PICKARD and BROWN-JONES
[2014] FCWA 12
•21 FEBRUARY 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: PICKARD and BROWN-JONES [2014] FCWA 12
CORAM: MONCRIEFF J
HEARD: 20 JANUARY 2014
DELIVERED : 21 FEBRUARY 2014
FILE NO/S: PTW 7065 of 2006
BETWEEN: PICKARD
Applicant Husband
AND
BROWN-JONES
Respondent Wife
Catchwords:
PRACTICE AND PROCEDURE - conflict of interest claimed - party represented by spouse legal practitioner - no actual conflict but potential for conflict - standard by which such conduct should be measured - injunction restraining practitioner from acting
Legislation:
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr M Supljeglav
Respondent: Dr A Dickey QC
Solicitors:
Applicant: DS Family Law
Respondent: Solicitors for the Respondent
Case(s) referred to in judgment(s):
Coppola & Anor v Nobile & Anor [2012] SASC 42
Holborow & Ors v Macdonald Rudder [2002] WASC 265
McGilvray & Mitchell (1998) FLC 92-818
Mitchell v Burell [2008] NSWSC 772
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
1The court is required to determine an application filed by [Mr Pickard] by way of an amended form 2 application in a case filed on 13 November 2013 wherein he seeks an order:
2.[Mr Jones] be restrained from acting for the Applicant in this matter.
2The original application was that filed by Mr Pickard in person on 18 September 2013 wherein he sought orders:
1.I seek an order that rules that there is a considerable “conflict of interest” occurring as for sometime [Mr Brown-Jones], a Lawyer specialising in Family Law, is representing his client [Mrs Brown-Jones] who he is married to. She also works part-time in his Legal Practice. In my affidavit of 12 September 2013 I attach a letter of 9 September 2013 that details the conflict of interest. [Mr Brown-Jones] will be asked to provide an affidavit in my settlement case. I ask that all of Lawyer [Mr Brown-Jones] actions, resources and subsequent consequences be taken into account and that he not be allowed to represent the wife/client/part-time employee. [sic]
3The supporting affidavit filed by Mr Pickard effectively serves only to annex the letter recited in the original unamended form 2 application.
4Mr Pickard writes as follows:
Dear Sir,
Family Court of WA PTW 7065/2006 [Brown-Jones]
Legal Profession Conduct - Conflict of Interest
In response to the conflict of interest issue discussed at the Readiness Hearing with Principal Registrar D. Monaghan on 5 September 2013. I bring to your attention that the Legal Profession Conduct Rules 2010 Part 6- Advocacy and Litigation 33 (2) states;
‘A practitioner must not act as counsel for a client in a matter; if it would be difficult for the practitioner to maintain professional independence because of the connection with the client.’
Also the Legal Profession Conduct Rules, Part 5- General Conduct of Practice 16 Maintaining Professional Integrity 1) states;
‘A practitioner must not attempt to further a client's matter by unfair or dishonest means.’
You first represented your wife/client/part-time employee in the Family Court hearing of 30 August 2012.
·In my Final Offer letter of 24 October 2012 (last paragraph), I stated; ‘By representing your current wife in proceedings against her ex-husband there could well be a conflict of interest.’
·In my Form 1A Final Orders filed with the Family Court on 26 October 2012 I asked ‘that all of the actions/resources of [Mr Brown-Jones] be taken into consideration.’
·In my Offer Not Accepted letter of 20 December 2012 point 25, I stated ‘As a lawyer, specialising in Family Law, [Mr Brown-Jones] I seek a thorough explanation to all your involvement in the above matters.’
Many of my letters have questioned your involvement in the many matters which we are in dispute over, including;
1.All CSA issues which have resulted in your wife/client/part-time employee ([working for Company X]) having an income of just over $6,000 for a few years whilst I pay 100% Child Support.
2.Your wife/client/part-time employee's earning capacity.
3.Your wife/client's financial and property resources.
4.Your incorrect/incomplete name on an Affidavit.
5.Your ‘Tenants in Common’ agreement against our pre-nuptial agreement.
I have questioned your involvement in all matters, as it would appear your wife/client has manipulated her earning capacity and financial/property resources to reduce her asset value and obtain maximum benefit from any settlement. Yet you have continued to represent her.
There is a major conflict of interest for the following reasons;
a) You have been married to your wife/client/part-time employee since April 2007.
b) Not only are you representing your wife but she is also a part-time employee at your Law Firm.
c) You will benefit directly and indirectly from any financial gain your wife/client/part-time employee receives from any settlement.
d) As a Lawyer who specialises in Family Law, you are in a unique position to ensure your wife/client and ultimately you personally benefit from any settlement.
e) You are in a privileged position able to put in place strategies to obtain maximum benefit from the situation.
f) In your document dated 27 November 2012 Re-‘Notification of Costs’ it can be seen how you and your wife/client would benefit from legal costs for work you carry out yourselves.
