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 response filed 7 July 2021.

2The wife’s application was triggered by Ms H employing [Ms I] as a part-time administrator/clerk in June 2021, in circumstances where Ms I was previously employed as a junior paralegal by the wife’s solicitors, [Law Firm B].

THE INTERIM HEARING

3I heard the wife’s application on 12 July 2021. The wife was represented by counsel, and the husband by senior counsel. The wife relied on her affidavit filed on 16 June 2021, together with written submissions dated 11 July 2021. The husband relied on the affidavits of Ms H and Ms I, both filed on 7 July 2021, and written submissions filed on 9 July 2021. Both parties took the opportunity to make further, oral submissions at the hearing.

THE EVIDENCE

4The salient parts of the wife’s affidavit were as follows:

a) Ms I was employed as a junior paralegal by Law Firm B from 25 February 2019 to 30 September 2020. During this period, the wife met Ms I on several occasions.

b) During the course of her employment, Ms I was "involved" in: (1) taking instructions from the wife; (2) collating documents belonging to the wife; (3) reviewing the husband’s disclosure and making notes/comments in relation to the same; (4) assisting with the preparation of documents relating the wife’s family law matter; (5) attending meetings with the wife, Law Firm B's senior paralegal [Ms J], and the wife’s solicitors, [Mr K] and [Ms L]; and (6) preparing the wife’s matter for trial, including attending meetings during which the wife received confidential legal advice from Law Firm B.

c) Ms I was "involved" in meetings with the wife both face-to-face, and via telephone and electronic communication. The wife estimated she spent more than 30 hours with Ms I, during which they got to know each other and were familiar with each other’s personalities.

d) During the period of her employment, Ms I had full access to the wife’s file at Law Firm B, including all correspondence, court documents, file notes and disclosure notes.

e) As a result of her employment with Law Firm B, and her involvement in the wife’s matter, Ms I has confidential knowledge and information relating to the wife and her family law matter, including details of advice given to her by Law Firm B.

f) The wife outlined the history of: (1) the written communications between Ms H and Law Firm B in relation to the restraint issue commencing on 14 April 2021 [which I refer to in more detail later in these Reasons]; and (2) an outline of the family law proceedings since this time, including that the trial commenced on Monday 31 May 2021; the parties spent the first day and a half trying to agree a schedule of assets and liabilities and conducting negotiations; ultimately, the trial was adjourned; and the matter is now listed in the July 2021 callover for the allocation of another trial date.

g) The wife did not doubt that Ms I would not intentionally disclose any information to Ms H. However, she considered that there is a risk that Ms I may unintentionally disclose information which is confidential in nature.

5I observe that the wife was silent in her affidavit about communications that took place prior to 14 April 2021 between Ms J and/or Mr K on the one hand, and Ms I and/or Ms H on the other hand, in relation to Ms I's engagement as Ms H’s clerk.

6The salient parts of Ms I's affidavit were as follows:

a) Ms I is a long-standing friend and close neighbour of Mr K and his wife, Ms J.

b) In February 2019, Ms I commenced work with Law Firm B as a junior paralegal, working 15 hours per week. Initially, she sat at the front desk and answered the phone and incoming emails, as well as carrying out paralegal duties. Later, she moved into a separate office, and was no longer responsible for answering incoming telephone calls. Instead, her role then focussed on managing clients’ disclosure and administrative duties.

c) Ms I had no recollection of any matter that could be said to be confidential in relation to the [Song] file and observed that Ms J undertook most of the duties in the case and directed day-to-day tasks on the matter. To the best of her recollection, Ms I did not attend any private meetings with the wife.

d) On 30 September 2020, Ms I ceased working for Law Firm B after she was made redundant. She then actively sought other work. On 30 March 2020, Ms I applied for a part-time position as a barrister’s clerk with Ms H. Ms I only learnt about the position after being informed of it by Ms J, and both Ms J and Mr K encouraged Ms I to apply for the position.

e) Ms I attended a job interview with Ms H on 6 April 2021. During the interview, Ms H opened a cupboard door and Ms I observed a file in the cupboard with the name ["Song"] on the spine. Ms I then said words to the effect that "I know that file". Ms H replied with words to the effect that: "Oh yes, [Mr K] is on the other side. To be safe we will Chinese wall that from the beginning if I go on to hire you." Ms I deposed that she was unaware that Ms H was the husband’s counsel prior to the interview.

