OTHONOS and COSTA-OTHONOS
[2022] FCWA 16
•27 JANUARY 2022
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: OTHONOS and COSTA-OTHONOS [2022] FCWA 16
CORAM: TYSON J
HEARD: 19 OCTOBER 2021 - LAST SUBMISSIONS FILED 7 DECEMBER 2021
DELIVERED : 27 JANUARY 2022
FILE NO/S: [Redacted]
BETWEEN: MR OTHONOS
Applicant
AND
MS COSTA-OTHONOS
Respondent
Catchwords:
FAMILY LAW – INJUNCTIONS – Legal Practitioners – Where the Respondent seeks an order to restrain the Applicant from continuing to instruct his solicitor and counsel – Where the Respondent alleges potential misconduct – Where there are significant factual issues in dispute – Application declined – Case turns on its own facts
FAMILY LAW – PRACTICE AND PROCEDURE – Where the Respondent claims the Applicant has waived legal professional privilege – Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Penglis SC |
| Respondent | : | Mr Hedges SC |
| Interested Party | : | Mr Howard SC |
| Interested Party | : | Mr Cuerden SC |
Solicitors:
| Applicant | : | Law Firm A |
| Respondent | : | Law Firm B |
| Interested Party | : | Husband's solicitor |
| Interested Party | : | Husband's counsel |
Case(s) referred to in decision(s):
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Holborow v Macdonald Rudder [2002] WASC 265
Kallinicos and Anor v Hunt and Ors (2005) NSWLR 561
Karapataki & Karapataki [2011] FMCAfam 6
Kennon & Kennon (1997) FLC 92-757
Legal Professional Complaints Committee and Giudice [2012] WASAT 144
Naczek & Dowler [2011] FamCAFC 179
Nisbet and Nicholson [2021] FCWA 67
Othonos and Costa-Othonos [2021] FCWA 142
S & S [2003] FamCA 905
Sellers & Burns and Anor (2019) 59 Fam LR 593
State of Western Australia v Ward and Ors (1997) 145 ALR 512
Westpac Banking Corporation v Newey [2013] NSWSC 533
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Othonos and Costa-Othonos has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1The wife, [Ms Costa-Othonos], seeks orders to restrain the husband, [Mr Othonos], from retaining or instructing his solicitors, and counsel, from acting "on his behalf in any proceedings connected with the issues before the Family Court".[1] She also seeks disclosure from the husband of documents with respect to surveillance, on the basis she claims he has waived legal professional privilege.[2] The husband opposes the wife’s application.[3] I propose to refer to the parties as husband and wife, notwithstanding they are divorced. I mean no disrespect in doing so.
[1] The wife’s Application in a Case filed 9 September 2021, paragraphs 1 and 2. The wife indicated she no longer pressed for an injunction restraining the husband’s solicitor, where if the husband was restrained, it would have the same effect. See paragraph 18 of the wife’s outline of submissions filed 6 October 2021. While the wife sought an injunction restraining the husband from instructing his counsel, it was submitted that counsel was instructed by solicitors (TS page 30, Mr Cuerden SC) and so the form of the orders sought was potentially unclear. However, it was made clear if the Court was minded to grant the injunction, the husband’s counsel would comply with “the spirit and not the strict letter of the injunction”.
[2] Paragraph 4 of the wife’s Application in a Case filed 9 September 2021.
[3] The husband’s Response to an Application filed 13 October 2020.
2At the hearing on 19 October 2021, the wife was represented by Mr Hedges SC and the husband was represented by Mr Penglis SC. I granted leave for Mr Cuerden SC to appear on behalf of the husband’s counsel and Mr Howard SC to appear on behalf of the husband’s solicitor.
3On 29 November 2021, orders were made by consent, granting the wife leave to re-open and for the filing of further written submissions.
4The wife relied on her affidavits filed 23 April 2021, 9 September 2021 and 8 November 2021, together with the affidavit of [Ms A] filed 23 April 2021. The husband relied upon paragraphs 6 to 10 of his affidavit filed 25 March 2020, paragraphs 64 to 68 of his affidavit filed 29 September 2020, paragraphs 4 to 18 of his affidavit filed 25 May 2021, paragraphs 96 to 105 of his trial affidavit filed 20 August 2021 and paragraphs 52 to 67 of his affidavit in support of interim orders, filed 20 August 2021.
5The parties also relied on the transcript of the interim hearing on 6 July 2021 and the reasons delivered on 4 August 2021[4] ("August Reasons").
[4] Othonos and Costa-Othonos [2021] FCWA 142.
6I have had the benefit of written submissions filed for the hearing,[5] the oral submissions made on that date, and the further submissions filed on behalf of the wife on 18 November 2021, the husband on 30 November 2021, the husband’s counsel filed 24 November 2021 and the wife on 7 December 2021.
[5] Wife’s outline of submissions filed 6 October 2021, husband’s outline of submissions filed 13 October 2021, wife’s response to the husband’s submissions.
7I have read and carefully considered all of the evidence. I do not intend to refer to all of the evidence, because it is not practical or necessary to do so. Where I do not refer to part of the evidence, it should not be assumed that I have ignored it, or that I have overlooked it.
8There is much in dispute between the parties. These are matters that cannot be determined by way of an interim hearing, where neither the husband nor the wife have been tested by way of cross-examination on their affidavit evidence.
BASIC BACKGROUND FACTS
9The husband is 73 years of age and [works as a director]. He is a self-funded retiree, who lives in [State A]. The wife is 58 years of age and is a [holistic health practitioner]. The wife is not working, and lives in [State B].
10The husband and wife commenced living together in 2017, and subsequently married. The parties separated [in late 2019] on a final basis. They are now divorced. There are no children of their marriage.
11The parties are unable to agree on what orders, if any, should be made by way of alteration of property interests and spousal maintenance, following the breakdown of their marriage.
12There is some controversy about the value of property owned by the husband. The husband says he has property to the value of approximately $270,000,000, while the wife says he has property worth closer to double that figure. What is not controversial, is that at the commencement of the relationship, the husband was a man of significant wealth, created prior to the parties’ relationship, and he was in a vastly superior financial position than the wife.
13The wife’s health is also a contentious issue. The wife says she suffers from [Medical Condition A], a mild traumatic brain injury, frequent headaches, and migraines. She says she requires [surgery]. She has difficulty attending to day-to-day tasks. She experiences [numerous neurological symptoms]. The husband does not accept the wife’s claims about her health, or that it impacts upon her capacity to work.
14In [early] 2020, the husband instructed his solicitors to engage [Private Investigator A] to undertake surveillance of the wife, which took place on 25, 27, and 28 February 2020, and 2 and 3 March 2020. The report from [Mr F] of Private Investigator A was disclosed, and attached to the husband’s affidavit filed 29 September 2020, and provided to [Dr E], the single expert witness appointed to prepare an occupational health assessment of the wife’s current and future income earning capacity.
15Dr E’s report was filed on 29 September 2020. Dr E opined the wife’s medical conditions, both physical and mental, prevented her from engaging in paid employment [in her field]. He considered the wife’s prognosis was poor, her health conditions were chronic, and would require ongoing management, without recovery. Dr E assessed the wife’s [Medical Condition A] could improve, subject to ongoing management.
16The husband does not accept Dr E’s report and seeks the appointment of a shadow single expert with respect to the wife’s health.[6]
[6] The husband’s Application in a Case filed 20 August 2021.