I question whether you have treated your wife/client/part-time employee as you would treat any other client who comes to your Legal Practice for representation. I understand you normally require clients to put monies into a trust account to cover your Legal costs.
I also question your wife/client/part-time employee's role in your Legal Practice and her involvement in this case against myself whilst you represent her.
When this matter proceeds to Court I will ask that you supply an affidavit regarding all matters and ask the Court to take into consideration your Legal Status and involvement.
I will also ask that the Legal Practice Board of W.A. review this Court case and consider all of your actions and involvement.
I ask you now to explain why you decided to represent your wife/client/part-time employee and continue to represent her despite my letters. I believe a significant 'conflict of interest' has been occurring for a long time.
I ask that you now indicate whether you want to accept my Final Offer of 19 December 2012. However, should we now proceed with paid valuations I will change this Final Offer to include the costs I incur.
Yours faithfully,
[Mr Pickard]
5[Ms Brown-Jones] opposes the application.
Background
6The parties separated on 18 October 2003. In November 2006 Ms Brown-Jones and Mr Jones became engaged to marry.
7On 15 January 2007 Ms Brown-Jones applied for a settlement of property to which Mr Pickard responded in February 2007.
8Following the divorce of the parties, Ms Brown-Jones and Mr Jones were married [in] 2007.
9Ms Brown-Jones was originally represented by solicitor [Ms P] of [Law Firm A]. Ms P subsequently moved within her employment from Law Firm A to [Law Firm B] who then represented Ms Brown-Jones until February 2008. Thereafter, she engaged [Law Firm C] and continued to instruct them to act until 9 August 2012.
10Mr Jones filed a notice of address for service on 31 August 2012.
11Although not entirely clear from the material filed by Ms Brown-Jones in response to the application, it appears that Ms P continues in employment now with Mr Jones, albeit on a part-time basis. To that extent there is some continuity in her legal representation, however it is clear that Mr Jones has filed in his own name a notice of address for service and has prepared documents for the wife, in addition to appearing as counsel for her.
12For short periods Ms Brown-Jones has been self represented.
13Mr Pickard has, for significant periods, been self represented and more recently has instructed DS Family Law.
14Mr Pickard first raised the issue of “conflict of interest” in correspondence from him to Mr Jones on 24 October 2012. He did not file an application addressing the issue until some nearly 11 months later.
15In support of his amended application Mr Pickard filed an affidavit on 13 November 2013. He deposes:
14.In a letter from me to [Mr Jones] dated 24 October 2012 I first raised the issue of him having a possible conflict of interest in representing the Applicant, who is also his wife and part-time employee. Annexed hereto and marked “A” is a true copy of that letter.
15.Through correspondence I thereafter regularly questioned [Mr Jones’] involvement in the Applicant’s matter with respect to the Applicant’s earning capacity, property and financial resources and child support issues. I also questioned whether the Applicant had undertaken any unpaid work for him or whether she had provided him with any money, directly or indirectly. [Mr Jones] did not respond to the conflict issue raised by me and provided me with no advice regarding whether the Applicant has undertaken any unpaid work for him or provided him with any money directly or indirectly.
16Although Mr Pickard asserts that Mr Jones did not respond to the conflict issue raised by him, quite clearly, and by implication, Mr Jones does not accept that there is a conflict as he has continued to act for Ms Brown-Jones. Further, given the notice to Mr Jones about the issue of potential conflict very soon after Mr Pickard became aware of his acting, I am not satisfied that there is any issue of delay that would prejudice the application.
17The totality of the evidence filed by Mr Pickard in support of his application for the injunction is that contained in paragraphs 31 to 33 of his affidavit under the heading [“Mr Jones’ Financial Circumstances Centrally Relevant”]:
31.In a letter to [Mr Jones] dated 7 October 2012 I first requested that he disclose his financial circumstances. Annexed hereto and marked "F" is a true copy of that letter (without attachments). I note that pursuant to Annexure E herein I was advised that the Applicant and [Mr Jones] would "shortly" provide full disclosure. It is apparent that the Applicant's disclosure list was created on 10 May 2013, some 7 months after my first request for the same.
