PICKARD & INGLE
[2019] FCCA 2125
•6 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PICKARD & INGLE | [2019] FCCA 2125 |
| Catchwords: HELD – Application seeking to restrain solicitors from acting be dismissed – waiver found – confidential information held to not be relevant to the property proceedings between the parties. |
| Cases cited: McGillivray & Mitchell [1998] FamCA 96 |
| Applicant: | MR PICKARD |
| Respondent: | MS INGLE |
| File Number: | MLC 2017 of 2016 |
| Judgment of: | Judge Bender |
| Hearing date: | 10 May 2019 |
| Date of Last Submission: | 10 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Johnson |
| Solicitors for the Applicant: | Altona Legal |
| Counsel for the Respondent: | Ms Metherell |
| Solicitors for the Respondent: | L N Christie & Co |
ORDERS
The Application in a Case filed by Mr Pickard on 11 April 2019 be dismissed.
The matter be adjourned to 22 April 2020 at 10.00am for hearing in relation to Mr Pickard’s application there be a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) that a de facto relationship never existed between the Applicant and the Respondent (with an estimated hearing time of 3 days) with priority.
The Applicant file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with rule 15.28 of the Federal Circuit Court Rules 2001 (Cth) by 4.00pm on 25 March 2020.
The Respondent file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with rule 15.28 of the Federal Circuit Court Rules 2001 (Cth) by 4.00pm on 8 April 2020.
Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at the final hearing without the leave of the Court.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012 (Cth).
IT IS NOTED that publication of this judgment under the pseudonym Pickard & Ingle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2017 of 2016
| MR PICKARD |
Applicant
And
| MS INGLE |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment relates to an Application in a Case filed on behalf of Mr Pickard (who, whilst the Respondent in the substantive proceedings, shall be referred to herein as “the Applicant”) on 11 April 2019.
In his Application in a Case the Applicant seeks an order to restrain the law firm L N Christie & Co from acting or continuing to act on behalf of Ms Ingle (the Applicant in the substantive proceedings but hereafter referred to as “the Respondent”) in relation to family law proceedings between them. The Applicant also seeks an order that the Respondent pay the Applicant’s costs in relation to the application.
The Respondent seeks orders that the Application in a Case filed 11 April 2019 be dismissed and the Applicant be responsible for her costs associated with the application. It is argued on behalf of the Respondent that by virtue of the three year delay between the commencement of these proceedings and the raising of the conflict issue, the Applicant has waived his right to bring this application and to be granted relief in the terms sought by him.
Written submissions were filed on behalf of each party in relation to the question of whether an order should be made restraining L N Christine & Co from acting on behalf of the Wife. Further oral submissions were made by Counsel on behalf of each party at the hearing of the application on 10 May 2019.
Background
In order to properly consider the issue of whether orders should be made restraining the Respondent from continuing to engage L N Christie & Co, it is helpful to first consider the procedural history of the matter.
Proceedings were commenced by way of Initiating Application filed on behalf of the Respondent by L N Christie & Co on 9 March 2016. In that document the Respondent seeks orders for a just and equitable division of the parties’ property and that she otherwise be excused from particularising the orders sought by her until such time as the Applicant made full and frank disclosure. Further detailed interim orders were sought in relation to disclosure.
On behalf of the Applicant, Altona Legal filed a Response on 3 May 2016, in which orders are sought that the Initiating Application filed on behalf of the Respondent be dismissed on the basis a de facto relationship never existed between the parties.
Notwithstanding the orders sought in the Applicant’s Response, when the matter came before the Court the following day on 4 May 2016, the parties’ legal representatives submitted a signed orders and directions pro forma seeking a conciliation conference and a listing for final hearing. Further interim procedural orders were made by consent providing for disclosure and a restraint on property dealings in relation to three properties said to be owned by the Applicant and/or his company A Pty Ltd. The matter was adjourned to 24 May 2017 for final hearing in relation to the substantive property application.
A conciliation conference took place on 29 August 2016. The matter did not resolve.
On 16 February 2017 the final hearing was administratively relisted from 24 May 2017 to 22 May 2017.
By way of a jointly signed letter to Chambers on 11 May 2017, the parties’ solicitors sought that the then-approaching final hearing be adjourned on the basis of an outstanding discovery issue. The parties’ solicitors also indicated that upon resolution of the outstanding discovery issue, settlement negotiations could take place in an effort to resolve the matter. On the basis of this correspondence, administrative orders were made vacating the final hearing of 22 May 2017 and listing the matter for mention in the duty list on 11 July 2017.
On 11 July 2017 orders were made adjourning the matter to 17 September 2018 for final hearing and for the filing of trial material in relation thereto. Interim consent orders between the parties on that date provided for a valuation of several properties at the equal cost of the parties, as well as further disclosure by the Applicant.
The matter came before the Court on 17 September 2018 for final hearing. Counsel on behalf of the parties advised the Court that the matter had not resolved because the jurisdictional issue of whether the parties were ever in a de facto relationship remained live. Further, the Respondent advised the Court that in order to contest the Applicant’s application for declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) that a de facto relationship never existed between the parties, she would be calling herself and two additional witnesses to give evidence. In light of this, Counsel’s estimate for the hearing time of the jurisdictional issue was put at three days. The matter was adjourned to 3 April 2019 for the hearing of that issue.
On 26 March 2019 Chambers received email correspondence from Mr Christie, principal partner of L N Christie & Co, advising that the parties would not be ready to proceed with the hearing of the jurisdictional issue on 3 April 2019 as the Applicant had raised a conflict of interest issue in relation to his firm. On the basis of that email the hearing of the jurisdictional issue on 3 April 2019 was vacated and the matter was relisted for a mention on that date.
On 3 April 2019 the Court was advised that the parties had not been able to resolve the issue of whether there was a conflict in L N Christie & Co continuing to act on behalf of the Respondent. Orders were made adjourning the matter to 18 April 2019 for a further mention and, in the event the Applicant sought orders that the Respondent’s solicitors be restrained from representing the Respondent, the Applicant was to file and serve an Application in a Case and supporting affidavit in relation to same by 10 April 2019. Orders were also made for the Respondent to file responding material in relation to the Application in a Case.
On 11 April 2019 the Applicant filed his Application in a Case seeking a restraint on the Respondent continuing to engage L N Christie & Co in these proceedings. The Respondent filed her Response to the Application in a Case on 17 April 2019. As mentioned above, both parties seek costs orders against the other in relation to the application.