17On 23 April 2021, the wife filed an application seeking injunctive relief restraining the husband from conducting surveillance. In support of her application, the wife deposed (at paragraphs 10 to 17 inclusive) since mid-January 2021, she had observed motor vehicles parked outside of her home, out of sight of her security cameras, which caused concerns for her safety.[7] [In mid] January 2021, the wife saw a woman who appeared to be taking photographs or filming her. The wife’s solicitors wrote, asking whether the husband had caused her to be the subject of ongoing surveillance, and requested he provide an undertaking to cease any further surveillance.[8]
[7] Paragraphs 10 to 17 and 21 of the wife’s affidavit filed 23 April 2021.
[8] Paragraph 23 of the wife’s affidavit filed 23 April 2021 and annexure B.
18The husband’s solicitors replied:[9]
1.… our client has not engaged any person or entity to conduct surveillance of your client since the surveillance described in his affidavits (that being surveillance carried out in February and March 2020).
2.Our client has no knowledge of or involvement in the events you now describe in your letter.
[9] Exhibit A to the wife’s affidavit filed 9 September 2021, correspondence from [Law Firm A] dated 1 February 2021.
19The husband declined to provide an undertaking.
20Further correspondence was exchanged, with the wife repeating her request for an undertaking from the husband, on a without admission basis.[10] The husband’s solicitors responded:
[10] Exhibit A to the wife’s affidavit filed 9 September 2021, correspondence from [Law Firm B] dated 15 February 2021.
We have once again discussed this issue with our client. Our instructions include the following:
1.Our client has not engaged any person or entity to conduct surveillance of your client since the surveillance described in his affidavits (which occurred in February and March 2020).
2.Our client has no knowledge of, or involvement in, the events you described in your letter of 29 January 2021.
3.Our client has no intention to engage any person or entity to conduct surveillance of your client.
Our client still has no control of whether persons unknown might:
1.park or drive on your client’s street;
2.decline to speak to your client; or
3.call the police for any reason.[11]
[11] Exhibit A to the wife’s affidavit filed 9 September 2021, correspondence from [Law Firm A] dated 18 February 2021.
21In response to the wife’s application, the husband deposed, in his affidavit filed 25 May 2021:
17I have no knowledge of the claims that [Ms Costa-Othonos] makes in paragraphs 10 to 17 of [her] affidavit nor those made in the affidavit of [Ms A] (whom I do not know), nor have I had any involvement with anyone who might have acted as described in these affidavits.
18I have no control or influence over the people who are, or might be, near [Ms Costa-Othonos’] home from time to time.
22Those paragraphs of the husband’s evidence were the subject of attention at the interim hearing on 6 July 2021. The wife's senior counsel submitted paragraph 17 was a "rather interesting statement", the choice of the word "involvement" was deliberate, and left open the possibility for the husband to say he had no involvement, but he had instructed his solicitors, who acted on his instructions, and he was not involved.
23The wife’s senior counsel submitted paragraph 18 was a "meaningless statement", stating the husband’s solicitors:
… probably don’t have any control, or didn’t have any control or influence over the people they paid to carry out surveillance previously. It doesn’t mean that the cause of the surveillance, the cause of the interference with the wife’s enjoyment of her home, the cause of the interference with the wife’s health, is not surveillance that, ultimately, the cause of which is [Mr Othonos].[12]
[12] TS, 6 July 2021, page 7, lines 24-32.
24The husband’s counsel submitted:
And my client is quite clear, he doesn’t have any involvement with anyone who’s there, or he doesn’t control and influence anyone who goes there.[13]
…
In terms of involvement, in paragraph 17, with all due respect to my friend, what the paragraph says is, I did not have - I have not had any involvement. Now, that’s not direct or indirect. It’s not qualified by direct or indirect. It is not any at all. It relates to any kind of involvement. That’s what it says, your [H]onour. And for my friend then to pick up and says - it doesn’t talk about direct or indirect, actually, narrows the field of what my client says.
Now, if the matter goes to trial my client is going to be cross-examined about that paragraph, then so be it but one can only go by what my - the husband deposed in his affidavit. And it also has to be read in the context of paragraph 18 as to having no control. Now, in my submission, your honour, with all due respect to my friend, to say that that statement doesn’t mean anything, it means a lot, because if we follow Mr Hedges logic, my client employs my instructor to employ someone else to do certain activities in that area, then that is control.
That is telling them what to do and for what purpose. So I - with all due respect to my friend, I do not follow his train of thought in terms of saying it doesn’t mean anything, because it goes to the heart of the issue as to having someone there.[14]
[13] TS, 6 July 2021, page 18, lines 25-28.
[14] TS, 6 July 2021, page 9, lines 48-51 and page 10, lines 1-5, 7-22.
25In the August Reasons, at [49] I stated:
Taking into account the wide discretion conferred on the Court, I am satisfied and consider it appropriate to exercise my discretion to grant an injunction, on an interim basis, without admission as to need, restraining [Mr Othonos] from causing any individual or organisation to undertake further surveillance or monitoring of [Ms Costa-Othonos], for the following reasons:
…
(b)I am unable to make any findings as to whether the cars and person whom [Ms Costa-Othonos] says she has seen outside her home, have been conducting surveillance of her and if so, at whose direction, given the disputed evidence. [Ms Costa‑Othonos] does not accept [Mr Othonos’] denial. She considers that [Mr Othonos'] evidence has been carefully crafted. [Mr Othonos] deposed he had not "had any involvement with anyone who might have acted as described", which [Ms Costa‑Othonos] says leaves open the possibility that [Mr Othonos] has instructed his solicitor to retain an agent, to conduct ongoing surveillance. [Mr Othonos’] counsel disputes that characterisation and says [Mr Othonos’] denial is clear and unqualified.
…
(d)[Mr Othonos] has denied involvement in any ongoing surveillance of [Ms Costa-Othonos]. It is difficult to see in those circumstances, how the injunction is prejudicial to him.
…
26I made interim orders, on a without admission basis, injuncting the husband from causing any individual or organisation to undertake surveillance or monitoring of the wife. The husband filed a Notice of Appeal, which he has since discontinued.[15]
[15] Husband’s Notice of Discontinuance filed 2 November 2021.
27In the husband’s subsequent affidavit, sworn 20 August 2021, he deposed:[16]
[16] Paragraph 57 to 61 of the husband’s affidavit in support of his Application in a Case filed 20 August 2021. The wife also refers to paragraphs 96 to 105 of the husband’s trial affidavit filed 20 August 2021 which she says contains "substantially identical evidence" – see the wife’s outline of submissions filed 6 October 2021.
57.On 26 March 2021 … I instructed [Private Investigator A] to carry out further surveillance of [Ms Costa-Othonos].
58.On 30 March 2021, I again instructed my lawyers to liaise with [Private Investigator A] about further surveillance of [Ms Costa‑Othonos] in her day-to-day activities.
59.On 23 April 2021, I instructed [Private Investigator A] to cease further surveillance of [Ms Costa-Othonos].
60.On 17 June 2021, I again instructed [Private Investigator A] to carry out further surveillance of [Ms Costa-Othonos].
61.My lawyer has informed me that:
(a)[Mr H], a licensed private inquiry agent at [Private Investigator A], licence number […], was assigned to undertake the surveillance of [Ms Costa-Othonos];
(b)[Mr H] undertook surveillance of the woman he believed to be [Ms Costa-Othonos] on 28 March 2021;
(c)[Mr I], a licensed private inquiry agent at [Private Investigator A], licence number […], was also assigned to undertake the surveillance of [Ms Costa-Othonos];
(d)[Mr I] undertook surveillance of the woman he believed to be [Ms Costa-Othonos] on 6, 16, 17 and 24 April 2021; 23 June 2021; and 1, 2 and 3 July 2021;
(e)[Mr F], a licensed private inquiry agent at [Private Investigator A], licence number […], was also assigned to undertake the surveillance of [Ms Costa-Othonos];
(f)[Mr F] undertook surveillance of the woman he believed to be [Ms Costa-Othonos] on 17 and 24 April 2021, 23 June 2021, and 1, 2 and 3 July 2021; and
(g)during the course of that surveillance, [Mr I] and [Mr F] recorded video footage of [Ms Costa-Othonos] in public places, and none of the footage was of [Ms Costa‑Othonos] engaged in any kind of private activity.
