Nardo and Nardo

In the Family Court of Australia, Ms Nardo (the wife) applied to restrain Mr Nardo's (the husband) solicitor, Mr El-Hanania, from continuing to act for him in the substantive proceedings. The wife contended that Mr El-Hanania had previously acted for both parties in various financial matters relating to their businesses and property, and that there was a real risk of disclosure of confidential information imparted by the wife during that period. The husband's solicitor opposed the application, primarily arguing the cost and inconvenience to the husband of engaging new legal representation.

The court was required to determine whether there was a sufficient basis to restrain Mr El-Hanania from acting for the husband, considering the principles of solicitor-client confidentiality, fiduciary duties, and the court's supervisory jurisdiction over its officers. Specifically, the court had to assess whether a real risk of disclosure of confidential information existed, and whether the potential cost and inconvenience to the husband outweighed the wife's right to protection against such disclosure. The court also considered the timing of the wife's objection and whether any delay had occurred in raising the issue.

Collier J applied the principles established in cases such as *McMillan & McMillan* and *Billington & Billington (No. 2)*, which emphasize the protection of confidences and the appearance of justice. Her Honour found that the wife had established a solicitor-client relationship with Mr El-Hanania in relation to financial matters concerning the parties' businesses and property, and that the evidence demonstrated a significant number of communications between the wife and Mr El-Hanania and his staff. The court was satisfied that there was a real risk of disclosure of matters conveyed in confidence, and that the test set out in *McMillan & McMillan* was appropriate. While acknowledging the cost and inconvenience to the husband of changing solicitors, the court found this was not a sufficient reason to refuse the wife's application, particularly as the wife's objection had been raised promptly.

The court upheld the wife's application, finding that it would not be proper for Mr El-Hanania to continue acting for the husband in the proceedings. Consequently, orders were made restraining Mr El-Hanania and any legal firm with which he is involved from continuing to act for the husband. The court also made consequential orders varying previous directions regarding the exchange of documents and information, and reserved costs.