FAMILY LAW – PROCEDURAL – Application to restrain a lawyer from acting due to conflict of interest – where lawyer represented the applicant in separate family proceedings, concerning a different party, 23 years prior to current family law proceedings where the lawyer has no recollection of acting for the applicant – where lawyer now acting against the applicant in current proceedings whether there is a breach of confidence – whether the due administration of justice requires that the lawyer be restrained from acting.
Yunghanns v Elfic Pty Ltd (unreported, Supreme Court of Victoria, 16 July 1998)
Division:
Division 2 Family Law
Number of paragraphs:
70
Date of last submission/s:
30 June 2023
Date of hearing:
30 June 2023
Place:
Hobart
Counsel for the Applicant:
Ms Holloway
Solicitor for the Applicant:
McGrath & Co
Counsel for the Respondent:
Ms Cuthbertson SC
Solicitor for the Respondent:
E Law Firm
ORDERS
LNC 175 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS TANDON
Applicant
AND:
MR FARBER
Respondent
order made by:
JUDGE TURNBULL
DATE OF ORDER:
26 July 2023
THE COURT ORDERS THAT:
1.The Respondent — Mr Farber — be restrained from instructing Mr E and/or E Law Firm (a firm) to act for him in these proceedings.
2.Mr E and/or E Law Firm (a firm) be restrained from providing any information confidential to the Applicant — Ms Tandon — to the Respondent or to any solicitors who may accept instructions to represent the Respondent in the future.
3.If the Applicant intends to pursue her application for costs she must file, within 14 days of the date of this order:
(a)A fully completed up to date Financial Statement; and
(b)Written submissions (of no longer than 4 pages) addressing the factors set out in s117(2A) of the Act, and any other relevant matter-
failing which her application for costs is dismissed.
4.In the event that the Applicant complies with paragraph 3 of this Order, then the Respondent must file, within 14 days of receiving the Applicant’s documents:
(a)A fully completed up to date Financial Statement; and
(b)Written submissions (of…
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
AGLC
Tandon & Farber [2023] FedCFamC2F 916
Case
[2023] FedCFamC2F 916
Decision Date
CaseChat Overview and Summary
The case of Tandon & Farber involved an application by Ms Tandon to restrain Mr E and E Law Firm from acting for Mr Farber in property settlement proceedings. Ms Tandon argued that Mr E had acted for her 23 years prior in a separate family law matter, and therefore held confidential information relevant to the current proceedings. Mr E denied holding any such information. The court had to decide whether there was a breach of confidence or a requirement to restrain Mr E under the court's inherent jurisdiction to control its process. The court found that Ms Tandon had established that Mr E held confidential information in the form of his impressions of her formed during his previous representation. There was also a real risk that this information was relevant to the current proceedings and that there was a real risk of misuse. The court concluded that a fair minded reasonably informed member of the public might conclude that the proper administration of justice required that Mr E be prevented from acting for Mr Farber. The court made orders restraining Mr E and E Law Firm from acting for Mr Farber and requiring them not to disclose any confidential information of Ms Tandon to Mr Farber.