OLENGHI & SALAMBO
[2015] FamCA 304
•29 April 2015
FAMILY COURT OF AUSTRALIA
| OLENGHI & SALAMBO | [2015] FamCA 304 |
| FAMILY LAW – INJUNCTIONS – where each party seeks to restrain the other from continuing to instruct their respective solicitors – where solicitor previously employed by the father’s solicitors now employed by the community legal centre acting for the mother – where solicitor from father’s firm of solicitors conducted audit of the community legal centre’s files - whether theoretical possibility that information of confidential nature imparted – orders made restraining parties from instructing their respective solicitors. |
| Family Law Act 1975 (Cth) |
| D & J Constructions Pty Ltd v Head (1987) NSWLR 118 Manner & Manner (2012) 46 Fam LR 424 McMillan & McMillan (2000) FLC 93-048 Pond & Thurga (No 2) [2007] FamCA 587 Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 BR 501 Thevanez & Thevanez (1986) FLC 91-748 Volker and Anor & Dunwell and Anor [2013] FamCAFC 169 |
| APPLICANT: | Mr Olenghi |
| RESPONDENT: | Ms Salambo |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 2341 | of | 2010 |
| DATE DELIVERED: | 29 April 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 8 April 2015 and 27 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fryer |
| SOLICITOR FOR THE APPLICANT: | Adelaide Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Dickson |
| SOLICITOR FOR THE RESPONDENT: | Women’s Legal Service |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Anderson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That Ms Salambo be restrained and an injunction granted restraining her from continuing to provide further instructions to Women’s Legal Service (SA) Inc.
That Mr Olenghi be restrained and an injunction granted restraining him from continuing to provide further instructions to Adelaide Lawyers.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Olenghi & Salambo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2341 of 2010
| Mr Olenghi |
Applicant
And
| Ms Salambo |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Amended Initiating Application filed 10 February 2014, Ms Salambo (“the mother”) is the applicant in substantive proceedings seeking parenting orders in respect of B born in 2007 (“the child”). She seeks orders that she have the sole parental responsibility for the child and that the child lives with her and spend no time with the father.
By Response filed 12 May 2014 Mr Olenghi (“the father”) seeks orders that the child live with him and spends time with the mother as agreed between the parties or as ordered by the Court.
On 16 February 2015 the father filed an application seeking an order that “the Women’s Legal Service SA (Inc) be forthwith disqualified from continuing to act for the respondent mother named in these proceedings”. The Application was supported by Affidavit filed 6 March 2015.
The wife filed a response on 1 April 2015 seeking that the father’s application be dismissed and that “Adelaide Lawyers be forthwith disqualified from continuing to act for the applicant father named in these proceedings”. The facts relied upon by each of the parties in support of their respective applications are not interdependent. The mother’s Response is supported by her Application filed 1 April 2015 and an undertaking from the mother’s solicitor filed on the same date.
The substantive proceedings remain listed generally before me and whilst by order made by Registrar Paxton on 10 February 2015 referring the proceedings to the list of matters awaiting trial allocation, subject to any consideration of expedition, a final hearing is not imminent.
The separate applications of the parties seeking the disqualification of their current solicitors came before me on 8 April 2015 and whilst I heard submissions that would complete the hearing in respect of the father’s application, in order to give his solicitor an opportunity to respond to the mother’s application, further consideration was adjourned to 27 April 2015. It is following further submissions of counsel that enable these reasons to be given thereby disposing of the applications of both parties.
At the commencement of the hearing I enquired of counsel for the Independent Children’s Lawyer (“ICL") whether he sought leave to withdraw from the disqualification argument, however counsel submitted that the ICL did wish to be heard and had a firm position in respect of the interim dispute between the parties. I was assisted by written submissions prepared by counsel for the ICL. I also received a List of Authorities prepared by counsel for the mother.