For administrative reasons, the 18 April 2019 hearing was adjourned by Chambers order to 10 May 2019. The application proceeded by way of oral submissions on 10 May 2019.
The Evidence
The Applicant
The Applicant relies on his affidavit sworn 10 April 2019, written submissions filed on his behalf dated 10 April 2019 and oral submissions made by Counsel at the hearing of this matter.
It is the Applicant’s evidence that Mr Christie, principal partner of L N Christie & Co and the Respondent’s solicitor in these proceedings, previously acted on his behalf and on behalf of his business, Company A, in relation to conveyancing and commercial matters between approximately 2001 and 2005.
The Applicant therefore submits that L N Christie & Co should be restrained from continuing to act for the Respondent in relation to these family law proceedings.
It is the Applicant’s evidence that Mr Christie was recommended to him by the mother of his former partner Ms C, for whom Mr Christie at that time acted in relation to family law matters. It is the Applicant’s evidence that between 2001 and 2005 he instructed Mr Christie in relation to several conveyancing and commercial matters. These included:
·conveyancing work on a construction project in Suburb D in relation to two properties, one of which is a property where the Applicant continues to reside;
·a civil dispute with the Applicant’s former partner’s brother in relation to alleged monies owed from a construction project they had jointly established, which settled at mediation;
·a commercial dispute with the Company B in relation to an alleged debt, for which a Magistrates’ Court application was prepared; and
·the drafting of terms and conditions of a contract that prospective clients of the Applicant’s business would be required to sign prior to him performing work for them, such agreement still being used by the Applicant.
The Applicant continues to own and operate the business which was the subject of much of the work that Mr Christie performed for him.
It is the Applicant’s evidence that he also spoke to Mr Christie on the phone and in person at various times in relation to unpaid invoices in the Applicant’s business, as well as in the course of assisting Ms C and her mother in relation to a motor accident claim.
The Applicant’s evidence as to his relationship with Mr Christie is summarised in paragraph [12] of his affidavit sworn 10 April 2019, as follows:
“I considered Mr Christie to be ‘my lawyer’ for the period of approximately 2001 to 2005. It is common in my business for disputes with clients to arise, usually about unpaid invoices. I regularly contacted Mr Christie for advice about these issues. I estimate that I contacted him about particular issues 3 or 4 times each year during that period. I placed my trust and confidence in him. I told him about the running of my business, my billing practices, the issues in the industry, cash flow issues, my approach to litigation, and my issues with Mr C when they arose. We were in regular contact. We also talked on a personal level. I came to know him as a person. I told him about my family. We were friendly and he understood and sympathized with my family circumstances. He was aware of my personality.”
It is the Applicant’s evidence that despite these proceedings having been issued in March 2016, he did not become aware that Mr Christie was acting for the Respondent until late 2018. He states that the reason for the delay in realising Mr Christie’s involvement was because he had not paid much attention to the litigation, was busy working and was taking care of his four daughters. He further states that it has been his practice to leave legal issues up to his lawyer and not to pay too much attention, particularly because he did not expect the proceedings to progress the way they have.
It is the Applicant’s further evidence that when he did realise that Mr Christie was acting for the Respondent, he contacted the Law Institute of Victoria and spoke to someone who advised that, in their opinion, there was a conflict and that Mr Christie should withdraw.
The Applicant then instructed his solicitor in these proceedings, Mr Canals of Altona Legal, to write to Mr Christie raising the issue of the conflict. Mr Canals did so on 23 October 2018. The body of that letter provides as follows:
“Dear Sir/s
I am instructed by my client that you have previously acted on his behalf in litigation and other matters.
It is my client’s view that this places your firm in a position of conflict and that you ought therefore withdraw as solicitors for the applicant in this proceeding.
I await your urgent reply…”
It is the Applicant’s evidence that further correspondence was exchanged between the parties’ solicitors in relation to the conflict issue in October 2018, December 2018 and March 2019.
The Applicant summarises his position at paragraph [18] of his affidavit sworn 10 April 2019 as follows:
“I am concerned the information I have given to Mr Christie about my finances, business and personal affairs over the years will be used against me and accordingly seek an injunction to prevent Ms Ingle from continuing to instruct the firm.”
The Respondent
In support of her argument that the Applicant’s Application in a Case filed 11 April 2019 ought to be dismissed, the Respondent relies on an affidavit sworn by Mr Christie on 17 April 2019, Outline of Respondent’s Submissions filed 10 May 2019 and further oral submissions made on that date. The Respondent also seeks to rely on a “rapid ruling” of the Ethics Committee of the Law Institute of Victoria dated 10 April 2019.
In his affidavit sworn 17 April 2019 Mr Christie responds to the matters raised by the Applicant in his affidavit sworn 10 April 2019.
It is Mr Christie’s evidence that he has no recollection of acting for or on behalf of the Applicant or the Applicant’s former partner Ms C and her mother.
It is Mr Christie’s further evidence that his office does not hold any hard copy files relating to the Applicant, his former partner Ms C or Ms C’s mother. It is his evidence that those files have either been destroyed or collected by the Applicant.
Mr Christie deposes at paragraph [6] of his affidavit that:
“…my personal assistant … has checked our online records and I am advised and verily believe that there are some historical files retained online in relation to work performed in 2003 to the 13th February, 2004. I do not have online access of the files and at no time have these files been referenced since acting for the Applicant.”
It is Mr Christie’s evidence that whilst proceedings were commenced in March 2016, he and the Applicant’s solicitor first exchanged correspondence in October 2015. It is his evidence that he believes there is no adequate reason to explain the three-year delay from the initial exchange of correspondence to the Applicant raising the conflict issue in October 2018. It is Mr Christie’s evidence that he believes such delay should amount to a waiver by the Applicant of his entitlement to bring the application which is currently before the Court.
It is Mr Christie’s evidence that given the substantial delay in the Applicant raising the conflict issue, the Respondent has already incurred significant legal expenses as a result of the ongoing, lengthy family law proceedings. It is his further evidence that he believes the Respondent would not have the financial resources to engage another solicitor should orders be made restraining his firm from continuing to act on her behalf and that she would be significantly prejudiced by such an order being granted in this matter.