f) Subsequently, Ms H offered Ms I the position, and Ms I accepted. On 13 April 2021, Ms H and Ms I met again to discuss Ms I's proposed role, during which Ms H again confirmed that Ms I would not have anything to do with the [Song] matter.

g) On 19 April 2021, Ms I received an email from Ms H, informing her that Law Firm B believed there was now a conflict of interest as a result of Ms H offering her the position, and that Ms H should hand back the [Song] brief if she intended to engage Ms I.

h) Ms H and Ms I subsequently agreed to postpone the commencement of Ms I’s employment until early June, by which time the [Song] trial was scheduled to be completed.

i) On 10 June 2021, Ms I commenced as Ms H’s part-time clerk, working remotely from her own home. On 15 June 2021, Ms I and Ms H attended a Zoom meeting about work-related issues, during which Ms H informed Ms I that there was now a separate email for the [Song] matter, and that Ms I could now have access to Ms H’s general emails.

j) Ms I deposed that she was well trained by Mr K and Ms J that matters involving clients are highly confidential and that information gained in the office of a solicitor should not be shared outside that office. Since leaving Law Firm B, Ms I has not discussed the [Song] matter with Ms H (or with Mr K and Ms J) save as set out in her affidavit. Ms I also deposed that she was well aware she should not share confidential information concerning either the wife or the husband with any other person.

k) Ms I has given an undertaking to the Court in the following terms:

I will not divulge to [Ms H] or her instructing solicitors any information received by me in relation to [Ms Song], or any matter relating to [Ms Song].

7The salient parts of Ms H's affidavit were as follows:

a) Ms H was retained as counsel for the husband by the husband’s solicitors in November 2018. She has generally acted as the husband’s counsel since then. She has rendered accounts and been paid a total of $38,844.94 for the husband’s matter. That includes Ms H’s work in preparing for and appearing as counsel at the (adjourned) trial in May 2021.

b) Ms H has made fee arrangements in the [Song] matter which are less than the relevant scale. Even if other counsel were available to take the brief at a similar rate, it is inevitable that there would be some duplication of cost as any new counsel would take some time to master the brief.

c) On 2 April 2021, Ms H emailed Mr K and Ms J to let them know she intended to interview Ms I for the position of barrister’s clerk advertised by her, noting that Mr K had been nominated by Ms I as a referee. No objection was made to Ms H doing so.

d) Ms H set out details of her interview with Ms I on 6 April 2021, which were entirely consistent with Ms I’s evidence in this regard.

e) On Friday 9 April 2021, Ms H spoke with Mr K by telephone and informed him that she was intending to offer the position to Ms I. During the telephone call, Ms H specifically raised with Mr K the [Song] matter and: (1) confirmed that Ms I had mentioned during the interview that she knew of the matter; and (2) set out the arrangements that she would make immediately to ensure an effective information barrier was established. Mr K again did not raise any objection. Rather, Mr K encouraged Ms H to communicate that news to Ms I before the weekend and offered to provide Ms I’s contact details to Ms H for this purpose. Shortly after the telephone call, Ms H received a text message from Mr K with Ms I’s contact details, and Ms H then immediately telephoned Ms I and offered her the position.

f) On 14 April 2021, Ms H wrote to Law Firm B confirming that she had employed Ms I as her clerk. She provided information as to the administrative duties Ms I would be performing as her clerk and also set out details of the specific information barriers she had implemented in relation to the [Song] matter, and offered to provide undertakings (both personally, and of Ms I). In this regard, Ms H specifically offered to provide a written undertaking that she would not discuss the [Song] matter with Ms I. [I am satisfied that Ms H’s letter to Law Firm B demonstrates that Ms H was alive to the possibility of a conflict of interest and sought to deal with the issue in a proactive, transparent and entirely appropriate manner from the outset.]