BACKGROUND
Unfortunately, other than what might be described as a basic chronology there remains significant contention in respect of the history leading up to the current application. It would seem uncontroversial that the parties met and married in Country C in 2005 separating in Australia in 2010. Whilst potentially relevant to the determination of the substantive proceedings, the substance of the conflict leading up to separation is not relevant to these applications.
Whilst there is a dispute as to the reason why the parties returned to Country C in November 2010 the conflict nonetheless continued with the parties living apart and each of them resorting to the Court in Country C for both parenting orders and child support.
In early 2012 it appears that the father obtained an order enabling him to spend time with the child initially supervised and then on an unsupervised basis. The mother concedes that the father saw the child every Saturday in accordance with the order.
The mother alleges that she delivered the child into the father’s care on 17 February 2012 but that the father then abducted the child from Country C. With the assistance of the authorities and following an application made pursuant to the Hague Convention in the Family Court of Auckland, the father voluntarily returned the child to the mother’s care and they ultimately returned to Australia on 22 January 2014. The current operative order provides for the child to spend no time with the father.
As matters presently stand, the mother and child reside in Australia and notwithstanding the father’s assertion that he intends to relocate to Australia in order to be in close proximity to the child, that has not yet happened.
THE FACTS
The father has been represented by Adelaide Lawyers since 25 March 2014. A Notice of Address for Service was filed on that date. Adelaide Lawyers continue to represent the father.
The mother continues to be represented by Women’s Legal Service SA (Inc). They have represented the mother from the beginning of the proceedings and in particular the filing of the mother’s Initiating Application on 25 October 2012. It is an important submission made on behalf of the mother that she has been assisted by her current solicitors since 2012 and that they have an “intimate knowledge of my matter and given the complexity of the matter it would be difficult for me to obtain proper representation at this point in time”.
Whilst there is some uncertainty as to which lawyers in the employ of Adelaide Lawyers had the care and conduct of the father’s case, he asserts that instructions had been provided directly to Ms Erin McGlade. The father highlights that Ms McGlade clearly appeared on his behalf in the Federal Circuit Court before Judge Kelly on 9 April 2014 and in respect of his representation by Ms McGlade the father says as follows:-
7.I have previously provided instructions directly to Ms McGlade and she has appeared for me in the Federal Circuit Court of Australia before the Honourable Judge Kelly.
9.The said order confirms that Ms McGlade appeared for me on that occasion. Further, the order made was not by consent and therefore submissions were made.
10.Ms McGlade has intimate knowledge of my matter.
11.She is aware of the strengths and weaknesses of my case.
12.Mr Fryer of Adelaide Lawyers not has the conduct of my file. Mr Fryer has informed me that when he commenced employment at Adelaide Lawyers in April 2014, he discussed my matter with Ms McGlade. I believe Mr Fryer.
13.In or around late November 2014 Ms McGlade resigned from her employment at Adelaide Lawyers and commenced employment with the Women’s Legal Service, who represent the mother.
14.Upon becoming aware of Ms McGlade commencing with the Women’s Legal Service I raised concerns as to any actual or potential conflict of interest that may arise by virtue of her new employment.
The father asserts that the mischief that has now been created is such that he is “deeply concerned by the risk, or potential, of bias to me as this matter progresses…” and “that the Women’s Legal Service could come into information…by virtue of Ms McGlade’s employment with them either intentionally or unintentionally”.
The father does not consent to the Women’s Legal Service continuing to act for the mother and he says “I hold a genuine and reasonable belief that the continuation of representation of the mother by the Women’s Legal Service is, or could be detrimental and/or prejudicial to me”.
It is not controversial that Ms McGlade at least at some level assisted the father, received his instructions and represented him generally.
Counsel for the ICL also highlights that Ms McGlade was the solicitor responsible for the preparation of a Notice of Risk filed on behalf of the father.
Appropriately so, there is a concession that upon first consideration there may well be a conflict arising out of Ms McGlade’s change in employment.