28The husband attached a report by Private Investigator A dated [mid] August 2021, to his August 2021 affidavit.
29On 20 August 2021, the husband filed an application, seeking discharge of the injunction made on 4 August 2021. In support, the husband deposed, at paragraph 55:
Her Honour was in error when she recorded that I denied involvement in ongoing surveillance. In my affidavit filed 25 May 2021, I say that I did not have any knowledge about the claims made by [Ms Costa‑Othonos] or her witness. I did not deny any involvement in ongoing surveillance of [Ms Costa-Othonos].
30In [late] August 2021, the wife’s solicitors wrote to the husband’s solicitor and counsel, referring to the August Reasons, the contents of the husband’s May 2021 and August 2021 affidavits and asserted "an inference could be drawn that the statements made on behalf" of the husband on 6 July 2021, breached the Legal Profession Conduct Rules 2010 (WA).
31The correspondence invited the husband’s solicitor and counsel to provide a "full explanation", stating their respective knowledge of events between 25 May 2021 and 6 July 2021, and between 6 July 2021 and 20 August 2021 were "clearly salient" and in relation to the husband’s solicitor, "may give rise to an ongoing conflict in your ongoing representation" of the husband.[17]
[17] Exhibit C to the wife’s affidavit filed 9 September 2021, correspondence from [Law Firm B] to the husband’s solicitors dated 27 August 2021.
32The husband’s counsel replied,[18] seeking the transcript of the hearing, details as to the basis upon which it was claimed communications between the husband and his legal advisors were not protected by way of legal professional privilege, as well as the basis on which he was asked to address r 35 of the Legal Profession Conduct Rules 2010 (WA).
[18] Exhibit D to the wife’s affidavit filed 9 September 2021, correspondence from the husband’s counsel dated 29 August 2021.
33The husband’s solicitor[19] disputed the wife’s claim it was "difficult to reconcile" the husband’s August 2021 affidavits, with the submissions made on 6 July 2021, disputed there was any inconsistency between the husband’s May and August 2021 affidavits, confirmed the husband disputed the finding he had denied involvement in ongoing surveillance of the wife, which was the subject of an appeal, and disputed that anybody representing the husband had knowingly or recklessly misled the Court. In response to the wife’s reference to r 35 of the Legal Profession Conduct Rules 2010 (WA), the husband’s solicitors noted the opening phrase "if a client informs a practitioner … that the client has lied … to the court or has procured another person to lie to the court", and wrote:
The allegation that you appear to make could only apply to us if our client had informed us that he had behaved in the specified manner. He has not. If you hold a contrary view, please explain why.
THE WIFE’S APPLICATION FOR INTERIM INJUNCTIONS
What is the law?
[19] Exhibit E to the wife’s affidavit filed 9 September 2021, correspondence from the husband’s solicitors dated 3 September 2021.
34The relevant legal principles were not in dispute.[20] It is accepted the Court has an inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its jurisdiction over its officers and to control its process in aid of the administration of justice.[21]
[20] The wife’s outline of submissions filed 6 October 2021, husband’s outline of submissions filed 13 October 2021, and the wife’s response to the husband’s submissions handed up in Court on 19 October 2021.
[21] Kallinicos and Anor v Hunt and Ors (2005) 64 NSWLR 561, cited with approval by the Full Court of the Family Court in Naczek & Dowler [2011] FamCAFC 179.
35The authorities establish that:
•The test to be applied, is "whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice including the appearance of justice".[22]
[22] Kallinicos and Anor v Hunt and Ors (supra) at 582.
•The duty to the court arises from the court’s concern that it should have the assistance of independent legal representation for the litigating parties.
"Preserving the integrity of the administration of justice, and in the appearance as well as the reality of independence, the duty underpins the court’s practical approach to its supervisory jurisdiction".[23]
[23] Naczek & Dowler (supra) at [61].
•The jurisdiction is to be regarded as exceptional and is to be exercised with caution.[24]
[24] Kallinicos and Anor v Hunt and Ors (supra) at 582.
•The requirements of natural justice do not involve an "absolute right to the legal advisor of a party’s choice".[25]
[25] State of Western Australia v Ward and Ors (1997) 145 ALR 512 at 518, Full Court of the Federal Court.
•Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice, without due cause.[26]
[26] Kallinicos and Anor v Hunt and Ors (supra) at 582.
•A legal practitioner’s duty to the court is paramount. It overrides a practitioner’s duty to their client. If there are circumstances which:
… are likely to imperil the discharge of these duties to a court by a legal practitioner acting in a cause, whether because of some prior association with one or more of the parties against whom the practitioner is then to act, or because of some conduct by the practitioner, whether arising from associations with the client or a close interest which gives rise to the fair and reasonable perception that the practitioner may not exercise the necessary independent judgment, a court may conclude that the lawyer should be restrained from acting, even for a client who desires to continue his service.[27]
[27] Holborow v Macdonald Rudder [2002] WASC 265 at [28].
(Citations omitted)
•Where an applicant seeks to restrain a legal practitioner from continuing to act, it is "necessary for a clear case to be made that the practitioner concerned is in a position where he is fixed with an interest which conflicts with his duty to the court and that that interest is one of such a nature that the solicitor or counsel may fail in his overriding duty to the court".[28]
•It is important to identify, with precision, what obligation may be breached. The conflict must be actual, or sufficiently material.[29]
•Examples of situations in which courts have prevented chosen counsel or solicitors from acting include where:
•There has been misconduct, the potential use of confidential information, and a "real risk of lack of objectivity and of conflict of interest and duty".[30]
•There was potential that a legal practitioner might become a witness in the proceedings, and where the litigation was likely to involve an evaluation of the legal practitioner’s conduct.[31]
•The legal practitioner has a substantial personal stake in the litigation, for example, by virtue of being a partner in a firm which was a party to the litigation.[32]
•The practitioner might feel compelled to justify or defend his conduct in representing a client.[33]
[28] Holborow v Macdonald Rudder (supra) at [31].
[29] Holborow v Macdonald Rudder (supra) at [29].
[30] State of Western Australia v Ward and Ors (supra) at 519.
[31] Holborow v Macdonald Rudder (supra) at [23] and [29].
[32] Holborow v Macdonald Rudder (supra) at [29].
[33] Holborow v Macdonald Rudder (supra) at [23] and Karapataki& Karapataki [2011] FMCAfam 6, at [35].
36Senior counsel for the husband and the wife relied on the decision of Heenan J in Holborow v Macdonald Rudder [2002] WASC 265.[34] The case concerned an application by the defendant, to proceedings in the Supreme Court of Western Australia, to restrain a solicitor who had previously acted for the plaintiffs and had been the solicitor on the record in the present and associated proceedings, from continuing to act. The defendant alleged the legal practitioner had committed serious breaches of professional duty, which were the subject of a complaint to the Legal Practitioners Complaints Committee. In discussing the differences between the parties, Heenan J said:
19.This is a situation not uncommonly found in contested litigation as, for example, in cases where there are allegations of fraud, malicious conduct, wilful breach of trust or similar serious misconduct. Of course, were such a serious allegation to be made and maintained by a legal practitioner for a party to proceedings, in circumstances where there was no justification for that to be done, that may involve the individual practitioner in professional misconduct and expose him to professional discipline, the consequences of which might be very severe. However, the question of the evaluation of the professional conduct of a legal practitioner in the course of litigation is usually, but perhaps not invariably, left for examination after the principal proceedings have been concluded. There are very good reasons for this cautionary practice. As already indicated, it is usually neither possible nor desirable to make a determination of the rights of the parties, whether provisional or otherwise, when they are still joined in issue on the very matters that the court will eventually have to decide. Associated with this consideration is the expectation that it will usually prove very difficult, if not impossible, to undertake a dispassionate and objective consideration of the conduct of the parties while they continue to be embroiled in the very litigation which has generated their mutual hostility. Finally, and by no means the least significant consideration, is the need to ensure that one or both of the opposing parties to the litigation cannot gain some forensic advantage against the other by making attacks against the solicitors acting on the other side which may produce the effect, directly or indirectly, of handicapping the clients by depriving them of access to, or to representation by, a legal practitioner of their choice. Equally unacceptable would be a result which may inhibit or be likely to inhibit, the manner in which the practitioner may properly discharge his professional duties to his clients.