g) On or about 15 April 2021, Ms H received a telephone call from Mr K, during which he said words to the effect that Ms I would be an excellent recruit in a very junior administrative role, but he did not want her to have the impression that Ms I was an advanced clerk or paralegal. Ms H confirmed to Mr K that Ms I’s role would involve booking mediations and calendar appointments, organising paper and electronic briefs, and typing from dictation. In the future, Ms H hoped to train Ms I in other areas. Mr K confirmed to Ms H that Ms I had experience in collating disclosure.

h) On 16 April 2021, Ms H received an email from Mr K informing her that he had "formed a personal view about the conflict issue; however I am presently obtaining my client’s instructions in relation to the matter…". Law Firm B subsequently wrote to Ms H on 19 April 2021 and, having received instructions from the wife, formally objected to Ms H continuing to act for Mr Song in the matter and requested that Ms H return the brief to Mr Song's instructing solicitors.

i) To avoid the distraction of a conflict argument in the lead up to the trial (which at that time was due to commence on 31 May 2021), Ms H and Ms I agreed to defer Ms I's commencement date as her clerk until after the trial was scheduled to finish. [It was in that context that Ms H sent an email to Law Firm B on 19 April 2021, advising that Ms I’s employment had been terminated, and posing a series of questions to Law Firm B in relation to the conflict of interest that was now being pressed. I will return to this email later in these Reasons, as it assumed significance in the wife’s application.]

j) Ms H deposed that she does not know if Ms I has any information regarding the [Song] matter that could properly be said to be confidential.

k) Nevertheless, Ms H deposed that she has put into place "blanket" arrangements to create an effective information barrier between herself and Ms I, insofar as the [Song] matter is concerned. Firstly, Ms H made it plain to Ms I, and Ms I clearly understood, that they were not to discuss the [Song] matter. Secondly, Ms H took steps to ensure that Ms I has no access to any of her [Song] records and brief and no involvement in any aspect of the [Song] matter, to remove the risk of any comment or observation between them about the matter. This included: (1) making arrangements for Ms I to routinely work remotely – that is, from her own home; (2) creating a separate email address which will be used for all [Song]-related correspondence and to which Ms I has no access; (3) restricting Ms I’s electronic and physical access to the [Song] work files; and (4) further isolating Ms I from the [Song] matter by making other administrative arrangements to avoid having to instruct Ms I to undertake any work whatsoever related to the [Song] matter.

l) Ms H deposed that she is willing to provide an undertaking to the Court that she has not and will not discuss any aspect of the [Song] proceedings with Ms I (and noting that Ms H had already specifically offered to give such undertaking in her letter to Law Firm B dated 14 April 2021).

Significant correspondence after Law Firm B gives formal notice of objection to Ms H continuing to act as counsel, and related events

8The wife annexed various communications to her affidavit, which I set out below.

9Ms H wrote to Law Firm B on 19 April 2021, confirming that Ms I’s employment had been terminated, and seeking clarification from Law Firm B about the extent to which the allege conflict of interest was being pressed. The text of that email read as follows:

Dear [Mr K]

[Ms I] has remained ‘locked out’ of all of the electronic files and the hard copy briefs have been at my personal residence. [Ms I] attended with my old PA last week for two training days and otherwise was scheduled to commence work for me tomorrow.

I have terminated that arrangement with immediate effect. All hardware is being returned.

I trust that resolves the conflict issue that you perceive to exist.

It is a shame that you have taken this position. I say this particularly in circumstances where I told you that [Ms I] raised the [Song] issue with me in interview.

If it is the case that you will bring an application that the Court order the termination of my retainer with [Law Firm A], irrespective of the immediate termination of [Ms I’s] employment, please advise as a matter of urgency so that I can attend to the drafting of my evidence and submissions in reply.

I suggest you might also do me (and [Ms I], whom you recommended I employ) the courtesy of turning your mind to whether I might consider employing [Ms I] in future (when the [Song] proceedings are completed). That is the course I would like to take.

Or do you suggest that conflict might be called in future if I act against your firm for any other client you have had during [Ms I’s] employment with your firm?

If so, will you provide me with a list of the matters about which you say I will be conflicted If I employ [Ms I] at a future date?

Do you have business documents which evidence files she has worked on? Can I presume the breadth of your conflict concerns would not be so wide as to include every open client file, irrespective of whether [Ms I], as a junior clerk has directly worked on a matter or with a client. That would surely be too much of a restraint against me and [Ms I] would it not?