It is asserted however that arrangements have been put in place such that it is reasonable to conclude there is no risk of bias or potential for detriment towards the father. The mother’s solicitors have filed a comprehensive undertaking that there is “a sufficient information barrier at the Women’s Legal Service SA Inc to prevent a breach of confidentiality”. Ms McGlade will have no involvement with the mother or personnel (including solicitors) involved in the conduct of the proceedings on her behalf and that Ms McGlade has not disclosed any information to any person within the Women’s Legal Service in respect of the father’s instructions to her. All relevant parties have filed appropriate undertakings and further steps have been put in place to ensure that the electronic file is stored in the office of the wife’s current solicitor Ms Ngor together with password protection and security. The hard copy file is also stored in a secure and locked cabinet.
It is important to highlight that once the potential for conflict was raised with the mother’s solicitors, they have acted with alacrity and propriety. There is no suggestion of any improper conduct by either Ms McGlade or the mother’s solicitors generally.
I am satisfied that the mother’s opposition to the father’s application is appropriately founded in the mother’s assertion at paragraph 19 of her affidavit:-
19.I do not have the financial means to be able to afford to obtain private solicitors and I would be unduly prejudiced in changing lawyers at this stage. I have been assisted by the Women’s Legal Service (SA) Inc. since 2012 in relation to both my family law matters and the Hague proceedings. The organisation played an important role in helping me with my Hague application which led to the return of [B] into my care. The organisation has intimate knowledge of my matter and given the complexity of the matter it would be difficult for me to obtain proper representation at this point in time.
The mother asserts that she has concerns about the father’s solicitors continuing to act on his behalf. It is alleged that a solicitor in the employ of Adelaide Lawyers namely, Ms Iris Furtado may have access to the mother’s file for the purpose of a professional indemnity insurance audit under the relevant policy held by Women’s Legal Service (SA) Inc. Ms Furtado was not employed by the organisation but the mother is concerned “that she had unrestricted access to my file for the purposes of conducting the crosscheck”.
This issue was raised by the mother’s solicitors in correspondence dated 13 January 2015 (Annexure “SK3” to the affidavit of the mother filed 1 April 2015). Additionally, it is alleged that Ms Furtado was asked her opinion in respect of issues central to the mother’s case. It is asserted that “as such Ms Furtado has intimate knowledge of our client’s matter”. They complain that they have not received any response to the matters raised in the correspondence. There is no opposition by counsel for the father to me relying on the contents of the letter.
For their part, the father’s solicitors rely upon an affidavit of Ms Furtado filed 14 April 2015.
The deponent confirms that she attended the Women’s Legal Service (SA) Inc to undertake an audit for the purposes of professional indemnity insurance. The affidavit sets out the procedure and not surprisingly the process is by way of a random selection of three open files and three closed files during a relevant period. Those files are then cross checked using the protocol as determined for the inspection of case work files. As part of that process the questionnaire is applied.
It is neither alleged or conceded that one of the three randomly selected open files included this matter. Ms Furtado says that she did not read any Court documents, letters of negotiation that might comprise the file, nor does she have any recollection of the details of any of the matters contained in files that she reviewed.
The focus of the affidavit is clearly directed to the assertion that Ms Furtado may have been in a position to take note of matters that should be confidential.
THE LAW
In McMillan & McMillan (2000) FLC 93-048 the Full Court comprising Finn, Kay and Moore JJ considered the test to be applied in an application to restrain a solicitor acting for a party. The Full Court was faced with two competing tests; “the narrow” English approach or the “broader approach” as adopted by Frederico J in the earlier decision of Thevenaz & Thevenaz (1986) FLC 91-748. The “broader approach” requires that for a party to succeed they need only give evidence that they have “imparted information of a confidential nature to the practitioner in question and that there is at least a theoretical possibility that it could be used against him or her” (see [42] of Macmillan). The narrow or English approach requires a party to establish “real mischief” or “real prejudice” to a party before a Court could or should intervene.
The Full Court undertook an extensive review of the authorities and concluded at [54] that the test adopted by Frederico J in Thevenaz was the correct approach “for the reasons related to the sensitive nature of the jurisdiction which were referred to by Bryson J in D & J Constructions”.