Law Institute of Victoria, Ethics Committee, ‘Rapid Ruling’ dated
10 April 2019
On 21 December 2018 Mr Christie wrote to the Law Institute of Victoria raising the issue of the potential conflict and seeking assistance in relation thereto.
On 27 March 2019 Mr Christie submitted a Request for Ethics Committee ‘Rapid” Ruling form to the Law Institute of Victoria.
Attached to the request for the rapid ruling form was a number of supporting documents, including a document headed “Further information/chronology in the matter of Ingle/Pickard”. This document contains a series of numbered paragraphs in memorandum form and purports to set out the material facts relevant to the decision to be made by the Ethics Committee. There is no indication on that document as to its author. Confusingly, parts of the document appear to contradict Mr Christie’s own evidence as set out in his affidavit subsequently sworn on 17 April 2019. For example in the first paragraph which states initial instructions were taken by the Respondent’s solicitor in February/March 2016 (as mentioned above, Mr Christie’s own evidence is that correspondence was exchanged between the parties’ solicitors in October 2015).
The document also includes a number of other problematic statements, such as “Mr Pickard was aware that we acted for the Applicant De Facto wife prior to and after proceedings were issued, noting that we were on the court record” which purports to make a representation as to the knowledge of the Applicant without enclosing any evidence to support the basis for that representation.
On 10 April 2019 the Law Institute of Victoria Ethics Committee delivered their rapid ruling to the parties’ solicitors by email. It provides:
“Dear Mr Christie and Mr Canals,
Based on the information provided, the Ethics Committee has made the following ruling:
In the opinion of the Ethics Committee and on the information presented:
1. LN Christie & Co (sic) do not have a conflict of interest in acting for the Applicant, as they hold no relevant confidential information, material to the current matter and detrimental to the interests of the Respondent.
2. The Committee notes that in assessing whether a conflict of interest exists in respect of a former client, the issue must be raised at the first opportunity.
Thank you again for seeking assistance from the Ethics Committee.
Should you have any queries please do not hesitate to contact me by email…”
The rapid ruling of the Ethics Committee is relied upon by the Respondent in support of her argument that there is no conflict brought about by L N Christie & Co continuing to act on her behalf and that, aside from that determination, the Applicant has waived his right to bring an application seeking an order for such a restraint.
Both parties’ Counsel in this matter agreed that the Court is not bound by the ruling of the Ethics Committee.
As mentioned at paragraph [39] of this judgment, the Ethics Committee was provided with a number of supporting documents attached by Mr Christie to his request for the rapid ruling. The subsequent finding of the Ethics Committee states that its opinion is based on the information provided to it. This includes a memorandum of unknown authorship which contained statements that in some cases are directly contradicted by the Applicant’s evidence and in other cases are directly contradicted by the evidence of Mr Christie. Furthermore, there was no independent evidence submitted to the Ethics Committee to support any of the contradictory statements contained within the memorandum.
In light of the above, it is the Court’s view that any ruling of the Ethics Committee which could possibly have been arrived at in reliance upon, or even with consideration to, the memorandum document attached to the request for the rapid ruling submitted by Mr Christie, is highly problematic, is not based upon the evidence currently before the Court and is contradicted in part by the evidence of both parties in this matter.
For this reason, and given both parties’ agreement that the ruling is in no way binding upon the Court, the Court will place no weight on the rapid ruling of the Law Institute of Victoria Ethics Committee’s ruling of 10 April 2019.
The Law
In the decision of Osferatu & Osferatu (2015) FLC 93-966 the Full Court of the Family Court consisting of Finn, Ainslie-Wallace and Aldridge JJ set out the three established categories for which solicitors may be restrained from acting against a client or former client, as follows at [20]:
“…They are: breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its officers and to control its process. Each category has its own principles which guide its operation…”
As was the case in Osferatu (supra), this matter is concerned only with the first of those three categories, being a breach of confidence and more particularly, the risk of misuse of confidential information.
At paragraph [34] the Full Court adopted the three step test to be applied when undertaking a consideration of this type, as was set out by Goldberg J at paragraph [50] of the decision of PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905. Those three stages are as follows:
·whether the firm is in possession of information which is confidential to the former client;
·whether that information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client; and
·whether there is any risk that the information will come into the possession of those persons in the firm working for the former party.
As was also set out by Goldberg J in PhotoCure ASA (supra), at paragraph [51], the burden of establishing the first two stages listed above falls on the former client, whilst the burden of establishing the third stage falls on the firm sought to be restrained.
Waiver
As mentioned previously in this judgment, it is argued on behalf of the Respondent that the Applicant has waived any entitlement he may have had to being granted the orders sought in his application filed 11 April 2019 by reason of the significant delay between the commencement of proceedings, his realisation of Mr Christie’s involvement and the time that the issue of the conflict was raised and the application filed.
The Applicant denies the existence of a waiver and states that he only became aware of the potential conflict issue in October 2018, at which time he immediately contacted the Law Institute of Victoria and then, on their advice, raised the issue with his solicitor.
In the event the Court does find the Applicant has waived his right to bring this application, that will see the end of the matter and there will be no requirement of this Court to undertake the three-step test as set out in Osferatu (supra) to establish whether there is a conflict in L N Christie continuing to be engaged by the Respondent.
For this reason, the question of whether the Applicant has waived his right to object to Mr Christie’s continuing involvement in this matter shall be addressed prior to undertaking a consideration of the test set out in Osferatu (supra).
Counsel on behalf of both parties in this matter rely upon the recent decision of the Full Court in Dalton & Dalton (2017) FLC 93-773. In that decision Ainslie-Wallace and Ryan JJ explain the meaning of waiver by reference to previous authority at paragraphs [17] and [19]-[20] as follows:
“17. In Expense Reduction Analysts Group Pty Ltd and Ors v Armstrong Strategic Management and Marketing Pty Limited and Ors (2013) 250 CLR 303 the High Court explained the nature of waiver at 315-316 thus:
30. According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.
…
19. The point of implied waiver is that even though the holder of the privilege (or right) does not intend to give it up, intention to waive is imputed. In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 13, the plurality of the High Court summarised the position as follows:
29. ...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 ... What brings about the waiver is the 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.
