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

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

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

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.
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.
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.
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.
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.
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 may very much differ from hers.
The civil courts have taken the view that the jurisdiction is to be regarded as exceptional, that is, to be exercised with caution. See, for example, Grimwade v Meagher (1995) 1 VR 446. This court in McMillan said that where confidential information had been communicated by a client to a solicitor, or a member of his or her firm, and which is relevant to the litigation now under consideration, the court should take a cautious approach to any proposal that it should allow the practitioner to be in the position to, or be put in a position to, use the confidential information contrary to that person’s interests. It is a wider view than taken by the civil courts.
In a West Australian case of Durban Roodepoort Deep Limited v Mark David Riley & Ors (2004) WASC 269, the West Australian Supreme Court held that the objecting party must identify the confidential information with precision or particularity, and not merely generally. That was so because the court needed to determine whether the information was truly confidential and whether it was still confidential.
In addition, the objecting party had to show that confidential information was relevant to the issue in the proceedings, and that it might be used in them. If there is an objective risk that confidential information is likely to be communicated, the court must intervene to protect the integrity of the judicial process. This approach makes sense.
Part of the analysis of the impact on the administration of justice and that process, however, is the impact on the wife, in both emotional and financial terms, of having to fund another practitioner. Those are part of a balancing exercise. What is important, however, is that while a court looks at the relevant parties, it is the administration of justice generally, that is the underlying issue.
I turn then to the evidence in this particular case. The husband’s case is that the wife is endeavouring to alienate from him the child of their relationship, and that to establish a pattern of conduct, he wishes to call the wife’s former husband to say that that is exactly what happened to him in their former relationship.
The evidence relied upon by the husband is set out in an affidavit, predominantly relating to the legal issue. That affidavit was sworn by the husband’s practitioner and filed this day. Attached to that affidavit is a letter, dated 2 June, from the husband’s lawyers to the wife’s lawyers. I quote:
In view of your earlier representation of Mr [B], it is apparent that there is now a conflict that must preclude your firm from continuing to represent [the wife]. To clarify the basis upon which the conflict is raised, we advise that we would anticipate, at a final hearing, calling Mr [B] to give evidence. That would put you in the impossible position of having to cross-examine your former client.
Two days later the solicitors for the wife responded with a letter, part of which read as follows:
In regards to your assertion that our office has a conflict of interest, until such time as Mr [B] is on affidavit and has been called to give evidence, no such conflict arises. Should this prove an impediment in the future, we may reconsider our position.
The impasse in the correspondence led the solicitor for the husband to file the affidavit to which I have referred. He said he had spoken to Mr B. He said that Mr B advised that following separation from the wife during August 1997, he instructed Mr Kordos, of Home Wilkinson and Lowry to act on his behalf, in respect of proceedings against his then wife.
He advised Mr Schetzer that at separation, he was locked out of his house, with his then wife obtaining an intervention order against him, and he was unable to see his children for approximately three months. Mr B advised Mr Schetzer, that having sought an order, he was ultimately able to have contact with his children each alternative weekend and during holidays and on special occasions. However, that within two months, the wife breached the orders and failed to make the children available to him.
I interpolate here, that the wife has indicated that the last statement about the breach of the orders is not correct. Mr Schetzer went on to say that Mr B stated that he had advised Mr Kordos of his concerns about the wife’s attitude towards his relationship with the children and that he was aware of the difficulties that he had encountered in seeking to spend time with the children.
Mr Schetzer said that Mr B told him that the wife was found guilty of having breached the orders, and as I have already indicated, that was something that is strongly disputed by the wife. Mr Schetzer finally said that he proposed having Mr B swear an affidavit in support of the client’s application for parenting orders.
The difficulty that I am facing here is that, if the evidence does not meet the required test – that Mr B communicated confidential information to Mr Kordos – then the application must fail. It seems to me that based upon the four paragraphs to which I have referred in the affidavit of Mr Schetzer, that it does not indicate that confidential information was conveyed. At best, Mr B told Mr Schetzer that he had advised Mr Kordos about his concerns of the wife’s attitude.
What confidential information he conveyed is not at all clear. Similarly, apart from saying that the husband proposed to call the former husband, there is no evidence that such a course would give rise to the conveyance of confidential information. It may become a problem, which seems to have been recognised by the solicitor for the wife, if Mr B is to be cross-examined. But that would be a problem for the practitioner for the wife at the time, if they had to either cross-examine Mr B, or alternatively put to the court that his evidence was controversial.
At this stage, the husband’s position is that he may be calling Mr B only. I do not see, at the moment, that that gives rise to a risk to the administration of justice. Accordingly, I propose not to make an order that the practitioners for the wife be restrained from continuing to act.

Costs

This is an application by the wife for costs arising out of the proceedings today. Pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”) each party is required to pay their own costs. The exception to that rule is where the court is satisfied that there are circumstances which justify the court departing from that rule. If the court decides to depart from the rule it has got to take into account the matter under s 117(2A) of the Act.
This is not a case in which I would make an order for costs on the basis that there is no justification for departure from the rule. I say that because this is a situation where it was appropriate for the husband to raise the issue of the objection and as I have indicated a moment ago it may very well be that it will come back to haunt the wife. It would be very sad in this case if it came back immediately prior to the trial which would then leave the wife in a position where she has got to effectively engage other practitioners. That was something about which I expressed some concern.
It seems to me that having regard to the fact that the test is an objective test in the proceedings it was an argument that was open to both sides and I think it was properly put before the court. On that basis I decline to make any order for costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 17 August 2009