Murdoch and Brown

In *Murdoch & Brown* [2013] FamCA 586, Ms Murdoch (the applicant wife) sought an order restraining Mr Savva and Mr Gould, as executors of the estate of the late Mr Brown (the respondent executors), from engaging a specific solicitor, Mr M, and his firm to act on behalf of the estate in Supreme Court of Victoria probate proceedings. The application was opposed by the respondent executors.

The primary legal issue before the Family Court of Australia was whether Mr M should be restrained from acting for the estate, given his prior involvement in conveyancing matters for both the deceased and the applicant wife, and his subsequent role in advising the executors. The court was required to determine if a conflict of interest existed or was likely to arise, which would undermine the proper administration of justice and public confidence in the legal profession. This involved considering the application of Rule 8.03 of the *Family Law Rules 2004* and the court's inherent jurisdiction to control its processes and officers.

Justice Cronin reasoned that while Mr M's retainer for the deceased had terminated upon his death, and he stated he was no longer acting for the wife due to a potential conflict, the circumstances warranted intervention. The court found that Mr M had acted for both the wife and the deceased in conveyancing matters, creating a situation where confidential information of a client might be at risk of misuse or disclosure. Applying an objective test, the court determined that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required Mr M to be prevented from acting for the estate, particularly given the potential for blurring boundaries between the family law proceedings and the probate application. The court emphasised that even a theoretical risk of conflict, coupled with a concern about a lawyer's capacity for independent judgment, justified intervention to maintain public confidence in the legal system.

The court ordered that Mr Savva and Mr Gould, as Executors of the Estate of the Late Mr Brown, be restrained from engaging Firm X and Mr M from acting on behalf of the Estate in proceedings in the Supreme Court of Victoria in its probate jurisdiction. The court also made orders regarding the process for any applications for costs and listed the extant applications for final orders for a hearing.