20. Invariably, the question of implied waiver requires a fact based enquiry. It is unlikely that the facts as found in other cases will be of assistance in a different case…”
In this matter there is no evidence of an express waiver by the Applicant to his entitlement to seek orders restraining L N Christie from acting for the Respondent. Rather, it is the Respondent’s submission that by virtue of his long-standing acquiescence to the continuing engagement of L N Christie & Co by the Respondent, the Applicant has impliedly waived his right to seek orders in the terms as set out in his Application in a Case filed 11 April 2019.
The Applicant’s submissions in relation to Waiver
As mentioned previously in this judgment, the Applicant submits that he has not waived his entitlement to bring the Application currently before the Court.
It is submitted on behalf of the Applicant that unlike in the decisions of Dalton (supra) and McGillivray & Mitchell [1998] FamCA 96, the latter to which reference was made in the submissions on behalf of the Respondent, in this matter there is no evidence to support the allegation that the Applicant knew of the potential conflict issue in 2015. There is no correspondence between solicitors evidencing any knowledge of the conflict issue at or around that time and there is no evidence of any statement by the Applicant to that effect.
It is the Applicant’s submission that the Court should be satisfied that if the Applicant became aware of the potential conflict arising from Mr Christie’s involvement in the matter prior to October 2018, he would have raised it with his solicitor at the earliest opportunity. The Applicant submits that had this been done, there would be a record of written correspondence between solicitors evidencing the Applicant at the very least reserving his right to raise the issue at a later time. There is no evidence of any correspondence of this type.
Indeed, the only evidence of the timing of the Applicant’s realisation as to the conflict issue is the letter from Altona Legal to Mr Christie dated 23 October 2018.
The Applicant’s explanation for his failure to identify the potential conflict in this matter is set out at paragraph [13] of his affidavit sworn 10 April 2019 in which he states as follows:-
“I first realized that L N Christie & Co were acting for Ms Ingle in late 2018. I am aware that Ms Ingle issued proceedings in 2016. I had not paid much attention to the litigation. I work hard and am busy with my business and caring and providing for my four daughters. I have brought them up on my own after the children were left with me by Ms C only a few days after we settled our property issues. It has been my practice to leave legal issues up to my lawyer and not pay too much attention. I did not expect the matter with Ms Ingle to progress the way it has.”
It was further noted by Counsel for the Applicant that Mr Christie has never appeared at Court events with respect to these proceedings and therefore could not have been physically recognised by the Applicant.
On the basis of the complete absence of any written communication or other evidence as to the Applicant’s realisation and knowledge of the potential conflict issue prior to 23 October 2018, it is submitted on behalf of the Applicant that the Court should accept the unchallenged evidence of the Applicant as to the timing of his realisation.
It is further submitted on behalf of the Applicant that if the Court is to accept the Applicant’s unchallenged evidence in this regard, then the Court should also accept that the Applicant took all of the requisite steps that he was required to take in bringing the matter to the attention of the Law Institute of Victoria and to his solicitor.
It is submitted on behalf of the Applicant that during the intervening period between the matter of the potential conflict having been raised in October 2018 and up to the date of the filing of the Application in a Case on 11 April 2019, no substantive steps were taken by the parties in relation to the proceedings which could be considered as contributing to a finding the Applicant had impliedly waived his right to seek the restraint. This, it is submitted, is in direct contrast to the matter of Dalton (supra) in which waiver was imputed on the basis that substantive steps were taken between the parties, including negotiation and participating in court events and mediation, subsequent to the raising of a conflict issue.
The Respondent’s submissions in relation to Waiver
It is submitted on behalf of the Respondent that the inordinate and inexplicable lapse of time between the commencement of these proceedings in March 2016, and indeed even earlier to the initial exchange of legal correspondence in this matter in October 2015, and the first time the conflict issue was raised by the Applicant in October 2018 is such that a waiver should be imputed to the Applicant.
It is the Respondent’s further submission that the Applicant’s suggestion that he only became aware of Mr Christie’s involvement in the matter some three years after the initial exchange of correspondence is implausible, particularly in circumstances where no explanation is offered around the nature of the realisation by the Applicant.
It is therefore the Respondent’s submission that the Applicant must have known, prior to October 2018, that the Respondent was being represented by his former solicitor Mr Christie and that by not raising the potential issue of conflict immediately at the time of his realisation, the Applicant acted inconsistently with his right to raise it and in doing so has impliedly waived that right.
In support of her submissions Counsel for the Respondent relies on the decision of the Full Court of the Family Court consisting of Ellis, Baker and Finn JJ in McGillivray & Mitchell (supra), where it is stated at [36]:
“36. It is our opinion that if a family law litigant has a genuine concern about a former legal adviser acting against him or her in later family law litigation, the litigant must take the point at least in correspondence with the other side at the earliest possible opportunity. If he or she does not do so, then he or she is possessed of a weapon which can later be used a delaying tactic at some point in the proceedings convenient to his or her position. Furthermore a failure to take the point initially must also cast doubt on the bona fides of any later complaint concerning the existence of confidential information in the practitioner in question, and on the bona fides of any alleged apprehension regarding the possible misuse of such confidential information.”
In oral submissions Counsel for the Respondent challenges the bona fides of the Applicant in bringing the application now before the Court. In so doing the Respondent points to a pattern of conduct by the Applicant in the substantive proceedings in which he is said to have delayed the matter from proceeding and sabotaged negotiations towards a resolution of the matter. Counsel sought to highlight in particular the two previous final hearings listed in this matter which were adjourned on the basis of incomplete discovery by the Applicant in the first instance and the re-raising of the jurisdictional issue by the Applicant in the second instance.
Further, it is the Respondent’s submission that even if the Court accepts the Applicant’s evidence as to the timing of his realisation of Mr Christie’s involvement, this should not prevent the Court from concluding that the Applicant has impliedly waived his right to bring the application currently before the Court.
It is submitted on behalf of the Respondent that even if the Applicant first became aware of Mr Christie’s involvement in October 2018, an application ought to have been brought at that time. It is submitted however, that it was Mr Christie who took the initiative to firstly contact the Law Institute’s Ethics Committee in December 2018 and again in March 2019 seeking the ‘rapid ruling’. Further, it was Mr Christie who contacted the Court to advise of the conflict issue in April 2019. During this time some cursory correspondence was exchanged between the parties’ solicitors with respect to the conflict issue, but no application from the Applicant was forthcoming. Following the vacating of the three-day jurisdictional hearing on 3 April 2019 and the relisting to a mention on the same date, still no application was forthcoming and it was therefore an order of the Court that if the Applicant was to seek orders restraining L N Christie from continuing to act, such an Application in a Case would need to be filed. This was not done until 11 April 2019.
