McMillan & McMillan

The parties to this appeal were the husband and wife, and the dispute concerned an application by the husband to restrain the wife's solicitors, Messrs. Simon Parsons & Co., from acting in family law proceedings. The husband alleged that a former employee of his solicitors, Mr. Pitts, who was now employed by Messrs. Simon Parsons & Co., possessed confidential information that could be used against him. The primary court, presided over by Wilczek J., had granted the restraining order sought by the husband.

The legal issues before the Full Court were whether the husband had established a prima facie case of prejudice arising from the potential disclosure or use of confidential information by Mr. Pitts, and whether the lower court had adequately provided reasons for its decision to restrain the wife's solicitors. Specifically, the court considered the standard of proof required to demonstrate prejudice and the relevance of the duty of full and frank disclosure in family law proceedings.

The Full Court adopted the principle that a client need only prove a prima facie case as to confidential material, the disclosure or use of which by a solicitor in current proceedings would be prejudicial. The client is not required to divulge the content of the confidential information. The court found that the husband's sworn statement that he had provided instructions to his former solicitor regarding the conduct of his "matter" and the "position to be put to the wife" was sufficient evidence of confidential information. The court also determined that the husband's assertion that this information could be "used against" him constituted prejudice. Furthermore, the court held that the duty of full and frank disclosure in family law proceedings could not override a solicitor's duty of confidence to their client, and that these duties must be able to co-exist.

The Full Court dismissed the appeal, finding that Wilczek J. had not erred in granting the restraining order. The court concluded that the husband had established a sufficient case to warrant the order, and that the reasons provided by Wilczek J., while perhaps brief, were adequate in the circumstances.