Merritt & Bruckner (No 5)
[2024] FedCFamC1F 719
•22 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Merritt & Bruckner (No 5) [2024] FedCFamC1F 719
File number: ADC 1267 of 2016 Judgment of: MCNAB J Date of judgment: 22 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother seeking to restrain the father’s counsel from acting for him at final hearing – Where the mother alleges that she contacted the father’s counsel previously and sought to engage her and as a consequence she has knowledge of the matter – Where the father’s counsel submits that she was never engaged to act for the mother and does not recall the preliminary enquiries made by the mother – Where the mother has failed to identify the relevant confidential information with sufficient particularity in her affidavit – Application dismissed – Order for costs. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Osferatu & Osferatu (2015) FLC 93-666
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 22 October 2024 Place: Melbourne Solicitor for the Applicant: Ms Lewis-Dermody of The Family Law Project (Adelaide, via videolink) Counsel for the Respondent: The Respondent appeared in person (Adelaide, via videolink) Solicitor for the Independent Children's Lawyer: Ms Shorter of Shorter Legal Pty Ltd (Adelaide, via videolink) ORDERS
ADC 1267 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MERRITT
Applicant
MS BRUCKNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
22 OCTOBER 2024
THE COURT ORDERS THAT:
1.The mother’s application in a proceeding filed 4 July 2024 be dismissed.
2.The mother pay the following costs:
(a)the father’s costs fixed in the sum of $1,645.60; and
(b)the Independent Children's Lawyer’s costs fixed in the sum of $895.40,
with such costs to be paid to the Legal Aid Commissioner of South Australia.
AND THE COURT NOTES THAT:
A.The matter remains listed before the Honourable Justice Hartnett for final hearing on 18 November 2024 at 10.00am for 10 days.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Merritt & Bruckner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCNAB J
By an Application in a Proceeding filed on 4 July 2024, the mother seeks orders that Ms JJ of counsel be restrained from representing the applicant father in the proceedings relating to the substantive application which is listed for final hearing for 10 days to commence on 18 November 2024 before Hartnett J. She also sought orders that Judge Brown remain the presiding judge at the trial, although orders made by Judge Brown on 19 July 2024 transferred the matter to Division 1 of the Federal Circuit and Family Court of Australia. In the submissions made today, the mother stated that the only matter that she wished to agitate is the application in relation to a restraint on Ms JJ of counsel from further representing the applicant father.
BACKGROUND
The mother relies on an affidavit filed on 4 July 2024 in support of her application. At [3] and [4] of that affidavit, the mother states:
3.Initial contact with [Ms JJ] by the mother was in October 2022, it was at this time that the case between the mother and father was discussed in significant detail.
4.Following the initial contact in October 2022, the Mother made further contact with [Ms JJ] in discussing her case in depth on the 5 of December 2022. The Mother refers to discussing her case with [Ms JJ] on a prior occasion in her email dated 5 December 2024.
The mother makes reference to an email which was sent from Ms JJ on 5 December 2022 to the mother, and she states:
5.[Ms JJ] acknowledges the case discussion with the Mother, in her return email later the same day when she replied, "as discussed when we spoke". [Ms JJ] continued to state that she would be "more than happy to accept the brief'. A professional only accepts a brief once familiar and confident with understanding the case. Therefore, [Ms JJ's] willingness to accept the brief requested, proves that she understood the case well enough to decide that she was confident to proceed and provide the best representation in the case.
The mother submits that Ms JJ would only have been prepared to accept the brief if she was familiar with the matter and was confident in her understanding of the case. She says that the willingness of Ms JJ to accept the brief is proof that she understood the case well enough to decide to proceed and “provide the best representation”.
Ms JJ has filed an affidavit in response dated 14 August 2024. By that affidavit, at [4] she refers to [2] of the mother’s affidavit and says that:
4.I refer to paragraph 2 of the mother’s Affidavit and say that I do not have any recollection whatsoever of having conversations with the mother. I have checked my calendar diary for the time that the mother says she contacted me. I am not aware as to whether the mother telephoned me on my mobile telephone or the number of the office of my practice.
[Ms JJ] continues at [5]:
5.At that time, and following my ceasing my solicitors practice, people continued to telephone me to ascertain whether or not I was able to represent them. My contact details at that time remained in circulation and available on the internet if you undertook a search of my name.
She then states at [6] and [7]:
6.It was my practice at that time to refer those enquires to solicitors who could assist people. My solicitors practice was a busy practice and I may have spoken to anywhere between 3 and 10 client enquiries per week. I do not have a recollection of the substance of all those preliminary enquiries, particularly in circumstances where I was not engaged to act or did not meet with those enquiries.
7.I have undertaken a search of my emails and can see that I sent an email to the mother, declining a request to return her call and recommending solicitors that she could engage. I do not recall whether I spoke to the mother prior to me sending this email or whether my assistant spoke to the mother. I do not recall the conversation that the mother suggests that we had. A copy of the emails to which I refer is annexed hereto and marked with the letters “[MJJ]-1”.
