Tandon & Farber
[2023] FedCFamC2F 916
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tandon & Farber [2023] FedCFamC2F 916
File number(s): LNC 175 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 26 July 2023 Catchwords: 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. Legislation: Evidence Act 1995 (Cth) ss 4, 56
Family Law Act 1975 (Cth) ss 90SM(4)(a) and (b)
Legal Profession (Solicitor Conduct) Rules 2020 r14
Cases cited: Carindale Country Club Estate Pty Ltd v Rowan A Astill (1993) 42 FCR
D & J Constructions Pty Ltd v Head (t/as Clayton Utz)(1987) 9 NSWLR 118
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Magro &Magro [1989] FamCA
Mancini v Mancini [1999] NSWSC 800
Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475
Nash v Timbercorp Finance Pty Ltd [2019] FCA 957
Osferatu and Osferatu [2015] FamCAFC 177
Porter v Dyer [2022] FCAFC 116
Sent v John Fairfax Publication Pty Ltd [2002] VSC 429
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 no longer than 4 pages) addressing the factors set out in s117(2A) of the Act, and any other relevant matter -
with the intent, subject to leave, that the decision regarding costs will be made on the papers.
5.The proceedings be adjourned for mention in the Federal Circuit and Family Court of Australia at Town C on 28 August 2023 at 10.00 a.m.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview
This is an application filed by the Applicant de-facto Wife — Ms Tandon (‘the Wife’) — to restrain Mr E and the firm E Law Firm from acting for the Respondent de-facto Husband — Mr Farber (‘the Husband’).
The substantive Application filed by the Wife is for property settlement pursuant to part VIIIAB of the Family Law Act 1975 (‘the Act’), with those proceedings initiated on the 21st of March 2023. The Wife incorporated her application to restrain Mr E from acting for the Husband into that initiating application.
The parties commenced a de facto relationship in 2019 and separated on the 8th of September 2022. There are no children of the relationship.
The Wife claims that the Husband’s solicitor, Mr E, acted for her 23 years ago in a family law matter involving her former partner, Mr D. She argues that Mr E holds confidential information, primarily in the form of his impressions of her and recollections, in his memory, about her previous family law matter.[1]
[1] Case outline of Ms Tandon, filed 23 June 2023 [26] (‘Wife’s case outline’).
Mr E says that he has no recollection of acting for the Wife nor does he hold any file relating to the matter.[2] He does, however, accept that he acted for her 23 years ago. He does not accept that he holds any confidential information of the Wife that is relevant to these proceedings and opposes her application to restrain him from acting for the Husband.
[2] Affidavit of Mr E, filed 9 April 2023 [5].
The Wife's application to restrain Mr E is supported by her affidavits filed on the 21st of March 2023 and the 29th of May 2023.
The Husband relies upon two affidavits from Mr E filed on the 9th of April 2023 and the 23rd of June 2023.
The matter came before me for submissions on the 30 June 2023. Both parties relied on detailed case outlines as well as extensive oral submissions.
The Wife's case
The Wife's primary argument is that Mr E holds confidential information from her engagement with him as a client 23 years ago when she was separating from Mr D. When pressed during final submissions as to what confidential information Mr E continues to hold, Ms Holloway for the Wife confirmed that it was Mr E’s impressions of the Wife, gathered 23 years ago, including recollections about family violence she allegedly experienced from Mr D,[3] that could be exploited during mediations and/or at a final hearing. The Wife states:
I believe that [Mr E] holds personal, confidential information about me in the form of [Mr E]'s memories (or the potential that he may recall memories as this matter proceeds) about negative things about me, such as [Mr D]'s allegations that I was lying about his family violence, or the things I disclosed to [Mr E] in the course of instructing him about family violence, particularly how I reacted to [Mr D]'s non-physical abuse and harassment, the way he got under my skin with verbal abuse or subtle comments that I knew from past context were implicit threats or derogatory comments but may have seemed normal or unremarkable to another person..[4]
[3] Wife’s Case outline (n1) [26].
[4] Affidavit of Ms Tandon, filed 29 May 2023 [12].
Ms Holloway contends that Mr E’s ‘impressions’ of the Wife are relevant to the current proceedings in a number of ways, including that ‘credibility in making allegations of family violence was a live issue [in her previous case], one which would have required the legal practitioner to put his mind to scrutinising her weaknesses or her ability to withstand cross-examination’[5]— and as such there is a real risk that the confidential information will be used to the Husband’s advantage. There is, therefore, a breach of confidence.
[5] Wife’s case outline (n1) [21].
Further, and in the alternative, the Wife argues that the Court, exercising its inherent jurisdiction over one of its officers and to control its process in aid of the administration of justice, should prevent Mr E from acting for the Husband, because ‘a fair-minded, reasonably informed member of the public would question if it was just and fair for a legal practitioner to act against their former client in another family law proceeding’.[6]
[6] Wife’s case outline (n1).