I look forward to your prompt response.

(emphasis added)

10Law Firm B responded on 20 April 2021 as follows:

I have read your email sent to me last night at 8:13 PM.

I have noted the tone of your email which can only be described as aggressive and exhibits a good deal of anger at the content of my correspondence sent to you yesterday, which I have to say is surprising having regard to your extensive knowledge of the law.

I would like to ‘set the record straight’ if I may. You will recall that I sent you a short email on 16 April 2021 advising you that I had ‘formed a personal view’ about whether you should retain your Brief from your instructing solicitor in this matter in circumstances where you had employed as your personal assistant a former employee of this office. I did not advise you of what my personal view was, however, I am prepared to tell you now that it was not the same view I expressed in my formal correspondence emailed to you yesterday at 1.58 pm.

However, as a result of my discussion with other members of my staff and, more importantly, the retired Judicial Officer to whom I referred in my previous correspondence, and further as a result of my having had a closer look at the relevant case law, I reluctantly changed my view.

[Law Firm B then set out a lengthy exposition of their view of the relevant law]

I did not lightly suggest to you that you should return the Brief to [Law Firm A] as I certainly did not want to deprive you of work, nor deprive the husband of competent legal Counsel. My decision was based upon the considerations above referred to, amongst others, and upon my client’s instructions that she would feel extremely uncomfortable if you continued to act for her husband in circumstances where you had employed [Ms I]. My ultimate decision was strongly supported by the retired Judicial Officer (Judge) with whom I discussed the matter. That person was provided with all the relevant facts (except names). If I had expressed the view that I had no objection to you continuing to act for the husband after considering the relevant case law and my client, after providing me with specific instructions that she was very uncomfortable with you continuing to act in the matter, was for any reason at all displeased with the result of the trial, I would then bear significant risk of adverse repercussions from my client. That is not a risk that I was prepared to take.

I have written to my client and asked for her instructions in relation to whether she wishes to make an application for an order that you terminate your retainer with [Law Firm A] in circumstances where you now appear to have terminated [Ms I’s] employment. I will advise you of those instructions as soon as I receive them.

In the meantime, can I express my bitter disappointment that you have elected to essentially terminate [Ms I’s] employment in lieu of returning your Brief.

It is impossible for me to answer your question as to whether a conflict might arise in the future if you acted against any other client of this firm who was a client at the time of [Ms I’s] employment here if you re-employ [Ms I]. It is certainly a possibility, although a very remote one I would have thought. I will not be providing you with a list of matters in which there may be a potential conflict if you re-employed [Ms I] at a future date as that, in itself, is confidential information. However, I repeat that it is most unlikely that a conflict will ever arise in the future in relation to any other client.

Obviously, I do not have any objection if you re-employed [Ms I] in the future when the [Song] proceedings have been completed; in fact, I encourage you to do so. I repeat the expression of my disappointment that you have elected to terminate [Ms I’s] employment rather than return the Brief. To be perfectly honest, I did not even contemplate for one moment that possible result when I wrote to you yesterday. Perhaps I was naïve. I remain of the view that [Ms I] would be an asset for you and would be more important for your practice than a single client.

I believe that the question posed in the penultimate paragraph of your email has been put to me in anger and I will not respond to it.

I sincerely regret that this situation has arisen, particularly for [Ms I’s] sake. I would be grateful if you provided a copy of this letter to [Ms I], however, I will leave that up to you. I do not believe it appropriate, at least at the present moment, that I provide her with a copy of it.

11On 21 April 2021, Ms H wrote to Law Firm B and said (among other things):

Given that [Ms I] is no longer in my employment, the question becomes whether it is appropriate for me to remain as counsel in circumstances where [Ms I]’s relationship with me had only involved training in preparation to commencement employment.

12On 22 April 2021, Mr K responded by email and simply said: "Under the circumstances my client no longer has any objection to your continued involvement in this matter".