32.In a letter to [Mr Jones] dated 22 April 2013 I advised him that his financial circumstances would be taken into account in these proceedings pursuant to section 75(m) Family Law Act 1975, Annexed hereto and marked "G" is a true copy of that letter (without attachments). In a letter from DS Family Law to [Mr Jones] dated 4 November 2013 my solicitors put [Mr Jones] on notice that he would be required to give evidence at the Trial in this matter. Annexed hereto and marked "H" is a true copy of that letter.
33.In a letter to me dated 22 May 2013 [Mr Jones] declined to disclose his investments, superannuation interests and his will as requested. Annexed hereto and marked "I" is a true copy of that letter.
18I also set out the annexures referred to therein.
Annexure F
7 October 2012
Dear Sir,
RE:Family Court Of WA PTW 7065/2006 [Brown-Jones & Pickard]
Further to your letter of 3 September 2012 please find attached as requested my superannuation details.
As you have been married to Mrs. [Brown-Jones] for over 5 years I request you supply full disclosure of both your personal and business financial tax returns, interests and investments since the onset of your relationship, including any bank, trusts, shares and property. I request copies of your latest superannuation statements, along with a list of your superannuation beneficiaries and a copy of your current will.
Attached is a letter dated 16 March 2012 in which I asked both you and Mrs. [Brown-Jones] [sic] respond to. To date there has been no reply from either of you. I ask you both again to respond to this letter.
I again ask your client to respond to all outstanding letters regarding the pre-nuptial agreement dating back to late 2006.
Further to your clients letter of 26 August 2012 I cannot find any documents relating to your clients [Suburb A] property settlement details.
I look forward to your response.
Yours faithfully,
[Mr Pickard]
Annexure G
22 April 2013
Dear Sir,
Re: Family Court Of W.A. PTW7065/2006, [Brown-Jones & Pickard]
[Brown-Jones] Affidavit Filed On 26 March 2012
I bring to your attention relevant pages of your client/wife/part time-employee Mrs [Brown-Jones’] attached Affidavit, filed on the 26 March 2012, where on page (2) Part D Evidence point 2 she states ‘my husband, [Mr Jones].’ Also attached you will find a ‘Certified Practitioners’ print out dated 9/16/2011, from the Legal Practitioners Board of W.A., that lists you as [Mr Brown-Jones]. This indicates that you have changed your name some time ago to include your client's maiden name but without a hyphen as in her surname.
It would be reasonable for your wife/client to know her husband/Lawyer's correct surname. I ask you both now to explain the reason for this discrepancy. I ask you to declare all of your investments made under your new name. Attached is my letter of 7 October 2012 in which I have already asked for your full financial disclosure, but there has been no response.
In this Affidavit of 26 March 2012 page (5) point 22 your wife/client/part time-employee states ‘I am a qualified [employee].’ Yet she resigned from her well paid position with [Company X] at the end of December 2007. This lowered her taxable income considerably whilst having time to ‘rest and reflect.’ She now studies part time whilst working for you part time, thereby making me responsible for most of [T’s] CSA welfare since her resignation.
Pursuant to section 75(2)(m) of the Family Law Act 1975 the new partner's financial circumstances will be taken into account. I have written to you several times regarding your finances.
If this proceeds to Court I will be asking that both you and your wife/client/part-time employee's financial actions be considered along with all investments you have made since your marriage. As a Registered Lawyer with the Legal Practitioners Board of W.A, specialising in Family Law, I question your involvement in this Affidavit discrepancy along with all other financial matters.
Yours sincerely,
[Mr Pickard].
Annexure H
4 November 2013
Dear [Mr Jones]
[Pickard & Brown-Jones]. – PTW 7065/2006
We refer to your email to us dated 22 October 2013 with the attached correspondence and responding documents.
We thank you for amending the letter of appointment to the Single Expert, Mr Scott Grundmann, to provide that we now act for our client. We confirm that we have now countersigned that letter, a copy of which is enclosed, and forwarded it to Mr Grundmann for his attention.
We make the following observations with respect to your client's disclosure documents:
1.Your client has not disclosed a single tax return and we seek that she do so forthwith. We also seek copies of her tax returns for the years ending 30 June 2012 and 30 June 2013.
2.We note that disclosure of some bank and credit card accounts is ad hoc in nature and enquire as to the reason for the same when this matter has been ongoing for many years. We therefore seek disclosure from your client of complete sets of bank and credit card statements for accounts still operated by her for at least the past 3 years.
3.We note that there is no disclosure relating to your client's course of study and seek that she forthwith disclose receipts for university fees, information relating to her course load and results.
4.Please disclose your client's trust and general ledgers and all documentation relating to her employment with you inclusive of any employment contracts and remuneration advice and/or payslips.
5.It is notable that your [Mr Jones] likewise has not disclosed a single tax return and again the disclosure of statements for bank and credit card accounts is ad hoc at best. We therefore seek that this likewise be rectified forthwith.