In D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 Bryson J at 112-123 considered Thevenaz but drew a distinction between Family Law and other jurisdictions:-
…It seems natural that a particularly careful view would be taken in family law business, as such litigation tends to be about highly confidential facts and a very wide range of facts and circumstances can conceivably be relevant.
In Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 BR 501 at 52-58 Brooking JA considered that there were three rounds for restraining a solicitor or counsel from continuing to represent a party:-
·The ability to misuse confidential information
·The breach of fiduciary duty not to act against a client
·That solicitors and counsel are Officers of the Court.
There is no suggestion in this case of any impropriety on the part of the wife’s solicitors or those in their employ. Ms McGlade has nothing to do with the mother and in any event the undertakings given make it clear that she will have no future involvement. The area of concern must therefore focus on the danger that confidential information given to Ms McGlade could inadvertently or by unfortunate circumstance come to the knowledge of either the mother or those solicitors that are intended to have the ongoing conduct of her matter.
Following a consideration of the authorities O’Ryan J in Pond & Thurga(No 2) [2007] FamCA 587 referred to the consideration of Young J in Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [218]:-
In the course of his examination of the authorities, Brereton J referred to the observations of Bergin J in Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 (‘Mitchell’), Heenan J in Holborow v MacDonald Rudder [2002] WASC 265 (‘Holborow’) and Hasluck J in Bowen v Stott. In Mitchell, Bergin J stated that, as an incident of its inherent jurisdiction, the court may decide upon the propriety of a legal practitioner representing a party in a particular case to ensure justice and the appearance of justice: at [34]. In Holborow, Heenan J said that this power had been invoked in cases where there was a potential that the legal practitioner might be a witness; where the subject matter of the litigation was likely to involve an evaluation of the conduct of the solicitor; and where the efficacy of documents prepared by the solicitor was likely to be in issue: at [23]. In Bowen v Stott, Hasluck J said that it may be appropriate to invoke the inherent power in cases where the solicitor had some direct pecuniary interest in the outcome of the case, where the solicitor might feel impelled to justify or defend his conduct in representing a client, or where the practitioners credibility is at stake as a potential witness: at [47], [53] and [55].
The Full Court in McMillan has resolved what might be considered the tension between the approach adopted by Frederico J in Thevenaz namely, that justice must be seen to be done even if the risk is more theoretical and practical and the decision in Rakusen where what is required is the anticipation of mischief and not the theoretical breach of confidence.
The issue is one of theoretical risk of prejudice rather than proof of actual prejudice. As his Honour said in Pond & Thurga at [213] and distilled to its essence:-
All that is necessary is that the wife swear that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that the information may be used against her, or at least to her disadvantage, in these current proceedings.
This was recently affirmed by May J in Manner & Manner (2012) 46 Fam LR 424 at [49] in which her Honour applied the “broader approach”. At [53] her Honour stressed that an order restraining a party from instructing a particular solicitor is “…not based on a possible conflict of interest but rather the possibility of a disadvantage to the husband because of the holding of confidential information and the relationship between solicitor and client”.
CONCLUSION
Father’s Application
There is no opposition to the following findings:-
·That Ms Erin McGlade represented the father
·That she appeared on his behalf in Court on 9 April 2014
·That she had “intimate knowledge” of the father’s case
·That she was aware of the strengths and weaknesses of the case.
When the conflict first became apparent to the father that took immediate steps to bring the potential for bias to the attention of the mother’s solicitors.
I do not consider that there needed to be any enquiry as to the extent of confidential knowledge or information about the father’s case possessed by Ms McGlade. An opportunity was given to the mother to explore the extent of the confidential knowledge held by Ms McGlade but that opportunity was appropriately declined. That decision was made because of the ready acceptance that the test is now necessarily broad and relates to the theoretical possibility of the disclosure of confidential information as opposed to the actual disclosure.