13In her affidavit, Ms H deposed that the trial started on 31 May 2021 as planned but was adjourned on 1 June 2021 and is now awaiting a new trial date. In those circumstances, Ms H made arrangements for Ms I to commence as her clerk. Ms H informed Law Firm B of her decision in this regard by email dated 2 June 2021, in which she said (among other things):

[Ms I] has been unemployed since you terminated her employment in about October last year. While I was comfortable to ask [Ms I] to wait some 7 weeks until the conclusion of trial this week, it is obviously untenable for her to wait until the [trial] concludes in late 2021 before she can start work.

14In her correspondence, Ms H otherwise invited Law Firm B to advise whether the wife continued to press her objection to Ms H acting as counsel for the husband. On 4 June 2021, Law Firm B wrote to Ms H, confirming the wife maintained her objection and would be filing an application.

LEGAL PRINCIPLES

15There is no absolute rule that a legal practitioner who has acted for a client in a particular matter must not act against that client in the same or another matter: Karapataki v Karapataki [2011] FMCAfam 6 at [28].

16In Osferatu & Osferatu (2015) FLC 93-666 ("Osferatu"), the Full Court observed that:

[t]here are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. 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. The third category may be involved in conjunction with either of the first two so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different (Kallinicos and Anor v Hunt and Ors [2005] NSWSC 1181).[3]

[3] Osferatu & Osferatu (2015) FLC 93-666, [20].

17The wife relied on two of the three bases identified in Kallinicos and Anor v Hunt and Ors (2005) 64 NSWLR 561 ("Kallinicos") in support of the injunction sought by her: (1) breach of confidence; and (2) the inherent jurisdiction of the court over its officers and to control its processes.

BREACH OF CONFIDENCE

Legal principles

18In Osferatu, the Full Court provided guidance as to the matters that should be taken account in determining whether a lawyer should be restrained from acting due to a breach of confidence. The mains points emphasised by the Full Court may be summarised as follows:

a) Firstly, the former client has the burden of proving (by adducing cogent and persuasive evidence) that the lawyer against whom the injunction is sought is in possession of confidential information that is or may be relevant to the matter before the court.[4]

b) Secondly, in discharging that burden, the former client need only give evidence that they have provided to the lawyer confidential information. It is not necessary for the former client to divulge the content of that information.[5] However, it is necessary for the former client to at least identify the confidential information that is said to be possessed by the lawyer in a sufficiently specific way to enable it to be identified.[6] For evidence of confidential information to be "persuasive and cogent [it] should [identify] the nature of the information received or likely to have been received and [how that information is] relevant to the current proceedings".[7] As Bryson J observed in Mancini v Mancini [1999] NSWSC 800 at [7]:

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, and a general allegation of the kind put forward here to the effect that from the nature of the past legal business confidential information must have been communicated should not in my opinion be upheld.

c) Thirdly, once the former client has discharged the evidentiary onus, then next step is to consider the risk that the confidential information will be disclosed.[8] In this regard, the risk must be a real risk of misuse as opposed to one which is merely fanciful.[9] The evidentiary burden is now on the lawyer (or their firm) "to show that there is no risk that the information will come into possession of those now acting" against the former client,[10] and "the court should restrain the firm from acting "unless satisfied on the basis of clear and convincing evidence that all [effective] measures have been taken to ensure that no disclosure will occur".[11]

d) Finally, there must be 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 the 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."[12] The nature and type of confidential information the lawyer is said to possess is important, as it informs the balancing exercise the court must undertake as between the right of the former client on the one hand to protect their confidences,[13] and the need to give appropriate weight to the public interest in a litigant not being deprived of their lawyer of choice, and the costs and inconvenience that will result if that litigant is required to engage new legal representation.[14]

[4] Ibid, [26].

[5] Ibid, [25] citing McMillan and McMillan (2000) FLC 93-048, [87].

[6] Ibid, [27] citing Mancini v Mancini [1999] NSWSC 800, [7].

[7] Ibid, [48].

[8] Ibid, [32].

[9] Ibid, [39].

[10] Prince Jefri Bolkiah v KPMG (A Firm) [1992] 2 AC 222, 237-238.

[11] Ibid.

[12] Osferatu & Osferatu (2015) FLC 93-666, [35].

[13] In Prince Jefri Bolkiah v KPMG (A Firm) [1992] 2 AC 222, Lord Millett said this (at 236) of the importance of the protection of confidences: "…It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest."

