Oram & Lambert and Ors (No. 2)

[2018] FamCAFC 161

FAMILY COURT OF AUSTRALIA

ORAM & LAMBERT AND ORS (NO 2) [2018] FamCAFC 161

FAMILY LAW – APPLICATION IN AN APPEAL – Restraint of solicitors from acting – Where the first respondent’s law firm previously represented the appellant’s sister in care and protection proceedings – Where the solicitor for the first respondent started working at the firm after it stopped acting for the appellant’s sister – Where the sister’s file was destroyed in 2017 – Whether the circumstances give rise to a breach of confidence – Where the issue was not raised at first instance – Lack of evidence as to the nature and materiality of the confidential information sought to be protected – Application dismissed.

Family Law Act 1975 (Cth)

Dalton & Dalton (2017) FLC 93-773; [2017] FamCAFC 78
Mancini v Mancini [1999] NSWSC 800
Osferatu & Osferatu (2015) FLC 93-666; [2015] FamCAFC 177

APPELLANT: Ms Oram

FIRST RESPONDENT: Mr Lambert

SECOND RESPONDENT: Ms McCready

INDEPENDENT CHILDREN’S LAWYER: Emalene Gemmell Solicitor

FILE NUMBER: NCC 2354 of 2016

APPEAL NUMBER: EA 67 of 2018

DATE DELIVERED: 22 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan, Aldridge & Watts JJ

HEARING DATE: 22 August 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 18 April 2018

LOWER COURT MNC: [2018] FCCA 1214

REPRESENTATION

THE APPELLANT: In person (by telephone)

COUNSEL FOR THE FIRST RESPONDENT: Ms Schaefer solicitor (by telephone)

SOLICITOR FOR THE FIRST RESPONDENT: Moin Morris Schaefer Pty Ltd

THE SECOND RESPONDENT: In person (by telephone)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Gemmell solicitor (by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Emalene Gemmell Solicitor

Orders

1. The Application in an Appeal filed on 3 July 2018 seeking to restrain the solicitors from continuing to act and other orders be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oram & Lambert and Ors (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 67 of 2018
File Number: NCC 2354 of 2016

Ms Oram

Appellant

And

Mr Lambert

First Respondent

And

Ms McCready

Second Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

1. By an Application in an Appeal filed on 3 July 2018, Ms Oram (“the appellant”) seeks the following orders:

   1.That Ms Chelsea Schaefer be restrained from continuing to represent Mr [Lambert] in any proceedings concerning Ms [Oram], [the child X], [the child Y], Ms [McCready] or Ms [B Oram].

   2.That Moin and Associates be restrained continuing to represent Mr [Lambert] in any proceedings concerning Ms [Oram], [X], [Y], Ms [McCready] or Ms [B Oram].

   3.That Mr [Lambert] is retrained from retaining Ms Schaefer or any partner or employee of Moin and Associates in any proceeding concerning Ms [Oram], [X], [Y], Ms [McCready] or Ms [B Oram].

   (As per the original)

2. The appellant and Mr Lambert (“the first respondent”) are the parties in the appeal which is from final parenting orders made by Judge Terry on 18 April 2018.  In short, the orders provided for the parties’ two children, aged five and seven, to live with the first respondent who was to have sole parental responsibility for them.  They are to spend very limited time with the appellant, supervised at a contact centre unless otherwise agreed to by the first respondent.

3. Ms Schaefer of Moin Morris Schaefer Pty Ltd (previously Moin & Associates) is the solicitor who acted for the first respondent throughout the parenting proceedings.  She continues to act for him in this appeal.

4. Ms McCready is the maternal grandmother and is the second respondent in the appeal.  She was a party in the parenting proceedings.  X and Y are the children of the appellant and the first respondent.  Ms B Oram (“the sister”) is the appellant’s sister.  She was not a party in the parenting proceedings.

5. The basis of the application is that Mr Moin, who is a principal solicitor in the above firm, previously represented the sister in child protection proceedings.  In her affidavit in support of this application the appellant deposes:

   9.The potential conflict of interests should have been raised during auditing processes prior to entering a retainer with Mr [Lambert] for representation in this matter.

   10.A family report was prepared by Ms [F] for the original court case in this matter NCC 2354/2016.

   11.Within the family report prepared by Ms [F], Ms [B Oram] as well as information regarding her case were referred to.  This makes information held by Moin and Associates regarding Ms [B Oram] and her case relevant to this matter.

   12.Until the family report was prepared I was not aware the information held in regards to Ms [B Oram] was relevant to current matter.

   13.The possibility for disclosure of this information would be detrimental to Ms [B Oram].

   14.At no stage has Ms [B Oram] been asked to sign a waiver allowing representation by Ms Schaefer for Mr [Lambert] despite the conflict of interest that is present.

   (As per the original)

6. Mr Moin has written to the appellant in the following terms:

   In any event Ms Schaefer has had no access at all to any information concerning your sister and her matter nor has any matter concerning your sister been raised with Ms Schaefer by me and certainly will not at any time in the future.