We would be grateful if you would provide us with a quote for your photocopying charge for the whole of your client's disclosure.
With respect to our client's application to restrain your [Mr Jones] from acting for your client we make the following observations:
1.Your [Mr Jones] is married to your client and will be required to give evidence in support of your client's application on the basis that he is her spouse and it is wholly relevant to the consideration of section 75(2) factors. We hereby put you on notice that in the event your [Mr Jones] did not propose to file an affidavit for Trial in support your client's case, we would in any event subpoena him to give evidence at Trial. Pursuant to Rule 42 of the Legal Professional Conduct Rules, "A practitioner cannot continue acting for a client in the event it becomes apparent that he is required to given evidence centrally material to the determination of contested issues before the Court".
2.In addition, the authorities make it clear that the practitioner's duty to the Court is an overriding duty, per Mason J [sic] in Giannarelli v Ray 1988 [HSCA52]. Given the relationship between your [Mr Jones'] and your client, he may place his duty to your client above the duty he owes to the Court. The duty he owes to your client likewise might suffer from a lack of objectivity, independence and calm rationality. A lack of such focus and objectivity gives rise to the possibility that the integrity of the justice system could be undermined, Bosgard & Bosgard [2013] FamCA 308 (8 May 2013).
3.Your client has also properly identified at paragraph 23 of her Affidavit that your [Mr Jones] will have an interest in the outcome of the proceedings as he will benefit from any property adjustment made in favour of your client. This again is a clear conflict of interest.
4.In the Bosgard decision above, the solicitor was the Husband's de facto partner and was restrained from further acting for the Husband on the basis that there were a number of conflicts between her interests and the obligations she had to the Court. In that case the Application had been brought in a timely fashion and alternate arrangements could be made for the Husband's representation. In the view of the writer, your client could easily make arrangements for alternative representation. She is no more financially disadvantaged than our client in paying for legal representation.
We make the above submissions in an effort to reduce any further litigation costs with respect to our client's application. We hereby put you on notice, that in the event our client is put to the cost of filing further documents and arguing this matter on 20 January 2014 we will seek his costs from your client on an indemnity basis and we will rely upon this letter in support of an application for costs.
We look forward to hearing from you.
Yours faithfully
HELEN MILLS
28 October 2013
Dear Sir
Re:Family Court of WA - PTW 7065/2006
[Brown-Jones & Pickard]
Valuation of [Property A]; [Property B] and [Property C]
We write to you by way of joint instructions to undertake valuations of the above 3 real properties in which the parties have an interest.
[Mr Jones] of [Law Firm C] & Mediator acts on behalf of the Applicant Ms Helen Mills of DS Family Law acts for the Respondent.
The parties have agreed to appoint a single expert witness, and the Court has so ordered, to value the properties.
1.Joint Instructions
1.1The parties jointly instruct you to carry out valuations of the properties set out in Schedule 1 of this letter.
1.2The parties specifically require that you receive all instructions in writing from both parties pertaining to the preparation of your report. In this respect, we provide you with the following specific instructions:
You are to comply with the requirements of the Australian Property Institute's Australian and New Zealand Valuation and Property Standards Manual and fully describe the features of the properties used as comparative sales and make specific reference to whether the comparative sales used in the report are "superior" or inferior" to the subject property.
1.3The parties require you to act only on instructions pertaining to the preparation of your report received in writing and which have been jointly endorsed by the legal representatives of the parties.
1.4Any other instructions received must be notified to both parties' lawyers in writing within 2 days of receipt.
1.5The parties require you to have no other dealings with the parties that are not in writing and which have not been jointly endorsed, other than in respect to administrative matters that do not materially affect the outcome of your report. Administrative matters include but are not limited to the provision updates as to the progress of your report and its likely completion date.
1.6Please inform jointly as to any other information you require to enable the valuations to occur.
2.Compliance with Rules relating to single expert reports
2.1The matter is presently before the Family Court of Western Australia and the parties require your valuation to comply with the provisions of the Family Law Rules 2004.
2.2We are obliged to provide you with a copy of and attach for your consideration Part 15.5 of the Family Law Rules 2004. This document sets out the rights and obligations of the expert witness under the relevant rules. [The document to you in Schedule 2 of the e-mail copy of this letter],
3.Release of the Report to both parties
3.1A copy of each of the valuation reports is required to be provided to the legal representatives of each party.
3.2Your completed Report may be used as evidence in the case and you may be required to attend Court and give all evidence in relation to the contents of your Report.