[14] Osferatu & Osferatu (2015) FLC 93-666, [28] citing Billington v Billington (No 2) [2008] FamCA 409, [43].

19The Court’s power to restrain a lawyer from acting for a party on the basis of a breach of confidence extends to a situation where that lawyer has employed a person who: (1) is not legally qualified; (2) was previously employed by the lawyer acting for the other party; and (3) in the course of that earlier employment received (or was likely to have received) confidential information: see McMillan and McMillan (2000) FLC 93-048, [66].

Discussion

20The wife’s evidence in her affidavit in relation to the confidential information that Ms I is alleged to have received verges on being nebulous. Paragraphs 6 to 10 of the wife’s affidavit focus on: (1) the time that the wife spent in the company of Ms I, getting to know each other and becoming familiar with each other’s personalities; and (2) describing the activities in which Ms I was engaged whilst employed by Law Firm B, rather than describing, even in a general sense, the nature of the information Ms I is alleged to have received, and how it is relevant to the current proceedings.

21Nevertheless, Ms I did have direct communications with the wife during her tenure at Law Firm B (notwithstanding the nature and extent of that communication is in dispute). A partially redacted timesheet listing produced by Law Firm B and tendered at the hearing revealed that Ms I charged time to the wife’s matter on five occasions during the period February 2019 to April 2020. Of the five entries, three involved dealing with "discoverable documents" and "organising documents" and two concerned telephone calls that Ms I received from the wife, including on 15 March 2019 a "[t]elephone call from client", and on 18 October 2019 a "[t]elephone call from client re Single Expert Report" (and noting the remainder of the description for that time entry was redacted).

22In Osferatu the Full Court (at [26]) drew a distinction between cases in which the alleged recipient of the confidential information had direct dealings with the client, and those where there were not. In the former case:

…the client need only give evidence that he has provided confidential information to the solicitor (or in this case, the law clerk/secretary). The client does not have to divulge the content of that information. (See Mills and also Lindenmayer J in Stewart.) In the present case, we consider it sufficient, as we said earlier, that the husband has sworn that he had given instructions to Mr Pitts as to how he wished his "matter to be conducted and the position to be put to the wife". It is obvious that such matters would come within the description of "confidential information".[15]

[15] McMillan and McMillan (2000) FLC 93-048, [87].

23By contrast, more specific evidence may be required as to the nature of the confidential information alleged to have been received where the recipient had no direct dealings with the client.

24The timesheet listing is evidence that Ms I had direct telephone communications with the wife. The wife also deposed (among other things) that Ms I had been "involved" in taking the wife’s instructions and was present at meetings when legal advice was provided to the wife. Although Ms I has little if any recollection of the wife’s matter, Ms I did not deny her involvement in the wife’s matter as alleged (save, perhaps, to say that she did not recall having any personal meetings with the wife).

25In the circumstances, I am satisfied that Ms I did receive information that is confidential to the wife, in the sense that Ms I was "involved" when the wife communicated instructions about her family law matter; and Ms I was present when legal advice was provided to the wife.

26The wife also submitted that as Ms I had the opportunity to get to know the wife whilst she worked for Law Firm B and became familiar with the wife’s personality, Ms H may gain an advantage if she became aware of such "getting to know you factors" from Ms I, particularly insofar as Ms H will have the opportunity to cross‑examine the wife, if not restrained. In this regard, the wife referred to the decision in Fordham v Legal Practitioners’ Complaints Committee (1997) 18 WAR 467 at 480. In this case, there is no risk that Ms I will directly cross-examine the wife or even be present in the court room when the cross-examination occurs; albeit I accept that in theory Ms H could gain an advantage in her cross‑examination of the wife, if there was an exchange of information between her and Ms I about the matter.[16]

[16] I observe that in any event, Ms H has a much more reliable source of information in relation to the "getting to know you factors": being the husband.

