Song and Song & Anor - [2021] FCWA 125

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SONG and SONG & ANOR [2021] FCWA 125
CORAM: SUTHERLAND CJ
HEARD: 12 JULY 2021
DELIVERED : 14 JULY 2021
FILE NO/S: [Redacted]
BETWEEN: MR SONG
Applicant
AND
MS SONG
First Respondent
AND
MR A SONG
Second Respondent

Catchwords:

FAMILY LAW – LEGAL PRACTITIONERS – Where the applicant seeks an order that the respondent’s solicitors be restrained from continuing to instruct counsel in circumstances where counsel employed a part time clerk who had previously worked as a paralegal for the applicant’s solicitors – Whether paralegal in possession of confidential information that is or may be relevant to the matter before the Court – Whether any real risk of misuse of confidential information – Inherent jurisdiction of the Court over its officers and to control its processes – Application dismissed – Case turns on its own facts.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Hooper SC
First Respondent	:	Mr Rynne
Second Respondent	:	Excused from attendance

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Law Firm B
Second Respondent	:	Law Firm C

Case(s) referred to in decision(s):

Billington v Billington (No 2) [2008] FamCA 409
Fordham v Legal Practitioners’ Complaints Committee (1997) 18 WAR 467
Kallinicos and Anor v Hunt and Ors (2005) 64 NSWLR 561
Karapataki v Karapataki [2011] FMCAfam 6
Mancini v Mancini [1999] NSWSC 800
McMillan and McMillan (2000) FLC 93-048
Osferatu & Osferatu (2015) FLC 93-666
Prince Jefri Bolkiah v KPMG (A Firm) [1992] 2 AC 222
Worth Recycling Pty Ltd v Waste Recycling and Processing Pty Ltd [2009]
NSWCA 354

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Song and Song has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

INTRODUCTION

1[Mr Song] (the "husband") and [Ms Song] (the "wife") are involved in parenting and financial proceedings in this court. On 21 June 2021, the wife applied[1] for an injunction restraining the husband’s barrister, [Ms H], from further acting for him in the proceedings. That application was amended orally by the wife’s counsel at the hearing before me on 12 July 2021, such that the injunction was instead sought against the husband’s solicitors, [Law Firm A], from further briefing Ms H. Whilst the amendment was not opposed by the husband, the husband nevertheless opposes[2] any such injunction being made.
[1] Wife’s Form 2 application in a case filed 21 June 2021.
[2] Husband’s Form 2A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FCWA 125
Decision Date: 14 JULY 2021

CaseChat Overview and Summary

Song and Song & Anor was a case heard by the Family Court of Australia concerning an application by the applicant to restrain the respondent’s solicitors from continuing to instruct a particular counsel in their legal proceedings. The applicant argued that the counsel employed a part-time clerk who had previously worked as a paralegal for the applicant’s solicitors and might possess confidential information relevant to the matter before the court. The application raised significant questions about the potential misuse of confidential information and the court's inherent jurisdiction over its officers and processes.

The central legal issues the court had to decide were whether the part-time clerk was in possession of confidential information that was or may be relevant to the matter, and whether there was a real risk of misuse of such confidential information. The applicant needed to demonstrate that the clerk had access to confidential information and that there was a genuine risk that this information might be disclosed to the opposing party. The court also had to consider the principles governing the inherent jurisdiction of the court over its officers and the need to control its processes to ensure fair administration of justice.

The court concluded that the case was unique and hinged on its specific facts. It found that the applicant had not provided sufficient evidence to support the claim that the part-time clerk possessed confidential information relevant to the case, nor had the applicant demonstrated a real risk of misuse of such information. Given the absence of these critical elements, the court dismissed the application. The inherent jurisdiction of the court and the need to maintain fair processes were noted, but the court held that the application did not meet the necessary threshold to warrant an intervention.

Orders