4.Payment of expert witness fee
4.1We refer to your emailed quote dated 15 August 2013, a copy of which is attached. The parties accept this fee for payment of the report.
4.2The parties will be equally responsible for the payment of your fees in accordance with the Rules and orders made by the Family Court of Western Australia.
4.3Please render an invoice to both parties' lawyers.
5.Timing of Report
5.1The parties require your report as soon as practicable. The matter is listed for a further Hearing on 8 November 2013 and we seek the report prior to the aforesaid date.
6.[Property A]
The parties require you to value the property inclusive of the value of extensions currently under construction and for this purpose enclose copies of:
a)home building works contract agreement and appendices dated 24 April 2013;
b)City of [P] approved plans sheets 1 to 6 dated 12 June 2013;
c)City of [P] building permit dated 16 July 2013;
Should you require any further information, please do not hesitate to contact the undersigned in writing.
Yours faithfully
[Mr Jones] DS Family Law
Lawyer & Mediator attention: Helen Mills
Level 4, Mint House
326 Hay StreetPERTH WA 6000
Phone (08) 9486 1766
Schedule 1.
[Brown-Jones & Pickard] - property to be valued
| Owners | Description |
| [Mr Jones] and [Ms Brown-Jones] | Dwelling house and land located at [Property A] |
| [Mr Pickard] | Dwelling house and land located at [Property B] |
| [Mr Pickard] | Dwelling house and land located at [Property C] |
Annexure I
22 May 2013
Dear Sir
Re:Family Court of WA PTW 7065/2006
[Brown-Jones & Pickard] -- Chattels – "Household Contents"
I acknowledge receipt of your letter dated 7 May 2013.
My client has by my letter of 14 May 2013 returned to you the audio tape of your deceased mother.
With reference to your request for a video of your deceased mother, I repeat the response in my letter of 18 April 2013.
With reference to your request that my client "now explain why she has made no mention of these important details", as set out in your paragraphs numbered 1) to 5) with respect to contributions to real property, these are issues for my client's evidence at trial.
With reference to your paragraph numbered 1), and in response to your letter of 14 December 2012:
a.I repeat my letter of 16 October 2013 with respect to the issues which you raise under "Tenants in Common Agreement", Including the document headed "Pre-Nuptial Agreement";
b.my client's disclosure of documents and evidence at trial will address the first issue you raise under "Financial Matters" i.e. disbursements of my client's investments post separation;
c.with reference to the second issue you raise under "Financial Matters" i.e. disclosure of my client's present husband's "investments, superannuation and will", as requested by your letter 7 October 2012, disclosure is declined on the ground that my client's disclosure of documents will fully evidence the financial circumstances relating to her co-habitation and the documents you request are not relevant.
With reference to your second paragraph numbered 5), with respect to $4000 contributed to my client's [motor vehicle], I repeat the response in my letter dated 14 May 2013.
I refer to my letter of 24 December 2012 and repeat my request for your disclosure of all documents referred to in the Court's brochure Duty of Disclosure in Family Law Cases and, in particular, those set out in Annexure A to my letter.
[Mr Jones]
Lawyer & Mediator
19From the annexures it can be observed that Mr Pickard has sought detailed information about Mr Jones’ financial circumstances and it would appear, has also sought disclosure directly from Mr Jones who is not a party to the proceedings. Notably, Mr Pickard had requested to require Mr Jones to supply disclosure of his personal and business financial tax returns, interests and investments since the onset of his relationship with Ms Brown-Jones, together with the superannuation details and a copy of his current will.
20It would appear that the procedure for obtaining third party documents, as prescribed in the Family Law Rules 2004 (“the Rules”), has been ignored.
21As seen in the correspondence from Ms Mills and the reference to rule 42 of the Legal Profession Conduct Rules 2010 (“the LPC Rules”), “notice” is given that in the event that Mr Jones did not propose to file an affidavit. He would then be required to attend to give evidence under the compulsion of a subpoena.
22I consider the correspondence to be bullying and inappropriate as the relevance of Mr Jones’ financial relationship with Ms Brown-Jones is yet to be ascertained and whilst it is a factor to which the court must have regard pursuant to s 75(2)(m) of the Family Law Act 1975 (Cth) (“the Act”) it could hardly be described as centrally relevant.
23Further, the “threat”, absent what appears to be any proper determination of the relevance of the financial relationship between Mr Jones and Ms Brown-Jones, could only be seen as self serving.
24Detailed submissions were filed on behalf of Mr Pickard. Relevantly, they identify that “Mr Jones is legally married to the Applicant and the potential implications [my emphasis] of that relationship with the context of the parties Family Court (property settlement) proceedings”.