[34] Which has been cited with approval by the Full Court of the Family Court of Australia in Naczek & Dowler (supra), and by Brereton J in Kallinicos and Anor v Hunt and Ors (supra).
37Justice Heenan concluded there was no basis to grant the injunction where the solicitor was no longer acting for the plaintiff. His Honour analysed the cases relied upon and said:
26.Consequently, when an application is made to restrain a legal practitioner from acting in a case for reasons other than the risk of disclosure or misuse of information provided to the practitioner in confidence by the former client, it is of importance to identify precisely what obligation towards the former client or to the court may be breached or imperilled by the practitioner acting in the cause or against the former client. This approach is important because, otherwise, there may imperceptibly develop an expectation that the freedom of a client to engage a legal practitioner of his or her own preference, and the freedom of a legal practitioner to act even against a former client, where such a course does not involve any breach of his fiduciary obligations arising from the earlier retainer, is open to adventitious challenge as a means of harassing an opponent in a cause.
38His Honour went on, and said:[35]
28.If there are circumstances which are likely to imperil the discharge of these duties to a court by a legal practitioner acting in a cause, whether because of some prior association with one or more of the parties against whom the practitioner is then to act, or because of some conduct by the practitioner, whether arising from associations with the client or a close interest which gives rise to the fair and reasonable perception that the practitioner may not exercise the necessary independent judgement, a court may conduct that the lawyer should be restrained from acting, even for a client who desires to continue his service – Clay v Karlson (supra); Wan v McDonald (1992) 33 FCR 491; National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 and Afkos Industries Pty Ltd v Pullinger Stewart [2001] WASA 372.
29.From the wider viewpoint, including the perspective of the legal practitioner’s duty to the court, it can readily be perceived that this situation justifies intervention by the court because of an actual or sufficiently material threatened conflict of interest by the practitioner, as an officer bearing fiduciary obligations, between his obligations to the court, and his obligations to the client or to some other interest. So it has long been accepted that a legal practitioner, who is likely to be a witness in a case should not act as counsel, or continue to act as counsel if a situation arises where he is unexpectedly required to give evidence. The reason being is that the personal integrity of the practitioner may be put in issue is his credibility is at stake as a witness, and that this will, or may, constitute a personal interest inconsistent with the practitioner’s duty to the court or to the client. Other similar conflict of interest can arise if, for example, the counsel or solicitor had a substantial personal stake in the litigation such as, for example, if he or she were to be a partner in a firm which was a party to the litigation, or a substantial shareholder in a corporation which was a party.
30.… However, it by no means follows that every conflict of interest between the legal practitioner and a client will give rise to a concurrent conflict of interest between the legal practitioner and his duty to the court, or, even where it does, that there is a risk that the practitioner will disregard his overriding duty to the court in favour of his client's interest. It seems to me that if it can be demonstrated that there is a risk that a practitioner will disregard his overriding duty to the court that this will usually, if not always, require action by the court to avoid such a risk by preventing the practitioner from acting even if the relief is sought by an opposing party in the litigation. But these principles do not render counsel or solicitors generally examinable at the suit of their client's opponents. The duty of the legal practitioner is not to his client's opponent and he is not answerable to his client's opponent. His duty is to the court and he is certainly answerable to the court and to his or her professional and disciplinary bodies.
31.Consequently, if an opposing party asserts that a legal practitioner should be restrained from acting for his opponent it is necessary for a clear case to be made that the practitioner concerned with his duty to the court and that that interest is one of such a nature that the solicitor or counsel may fail in his overriding duty to the court.
[35] Emphasis added where the passages were cited with approval by the Full Court of the Family Court in Naczek & Dowler (supra).
39The husband also relied on the decision of Pembroke J in Westpac Banking Corporation v Newey [2013] NSWSC 533, where His Honour held, at [21]–[22]:
The due administration of justice is not necessarily advance by claims by litigants who espouse the lofty ideal of protecting the integrity of the judicial process, while seeking to obtain a position of advantage in litigation … The law and lawyers would be held in disrepute if judges acceded too readily and too often to such applications. Before doing so, there must be some realistic sense of impropriety about the circumstances; something that sensibly justifies the conclusion that unless an injunction were granted, the integrity of the judicial process would be impaired.
What is the wife’s case?
40The wife says, in the exercise of the Court’s supervisory jurisdiction, it should restrain the husband from continuing to instruct and/or retain both his solicitors and counsel because firstly, the conduct of the husband’s solicitor and counsel is being impugned in the proceedings, secondly, the husband’s solicitor may be called to be a witness, and thirdly, there is a potential conflict of interest between the husband and his counsel and solicitor.
41The wife refers to her application for an injunction on 23 April 2021, in which she alleged she was the subject of ongoing surveillance.
42The husband’s solicitor prepared/settled the husband’s affidavit of 25 May 2021, which denied involvement in surveillance as alleged, and such denial was misleading[36] and his conduct was "either done knowingly or with reckless disregard for the correctness of the material".[37] The wife suggests it is also open to the Court to find the husband’s solicitor’s conduct with respect to the affidavit was negligent or careless.[38]
[36] Paragraph 42 of the wife’s outline of submissions filed 6 October 2021.
[37] Paragraph 43 of the wife’s outline of submissions filed 6 October 2021.
[38] Paragraph 44 of the wife’s outline of submissions filed 6 October 2021.
43The wife submits the husband’s August 2021 affidavit is incorrect and inconsistent with his May 2021 affidavit, and the position adopted at the interim hearing.[39] She seeks the Court restrain the husband from continuing to instruct his solicitor, on the basis of any combination of the following:[40]
[39] Paragraph 53 of the wife’s outline of submissions filed 6 October 2021.
[40] Paragraph 55 of the wife’s outline of submissions filed 6 October 2021.
(a)the husband’s solicitor prepared/settled the husband’s May 2021 affidavit which contained the denials above in circumstances where, prima facie, he had knowledge that the husband’s denials of involvement were misleading. The husband’s denials are said to be known to the husband’s solicitor to be misleading either because:
(i)the husband’s solicitor was aware that surveillance had taken place because he was instructed [in late] March 2021 to liaise with [Private Investigator A] about further surveillance; or otherwise
(ii)the husband’s solicitor omitted from the husband’s evidence the fact of certain ongoing surveillance because the specific dates identified by [Ms Costa‑Othonos] did not "marry up" to the precise events described by the Wife.
(b)the husband’s solicitor was present at Court on 6 July 2021 when the submissions evident on the transcript were made, without correction by him during or any time after the hearing; and
(c)the husband’s solicitor prepared/settled the husband’s August 2021 affidavits both of which contain evidence that the husband did not deny surveillance when he did make such denials, whether in his evidence or through counsel.