That email, annexed to the affidavit of Ms JJ, is dated 5 December 2022 at 1:09pm, and it is addressed to the mother’s email address. The email provides:
Dear [Ms Bruckner]
As discussed when we spoke – you will need to engage a solicitor to represent you.
If you would like to then instruct your solicitor to brief me to appear for you – I am more than happy to accept the brief.
I cannot take instructions or speak to you directly without you having engaged a solicitor.
Kind regards,
[Ms JJ]
The mother responded to this correspondence on 5 December 2022 at 1:23pm where she stated:
Hi [Ms JJ]
Thank you for your reply.
I cannot afford both, I don’t think. For clarification if I’m not through legal aid….if you were to be paid privately can you just represent me as solicitor/Barrister?
What solicitors do you work with… names?
[Ms Bruckner]
[Ms JJ] responded on 5 December 2022 at 1:25pm informing the mother:
Hi [Ms Bruckner]
I am unable to accept instructions from you directly – I no longer work as a solicitor in any capacity.
I work with […] regularly.
Kind regards,
[Ms JJ]
At [8] and [9] of Ms JJ’s affidavit she says:
8.I refer to paragraph 3 and say that I do not recall when the mother first made contact to me, except that I have the same record of emails as provided at “annexure X2” of the mother’s Affidavit contained in paragraph 4.
9.I refer to paragraphs 4 and 5 of the mother’s Affidavit in respect of the conversation had with the mother, and reiterate that I do not recall the content of any telephone call that took place with the mother at some point prior to the emails exchanged in December 2022.
At [11] she continues:
11.I refer to paragraph 9 and say that I did not have any detailed knowledge of the case from the mother’s perspective. When I was engaged to act, neither of the parties’ names appeared on my conflict register. While undertaking preparation for this matter for Trial at no time did I recall any conversation with the mother, nor did the facts of the case seem in any way familiar to me, nor the mother’s name.
RELEVANT LAW
The question of a legal professional being restrained from acting has been recently and comprehensively considered in Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641, Thawley J. In that decision at [74] to [78], his Honour sets out the tests to be applied, relevantly:
76In Nash v Timbercorp FinancePty Ltd (2019) 137 ACSR 189 at [64], Anderson J stated:
…
[64]This test for restraining a legal practitioner on the basis of the possible misuse of confidential information may be dissected, and then applied, in a number of ways. Based on the relevant authorities, particularly the approach of Riordan J in Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd [2015] VSC 453 (Babcock) at [70], I will apply the relevant test by responding to the following sequence of questions (which are in short-form for the sake of simplicity):
(a) What is the relevant information?
(b) Is that information confidential?
(c)Does the legal practitioner have possession of that information?
(d)Is the legal practitioner proposing to act “against” the former client in the requisite sense?
(e)Is there a real risk that the confidential information will be relevant?
(f) Is there no real risk of misuse of the confidential information?
Similar principles were applied in Osferatu & Osferatu (2015) FLC 93-666 by the Full Court of the Family Court of Australia.
FINDINGS
I find that the applicant mother has failed to satisfy the onus of identifying the relevant information which is said to be confidential with sufficient particularity in her affidavit. The mother states that in October 2022 the matter was discussed in significant detail. There is no particularity as to what that detail was. Further, the evidence at [4] of the mother’s affidavit, which I refer to above at [2], states that she spoke again with Ms JJ on 5 December 2022 discussing her case in depth, but again, there is no particularity provided as to what was said. There is also no evidence of any retainer as between the mother and Ms JJ. I do not accept that counsel’s indication that she was prepared to accept a brief to appear if instructed by a solicitor is prima facie evidence that she was familiar with the matter in any detail.
I accept the evidence of Ms JJ that there was no discussion of any detail regarding the case and that counsel is not in possession of confidential information relevant to this matter. I find that the interests of justice are not served by requiring Ms JJ to be restrained, and in those circumstances, I dismiss the application.
CONCLUSION
In the circumstances where each of the ICL and the father are in receipt of assistance by way of Legal Aid, and it is a publicly funded program, and where the mother has been wholly unsuccessful in the proceedings and has been on notice of the matters raised by the father in response since August of this year, I will make an order that the mother pay the father’s costs incurred by the Legal Services Commission in the sum of $1,645.60, and with such sum payable to the Legal Services Commissioner of South Australia, and that the mother pay the costs of the ICL in the sum of $895.40, payable to the Legal Services Commissioner of South Australia. I note that the mother says that she is not in a position to pay costs, but impecuniosity is not a reason of itself to not make an order for costs. The provisions of s 117(2A) of the Family Law Act 1975 (Cth) were raised with the mother and submissions were received regarding the relevant subsections prior to the orders being made.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 1 November 2024
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