25The submissions relevantly referred to the judgment of Heenan J in Holborow & Ors v Macdonald Rudder [2002] WASC 265, where his Honour observed, [at 28]:
If there are circumstances which are likely to imperil the discharge of [the practitioner’s] 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.
26His Honour made these remarks in the context of a consideration of the potential conflict between a solicitor’s obligation to his or her client and their duty to the court.
27Mr Pickard’s counsel further submits:
17.The parties agree that [Mr Jones] and the Applicant have several different and intermingled financial relationships.
Employment
18.The Applicant is employed by [Mr Jones] a part-time basis in his law practice.
19.The Respondent has requested information from [Mr Jones] as to income the Applicant receives from such employment and whether work is conducted on a paid on unpaid basis. He deposes to having received no reply to these inquiries from the Applicant or [Mr Jones]. The issue of the income actually received by the Applicant from such employment is an issue in dispute between the parties.
20.Also in dispute is the extent of financial support [Mr Jones] affords the Applicant. The Applicant deposes to having ceased full-time employment and is relying (to some extent) on [Mr Jones'] income for her ongoing support.
Ownership of property
21.The Applicant and [Mr Jones] are joint owners (as tenants in common) of [Property A]. In July 2010, the Applicant sold the property at [Property D], which she owned in her sole name. She paid the net proceeds into a redraw facility held in the joint names of the Applicant and [Mr Jones], secured against the shared property. The question of the manner in which the shared property must be assessed and treated given said payment will potentially be a live issue for Trial.
22.The Applicant has accordingly intermingled funds the subject of a potential property settlement between the Applicant and Respondent with marital assets held by the Applicant and [Mr Jones].
Lien for Legal Fees
23.The Applicant has given evidence to the effect that she is not required to pay her outstanding account for legal fees pending a final outcome in her proceedings with the Applicant. She had unpaid legal fees of $16,617 as at October 2013.
24.The Applicant refers at length to the provisions of the Costs Agreement between her and [Mr Jones] however has not disclosed the same. The Applicant has not disclosed her Trust and General Ledgers with [Mr Jones] notwithstanding a request that she do so.
25.It is submitted that in circumstances where the Applicant is a debtor of [Mr Jones], and further given the extent to which there has been an intermingling of the assets (in which [Mr Jones] has a legal interest and the Respondent may have a beneficial interest), [Mr Jones'] continued involvement could well conflict with his duty as advisor to the Applicant and perhaps impede his ability to act independently in the matter and fulfill his obligation to the Court.
28The balance of submissions made by Mr Pickard that are relevant are those in paragraphs 41 to 48 of the submissions as follows:
41.The Respondent intends to call [Mr Jones] as a witness and has notified him of such in correspondence dated 4 November 2013.
42.A practitioner must not act for a client in the hearing of a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence centrally material to the determination of contested issues before the court.
43.The Applicant has suggested that the evidence [Mr Jones] may be expected to provide a Trial would not be "centrally material" to the determination of property matters between the Applicant and the Respondent.
44.In relation to this issue, the Applicant has deposed that:
a)[Mr Jones] has advised her that he is unable to give evidence with respect to the Binding Financial Agreement in existence between the Applicant and the Respondent, those matters having arisen prior to his engagement as her solicitor;
b)At Trial, information as to the assets of the Applicant and [Mr Jones] will not be "centrally material since they are relatively small" and the Applicant has kept her personal assets and liabilities "largely" separate from [Mr Jones].
c)[Mr Jones] has advised that whilst the Applicant receives income from [Mr Jones], the Court may "adequately determine" a dispute as to such income by reference to documents she has disclosed (as opposed to evidence from [Mr Jones]);
d)[Mr Jones] has advised that whilst he may be subpoenaed to give evidence at a Trial between the Applicant and Respondent, the Court may "adequately determine" a dispute regarding [Mr Jones'] income by reference to documents he has disclosed (as opposed to evidence from [Mr Jones]);
e)There is "no significant evidence" [Mr Jones] can give regarding the Applicant's income in his capacity as her employer;
f)There is "no significant evidence" [Mr Jones] can give regarding the Applicant's financial resources and property in his capacity as her husband;
45.It is submitted that the income the Applicant receives from [Mr Jones]; [Mr Jones'] income and the extent of the assets and financial resources jointly held by them appear, at this interim stage, to be issues central to a determination of property matters at Trial; and that provision of disclosure documents will in all likelihood not be sufficient to resolve the current dispute in relation to question of the parties' respective incomes. The issue of income is relevant to an assessment of the Applicant's future needs and accordingly the overall outcome of the substantive property settlement proceedings.
