SCVG & Estate of KLD (No 4)
[2022] FedCFamC1F 46
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
SCVG & Estate of KLD (No 4) [2022] FedCFamC1F 46
File number(s): SYC 4380 of 2008
SYC 5956 of 2016Judgment of: GILL J Date of judgment: 8 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Whether solicitor for the Estate in proceedings should be restrained from continuing to act because of potential conflict of interest, status as a witness and allegation of misconduct – Recognition of the Court’s inherent jurisdiction to restrain solicitors from acting in the interests of the administration of justice processes – Considerations given to lengthy litigation history and costs to parties – Orders made to permit solicitor to remain acting. Cases cited: Kallinicos v Hunt [2005] NSWSC 1181 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 8 February 2022 Place: Canberra Solicitor for the Applicant: Self-Representing Counsel for the First Respondent: Mr Cox SC Counsel for the First Respondent: Ms Seric Solicitor for the First Respondent: Macphillamy’s Solicitor for the Second Respondent: No appearance ORDERS
SYC 4380 of 2008
SYC 5956 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCVG
Applicant
AND: THE ESTATE OF KLD
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
8 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Christopher Macphillamy is not restrained from acting for the Estate.
2.Until further directions, Mr Macphillamy is not to remain in Court for the evidence of Mr Draper, Ms RR or Ms Draper unless his oral evidence has been completed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
The current issue to be determined is whether the solicitor for the Estate in these proceedings, Mr Christopher Macphillamy, should be restrained from continuing to act in the proceedings. Such a course of action appears to be implicitly supported by Mr SCVG. It is a matter raised on the court’s own initiative. The issue of restraint arises as Mr Macphillamy is to be a witness in the proceedings.
Three bases are identified by the Court and the parties arising from his status as a witness.
The first is the issue of potential cross contamination between Mr Macphillamy and other witnesses for the Estate if Mr Macphillamy is present in Court during the evidence of those other witnesses. Before turning to the other issues this matter can be shortly disposed of by practical means as counsel for the Estate has offered that Mr Macphillamy will absent himself from Court during the evidence of such witnesses. This removes the risk of cross contamination by Mr Macphillamy being able to listen to other witnesses give their evidence prior to his giving of any evidence in the proceedings.
The second aspect relates to an allegation that is now made by Mr SCVG suggestive that Mr Macphillamy has engaged in the coaching of witnesses and in particular the deceased, Ms KLD, who previously filed an affidavit in the proceedings. Again, this is not a matter that at present requires in-depth analysis. As was correctly pointed out by counsel for the Estate. There is no evidence that is suggestive of such.
The third aspect is that Mr Macphillamy will be called upon to give evidence in relation to the contentious issue of whether he deceived or took part in the deception of the Court regarding Mr SCVG’s failure to attend Court on 14 September 2017. That failure was causally linked to the dismissal of his then application. The participation in such a deception would involve an allegation of professional misconduct against Mr Macphillamy. It is on this third aspect that the issue of whether he should be restrained or not stands or falls.
In perhaps what is the seminal judgment on such issues Justice Brereton in Kallinicos v Hunt [2005] NSWSC 1181 at [76] explained what he described as the jurisdiction of a court to restrain solicitors from acting as an incident of its “inherent jurisdiction over its officers and to control its process in aid of the administration of justice”. The application of such powers arises where a solicitor is a witness to contentious matters and where such points to a conflict of interest, or potential conflict of interest, or may point to such in the following manner. That is where a solicitor is to be a contentious witness there may be a conflict between their duties to the client in their giving of evidence, their self interest in the giving of the evidence, and their duties as an officer of the court in the giving of the evidence.
These are matters that may particularly arise where the issue is one that is critical of or alleges impropriety or misconduct against the solicitor. That is the issue here as the alleged misconduct against Mr Macphillamy is that he participated in a deception of the Court. The test framed by Justice Brereton is that of a fair-minded, reasonably informed member of the public who concludes that the proper administration of justice requires that a legal practitioner should be prevented from acting, to protect the integrity of the judicial process and the due administration and appearance of the due administration of justice.[1]
[1] Kallinicos v Hunt [2005] NSWSC 1181 at [76].
Justice Brereton described the power to restrain a solicitor as being an exceptional power and one that is to be exercised with caution. Given that the focus of the exercise of the power is on the proper administration of justice he also indicated that there were other aspects of the administration of justice that also needed to be taken into account when deciding whether or not to exercise the power. These include that the public have an interest in persons not being deprived of their lawyer of choice without due cause. There is also to be consideration given to the inconvenience that will arise on the exclusion of the solicitor or the impracticality that will follow as a result of the exclusion.
Regard may also be had in so far as one of the aspects of the conflict is a conflict of interest between the client and the solicitor to the attitude of the client to the conflict. Evidence was given here by Mr Draper, one of the executors of the Estate now conducting the litigation, that following the advice of potential conflict from Senior Counsel, he and the Estate determined, on the basis that they had confidence that Mr Macphillamy would continue to discharge his duties, in the face of the strong difficulties and expense that would be occasioned by him being excluded given the extensive complex history of the litigation which, even if it did not require another solicitor to have a complete grasp of the whole 15 years of such and the full nature of the entwining of the issues with their family interests, would be a matter of great complexity, that they would retain Mr Macphillamy notwithstanding that advice of potential conflict.
This is a matter that speaks very strongly to the public interests in so far as they concern the Estate being able to retain its lawyer of choice, the inconvenience that would be suffered by the restraint of Mr Macphillamy and the impracticality of such, particularly so as this is a matter being dealt with as we reach the end of the first day of the final trial of the matter.
The issue then remains, though, whether the case is such as to attract exceptionally an order to restrain, which falls primarily on the issue of the conflict between Mr Macphillamy’s self-interest and his duties to the Court as an officer of the court. As has been noted by Senior Counsel appearing for the Estate it will be an undesirable result if every allegation against a solicitor resulted in that solicitor's removal. It may be accepted that if that was the general approach that the consequences of such would be inconsistent with the proper administration of justice. This perhaps is one of the matters that points to the exceptional nature of the exercise of the jurisdiction to restrain a solicitor. Here, the allegation can be boiled down to a failure to advise the Court of the inability of Mr SCVG to attend Court, or that Mr Macphillamy implicitly instructed counsel to misrepresent the position to the Court in relation to Mr SCVG’s inability to attend Court.
It may be considered that where the evidence points to a clear and serious departure from the standards imposed on an officer of a court the rationale for the exercise of the exceptional power becomes stronger. Here, the evidence is not so clear. I can of course not yet come to a final conclusion on the matter but at present the allegation is uncertain. Perhaps it is a matter that will be cured by submissions made or by further cross-examination, but at present the evidence is at best equivocal.
Under those circumstances, despite the potential conflict, the interests of justice would be poorly served by the removal of the solicitor where his retention is supported by the client with a litigation that is complex and expensive, where we are partway through a final hearing that has been five years in the making, and where the question of misconduct on the evidence so far presented to the Court in chief or proposed to be presented to the Court in chief appears equivocal.
The prejudice to the Estate as to the conduct of the case occasioned by the delay and the impacts on the administration of justice outweigh the equivocal evidence at present of misconduct, meaning the exceptional power should not be exercised in this instance.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 8 February 2022
0