27I am satisfied that there is no real risk that any confidential information held by Ms I, including but not limited to any "getting to know you factors", will come into possession of Ms H or the husband’s solicitors. This is because I am satisfied that effective communication barriers have been established to protect any such confidential information. This includes: (1) the steps taken by Ms H from the outset to isolate Ms I from any ongoing involvement in the matter; (2) the wife’s concession that Ms I would not intentionally disclose any confidential information; (3) the practicalities of Ms I’s working from home arrangements, which limits the face‑to‑face contact between her and Ms H and makes the risk of unintentional/accidental/inadvertent disclosure highly unlikely; (4) the sworn evidence of Ms I, together with her Undertaking to the Court, that she will not divulge to Ms H or her instructing solicitors any information/matter relating to Ms Song; and (5) the sworn evidence of Ms H, noting that she is a legal practitioner and an officer of the court, including that she is aware of her obligations not to seek to improperly obtain information or make use of confidential information inadvertently disclosed.

28The wife’s counsel conceded during the hearing that Ms H had put in place significant information barriers that in the present circumstances, would effectively quarantine Ms I from the [Song] case.

29I also take into account the husband’s position that he wishes to continue to instruct Ms H as his counsel of choice and is likely to incur additional costs in having to instruct another counsel, if the Court accedes to the wife’s application. These matters weigh against the making of an injunction as sought by the wife.

30In conclusion, I am satisfied that the competing interests of the parties weigh in favour of the husband not being deprived of his counsel of choice, particularly in circumstances where I am satisfied that there is no real risk of the wife’s confidences being disclosed, having regard to the effective information barriers put in place by Ms H.

COURT’S INHERENT JURISDICTION

31In Kallinicos, Brereton J discussed the principles applicable to the exercise of the court’s inherent jurisdiction in the following terms (at [76], fourth to seventh bullet points):

·[in addition to the jurisdiction founded on breach fiduciary duty or breach of confidence] the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice…

·The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

·The jurisdiction is to be regarded as exceptional and is to be exercised with caution.

·Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.

·The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.

(citations omitted)

32I note the comments of Hodgson JA (with whom Spigelman CJ and Campbell JA agreed) in Worth Recycling Pty Ltd v Waste Recycling and Processing Pty Ltd [2009] NSWCA 354 (at [48]) to the effect that his Honour doubted whether the inherent jurisdiction would be exercised in many cases, on the basis of confidential information, in circumstances where the court otherwise declined to grant an injunction for breach of confidence.[17] In short, I am not satisfied a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Ms H should be restrained from continuing to act for the husband, in circumstances where Ms H took early, proactive, transparent and entirely appropriate steps to establish effective information barriers and accordingly, there was no real risk of any misuse of confidential information.

[17] Worth Recycling Pty Ltd v Waste Recycling and Processing Pty Ltd [2009] NSWCA 354, [48].

33The wife also submitted the bolded paragraph in Ms H’s email to Law Firm B dated 19 April 2021 (and set out at [9] above of these Reasons) amounted to an undertaking or a representation that Ms H would not employ Ms I until the conclusion of the [Song] proceedings. In particular, the wife submitted that the proper administration of justice requires that lawyers "keep their word" and to the extent that Ms H has now acted inconsistently with her undertaking or representation, the Court should intervene to preclude her from being further briefed on the matter.

34However, I am not satisfied that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires the Court to so intervene, for the following reasons: Firstly, the highlighted paragraph from Ms H’s email must be read in context. It forms part of a sequence of paragraphs where Ms H is inviting Law Firm B to clarify the scope of the potential conflict of interest that Law Firm B alleges may arise by virtue of her employment of Ms I (and in circumstances where Ms H made it clear that she did not agree with Law Firm B's contentions and in any event, had earlier sought to address any perceived concerns by setting out particulars of the effective information barriers she would implement). Ms H’s reference to re-employing Ms I upon the conclusion of the [Song] proceedings was not an undertaking or representation as to Ms H’s future conduct. Rather, it was a question or hypothetical that was (in tandem with the three paragraphs that followed it) seeking to explore the issue and elicit a response from Law Firm B as to their position. Secondly, the highlighted paragraph must also be seen in the context of Ms H’s letter to Law Firm B dated 14 April 2021, in which Ms H did explicitly offer to give a written undertaking, as part of the information barriers she proposed to put in place.

ORDERS

35In conclusion, I decline to grant the injunction sought by the wife and intend to dismiss her application. I propose to make the following orders:

1. The Form 2 Application of the wife filed 21 June 2021 and the Form 2A Response of the husband filed 7 July 2021 be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

14 JULY 2021