46.Additionally, it is submitted that an opportunity to cross-examine is essential in order to test a party's evidence and credibility at Trial.
47.It is further submitted, however, that it is not for the parties or [Mr Jones] to determine at an interim stage (or at all) which aspects of the dispute are or will become "centrally material"; and that this is a matter for determination by the Court upon presentation of relevant evidence.
48.The Applicant has suggested that [Mr Jones'] should continue to act on her behalf until the commencement of a Trial. It is submitted that if the proceedings advanced to the final hearing stage the prejudice caused to the Applicant by [Mr Jones'] withdrawal at that stage would be greater.
29Ms Brown-Jones was represented at the hearing before me on the application by one of Her Majesty’s counsel, Dr Dickey.
30Dr Dickey QC submitted:
There is no rule that a spouse cannot act as a lawyer for his or her partner. There must be more involved to warrant interference of the court for example:
·Clear prospect of an inability by the lawyer’s spouse to exercise objective, rational or independent judgment;
·A likelihood of the lawyer placing the partner’s interest above the duty owed to the court;
·The lawyer having a pecuniary interest in the outcome.
31Dr Dickey QC quite properly indicated that whilst a potential may exist for such a conflict, there is no evidence that suggests there is presently such conflict.
32Dr Dickey QC also raised in argument the question of delay in the issue having been raised before the court given at least the implied refusal to accept the existence of a conflict by Mr Jones, referring to the observations of the Full Court of the Family Court of Australia in McGilvray & Mitchell (1998) FLC 92-818, however, for the reasons given above, I do not find that the delay in making the application caused any prejudice and therefore the question of delay is not relevant.
33During the course of argument my attention was drawn to the relevant LPC Rules, in particular rules 15, 32 and 42 which provide as follows:
15.Conflicts concerning practitioner’s own interests
(1)In this rule —
substantial benefit means a benefit which has a substantial value relative to the financial resources and assets of the person intending to bestow the benefit.
(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.
(4)Subrule (3) does not apply if the client —
(a)is fully informed of the conflict of interests; and
(b)has received independent written legal advice about the effect of the conflict; and
(c)agrees to the practitioner providing the legal services.
(5)Nothing in this rule prevents a practitioner —
(a)drawing a will appointing the practitioner or an affiliate of the practitioner as executor, if the practitioner informs the client in writing before the client signs the will —
(i)of any entitlement of the practitioner or the affiliate to claim executor’s commission; and
(ii)of the inclusion in the will of any provision entitling the practitioner or the affiliate to charge legal costs in relation to the administration of the estate; and
(iii)if the practitioner or the affiliate has an entitlement to claim executor’s commission, that the client could appoint as executor a person who might make no claim for executor’s commission;
or
(b)if the client is an affiliate of the practitioner, drawing a will or other instrument under which the practitioner or an affiliate of the practitioner will or may receive a substantial benefit other than a proper entitlement to executor’s commission or legal costs.
(6)Subject to subrule (7A), a practitioner must not borrow money or assist an affiliate of the practitioner to borrow money from —
(a)a client of the practitioner or of the practitioner’s law practice; or
(b)a former client of the practitioner or of the practitioner’s law practice who has indicated a continuing reliance upon the advice of the practitioner or of the practitioner’s law practice in relation to the investment of money.
(7)A practitioner must not become a surety or guarantor for a client.
32.Independence
(1)A practitioner engaged to represent a client in a matter that is before a court must exercise the judgment called for during the hearing of the matter independently, after giving appropriate consideration to the wishes of the client and any instructing practitioner.
(2)A practitioner must —
(a)confine the hearing of a matter to issues which the practitioner believes to be the real issues; and
(b)present the client’s case as quickly and simply as is consistent with its robust advancement; and
(c)if the practitioner is aware of any persuasive authority that the practitioner reasonably believes might be against the client’s case, inform the court of that authority.
(3)During the hearing of a matter, a practitioner must not make submissions or express views to a court on any material evidence or material issue relevant to the matter in terms which convey, or appear to convey, the practitioner’s personal opinion on the merits of that evidence or issue, unless required to do so by law or by a court.
42.Practitioner as material witness in client’s case
(1)A practitioner must not act for a client in the hearing of a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence centrally material to the determination of contested issues before the court.
(2)In the circumstances provided for in subrule (1) an associate of the practitioner’s law practice may act for the client if —
(a)in the practitioner’s reasonable opinion there are exceptional circumstances that justify the associate acting; and
(b)the client, having been given an opportunity to obtain independent legal advice concerning the issue, consents to the associate acting.
