Martini and Hackforth
[2013] FCCA 1331
•4 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTINI & HACKFORTH | [2013] FCCA 1331 |
| Catchwords: FAMILY LAW – Inherent Jurisdiction – restrain a solicitor from acting for a party. |
| Murdoch & Brown [2013] FamCA 586 (9 August 2013) |
| Applicant: | MR MARTINI |
| Respondent: | MS HACKFORTH |
| File Number: | CAC 1072 of 2007 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 3 September 2013 |
| Date of Last Submission: | 3 September 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 4 September 2013 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | Lamont Black Lawyers |
ORDERS
That the application in a case filed by the applicant on 20 August 2013 be dismissed.
That the applicant pay the respondent’s costs of and incidental to the application filed 20 August 2013 to be assessed on the Federal Circuit Court of Australia scale.
IT IS NOTED that publication of this judgment under the pseudonym Martini & Hackforth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
CAC 1072 of 2007
| MR MARTINI |
Applicant
And
| MS HACKFORTH |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
Introduction
This is an application by Mr Martini, the father in the proceedings relating to his children. Mr Martini seeks to have the mother’s lawyer restrained from acting for her. The father’s application is not based on the usual ground, which would be that the mother’s solicitor, Mr Brian Patrick Black of Lamont Black Solicitors, had a conflict based on confidential information. Rather, his case argues that under the inherent jurisdiction that the Court has to ensure the due administration of justice and to protect the integrity of the judicial process, I should remove Mr Black because of letters he has directed to the husband and father in this matter on behalf of potential witnesses in the trial.
The Material
The material that I considered in this case is as set out below.
I considered the following material on behalf of the applicant:
a)The father’s application in a case filed 20 August 2013; and
b)The father’s affidavit filed 20 August 2013.
In the respondent’s case I considered:
a)Written submissions that were filed by leave on 3 September 2013;
b)The mother’s response filed on 2 September 2013;
c)The affidavit of the mother filed 2 September 2013;
d)The affidavit of Ms J filed 2 September 2013; and
e)The affidavit of Brian Patrick Black filed 2 September 2013.
The Law
The law, as I understand it, and as was submitted by Mr Martini, is summarised in the case of Murdoch & Brown [2013] FamCA 586 (9 August 2013). In that case, Cronin J of the Family Court recorded:
“[36] This court has the inherent jurisdiction to control its own processes. Those processes involve the administration of justice generally. I am satisfied that the rule which began these reasons does not limit the court’s power by restricting its operation only to practitioners involved in proceedings before it. The inherent jurisdiction relates to the administration of justice and the protection of the integrity of the judicial process so long as, in some way, this court’s process involves Mr M no matter how obliquely.
[37] The power of the court will be exercised where a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be prevented from acting for a client (see Spincode Pty v Look Software [2001] VSCA 248 and Grimwade v Meagher [1995] 1 VR 446).
[38] The test involving the fictional member of the public is an objective test based on what the general public could expect of the administration of justice (op cit Grimwade v Meagher).
[39] Whilst litigants should not be deprived of their choice of representation without good cause and the power of the court should be exercised very cautiously, the public’s interest in the administration of justice must override that right of legal representation. It is not just the administration of justice but also the public’s confidence in the legal profession and, if that is seen to be undermined, the court should intervene. In part, a court should exercise its jurisdiction if there is a concern about the lawyer’s capacity to exercise independent judgment and objectivity. That is because it is the lawyer’s responsibility to avoid a conflict of interest. Thus, …”
Justice Cronin then went on to describe the particulars of that case.
In the present case, the applicant indicates in correspondence attached to his affidavit that he wished to call the mother’s father, Mr K, and the mother’s sister, Ms J, as witnesses in his case in a trial that is set down later this year. He sent courteous correspondence to them informing them that he wished to call them as witnesses in his case. I must admit that this was an unusual tactical decision on behalf of the father, however, there was nothing stopping him from adopting this course of action.
Mr Black, the mother’s solicitor, wrote letters to the applicant on behalf of the mother’s sister and the mother’s father. I accept that, had the mother’s sister and her father not provided affidavits in the mother’s case, there may have been a potential conflict for Mr Black acting for them or writing letters on their behalf, and then the father subpoenaing them to appear in his case. However, they are now witnesses in the mother’s case. Furthermore, any conflict between the mother and the family witnesses, in relation to the father issuing a subpoena to those witnesses, would be a matter between the mother and her family members. I note that Mr Black had advised the mother’s sister that she did not need to volunteer as a witness, and if a subpoena issued, he might not be able to act on her behalf.