The father asserts that Ms McGlade was possessed of confidential information and that proposition was not the subject of challenge.
The focus then is as to whether there exists the theoretical possibility of disclosure.
The mother’s solicitors are keen to assure the Court and the father that no confidential information has been imparted by Ms McGlade to date and the checks and balances put in place will ensure that it will not be disseminated in the future. By necessary implication, whilst accepting that the test is broad, it is the proposition of the mother via her solicitors that there is not now even a theoretical risk of confidential information being provided.
It cannot be said that notwithstanding the broad nature of the test to be applied this removes the discretion of the Court. It is however difficult to consider circumstances similar to this case that would not present a theoretical risk. Those cases are likely to be few in number. A reasonable starting point might very well be the factual situation in McMillan where a restraint was imposed because a non-legally qualified law clerk had previously been employed by the solicitors acting for the husband and had later commenced work as a secretary for the wife’s solicitors. Here, the connection between Ms McGlade and the father is less tenuous.
In Volker and Anor & Dunwell and Anor [2013] FamCAFC 169 at [45] the Court considered that and appropriate test was whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice would require that the mother’s solicitors should be prevented from acting in the interests of protection of the integrity of the judicial process and the due administration of justice including the appearance of justice.
Whilst it is regrettable that the current circumstances have arisen and without there being any suggestion that the integrity of the mother’s solicitors have been impugned, I consider that it is theoretically possible that information in the knowledge of Ms McGlade either could be disclosed to the mother or her solicitors and/or that it was reasonable for the father to have an apprehension that such disclosure might occur.
Accordingly, whilst I find merit in the father’s application I propose to make an order that is directed to the mother in terms of her ability to continue to instruct her solicitors rather than an order of restraint against them which by its very nature carries the suggestion of potential impropriety. None is alleged nor is found to be the case.
Mother’s Application
The circumstances that underpin the mother’s application are qualitatively different to those that support the father’s contention.
There is no allegation that Ms Furtado had any direct contact or communication with the mother.
Whilst there is a concession that in a different capacity she attended upon the premises of the mother’s solicitors, it is not definitively established that the mother’s file was one of the three randomly selected files. Moreover it is reasonable to find that the focus of a person in the position of Ms Furtado would not give the file the same consideration in terms of being cognisant of matters pertaining to confidentiality as would be integral to the involvement of a solicitor directly instructed.
I accept the matters raised in Ms Furtado’s affidavit and if her involvement as an auditor of the files of the mother’s solicitor was the extent of the allegation, I would readily find that it is not theoretically possible for there to be a disclosure of information confidential to the mother.
The significant assertion in the letter from the Women’s Legal Service dated 13 January 2015 is as follows:-
In addition Ms Furtado was privy through conversations with staff at the Centre to certain aspects of this matter and her opinion was sought with respect of matters pertaining to this case. As such Ms Furtado has intimate knowledge of our client’s matter.
This assertion is not the subject of any response. If correct, the landscape is significantly altered. If Ms Furtado had “an intimate knowledge” of the mother’s instructions and provided an opinion in response to questions asked, it might well be reasonable for the mother to have an apprehension that a disclosure of confidential information, instructions and/or strategy might occur.
I am satisfied that the father’s solicitors have had an ample opportunity to provide a comprehensive response. That has not occurred.
CONCLUSION
I have considered the application of each of the parties separately and consider that whilst there is no finding of impropriety or inappropriate conduct by any of the solicitors involved in the conduct of proceedings on behalf of each of the parties, nonetheless it is reasonable for each of them to have an apprehension that a disclosure of confidential information might occur.
The sensitivities clearly evident in this matter are such that neither party was able to be satisfied for the potential for adverse impact to be averted by the preparedness of each of the solicitors to put in place appropriate measures.
In the circumstances of this case but for different reasons, each of the parties will be the subject of an order restraining them from continuing to instruct their respective solicitors.
For these reasons I make orders as at the commencement of the judgment.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 29 April 2015.
Associate:
Date: 29 April 2015
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