With respect to waiver the Respondent also relies in part on the finding of the Law Institute’s Ethics Committee rapid ruling of 10 April 2019. As indicated previously in this judgment, the Court is not bound by the ruling of the Ethics Committee and will place no weight upon it.
Conclusion as to waiver
In the matter of Dalton (supra) the Full Court stated the following at paragraph [20]:
“20. Invariably, the question of implied waiver requires a fact based enquiry. It is unlikely that the facts as found in other cases will be of assistance in a different case…”
The Court will therefore consider the relevant facts in this matter as they relate to the issue of waiver.
As previously set out in paragraph [61] of this judgment, it is the Applicant’s evidence he only became aware of the identity of the Respondent’s solicitor in late 2018, some nearly three years after the commencement of proceedings. It is submitted by Counsel for the Applicant that the only evidence currently before the Court as to the timing of the Applicant’s realisation of the potential conflict issue is the correspondence from his solicitor to Mr Christie dated 23 October 2018.
The Court does not accept Counsel’s submissions in this regard.
Firstly, an examination of the court documents filed in this matter leads to the conclusion that the Applicant must have been aware of the identity of the Respondent’s solicitor from as early as May 2016.
On 9 March 2016, the Respondent filed an affidavit in support of her Initiating Application. On the front page of that affidavit, at “Part A”, the Respondent’s solicitors have completed the information about the parties. At the bottom of the page, in response to the address for service for the party filing the affidavit, it reads, in large capital letters:
“L N CHRISTIE & CO
The Respondent filed his responding material shortly thereafter, on 3 May 2016. At paragraph [35] of the affidavit sworn by the Applicant on 3 May 2016 in response to the Respondent’s Initiating Application, the Applicant states:
“[I] Have read a copy of the Affidavit filed by Ms Ingle on 9 March 2015… (sic)”
Clearly, the Applicant’s own evidence is that he read the Respondent’s affidavit filed 9 March 2016. It is not accepted that he simply did not notice the name of his previous commercial solicitor over a number of years, L N Christie & Co, on the very front page as the solicitors on the record acting for the Respondent.
In his affidavit sworn 3 May 2016 the Applicant further deposes to instructing his solicitors in December 2015 to write to the solicitors for the Respondent with respect to certain caveats being removed from a number of properties. Annexed to his affidavit at annexure ‘P4’ is a copy of the letter dated 18 December 2015 forwarded by the Applicant’s solicitors to the solicitors for the Respondent. At the time of swearing his affidavit, the Applicant was shown this letter by his solicitors. This is evidenced in his sworn affidavit of 3 May 2016 where the Applicant states at paragraph [34]:
“Now produced and shown to me and marked with the letters ‘P4” is a copy of a letter dated 18 December 2015 forwarded by my solicitor to the solicitor for the applicant.”
This letter, shown to the Applicant at the time of swearing his affidavit on 3 May 2016, is clearly addressed to L N Christie & Co in bold lettering at the top of the page.
In addition to the two abovementioned instances where the name of his previous solicitors was explicitly shown to the Husband in the course of the preparation of his responding material, the Court is also of the view that given the length of these proceedings, the number of substantive steps which have been taken from its commencement including several directions hearings, two final hearings and a conciliation conference, it is implausible that the identity of the Respondent’s solicitors was never made known to the Applicant.
Given the detail of the Applicant’s evidence before the Court as to his engagement of Mr Christie in relation to several important commercial matters, as well as the fact that Mr Christie helped draft a set of terms and conditions which are still in use in the Applicant’s business, and that the two men came to know one another personally, it follows that upon the Applicant being shown the name Christie he would surely be in no doubt as to the issue of the potential conflict.
In all these circumstances, the Court accepts the Respondent’s submission that it is simply implausible that the Applicant did not realise the identity of the solicitors acting for the Respondent prior to 2018. As set out above, there is sworn evidence by the Applicant himself to the contrary.
I am therefore of the view that in circumstances where the Applicant, on his own evidence, was shown and read an affidavit prepared by L N Christie & Co and a letter written to L N Christie & Co, both clearly printing the name of the law firm in bold lettering, the Applicant must have been aware as to the identity of the Respondent’s solicitors well prior to 2018.
The Court therefore finds that the relevant period between the Applicant becoming aware of the potential conflict and the bringing of an application seeking orders restraining the Respondent’s solicitors from acting is from at least the time of the swearing of his initial affidavit in May 2016, to April 2019, a period of some three years.
There is evidence before the Court that the Applicant did take steps to address the potential conflict issue between the date he asserts he became aware of the issue in October 2018 and the bringing of the application to the Court in April 2019. This has already been set out at length previously in this judgment.
However, as set out above, it is the Court’s finding that the Applicant must have known about Mr Christie acting for the Respondent well prior to October 2018. The inaction by the Applicant prior to this time to try to protect any confidential information potentially held by Mr Christie until October 2018 must therefore lead the Court to conclude that he has acted inconsistently with his right to bring the application.
Given that the Applicant did not raise the potential conflict issue until October 2018 and in circumstances where I am of the view that he must have been aware of the issue before this time, the Court finds that the Applicant “acted inconsistently with the maintenance of the confidentiality which the privilege is intended to protect” and an intention of the Applicant to waive his right to bring his application filed by him on 11 April 2019 is therefore imputed by the Court.
Breach of Confidence
Notwithstanding the Court’s finding that the Applicant has impliedly waived his right to bring his Application in a Case before this Court, the Court will briefly consider the three-step test espoused in Osferatu (supra).
Counsel appearing on behalf of the Applicant in this matter succinctly framed the test to be applied, as enunciated by the Full Court in Osferatu, in her oral submissions as follows:
“In essence, it’s a three-step process. The first, whether Mr Christie or his firm is in possession of information which is confidential to my client, whether that information is relevant to these current proceedings … and whether there’s any risk that the information will come into the possession of Mr Christie.
The first two points, the burden is on my client to establish that that is the case, and if it is that he can establish that, that third point falls to … Mr Christie, to demonstrate what measures he can put in place to preclude risk.”
Appropriately, Counsel for the Respondent in this matter did not take issue with, and indeed adopted the test as outlined by Counsel for the Applicant in this matter.
