PENCIOUS & SEARLE

[2015] FamCA 608

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE [2015] FamCA 608

FAMILY LAW – PRACTICE AND PROCEDURE – INJUCTION – Oral application by the husband to restrain counsel for the wife from acting on her behalf – where the husband alleges breach of confidentiality by counsel for the wife but also seeks to rely upon evidence denying the validity of that alleged confidential information – no basis for the husband’s application – application to restrain counsel for the wife from acting on her behalf dismissed.

APPLICANT: Mr Pencious

RESPONDENT: Ms Searle

FILE NUMBER: MLC 11069 of 2008

DATE DELIVERED: 22 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 22 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Guthry

SOLICITOR FOR THE APPLICANT: Tasiopoulos Lambros & Co

THE RESPONDENT: In person

Orders

1. The husband’s oral application seeking an injunction restraining Mr Woods of Counsel from appearing on behalf of the wife be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle 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 MELBOURNE

FILE NUMBER: MLC 11069 of 2008

Mr Pencious

Applicant

And

Ms Searle

Respondent

REASONS FOR JUDGMENT

1. This matter was first listed for hearing in the Judicial Duty List on 5 May 2015. The proceedings before the Court on that date were the husband’s Application in a Case filed 24 March 2015 in which he sought orders for a stay of the orders of Cronin J made 5 April 2012 and orders with respect to the assessment of costs pursuant to those orders. The order for costs made by Cronin J on 5 April 2012 was the subject of proceedings before Strickland J in the Appeals Division of the Court which also include the husband’s Application in an Appeal in which he is seeking an extension of time to appeal against the order made by Cronin J on 5 April 2012. It is that order that is the subject of the husband’s Application in a Case filed 24 March 2014. As referred to in my reasons delivered this day neither party opposed the adjournment of the husband’s Application in a Case pending the hearing before Strickland J the following day.

2. The husband’s Applications in an Appeal have now been heard by Strickland J and judgment has been reserved. Although the husband now seeks to proceed with his Application in a Case filed 24 March 2014, in my view the hearing of his application should await Strickland J’s decision as it relates to the orders the subject of those proceedings. It is the wife’s case that the husband’s Application in a Case should be dismissed as an abuse of process.

3. At the commencement of the proceedings before me on 5 May 2015 the husband made an oral application to have Mr Woods of Counsel, who appeared on behalf of the wife that day, restrained from appearing on behalf of the wife. In support of that application he sought the release of a letter produced pursuant to the subpoena to the wife which he said was relevant to his application to restrain Mr Woods from appearing on the wife’s behalf. The letter in question was a letter from the wife’s then solicitors Adrian Abrahams Family Lawyers to Mr Woods. As I said in my reasons delivered this day, I found it difficult to glean the basis of the husband’s case with respect to the apparent relevance of the letter to his application that Mr Woods be restrained from appearing on behalf of the wife. What the husband appeared to be saying at the hearing on 5 May 2015 was that Mr Woods might be a witness in future proceedings and therefore should be restrained from acting. I ultimately found that as there were no proceedings before the Court in relation to which Mr Woods might be required to give evidence, the letter could, on that basis, have no apparent relevance to an issue in dispute and I struck out the subpoena for the production of that letter.

4. I similarly have some difficulty gleaning the basis upon which the husband now submits that Mr Woods should be restrained from acting. He seems to have changed the focus of his case from the possibility of Mr Woods being a witness to the fact that there has been a breach of his confidentiality and that on that basis Mr Woods is privy to information he should not have and should not be acting.  The husband has reiterated his case that the letter in question should be part of the evidence not just with respect to his application to restrain Mr Woods from acting but with respect to his Application in a Case filed 24 March 2014 and his Applications in an Appeal and what he suggests might be criminal proceedings related to the information contained in that letter.

5. What the husband did not articulate was that even if there had been a breach of his confidentiality, how that might be relevant for the purposes of these proceedings and Mr Woods appearing on behalf of the wife in these proceedings. The husband did not direct me to any evidence that would suggest that the wife has at any time relied upon the information contained in the letter in question.

6. It is hard to see how in circumstances where the husband, not Mr Woods, whose client opposed the release of the letter in question for inspection let alone it being part of the evidence in the case, seeks to adduce that evidence also complains, somewhat disingenuously in those circumstances, about the breach of his confidentiality and Mr Woods being privy to the information contained in the letter.

7. It is also the case that whilst the husband may have a legitimate complaint against his solicitors, if they had in fact disclosed confidential information pertaining to the husband to the wife’s solicitors, the husband relies upon the affidavit of Mr DS in which he denies that he said what the husband alleges he may have said in that letter. The husband on the one hand relies upon evidence denying the validity of what has been said and on the other seeks to rely upon the fact that somehow Mr Woods is tainted by that information because it was confidential information. Arguably if Mr DS’s evidence is accepted, there has been no breach of the husband’s confidentiality because the information contained in the letter is not true.

8. Notwithstanding that I had struck out the subpoena, and therefore the letter is not part of the evidence before me, on the husband’s case the letter should be in evidence and it would be a miscarriage of justice for it not to be in evidence, not just with respect to this particular aspect of the cases but generally, including with respect to what he says may be a criminal offence, and it follows that any counsel appearing in this matter would be privy to the information contained in the letter. It is difficult to see what complaint the husband could have against Mr Woods or how any injustice could be done to the husband in those circumstances if Mr Woods does appear on behalf of the wife. If his complaint is that Mr Woods is privy to that confidential information, on that basis any counsel appearing on behalf of the wife who reads the contents of that letter upon which the husband seeks to rely will be similarly tainted.

9. Even if the letter in question were part of the evidence, and the information contained in the letter were true, the husband has not demonstrated how he would suffer an injustice if Mr Woods were to act on the wife’s behalf because he may have read the letter in question.  Counsel for the wife submitted that the way in which the husband now purports to put his case demonstrates his lack of bona fides. I tend to agree. In my view the husband has not demonstrated any reason why the Court should restrain Mr Woods from appearing on behalf of the wife and I propose to dismiss the husband’s oral application.

I certify that he preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 22 May 2015.

Associate: 

Date: 10 July 2015