44The wife’s senior counsel referred to Legal Profession Complaints Committee and Giudice [2012] WASAT 144, where the Tribunal said:
54.A solicitor drawing an affidavit for a client owes a duty in the administration of justice to ensure so far as is possible that not only the court but also other parties in the proceedings cannot be misled. A solicitor must ensure that the words used accord precisely with the understanding of the client who avers that the statement is true.
55.As Ipp J in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at 60 said:
Lawyers may not, consistently with their ethical duties and duties to the court, prepare and file affidavits known by them to be perjured ... In England, the ethical rule is that lawyers should not produce witness statements that they know to be false or where they know that the witness does not believe the statement to be true in all respects ... In my view this rule reflects the duties that lawyers in this country owe to the court.
45Senior counsel also referred to Giudice v Legal Profession Complaints Committee [2014] WASCA 115, where Martin CJ said, at [8]:
As this court has pointed out, when a practitioner provides information or makes a statement to a court which is false or misleading, there are (at least) three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct. First, the practitioner might know that the statement or information is false or misleading. Second, the practitioner might have a reckless disregard to the question of whether the statement or information is false or misleading, and third, the practitioner might be negligent or careless. Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act. In cases falling within the third category - that of negligence or carelessness - whether or not the practitioner's conduct is either unsatisfactory professional conduct or professional misconduct will depend upon the nature and degree of negligence or carelessness involved.
46The wife says where the husband’s solicitor has not responded to her claims, she invites the Court to conclude the husband’s solicitor has, or may have, breached his professional obligations, and specifically, rr 15, 34, and 35 of the Legal Profession Conduct Rules 2010 (WA), which have force by virtue of s 576 of the Legal Profession Act2008 (WA).
47The relevant Legal Profession Conduct Rules2010 (WA) relied on by the wife provide as follows:
15.Conflicts concerning practitioner’s own interests
…
(2)A practitioner must avoid conflicts between the interests of a client and the interests of —
(a)the practitioner; or
(b)the practitioner’s law practice; or
(c)an affiliate of the practitioner.
(3)A practitioner must not provide, or agree to provide, legal services to a client if the practitioner knows or ought reasonably to know that the interests of a person referred to in subrule (2)(a) to (c) may conflict with the interests of the client.
35. Delinquent or guilty clients
(1)If a client informs a practitioner, before judgment or decision in a matter that the client has lied in a material particular to the court or has procured another person to lie to the court or has falsified or procured another person to falsify in any way a document which has been tendered, the practitioner must —
(a)advise the client that the court should be informed of the lie or falsification and request authority from the client so to inform the court; and
(b)if the client authorises the practitioner to inform the court, promptly inform the court of the lie or falsification; and
(c)if the client does not authorise the practitioner to inform the court, refuse to take any further part in the matter and not inform the court of the lie or falsification.
34. Frankness in court
(1)A practitioner must not knowingly or recklessly mislead a court.
(2)A practitioner must correct a misleading statement made to a court by the practitioner as soon as possible after the practitioner becomes aware that the statement was misleading.
(3)A practitioner who does not correct an error in a statement made to a court by another person has not by that omission made a misleading statement.
48The wife asserts the circumstances support a finding the husband’s solicitor has breached r 34, and given the gravity of such a breach, there is a "prima facie conflict" between the interests of the husband’s solicitor’s office, the husband’s solicitor and the husband "should a difference between their recollection[s] … arise in the course of proceedings, whether in the Family Court of Western Australia or in the State Administrative Tribunal".[41]
[41] Paragraph 65 of the wife’s outline of submissions filed 6 October 2021.
49The wife acknowledges the husband’s denial of giving false or misleading evidence. She says his solicitor may come to a different conclusion, potentially giving rise to a conflict and a breach of r 15.[42] Further, the husband’s solicitor may need to justify or defend his conduct, supporting the injunction she seeks.[43]
[42] Paragraph 68 of the wife’s outline of submissions filed 6 October 2021.
[43] Paragraphs 68 and 69 of the wife’s outline of submissions filed 6 October 2021.
50The wife says the husband’s solicitor "has engaged in conduct which has made him a witness in the substantive proceedings".[44] She referred to r 42 of the Legal Profession Conduct Rules2010 (WA). It is her case that she has been the victim of family violence, and, as a consequence, her contributions have been made more arduous, in terms described by the Full Court in Kennon & Kennon.[45] The wife submits,[46] the timing and instructions provided for ongoing surveillance are "independently material matters that will go to issues of credibility and to the issue whether the husband has acted in a manner known to be adverse to the mental health of the wife and, if so, whether that was in reliance upon legal advice". She maintains surveillance constitutes "ongoing perpetration of family violence against her",[47] in circumstances where the husband does not have direct knowledge of all material matters concerning the engagement of investigators, but his solicitors do. The husband may have been given legal advice, which led to the perpetration of the alleged ongoing family violence.
[44] Paragraph 70 of the wife’s outline of submissions filed 6 October 2021.
[45] (1997) FLC 92-757.
[46] See paragraphs 73 and 74 of the wife’s outline of submissions filed 6 October 2021.
[47] Paragraph 77 of the wife’s outline of submissions filed 6 October 2021.
51The wife says the husband’s counsel has either knowingly or recklessly misled the Court, or has otherwise failed to comply with his professional duties set out in rr 34 and 35 of the Legal Profession Conduct Rules2010 (WA). She alleges the husband’s counsel’s submissions on 6 July 2021 were "false and misleading",[48] and inconsistent with the content of the husband’s August 2021 affidavit. The wife refers to the transcript of those submissions, which are set out in paragraph 24 above, and argues the husband’s counsel’s submissions were either:[49]
[48] Paragraph 82 of the wife’s outline of submissions filed 6 October 2021.
[49] Paragraph 85 of the wife’s outline of submissions filed 6 October 2021.
(a)without instructions (i.e. ‘recklessly’ and in breach of r 34); or
(b)with instructions, and that he was a party to misleading the Court (i.e. ‘knowingly’ and breach of r 34); or
(c)consistent with the instructions provided at the time of the hearing (resulting in a breach of r 35).
and any of the three variables "have professional conduct ramifications and are basis for restraint in circumstances where corrective action has not been taken".[50] She argues the husband’s counsel’s submissions were not reflective of the husband’s position, in light of the husband’s August 2021 affidavit.
What is the husband’s case?
[50] Paragraph 86 of the wife’s outline of submissions filed 6 October 2021.
52The husband says the wife has not established an arguable case, much less a "clear case" or unequivocal situation, to support the injunctive relief she seeks. The wife’s allegations are highly contentious, give rise to no proper basis to restrain either the husband’s solicitor or counsel from continuing to act, or be retained, because there is no conflict between their position and the position of the husband. There is no basis to suppose any conflict is likely to arise in the future. There is no basis upon which the Court could conclude there is a risk the husband’s solicitor or counsel would disregard their overriding duty to the Court.
53The husband refers to the significant scope of factual matters in dispute. Consistent with the authorities, it is not appropriate for the Court to make preliminary findings of fact. He is critical of the wife, for effectively inviting the Court to make adverse findings about the husband’s solicitor and counsel, where neither of them are parties to the litigation,[51] and neither have any duty to explain themselves.
[51] Paragraph 33 of the husband’s outline of submissions filed 13 October 2021.
54The husband says the proper, and preferred course, is to complete the substantive proceedings, which will allow the husband’s evidence to be tested by way of cross-examination. After the conclusion of the trial, if there is a basis for a referral with respect to the conduct of the husband’s counsel or solicitor (which could be made by the wife, or the Court), that is the proper time for any complaint to be made and dealt with by the Legal Profession Complaints Committee. If the husband’s affidavit is found to have been misleading, despite his denials, that does not automatically mean his solicitor, who assisted in its preparation, engaged in misconduct, nor does it mean the solicitor’s interests are in conflict with that of the husband.