Having set out the three stage test, the Full Court in Osferatu (supra) stated at paragraph [35]:
“A balancing of the nature of the information against a consideration of the person to whom the information was given, when the information was given, the relevance of that information to the current proceedings, the risk of disclosure and any proposed protective measures is required before any determination can be made as to whether any relief is required and, if so, what is the appropriate relief.”
Therefore, each of the three stages will be addressed in turn prior to undertaking a balancing of the considerations as set out in the preceding paragraph.
(1) Confidential Information
In the matter of Osferatu (supra) the Full Court held at paragraph [26] that to discharge the burden of proof with respect to stage one of the three stage test, cogent and persuasive evidence would need to be adduced as to the existence of confidential information. At paragraph [27] the Court adopted the reasoning of Bryson J in the decision of Mancini v Mancini [1999] NSWSC 800 at [7], wherein it is stated:
“… It is not possible to address in any clear way and to come to a decision on protection of any alleged confidential information without identifying what the confidential information is in a sufficiently specific way to enable it to be identified. Without doing that it is not possible to come to a conclusion on whether the information truly is confidential, to consider and appraise the circumstances in which it came into existence and was communicated, to come to any conclusion about whether protection is appropriate, or to make any enforceable order. A case about confidential information cannot be nebulous. Confidential information which once existed may no longer be confidential; it may no longer be available although it was communicated in the past; it may not be material to any use which might now be proposed to be made of information. Without specificity a claim to protection cannot be defended or decided on any fair procedural basis…”
The Applicant in this matter submits that in the course of his retention of Mr Christie as his solicitor between the years 2001 and 2005, confidential information was conveyed to Mr Christie. This confidential information is said by the Applicant to include information “about the running of my business, my billing practices, the issues in the industry, cash flow issues, my approach to litigation, and my issues with Ms C when they arose.”
The Applicant also deposes that he and Mr Christie, through the course of their professional relationship, got to know one another, talked about family, were friendly and that Mr Christie was aware of his personality.
In the written submissions filed on behalf of the Applicant, Counsel refers to this information as the “getting to know you factors”. It is submitted on behalf of the Applicant that these factors should be considered highly confidential in family law proceedings in particular. In support of this submission the Applicant refers the Court to the decision of Nettle J in Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429 at paragraph [67] where his Honour referred to the matter of Yunghanns v Elfic Pty Ltd (1998) Butterworth Cases 9803497 in which Gillard J states:
“In some cases, the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information. In this regard, the relationship between solicitor and client may be such the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the getting to know you factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client.”
In his affidavit sworn 17 April 2019 Mr Christie deposes to having no recollection of acting on behalf of the Applicant, that his firm holds no hard copy files in relation to the Applicant and that whilst there are some historical files retained online from 2003-2004, he does not personally have access to these files and they have not been referenced in the course of these proceedings. It is Mr Christie’s evidence that he has no recollection of the Applicant personally and therefore does not recollect any of the getting to know you factors said by the Applicant to have passed between them.
Notwithstanding Mr Christie’s evidence in this regard, he does not deny acting on behalf of the Applicant as deposed to by the Applicant. Indeed, Counsel appearing on behalf of the Respondent in the course of oral submissions appeared to openly concede that Mr Christie and/or his firm could potentially hold confidential information relevant to the proceedings. However, it was submitted on behalf of the Respondent that it is unreasonable of the Applicant to believe and/or posit that such confidential information will be used against him in these proceedings in such a way as to necessitate a restraint being imposed on Mr Christie’s continued engagement.
In circumstances where Mr Christie deposes to having no recollection of acting on behalf of the Applicant, and by extension, no recollection of any of the matters said to comprise confidential information passed to him by the Applicant in the course of that engagement, the Applicant relies again on the decision of Nettle J in Sent (supra) to assert that the Court may still make a finding that Mr Christie may nevertheless possess confidential information.
In the matter of Sent (supra) a restraint was sought on a member of Counsel continuing to appear on behalf of the other party, on the basis that confidential information was communicated within a conference that had been held 14 years earlier between that member of Counsel and the party seeking orders for the restraint. Counsel’s evidence was to the effect that he had no recollection of the conference ever taking place, let alone the nature of the information that was communicated in that conference. In paragraphs [88] to [89] of his decision Nettle J held as follows:
“…Recollections are liable to be revived, even as long after the event as 14 years, and that process may well be facilitated by what is said and done in the preparation which will be undertaken in the lead-up to trial and during the trial itself.
89. One knows as a matter of experience that when he has advised on documents and transactions, recollections of them, although long faded, may revive in the course of the sort of close and careful study which precedes the trial of an action. And when one has conferred with a client, recollection of things said and done in conference may be revived long after the event when the same or similar things are said or done in another place.”
Nettle J then went on to say at [91]:
“91. I do not suggest that even the sort of revival of recollection I have described in this case more likely than not to occur. But I do consider that, probabilities being what they are, there is a real and sensible possibility of a revival of recollection, and in my view that is enough.”
It is submitted on behalf of the Applicant in reliance upon the decision of Nettle J in Sent (supra), that notwithstanding Mr Christie has no current recollection of his acting on behalf of the Applicant between the years 2001 and 2005 as deposed to by the Applicant, such recollection may be revived in the course of these proceedings. It was further submitted on behalf of the Applicant that given Mr Christie has never appeared in a court event during the course of these proceedings, should he do so and thereby see the Applicant in person, this may very well be the event that revives the recollection.
In summarising the Applicant’s position with respect to the presence of confidential information held by Mr Christie and/or his firm, it is Counsel’s submission that such is the evidence of the Applicant as to the nature and length of the retainer, the Court should be satisfied that Mr Christie holds confidential information in relation to the Applicant’s business, as well as the “getting to know you factors”. The Applicant further submits that there is a risk that recollection of that confidential information could be revived in the course of these proceedings. On this basis, the Applicant submits the Court should make a finding that Mr Christie is in possession of confidential information.
Conclusion as to confidential information
What is clear in this matter and cannot and has not been denied by the Respondent or Mr Christie, is that the Applicant did engage Mr Christie in relation to various matters some 14-15 years ago. The extent of that engagement is set out at some length in the affidavit sworn by the Applicant on 10 April 2019.
