Sicheri and Jesper

[2009] FamCA 844

FAMILY COURT OF AUSTRALIA

SICHERI & JESPER [2009] FamCA 844

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain solicitor from acting

Family Law Act 1975 (Cth)

Durban Roodepoort Deep Limited v Mark David Riley & Ors (2004) WASC 269
Grimwade v Meagher (1995) 1 VR 446
McMillan (2000) FLC 93-048
Prince Jefri Bolkiah v KPMG (1992) 1 All ER 517
Thevenaz (1986) FLC 91-748

APPLICANT: Mr Sicheri

RESPONDENT: Ms Jordan

FILE NUMBER: MLC 3865 of 2009

DATE DELIVERED: 10 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ham

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Mr Mort

SOLICITOR FOR THE RESPONDENT: Schetzer Constantinou

Orders

1. That the application in a case filed 5 August 2009 is dismissed.

2. That there be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Sicheri & Jesper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3865 of 2009

MARY JORDAN

Applicant

And

MIMO SUTERA

Respondent

REASONS FOR JUDGMENT

1. The Full Court of this Court in the case of McMillan (2000) FLC 93-048 set out that it was within the court’s jurisdiction to restrain legal practitioners from acting in a particular case because it affected the administration of justice, which in turn affected the perception of the public, that a client’s confidential information remained protected, regardless of changes in the employment of the practitioner.

2. During the subsistence of a retainer, the foundation of the jurisdiction is in the fiduciary obligation of the practitioner.  There is always a conflict of duty where a practitioner acts for persons who have competing interests.  See, for example, Prince Jefri Bolkiah v KPMG (1992) 1 All ER 517.

3. When the retainer ends, the jurisdiction is not based on a conflict of duty, but on the protection of confidences of the former client.  One of the matters, therefore, for examination is whether there is a real risk of disclosure of those protected confidences. 

4. A number of very strong authorities in the civil jurisdictions suggest that the test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the administration of justice requires the court to stop the practitioner from acting contrary to the interests of a former client, who has provided protected confidences to in turn protect the integrity of the judicial process. 

5. In Thevenaz (1986) FLC 91-748, Frederico J took the view that intervention was necessary, even if the risk may have been more theoretical than practical.

6. In this case, two scenarios could conceivably arise.  If the wife’s former husband was proposed as a witness, then the wife’s solicitors would have almost certainly access to his protected confidences.  But secondly, the practitioners would have to contemplate whether their duty to the wife conflicted with their duty to her former husband, whose interest as a witness…