55The husband denies having misled the Court in his May 2021 affidavit, in which he:
(a)admitted he had previously instructed his solicitors to engage Private Investigator A.[52]
(b)deposed he had no knowledge of the claims made by the wife in paragraphs 10 to 17 inclusive of her affidavit, nor those made by Ms A, and that he had no involvement with anyone who might have acted as described in those affidavits.[53]
[52] Paragraph 10 of the husband’s affidavit filed 25 May 2021.
[53] Paragraph 17 of the husband’s affidavit filed 25 May 2021.
56Consistent with the submissions made by the wife’s senior counsel, the husband’s evidence did not amount to a denial of any other surveillance being undertaken.[54] The husband deposed there was no surveillance of the wife in respect of the period the subject of her affidavit, which was true.[55] The husband was not under any obligation to volunteer that subsequent to the period the subject of the wife’s affidavit, further surveillance had been undertaken, as to do so "would have effectively defeated the purpose of surveillance (which is, by definition, undertaken surreptitiously)".[56]
[54] Paragraph 15 of the husband’s outline of submissions filed 13 October 2021.
[55] Paragraph 16 of the husband’s outline of submissions filed 13 October 2021.
[56] Paragraph 17 of the husband’s outline of submissions filed 13 October 2021.
57Nothing either contained in the husband’s May 2021 affidavit, nor the submissions made on his behalf at the interim hearing, amounted to a denial of ongoing surveillance of the wife. To the contrary, "it was junior counsel’s submission (made repeatedly) that an injunction should not be granted as it would ‘stand in the way’ of the [h]usband being able to undertake such a line of enquiry if he wished to do so".[57]
[57] Paragraph 18(b) of the husband’s outline of submissions filed 13 October 2021.
58The husband denies any current or likely future conflict of interest between himself and his legal representatives.
59The husband maintains the Court erred recording he denied involvement in ongoing surveillance of the wife and misunderstood his evidence, and the submissions made on his behalf. The fact he has elected to discontinue his appeal, does not alter his position.
60The husband says there is no basis to suggest his solicitor is likely to be a witness in the proceedings because:
(a)the fact the husband’s solicitor, engaged and gave instructions to a third party to undertake lawful surveillance, does not make him a witness to the proceedings;
(b)the husband has no intention of calling his solicitor to give evidence;
(c)it is inconceivable that, properly advised, the wife would call the husband’s solicitor as her witness having regard to:
(i)for obvious reasons, he would not provide an affidavit for the wife;
(ii)any communications he had with those who carried out the surveillance, relied upon by the husband, would be disclosed. Further, it is open to the wife to subpoena the party who conducted the surveillance;
(iii)any oral conversations could be obtained by cross‑examination of the party carrying out the surveillance at trial;
(iv)all other communications would be the subject of legal professional privilege, which has not been waived;
(d)what the husband’s solicitor said with respect to organising surveillance is a matter of record. Importantly, this is not a case where there is any basis to suggest that the husband’s solicitor’s credibility would be in issue;
(e)having regard to the above, even if the husband’s solicitor was subpoenaed to give evidence on behalf the wife, no basis exists to conclude that there is "some realistic sense of impropriety about the circumstances: something that sensibly justifies a conclusion that unless an injunction were granted the integrity of the judicial process would be impaired".[58]
[58] Paragraph 25 of the husband’s outline of submissions filed 13 October 2021.
61The husband says there is no arguable case, to suggest the husband’s counsel misled the Court. A review of the transcript demonstrates the husband’s counsel’s submissions were directed to the meaning and effect of the husband’s May 2021 affidavit, as opposed to making statements of fact, or giving evidence from the bar table. Nothing said by the husband’s counsel places him in conflict with the husband, or the husband’s evidence.
62The husband denies the wife’s submission of the existence of a prima facie conflict of interest between the husband and his counsel, and says the so-called conflict is illusory where:
(a)there can be no suggestion the submissions made on the part of the husband’s counsel, related to his recollection;
(b)the wife’s position is predicated on the "possibility" of a difference arising in the future, without any proper basis to conclude there is a real prospect of that occurring; and
(c)the wife’s submissions insofar as they relate to potential proceedings in the State Administrative Tribunal are speculative, and irrelevant to the current application.
63The husband submits if anything his counsel said, or did, (which is denied) has any professional ramifications, that alone does not provide a basis to restrain him from continuing to act. The wife has not provided any authorities to support the restraint of counsel from acting solely because of an alleged contravention of the Legal Profession Conduct Rules 2010 (WA) (or their equivalent) during the course of the proceedings.
What is the position of the other parties?
64Senior counsel for the interested parties confirmed they did not wish to be heard in relation to the issues between the husband and wife.
65Mr Cuerdin SC described the wife’s allegations as a "very serious attack on [the husband’s counsel’s] reputation" and that of the husband’s solicitor.[59] He submitted the Court was being invited to make serious findings against people who were not parties to the proceedings, and neither of whom were able to proffer any explanation, or respond to the wife’s allegations, without a waiver of privilege.
[59] TS, 19 October 2021, page 24, lines 49-51 and page 25, line 7.
66In response to the wife’s submissions against the husband’s counsel,[60] in which she identified three possible explanations or findings, each of which, firstly, required a consideration of the relevant instructions provided by the husband, which was plainly not possible, and secondly, ignored an alternate possibility, namely there was an inadvertent error.
[60] Set out in paragraph 85 of the wife’s outline of submissions filed 6 October 2021 (to which I have referred at paragraph 51 above).
67Mr Cuerdin SC referred to r 34(2) of the Legal Profession Conduct Rules 2010 (WA), noting the requirement upon a practitioner to correct a misleading statement only arises when the practitioner becomes aware the statement was misleading. The rule requires a focus upon the mental state of the practitioner, and an appreciation he has said something which was misleading. That does not invite a comparison between the transcript and affidavits. Instead, it requires an appreciation of the consciousness of the practitioner.
68Mr Cuerdin SC described the wife’s application as inviting the Court to speculate the husband told his lawyers he had lied, with reference to r 35(1). There is no evidence to support such a finding. Contrary to the wife’s position, the husband’s solicitors have confirmed he has made no such disclosure.[61]
Discussions and conclusions
[61] Exhibit E of the wife’s affidavit filed 9 September 2021.
69There is highly contradictory evidence, including issues as to the credibility and conduct of parties. On the wife’s case, there are serious issues as to the professional conduct of the husband’s counsel and solicitor. She has also made serious complaints against the husband.
70The husband denies misleading the Court, lying on oath, or that his evidence has been inconsistent and contradictory with his earlier evidence. He disputes the Court’s interim finding he had denied involvement in ongoing surveillance of the wife. The husband does not resile from his position, notwithstanding he has discontinued his appeal. He denies either of his legal representatives have knowingly or recklessly misled the Court.
71There is a fierce debate between the parties about a number of factual matters. The circumspection with which findings on an interim hearing can be made, is well established. It is the husband’s case that his evidence was truthful, accurate and specific. The evidence is yet to be tested by way of cross-examination.
72It is conceded the jurisdiction to restrain a solicitor from acting is exceptional, and is to be exercised with caution, having regard to the totality of the evidence.
73Having carefully reflected on the evidence, I am not satisfied a fair-minded reasonably informed member of the public would conclude the proper administration of justice requires a restraint of the husband’s counsel, or the husband’s solicitor, from acting, to protect the integrity of the judicial process and the administration of justice.
74I respectfully agree with and endorse the remarks made by Heenan J in Holborow (supra), and consider the proper, and preferred course in the current circumstances, is to complete the substantive proceedings, to allow the evidence to be tested by way of cross-examination, and findings of fact made. If, after the conclusion of the trial, there is a basis for a referral with respect to the conduct of the husband’s counsel or solicitor, then a complaint can be made to the Legal Profession Complaints Committee.
