above) would be the third basis. This is what I shall refer to as an implied power of this Court to restrain a solicitor from acting for a person in order to control its process in aid of the administration of justice.
The present case is different from the reported cases referred to where courts have been asked to make an order to restrain a legal practitioner from acting for a party to proceedings. With the exception of the Prince Jefri Bolkiah case, which involved a firm of accountants, the cases have invariably involved either the situation where a legal practitioner (or law clerk or similar) has received confidential information and there is a risk that such information could be used against the applicant, or where there is a conflict of duty, or where in the particular circumstances of the case, the legal practitioner could not be expected to exercise the level of independence required of the practitioner if he or she were to remain acting in the proceedings.
It was conceded that the husband imparted confidential information to Ms D. Much has been said in submissions about whether one or other party bears an onus of establishing risk that such confidential information might be used by the wife’s solicitor to the disadvantage of the husband. There have also been submissions about whether an adverse inference should be drawn by the Court pursuant to the principle in Jones v Dunkel from the fact that the wife’s solicitor did not file an affidavit in support of the wife’s case.
In my view, such submissions are not to the point and appear to have confused the applicable principle. I refer again to the three bases for orders to restrain a solicitor from acting for a party in proceedings as confirmed by Osferatu (above). In discussing these in Kallinicos (at page 571) Brereton J said (as indicated partly above):
The first basis – breach of confidence – involves a claim to enforce a contractual or equitable right, namely, the protection of a confidence which the solicitor was bound, by the contract of retainer and/or in equity, to maintain, even after termination of the retainer. It depends on ordinary contractual and equitable principles. The second was also framed as depending on ordinary equitable principles, said to be derived from a solicitor’s fiduciary duty. Thus each of the first two bases involved the assertion of legal rights which might as easily arise in relationships other than between solicitor and client (for example, as in Prince Jefri Bolkiah, between accountant and client). The third basis was quite different, depending not at all upon equitable (or other) rights of the parties, but on the court’s inherent supervisory jurisdiction over its officers, including its solicitors.
And in Osferatu (at page 4) the Full Court in referring to these three bases for restraint orders said that “… the basis for the exercise of the jurisdiction in each is different …”.
As indicated above, the relevant test in relation to the third basis, as described by Brereton J in Kallinicos is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the wife’s solicitor should be prevented from acting for the wife in the interests of the protection of the integrity of the judicial process and the due administration of justice including the appearance of justice.
Although some confidential information was received by Ms D from the husband, there is no evidence that any confidential information has passed from Ms D to the wife’s solicitor. The fair-minded member of the public would be told this.
The fair-minded member of the public would also be informed that Ms D has a professional duty under her contract with the parties and under the rules of the professional organisation of which she is a member, not to disclose any information received from them as her clients in confidence and that she informed the Court and the parties that she took her professional duty seriously, describing her position of trust as “a position of total confidentiality”.
In my view, upon being so informed, the fair-minded member of the public would not consider it necessary for the wife’s solicitor to be restrained from continuing to act for the wife in order to protect the integrity of the judicial process and the due administration of justice.
But even if I am wrong about this, in my view there is a further matter relevant to the exercise of the Court’s discretion which would make it clear that the facts of this case are not such that the Court would order restraint of the wife’s solicitor. This further matter is that, as indicated above, during the course of the immediate proceedings, the husband’s solicitor arranged for service of a subpoena on Ms D which required Ms D to produce documents held by her in relation to the husband and the wife over the period of their professional relationship with her. As required by the subpoena, Ms D produced her file about the parties which included clinical notes of her sessions with the parties. Early in the hearing leave was sought for the parties to inspect these documents and I gave such leave.
It was submitted on behalf of the wife that upon the granting of such leave and upon inspection, whatever confidentiality might have been available to the husband (and the wife) was lost.
It was submitted that this situation is analogous to that of waiver of legal professional privilege. Counsel for the wife referred to Mann v Carnell (1999) 201 CLR 1 where the High Court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) referred to waiver of legal professional privilege. Their Honours held that what brings about waiver of the privilege is an intentional act which is inconsistent with maintenance of the confidentiality of the communication.
Whether the present situation concerning inspection of the confidential documents is broadly analogous to that in Mann v Carnell is unnecessary to determine in my view. This is because as a matter of practical reality, the counsellor’s confidential notes of her sessions with the husband have now been disclosed to the wife and those acting for her. The confidentiality has been lost.
It has to be remembered, as Brereton J said in Kallinicos, that the jurisdiction to restrain a solicitor is exceptional and is to be exercised with caution. Due weight is to be given also to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. The wife has been instructing her solicitor for approximately four years. She said that she has confidence in her solicitor’s work and that she does not wish to change solicitors. She said that she feels distress and upset about the prospect of having to change solicitors.
In relation to the timing of the husband’s application, I accept that the husband filed his application promptly upon becoming aware of the relationship between Ms D and the wife’s solicitor. I also accept that the husband has not brought this application for the purpose of harassing the wife or prolonging the litigation.
In my view, for the above reasons, this is not a case where the Court would exercise its discretion to restrain the wife’s solicitor from continuing to act for her.
Accordingly, the husband’s application will be dismissed.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 4 December 2015.
Associate:
Date: 4 December 2015
0
8
1