34It is of course for this court to make its own assessment as to whether or not there is a conflict whether by reference to the LPC Rules or otherwise. To that extent, the LPC Rules are of significant assistance to the court as they represent a code to which every practitioner appearing before the court must necessarily subscribe, and, further, they reflect the legal profession’s own representations as to what expectations the community may reasonably hold.
35Whilst Dr Dickey QC is correct to submit that there is no “rule” that precludes a spouse from acting, he agreed with the proposition put by me that experience at the Senior Bar would suggest that is not a view shared by the statutory body charged with oversight of the legal profession. Whilst again the same is not binding upon me, it may represent a measure of what is considered acceptable as a community standard of the appearance of conflict or certainly the potential for a conflict.
36Further, although again not binding as a matter of principle, the position accepted by counsel as being adopted by the Legal Profession Complaints Committee of the Legal Practice Board of Western Australia namely, that such a relationship is likely to be seen as conflictual, would certainly suggest a measure of imprudence in acting for one’s spouse at the very least given the potential for an actual conflict.
37Rule 15(3) of the LPC Rules, which is drawn in mandatory terms, is based on the premise of a potential conflict rather than the existence of an actual conflict. LPC Rule 32 reinforces the necessity for independence of a legal practitioner in his or her conduct as counsel. Although I note that it is suggested on behalf of Ms Brown-Jones that at trial she will be represented by counsel instructed from the Independent Bar, the operation of rule 32 is not limited to final hearings but to any advocacy and whilst there is no suggestion that Mr Jones has acted without independence, again it is a situation I consider where the potential for conflict becomes relevant.
38Rule 42 as seen relates to the requirement of a practitioner giving evidence in a matter that is “centrally material to the determination of contested issues”.
39Notwithstanding the threat advanced on behalf of Mr Pickard by his solicitors, I do not consider the determination by the court of any consideration of s 72(m) in the context of proceedings to be “centrally relevant”. There is, however, little doubt that Mr Jones and Ms Brown-Jones’ financial circumstances have, not unreasonably over some nearly seven years of marriage, become intermingled and it would not be unreasonable to assume that the court may require some evidence from Mr Jones either directly or indirectly about which he may ultimately have to be cross-examined.
40I conclude that such evidence is highly unlikely to be centrally relevant, and I agree with the submission made by Dr Dickey QC that “for the husband’s solicitors simply to state that Mr Jones ‘would be required to give evidence at the trial’ is a vacuous statement”, especially, when neither party has yet filed their affidavits of evidence for trial, nor the matters in issue defined and properly isolated such as to identify why Mr Jones would be required to give evidence.
41Notwithstanding that fact, however, there does remain a more than fanciful prospect that Mr Jones may be required to give evidence.
42In Mitchell v Burell [2008] NSWSC 772 Brereton J observed, at paragraph 3:
The test to be applied is whether a fair minded, reasonably informed member of the public -- a concept substantially equivalent to the reasonably informed lay observer used in the context of applications for disqualification of judicial officers for apprehended bias -- would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in order to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice.
43And further, at paragraph 20, when considering the possibility of the likelihood of the solicitor giving evidence his Honour observed:
... I do not accept that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor from continuing to act.
…
… that the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice -- which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests -- require the lawyer to be restrained from continuing to act.
44His Honour’s judgment was cited with approval by Stanley J in the Supreme Court of South Australia in Coppola & Anor V Nobile & Anor [2012] SASC 42, in particular the application of the test to be applied, namely 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.
45His Honour, as did Brereton J, reaffirmed that the jurisdiction to exclude a practitioner from acting should be exercised with caution.
46I respectfully agree with and adopt the summary on point prepared by Professor G. E. Del Pont at the Faculty of Law in the University of Tasmania writing for LexisNexis where he concludes:
The administration of justice depends, and the court relies on the faithful exercise by lawyers of an independent judgment in conducting and managing litigation. Independence may be lacking where the lawyer has an actual or potential conflict of interest, such as where the lawyer is likely to be called as a witness in a client’s case, or otherwise has an interest (other than professional fees) in the outcome of the case. Independence may also be compromised due to the lawyer’s relationship with the client or a third person.
47It is properly conceded by Dr Dickey QC for Ms Brown-Jones that there is a potential for conflict and whilst I am satisfied that there is no evidence of a current conflict, nor evidence that would suggest that Mr Jones has acted without objectivity or that he has a presently definable interest in the outcome of the proceedings that would create a conflict, the LPC Rules speak clearly of the potential for a conflict and the authorities of perception of such conflict. In the interests of sound practice, the perception thereof and may I observe prudence, the potential is of such a nature as to warrant the ordering of the relief sought.
I certify that the preceding [47] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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