75If the husband’s affidavit is found to have been misleading, despite his denials, that does not automatically mean that his solicitor, who assisted in the preparation of the affidavit, or his counsel, engaged in misconduct, nor does it mean their interests are in conflict with that of the husband. If the husband is found to have lied on oath, there may be other consequences.
76I am not satisfied the Court should make preliminary findings of fact, as sought by the wife. It would be premature to embark upon an examination of the wife’s allegations against the husband’s solicitor and counsel, nor any evaluation of their justification, at this stage of the proceedings, in circumstances where:
(a)The evidence is in dispute;
(b)The allegations are denied;
(c)The allegations of professional misconduct are serious and the potential ramifications, far reaching;
(d)Neither the husband’s solicitor, nor counsel, have had the opportunity to respond to the allegations made against them, without a waiver of privilege;
(e)The substantive proceedings are yet to be determined and until that time, it is not possible to determine whether the allegations have been made out; and
(f)I am not satisfied the wife has established a ‘clear cut’ case of a conflict of interest between the husband and his legal advisors, nor has she established an ‘unequivocal situation’ adopting the language of Heenan J.
77I proceed on the basis the allegations pursued by the wife are considered to be necessary, and justified. Only after the substantive proceedings have been determined, will it be possible to determine whether the allegations have been made out, or if not, the consequences which may flow from the allegations having been advanced.
78It is not appropriate to attempt to determine whether the Court was misled, where neither the husband’s counsel or solicitor have had the opportunity to respond. Further, the Court has not had the opportunity to hear or consider the submissions, which may have otherwise been ventilated on appeal.
79The authorities relied upon by the wife’s senior counsel in Giudice (supra) confirm my view that the preferable approach to be adopted is for the matters raised by the wife to be determined after the conclusion of the substantive proceedings. Giudice concerned an application brought by the Legal Profession Complaints Committee in the State Administrative Tribunal against a solicitor. The Tribunal found the solicitor guilty of unsatisfactory professional conduct because he caused an affidavit to be prepared, sworn and filed by his client in Family Court proceedings, which contained a false statement with reckless disregard as to the truth or falsity of the statement. The finding was overturned on appeal, with the Court noting an allegation of reckless disregard of the truth by a legal practitioner could only be made out if it was established the practitioner’s actual state of mind was that of indifference to the truth of the relevant statement.
80The evidence led by the wife does not support the Court drawing adverse inferences against the husband’s solicitor or counsel, nor any preliminary finding of professional misconduct. The husband denies having given misleading evidence, or having told his solicitors or counsel that he has lied. As noted, r 34 requires an examination of the state of mind of the husband’s counsel and solicitor. There is no evidence before the Court to enable any such findings at this time. For the avoidance of any doubt, or misunderstanding, nothing said in these Reasons should be taken as an indication of any concluded view about these matters.
81The husband’s decision to abandon his appeal, does not persuade me that findings should be made with respect to any alleged breaches of professional conduct, as suggested by the wife. The fact the appeal has been discontinued, does not detract from the position of the husband, and the submissions made on his behalf.
82Many of the wife’s claims are speculative, as highlighted by her evidence[62] and her submissions,[63] and are denied by the husband.
[62] For example, paragraph 50 of the wife’s affidavit filed 9 September 2021.
[63] For example, many of the wife’s submissions use the word "may", and adopt uncertain language, including "if" and "should". See paragraphs 65, 67–8, 74, 77 in the wife’s outline of submissions filed 6 October 2021.
83The wife’s assertion "there is every reason to consider there is a risk"[64] the husband’s counsel and solicitor will disregard their overriding duty to the Court in favour of the husband, is premised on the basis of a finding the Court has been misled. That is not a finding which can be made at this time.
[64] Paragraph 20 of the wife’s response to the husband’s submissions handed up in Court on 19 October 2021.
84The wife has not demonstrated there is a conflict between the duty owed by the husband’s solicitor and counsel to the Court, and their duty to the husband, such that the administration of justice may be put in jeopardy. The wife’s assertions as to a potential conflict are seemingly predicated on the basis that either, or both, have acted in breach of their professional duties.[65] She has not satisfied me there is a conflict of interest arising from the husband’s counsel’s or solicitor’s alleged interest in defending their conduct, merely on the basis of her disputed claims.
[65] Paragraphs 3 and 4 of the wife’s response to the husband’s submissions handed up in Court on 19 October 2021.
85Further, even if there was such a conflict, which is denied, I am not satisfied based upon the wife’s evidence, and the submissions made, there is a risk either the husband’s counsel or solicitor will disregard their duty to the Court. In my view, a fair-minded reasonably informed member of the public would not conclude the objectivity of the husband’s legal representatives could be compromised, by conflicts between their obligation of loyalty to the husband, and any potential personal interest.
86The wife has failed to make out a clear case that either the husband’s solicitor or counsel are fixed with an interest which conflicts with their duty to the Court and the interest is of such a nature that either may fail in their overriding duty to the Court. She has made assertions based on disputed facts, which are denied by the husband. The husband’s solicitor and counsel each have a duty to the Court, in addition to their obligations towards their respective professional and disciplinary bodies. Their duty is not to the wife, nor are they answerable to her.
87It is difficult to conceive any realistic circumstances in which the husband’s solicitor would be called to give evidence at the trial. The substantive proceedings concern an application by way of alteration of property interests and maintenance. The allegations as to family violence made by the wife are denied by the husband. These matters will clearly be the subject of cross-examination of the husband and wife. It remains to be seen whether the persons who conducted surveillance may be required to give evidence, by way of subpoena or otherwise.
88I am not satisfied there is a reasonable likelihood the husband’s solicitor will be called to give evidence, and if called, that his evidence will be material. The husband has indicated he has no intention of calling his solicitor. The difficulties faced by the wife, if she sought to call the husband’s solicitor, are self-evident.
89The wife’s case is the surveillance post separation constitutes family violence. If the wife is able to establish the husband has embarked upon a course of violent conduct towards her during the marriage, which she can demonstrate has had a significant adverse impact upon her contributions, or alternatively, have made her contributions more arduous than they ought to have been, then the Court is entitled to take those matters into account in assessing the respective contributions of the parties. The Full Court in Kennon (supra), and in S & S [2003] FamCA 905, noted it was essential to bear in mind the "relatively narrow band of cases" and "exceptional cases" to which the relevant considerations apply. It is necessary for the wife to show the conduct occurred during the marriage and had a discernible impact upon her contributions.
90The wife has not satisfactorily explained how evidence from the husband’s solicitor in relation to surveillance, conducted post separation, could be relevant and admissible in support of her Kennon claim. I am not persuaded the husband’s solicitor is likely to be a witness.
91However, even if the husband’s solicitor is called as a witness, I am not persuaded the proceedings are likely to involve an evaluation of his conduct. The Full Court in Sellers & Burns and Anor (2019) 59 Fam LR 593 reversed a decision of a trial judge to restrain a solicitor from acting. The trial judge found there was a ‘real possibility’ of the solicitor being required to give evidence. The Full Court considered evidence from the solicitor could cast light on particular facts, but the evidence would not be determinative and as such, the solicitor was not a material witness.
92The matters submitted fall short of unequivocal facts to support the restraint of the husband’s solicitor or counsel, in the interests of the protection of the integrity of the judicial process, and the due administration of justice, including the appearance of justice. I decline to grant the injunctions as sought.
HAS THE HUSBAND WAIVED LEGAL PROFESSIONAL PRIVILEGE?