7. He also deposed that he acted for the sister in 2009 to 2010 in relation to a care and protection matter.  He has not accessed the file since that time.  The physical file was destroyed in 2017 in accordance with the firm’s usual protocol.  The electronic file has now been lost during a transition of those records to the cloud.

8. He also said that Ms Schaefer was employed in 2012.  The only remaining employee in the firm who may have viewed the file was a paralegal who performed mainly conveyancing work and who “may” have seen the file.

9. Ms Schaefer has deposed that she has not accessed any part of the file relating to the sister and has not discussed her with Mr Moin or any other person employed by the firm.

10. The basis for seeking orders restraining solicitors from acting was set out in Osferatu & Osferatu (2015) FLC 93-666 (“Osferatu”) as follows:

    20.There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client.  They are: breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its officers and to control its process.  Each category has its own principles which guide its operation.  The third category may be involved in conjunction with either of the first two so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different (Kallinicos v Hunt [2005] NSWSC 1181).

11. It seems clear that the appellant’s application is brought within the first of these categories.

12. The court then quoted with approval the following passage from Bryson J in Mancini v Mancini [1999] NSWSC 800 at [7]:

    It is of importance to observe that information generally is not protected; the protection available relates to confidential information, and is available to the person entitled to the confidence. No circumstances were put forward in which Mrs Mancini herself is entitled to the protection of the law against the use of any particular information by Mr Mancini or by the lawyers whom he has chosen to retain. It is not possible to address in any clear way and to come to a decision on protection of any alleged confidential information without identifying what the confidential information is in a sufficiently specific way to enable it to be identified. Without doing that it is not possible to come to a conclusion on whether the information truly is confidential, to consider and appraise the circumstances in which it came into existence and was communicated, to come to any conclusion about whether protection is appropriate, or to make any enforceable order. A case about confidential information cannot be nebulous. Confidential information which once existed may no longer be confidential; it may no longer be available although it was communicated in the past; it may not be material to any use which might now be proposed to be made of information. Without specificity a claim to protection cannot be defended or decided on any fair procedural basis, and a general allegation of the kind put forward here to the effect that from the nature of the past legal business confidential information must have been communicated should not in my opinion be upheld.

    (Emphasis added)

13. The principles to be applied were identified in the following passages of Osferatu (which case was subsequently approved in Dalton & Dalton (2017) FLC 93-773):

    34.We agree with Goldberg J in PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905 where he said at [50] and [51]:

    50.It is apparent from Lord Millett's judgment that there are three stages which need to be considered:

    •whether the firm is in possession of information which is confidential to the former client;

    •whether that information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;

    •whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.

    51. The burden of establishing the first two propositions is upon the former client but the burden of establishing the third proposition moves to the firm proposing to act once the first two propositions are satisfied…

    35.A balancing of the nature of the information against a consideration of the person to whom the information was given, when the information was given, the relevance of that information to the current proceedings, the risk of disclosure and any proposed protective measures is required before any determination can be made as to whether any relief is required and, if so, what is the appropriate relief.

14. The application of those principles to the facts outlined earlier leads to the following conclusions:

    ·The confidential information sought to be protected is not that of the appellant but that of her sister.  It is difficult to see therefore how the appellant has the standing to protect her sister’s interests.

    ·It follows that, in any event, the orders sought are too broadly drawn.  No basis is identified for any restraint relating to the maternal grandmother or the children.

    ·The confidential information is not identified or described in any way.  Whilst, of course, it need not be disclosed, it must be pointed to with sufficient specificity so that the claim as to its continuing confidentiality and materiality can be tested.  There is no indication of the nature of the information provided by the sister to Mr Moin or of the materiality of any release of that information to the present proceedings.

    ·Given the length of time that has elapsed since the sister instructed Mr Moin, it is not readily apparent what information she may have provided to him that would remain material to the present proceedings.

    ·Any potential conflict of interest would have become readily apparent when the Family Report was released on 4 December 2017.  No application to restrain the solicitors from acting was then made and the parenting proceedings subsequently continued over a four day hearing in March 2018.  If any material confidential information was held it was relevant to these proceedings.  There is, however, no suggestion that any such information was used.

    ·It is difficult to see the relevance of any information that may have been communicated by the sister to the first respondent’s solicitors to this appeal.  Subject to any application to adduce evidence in the appeal, it will proceed on the material that was before the primary judge.

    ·The evidence is that Ms Schaefer, who is the solicitor acting for the first respondent, has not had and will not have access to any material concerning the sister.  The file can no longer be accessed.

15. The lack of any evidence as to the nature and materiality of any information provided by the sister to Mr Moin presents a fundamental difficulty to the application succeeding.  Taking that difficulty into account, along with the other difficulties discussed, I am of the opinion that no basis has been made out to justify the orders sought.  I propose that the application be dismissed.

Ryan J

1. I agree with the reasons given by Aldridge J and the order proposed by him.

Watts J

1. I also agree with the reasons given by Aldridge J and the order he proposes.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Watts JJ) delivered on 22 August 2018.

Legal associate: 

Date:  27 August 2018