Whilst Mr Christie deposes to having no recollection of ever acting for, or even meeting the Applicant, the level of detail included in the Applicant’s recollection such as specific dates, the types of legal issues that the work entailed, how those issues progressed to mediation and the drafting of Court documents, as well as the report as to the way in which the initial retainer came about through the Applicant’s then-partner Ms C, leads the Court to accept the Applicant’s evidence that he engaged Mr Christie in relation to multiple legal issues during the early 2000s.
It is trite to say that the disparity between each man’s respective capacities to recollect, is in all likelihood due to the fact that whilst Mr Christie likely acted for many clients during this period of time, the Applicant deposes to having had only one legal representative. As such his memories of the relationship are of course much more likely to stand out. I note however that the relationship that the Applicant describes with Mr Christie and his level of engagement with him is in stark contrast to the “laissez-faire” approach he seems to have adopted in these proceedings with his current solicitors.
The Applicant’s evidence as to his engagement of Mr Christie is also supported by the presence of historical online records from 2003-2004 on the database of L N Christie & Co.
Given Mr Christie acted on behalf of the Applicant during the early 2000s, it follows that Mr Christie will almost certainly have taken possession of information in relation to the Applicant’s business and the way in which it was managed and operated at that time.
Further, the Court finds that Mr Christie must certainly have at some point come to learn about the Applicant as a litigant, including his approach to legal issues, his strengths and weaknesses and settling tactics.
The Court also accepts the Applicant’s evidence that in the course of the engagement he and Mr Christie came to know one another personally in some respect.
In accordance with the decision of Nettle J in the matter of Sent (supra), that Mr Christie no longer recollects the nature of this information does not prevent a finding by the Court that the confidential information is in his possession, given the potential for a revival of his recollection in the course of what is said and done in the preparation of these proceedings.
This is particularly so in circumstances where Mr Christie has to date not attended any court events in relation to this matter. Were he to do so, and thereby come into physical contact with and recognise the Applicant, it is possible that this could revive memories of details of the Applicant that he had not been able to previously. Neither Counsel for the Respondent nor Mr Christie can deny this possibility, however remote it may seem.
In all of these circumstances the Court finds that Mr Christie is in possession of confidential information which was communicated to Mr Christie by the Applicant in the course of their engagement, being information about the Applicant’s business and the “getting to know you” factors.
(2) Relevance of the confidential information
Counsel on behalf of the Applicant submits that the confidential information said to be held by Mr Christie is relevant to the proceedings now before the Court.
Firstly, it is submitted on behalf of the Applicant that information held by Mr Christie in relation to the Applicant’s business is relevant to the proceedings. This is especially so if the Court is satisfied that the parties were in a de facto relationship and that a resultant property division is to take place, as the business would be included in the pool of property to be divided between them. The information about the Applicant’s business said to be held by Mr Christie and/or his firm includes information about its value, how it is operated and managed by the Applicant and other related issues such as industry practices.
The second aspect of the confidential information said to be held by Mr Christie that is submitted as being relevant to the proceedings before the Court, are the “getting to know you factors”. As mentioned previously in this judgment, such factors relate to the personal opinions about the client formed in relation to his approach to and pressure in litigation, settling tactics and knowledge as to the client’s strength and weaknesses.
It is submitted on behalf of the Applicant that in this matter, both with respect to the threshold question to be determined and the substantive property proceedings if they eventuate, credibility of both parties will be an issue for the Court to consider. In those circumstances, it is submitted, “getting to know you” factors “will be crucial and are highly relevant to these proceedings.”
In support of her argument, Counsel for the Applicant refers the Court to the decision of Judge Coker in Gillam & Gillam [2017] FCCA 64, where at [43] his Honour refers to the decision of Walters FM (as he then was) in Karapataki & Karapataki [2011] FMCAFam 6. In the latter case comment was made with respect to the relevance of getting to know you factors, at [37], as follows:
“37. In a case where a former client’s credibility becomes a matter of significance, his or her former legal practitioner’s knowledge of the “getting to know you” factors can become a powerful weapon at the disposal of the practitioner’s new client. Irrespective of the actual effectiveness of the weapon, it can be anticipated that the former client would feel anxiety about the potential of being cross examined by a practitioner who might be perceived as being in a position of unfair superiority – or by Counsel instructed by such a practitioner.”
As stated previously in this judgment, Counsel for the Respondent at the hearing of this matter conceded there was a possibility of confidential information being held by Mr Christie with respect to the Applicant.
However, it was submitted on behalf of the Respondent that the prejudice which would be occasioned by her should orders be made in the terms sought by the Applicant would far outweigh any prejudice to the Applicant should Mr Christie somehow recollect the information said to have come into his possession 10-14 years ago.
Conclusion as to the relevance
During the course of the hearing of this matter, Counsel for the Applicant was challenged as to the relevance of the confidential information said to be held by Mr Christie, given the nature of the proceedings in which he acted for the Applicant, the nature and subject matter of the present proceedings between the parties and the length of time that had elapsed in between.
The information as to the operation of the Applicant’s business prior to the year 2005 is clearly not relevant to the question of whether these parties were ever in a de facto relationship.
It is accepted that if this matter progresses beyond the jurisdictional threshold issue the Applicant’s business would in all likelihood form part of the property pool for division between them.
However, it is difficult to envisage how any of the information associated with the business and/or its operation and practices between the years 2001-2005 could impact on the Court’s consideration as to who is responsible for contributing to that asset at the commencement of the relationship or its current value. It is common ground that the business was owned and operated by the Applicant many years prior to the Respondent’s proposed date of commencement of cohabitation, being 2010.
If there is an issue as to the Respondent’s contributions to the Applicant’s business during the course of their relationship, it is also very difficult to see how the Husband’s operation of that business between 2001-2005, prior to his meeting the Respondent and when he was involved in a previous relationship, could be relevant to that issue.
With respect to the ongoing viability of the business, its possible future profitability and the impact this could have on section 90SF(3) factors, any of the information possibly recalled by Mr Christie when acting for the Applicant between 2001 and 2005, some 14 years ago, would also no longer be relevant.
In addition to the above concerns, if these proceedings progress beyond the jurisdictional issue, orders will almost certainly be made for further disclosure, independent expert valuations and mediation and/or roundtable conferences in an effort to resolve all outstanding issues prior to trial. In the course of those steps, all relevant information to ascertain the value, viability and profitability of the Husband’s business will be examined. That information would no doubt usurp any information possibly held by Mr Christie arising from legal work conducted for the Applicant prior to 2005.