93The wife seeks the husband disclose "all documents and records, including but not limited to reports, correspondence, and file notes between or in relation to: [Law Firm A]; and any agency engaged by the Husband or on the Husband’s behalf by [Law Firm A], including but not limited to [Private Investigator A]; in relation to surveillance and monitoring" of the wife, [Property A], [Property B], and any other locations where she may have been.[66]
[66] Paragraph 4 of the wife’s application in a case filed 9 September 2021.
94The wife submits the documents are relevant in circumstances where there is a dispute about the extent of the surveillance. The wife alleges she has observed surveillance since January 2021, including after orders were made restraining the husband from causing ongoing surveillance.[67] The husband has admitted to further surveillance, but maintains his denial of surveillance occurring over the period alleged by the wife. The wife says the documents she seeks will "inform her of the nature, extent and timing of surveillance" undertaken at the husband’s request, which is relevant because the surveillance amounts to a perpetuation of family violence. She suggests if ongoing surveillance is established, it will impact upon an assessment of credibility.[68]
[67] Paragraph 52 of the wife’s affidavit filed 9 September 2021.
[68] Paragraph 93 of the wife’s outline of submissions filed 6 October 2021.
95The wife says the husband has waived any legal professional privilege attached to the documents she seeks because he has given evidence about his instructions to his solicitors, and he has put his state of mind in issue in the proceedings, given his evidence:
(a)he did not engage anyone to conduct surveillance on the dates the wife alleged she observed surveillance occurring;[69]
(b)he instructed his solicitors to liaise with Private Investigator A about further surveillance;[70]
(c)about the "content of his communication with his solicitors";[71] and
(d)"which places in issue his understanding of his own evidence filed and position adopted earlier in the proceedings".[72]
[69] Paragraph 56 of the husband’s interim affidavit filed 20 August 2021.
[70] Paragraph 58 of the husband’s interim affidavit filed 20 August 2021.
[71] Paragraph 61 of the husband’s interim affidavit filed 20 August 2021.
[72] Paragraph 102(d) of the wife’s outline of submissions filed 6 October 2021.
96The wife says the husband has provided inconsistent evidence about surveillance, and it is "inconsistent with the proper administration of justice, that any waiver asserted should be maintained".[73]
[73] Paragraph 106 of the wife’s outline of submissions filed 6 October 2021.
97The husband accepts the documents sought by the wife are relevant to an issue in the proceedings.[74] He denies there has been any waiver of legal professional privilege, with the exception of the written communications between the husband and husband’s solicitor expressly referred to in the schedule attached to his written submissions filed 13 October 2021.[75]
[74] Paragraph 36 of the husband’s outline of submissions filed 13 October 2021.
[75] The schedule references instructions about surveillance in the husband’s affidavits. The schedule identifies specific paragraphs in the husband’s affidavits filed on 25 March 2020, 29 September 2020, 25 May 2021, and 20 August 2021, and extracts the words used by the husband.
98The only communications he has "laid open" are those referred to in his affidavits, which he concedes have been the subject of express waiver, only to the extent the document deals with the subject matter in those paragraphs.
99The husband says the question as to when surveillance was carried out, and when instructions were given for surveillance, cannot give rise to an issue at trial. The husband will be required to provide disclosure. The wife will be entitled to subpoena those who conducted surveillance, if she sees fit. The husband asserts his evidence about the commissioning of surveillance:
… does not even come close to constituting an implied waiver of all other privileged communications on the topic (such as, by way of example, privileged communications as to whether surveillance should be undertaken, why surveillance should be undertaken, the forensic benefits of surveillance being undertaken etc).[76]
[76] Paragraph 42 of the husband’s outline of submissions filed 13 October 2021.
100The husband submits the position is no different to the retention of any other expert for the purposes of preparing a report and giving evidence at trial. The husband suggests the wife’s position is internally inconsistent, to the extent she relies on his August 2021 affidavit to raise issues with respect to the sufficiency of his May 2021 affidavit, while not asserting his August 2021 affidavit is incorrect or incomplete. On that basis, the husband says there is no dispute on the present evidence upon which the wife could maintain it is inconsistent with the proper administration of justice that any waiver asserted should be maintained.[77]
What is the law?
[77] Paragraph 43 of the husband’s outline of submissions filed 13 October 2021.
101The applicable legal principles were succinctly set out by Chief Judge Sutherland in Nisbet and Nicholson [2021] FCWA 67, which are set out below:
7In Mann v Carnell (1999) 201 CLR 1, the plurality of the High Court explained wavier of privilege at common law in the following terms:
[28]At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyers evidence as to advice given to the client will be received.
[29]Waiver may be expressed or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
(emphasis added) (citations omitted).
8It is well established that a person may waive legal professional privilege by putting their state of mind in issue in proceedings. As the Full Court of the Federal Court of Australia explained in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 (at [67]), whilst privilege would not be waived in circumstances where a person merely discloses the fact they have received legal advice, a waiver may potentially be effected where that person:
… puts the contents of the legal advice in issue by specifically relying on the contents of that advice (and not merely the fact of the advice) to vindicate [their claimed state of mind].
9The Full Court went on to say (at [68]):
The question is whether, by his particulars, the Commissioner made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege.
10In Australian Agricultural Company Ltd v AMP Lift Ltd [2006] FCA 371 (at [34]), Cowdroy J summarised the principle in this way:
In my opinion, in order to waive privilege a party must assert a belief which is likely to have been, or is explicitly said to have been, materially dependent upon legal advice given to that party. In that case the proof or otherwise of belief is dependent upon the legal advice and accordingly privilege is waived. This is the position in cases where the dispute relates to a party’s understanding of its legal position at a given point in time, such as Thomason, Rio Tinto, Ampolex and Fort Dodge.
102I respectfully agree with and adopt her Honour’s summary.
Discussions
103I have considered the submissions carefully. I am not persuaded the husband’s evidence gives rise to a waiver, other than to the exception where the husband concedes there has been an express waiver.
104The husband has given evidence confirming his instructions to his solicitors to engage surveillance of the wife, and his solicitor’s advice of the names of the inquiry agents and dates upon which they conducted surveillance. He has disclosed the surveillance reports. His evidence is limited to those matters, and does not go beyond that. In those circumstances, I do not consider the husband’s evidence constitutes an implied waiver of all other communications, between himself and his solicitor, on the topic.
105I accept the husband’s evidence, in deposing the instructions he gave to his solicitors to arrange surveillance, in the paragraphs set out in the schedule attached to the husband’s submissions, is inconsistent with the maintenance of confidentiality. The husband has, appropriately, conceded there has been an express waiver of those communications in writing, between him and his solicitor, to the extent the communications relate to the subject matter referred to in those paragraphs. I am not satisfied the husband has otherwise put his state of mind in issue.
106As indicated during the hearing, I will distribute these Reasons from chambers, to allow the parties time to confer and ideally agree on the form of the orders, to give effect to the Reasons.
107I also request the parties confer as to the further procedural orders required, with respect to the wife’s request for an extension of time in which to file and serve her trial material,[78] listing the husband’s application for further interim orders, the associated matters following from the husband’s successful appeal and the progress of the substantive proceedings to trial.
[78] Paragraph 5 of the wife’s application in a case filed 9 September 2021.
Orders
1.The proceedings be listed before Tyson J on Friday 4 February 2022 at 9:30am, with all parties to appear by telephone.
2.By no later than 4pm on 3 February 2022 the parties are to file a consolidated joint minute setting out:
(a)the agreed orders to give effect to these Reasons;
(b)the agreed procedural orders; and
(c)any orders which are not agreed, with the minute to identify what orders are sought by which party.
3.In the event there is agreement as to the form of orders, the parties have liberty to file a joint minute to be referred to Tyson J in chambers, including to vacate the listing on 4 February 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
28 JANUARY 2022
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