The letters I will set out in full in this judgment
The first letter was sent by Mr Black, on 6 August 2013, to Mr Martini in relation to Mr K. He said:
“I advise that I have been contacted by Mr K, the Father of Ms Hackforth in relation to an email that you sent Mr K on the 5th August 2013.
I confirm that I have a copy of the email sent by you to hand and find the content to be most concerning.
I advise that Mr K does not wish to be a witness for you nor does he believe that he can assist you in any manner.
I also advise that Mr K finds your communication to be both Harassing and intimidating in manner.
As such you are to desist from contacting Mr K and you are to cease your conduct with immediate effect.
Your conduct in running your litigation in such a manner does not assist and your communication with Mr K is deemed to be a ploy to limit my client’s ability to have documents witnessed, and such controlling behaviour must stop immediately.
You have been put on Notice that your conduct will not be tolerated.”
On 6 August 2013 Mr Black also wrote to Mr Martini in relation to Ms J:
“I advise that I have been contacted by a very upset Ms J who has received an email form (sic) you dated 6 August 2013.
I advise that you have caused unwanted stress to Ms J who has recently given birth to a child.
I further advise that your communications with Ms J are not sought and are causing Harassment and are intimidating to Ms J.
As such Ms J believes that there is no information she may have that can assist you and that she does not wish to be a Witness for either party.
You are therefore requested to desist in any further communication with Ms J on any matter.
I therefore put you on Notice that should you continue with your conduct then matters may be progressed in respect of your conduct.”
Mr Black then wrote two separate letters to Mr Martini in relation to both Ms Hackforth and Mr K on 16 August 2013. The first letter, in relation to Mr K, stated:
“Dear Mr Martini,
Re: Mr K
I refer to my previous correspondence dated 6th August 2013 in which you were requested not to contact Mr K again.
I am instructed by Mr K that you sent to him an unsolicited email at 3.49pm on the 15th August 2013. A copy of this email I have to hand.
I am most concerned that despite requesting you not to contact Mr K you failed to comply with the reasonable request.
I am even more concerned and offended that you have suggested to a third party that I have acted inappropriately, in writing to you without authority.
I now request the following of you:
1) That you cease any further conduct with Mr K,
2) That you provide a formal apology to me for your serious allegations, and
3) That you supply me the details of the State or Territory in which you were admitted.
I look forward to your confirmation that you will comply with (1) above and provide (2) and (3) by return.”
The second letter, in relation to Ms J, stated:
“Dear Mr Martini,
Re: Ms J
I refer to my previous correspondence dated 6th August 2013 in which you were requested not to contact Ms J again.
I am instructed by Ms Hackforth that you sent to her an unsolicited email at 3.49pm on the 15th August 2013. A copy of this email I have to hand.
I am most concerned that despite requesting you not to contact Ms Hackforth you failed to comply with the reasonable request.
I am even more concerned and offended that you have suggested to a third party that I have acted inappropriately, in writing to you without authority.
I now request the following of you:
1) That you cease any further conduct with Ms J,
2) That you provide a formal apology to me for your serious allegations, and
3) That you supply me the details of the State or Territory in which you were admitted.
I look forward to your confirmation that you will comply with (1) above and provide (2) and (3) by return.”
Conclusion
With respect to those letters, the father accepted that this application was not based on any confidential information conflict. He submitted that the letters that were written by Mr Black amounted to interfering with his basic right to call any witness in his case. I do not accept that the letters did that. They simply pointed out that the witnesses that he had in mind to call had no desire to be called.
I agree with the proposition that these letters were less than perfect examples of a well-drawn letter written by a solicitor who is cautious and careful in his response to any allegations. However, they did not preclude the father from subpoenaing the witness. They merely conveyed to the father the witnesses’ disinclination to voluntarily giving evidence in his case. Certainly they were more aggressive than perhaps was appropriate, but nothing that would cause me to remove the solicitor by way of injunction from acting for the mother in the trial.
Those are my reasons and those are my orders.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 17 September 2013.
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