In these circumstances, the Court finds that the confidential information held by L N Christie & Co with respect to the Applicant’s business prior to the year 2005 is not relevant to the proceedings currently before the Court.
In both her written and oral submissions, Counsel for the Applicant sought to highlight the relevance of the “getting to know you” factors in particular with respect to family law matters. Counsel relies upon the decisions of Gillam (supra) and Sent (supra) in support of this submission. In essence, it was submitted by Counsel that “getting to know you” factors are crucial when credibility issues are before the Court.
The Court accepts the submission made on behalf of the Applicant that in the course of these proceedings, and particularly in the course of determining whether a de facto relationship existed between the parties, the Court may be called upon to consider the respective credibility of each of the parties in relation to factual discrepancies between them. In some instances the Court may be required to determine which of the parties’ evidence is preferred over the other.
However, it is very difficult to envisage how any of the “getting to know you” information that could have been obtained by Mr Christie in the course of his professional relationship with the Applicant between 2001 and 2005 would be relevant to the Court’s factual decision as to whether these parties were in a de facto relationship some several years later.
As has been mentioned on numerous occasions in this judgment, at least five years elapsed between when Mr Christie last acted for the Applicant in 2005 and the alleged date of cohabitation between these parties in 2010.
Even if the professional relationship between the Applicant and Mr Christie was such that Mr Christie came to learn of characteristics and personality traits of the Applicant which could adversely affect the Applicant’s credibility in the eyes of the Court (though, of course, Mr Christie denies any recollection of same), Mr Christie’s possible knowledge of the Applicant in 2005 is of little significance when compared to the instructions he is provided by his now client as to the nature of the Applicant’s personality and behaviour during their relationship.
If Mr Christie were to recollect aspects of the Applicant’s behaviour as a litigant, or general aspects of the Applicant’s personality (i.e.; “getting to know you” factors), that serve to characterise the Applicant as dishonest or unreliable, and this Court is called upon to determine which of the parties’ evidence is to be preferred, Mr Christie’s knowledge in this regard would not add to his client’s instructions and submission to the Court that the Applicant is being dishonest. To put it another way, if the Respondent’s case is that the Applicant is being dishonest because of a factual issue in dispute in these proceedings which is relevant and relates to the parties’ relationship, such would be the Respondent’s case no matter who was acting as her solicitor. The competing factual disputes for the Court to determine would remain the same. Mr Christie cannot simply stand up in Court and tell the judge that he knows the Applicant to be dishonest.
Putting to one side the evidence of Mr Christie that he has no recollection of the Applicant as a person and that he ever acted on his behalf, the lapse of time between their professional relationship and the factual matters which will be relevant to the proceedings now before the Court, further serves to reduce the relevance of “getting to know you” information from that earlier time.
Most problematic for the Applicant when considering the relevance of the “getting to know you” factors in the possession of Mr Christie is that there are no tangible aspects of same which can be clearly highlighted as a risk to the Applicant’s case. The Applicant has not pointed to any material fact about which Mr Christie is said to have knowledge that poses a risk to him if misused in this case. Whilst the authorities make it clear that an applicant in matters such as these is not required to divulge all of the specifics of the confidential information which they are trying to protect against, for to do so would defeat the purpose of the very orders they are seeking be made, such is the broadness of the Applicant’s claim as to the relevance of the “getting to know you factors” some 14 years ago and in vastly different areas of law, that his application lacks sufficient specificity to enable this Court to make a finding as to relevance.
For these reasons, the Court cannot be satisfied that the “getting to know you factors” which have been found to comprise confidential information in the possession of Mr Christie, can in any way be relevant to the credibility of the parties to the present proceedings.
In arriving at this finding, the Court does not seek to depart from the principle enunciated in the decision of Walters FM (as he was then known) in Karapataki (supra), as adopted by Coker J in the matter of Gillam (supra), that in matters where credibility is an issue of significance, “getting to know you” information is of particular relevance irrespective of the effectiveness of the information.
However, in this case, it is not possible to understand how Mr Christie’s potential recollection of the Applicant’s litigation strategy and personality prior to the year 2005 could be at all relevant and be misused against the Applicant in the course of these proceedings.
For all of the above reasons, the Court is not satisfied that the Applicant has discharged the burden required by stage two of the three-stage test adopted by the Full Court in Osferatu (supra).
In light of this finding it is not necessary for the Court to consider the third step of the test being the risk of disclosure and misuse of the confidential information held by L N Christie & Co in relation to the Applicant.
The Applicant has not demonstrated that Mr Christie holds confidential information which is relevant to the proceedings before the Court and that could be misused against him.
Conclusion
For the reasons set out above, the Court is of the view that the Applicant has waived his right to object to L N Christie & Co acting for the Respondent. The Court holds this view on the basis that the Applicant in his affidavit sworn 3 May 2016 deposes to having read correspondence addressed to the Respondent’s solicitor who, on his own evidence, he recollects very clearly. The Court is therefore satisfied the Applicant was aware that Mr Christie was acting for the Respondent at least from that date.
By only raising the potential conflict issue in October 2018, the Applicant has acted inconsistently with his right to object to L N Christie & Co acting for the Respondent and has impliedly waived that right.
As a matter of completeness and in the event the Court erred in its findings as to waiver, the Court has also undertaken an analysis of the three-stage test set out by the Full Court of the Family Court in the matter of Osferatu (supra). That test requires the Applicant to satisfy the Court that the firm sought to be restrained has confidential information in relation to the Applicant (step one) which is relevant to the proceedings (step two) and thereafter requires the firm to satisfy the Court that there is no real risk of that confidential information being disclosed to and misused by the firm (step three).
Having undertaken that consideration, it is the Court’s finding that even if the Applicant had not waived his right to bring the application currently before the Court, the application would nevertheless be unsuccessful. Whilst the Court accepts that Mr Christie holds confidential information in relation to the Applicant, the Applicant has not demonstrated that this information is relevant to the proceedings before the Court and that there is a possibility it could be misused against him.
Orders will therefore be made that the Application in a Case filed 11 April 2016 be dismissed. Orders will also be made relisting this matter for hearing in relation to the jurisdictional issue as to whether the parties were in a de facto relationship.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 6 August 2019
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