The Husband's case
Ms Cuthbertson SC, for the Husband, submits that the alleged confidential information held by Mr E, including his ‘impressions’ of the Wife that are not otherwise ventilated in her affidavit — and therefore no longer confidential — are not adequately particularised and are, in any event, not relevant to these proceedings. It was submitted that this is not a case where a practitioner is seeking to act where he once acted for the other party in precisely the same matter. In such cases the argument for restraint is usually obvious.[7] In the circumstances of this case, where the Husband was not involved in the matter occurring 23 years ago, the Wife has failed to meet the evidential threshold to establish that the information held by Mr E is both confidential and relevant or material to the Husband’s case.[8] As such, there can be no breach of confidence.
[7] Ms Cutherberston SC during oral submissions with reference to: Case outline of Mr Farber, filed 27 June 2023 [20] – [21] (‘Husband’s case outline’).
[8] Husband’s case outline (n7) [21].
Further, in the circumstances of this case, it cannot be concluded that a fair-minded, reasonably informed member of the public would conclude that Mr E should be prevented from acting for the Husband 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 Law
The Full Court in Osferatu and Osferatu [2015] FamCAFC 177 (‘Osferatu’) confirmed there are three established categories on the basis of which solicitors may be restrained from acting against their client or a 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 v Hunt [2005] NSWSC 1181).[9]
[9] Osferatu and Osferatu [2015] FamCAFC 177 [20].
The first and third categories referred to in Osferatu are those relied upon by the Wife in this case. In relation to the first category — breach of confidence — the relevant approach was recently set out by Thawley J in Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 (‘Dyer v Chrysanthou ‘) at [74]:
In Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 (‘Sent’) at [33], Nettle J stated:
Authority establishes that the court will restrain a legal practitioner continuing to act for a party to litigation if a reasonable person informed of the facts might reasonably anticipate a danger of misuse of confidential information of a former client and that there is a real and sensible possibility that the interest of the practitioner in advancing the case in the litigation might conflict with practitioner’s duty to keep the information confidential, and to refrain from using that information to the detriment of the former client: see Farrow Mortgage v Mendel Properties Pty Ltd (1995) 1 VR at p 5 per Hayne J; Yunghanns v Elfic Pty Ltd (1998) Butterworth Cases 9803497 per Gillard J; Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222 especially at 237 in the speech of Millet L; and World Medical Manufacturing Corporation v Phillips Ormonde & Fitzpatrick (2000) VSC 196 per Gillard J. (emphasis added)
Thawley J (approved by the Full Court on appeal)[10] adopted the approach - to determine if there is a breach of confidence - of Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 (‘Mumbin’) at [77]:
[10] Porter v Dyer [2022] FCAFC 116 [74].
…
(d) A structured approach to the issue whether a legal practitioner should be restrained on the basis of the possible misuse of confidential information is as follows:
(i) What is the relevant information?
(ii) Is that information confidential?
(iii) Does the legal practitioner have possession of that information?
(iv) Is the legal practitioner proposing to act “against” the former client or a person as good as a client in the requisite sense?
(v) Is there a real risk that the confidential information will be relevant?
(vi) Is there no real risk of misuse of the confidential information? (Timbercorp at [64] per Anderson J).
The party moving for an injunction bears the onus of identifying the relevant information with sufficient particularity (question (i) immediately above), as well as demonstrating that the Court should answer the balance of questions (ii) to (v) described immediately above in its favour. However, once these matters are sufficiently demonstrated, the evidential onus shifts to the respondent to address the last question (Timbercorp at [65] per Anderson J).
(f) Most significantly, it is common ground that each case necessarily turns on its own particular facts and circumstances as is illustrated, for example, by cases such as Smirke and Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) [2019] FCA 2115 at [25] per Reeves J). (Emphasis added)
For material to possess the character of confidential information, the information in question must be identified with precision.[11] In Mancini v Mancini [1999] NSWSC 800 Bryson J said at [7]:
It is not possible to address in any clear way and to come to a decision on protection of any alleged confidential information without identifying what the confidential information is in a sufficiently specific way to enable it to be identified. 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.
[11] Nash v Timbercorp Finance Pty Ltd [2019] FCA 957; (2019) 137 ACSR 18 at [66]
Establishing that there is confidential information can, however, in some circumstances, be achieved by considering the nature of the retainer and the type of legal work involved. In Sent, Nettle J set out the following passage of the decision of Gillard J in Yunghanns v Elfic Pty Ltd (unreported, Supreme Court of Victoria, Gillard J, 16 July 1998) at 10:
[T]he degree of particularity of the confidential information must depend upon all the circumstances. Often, it cannot be identified for fear of disclosure. In considering this factor it must be borne in mind that a solicitor makes notes, forms views and opinions of clients and observes things that the client may have forgotten or overlooked.
In some cases, the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information. In this regard, the relationship between solicitor and client may be such the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the “getting to know you” factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client. (emphasis added)
As earlier extracted and emphasised in Mumbin,[12] if the Applicant can establish the solicitor holds confidential information and there is a real risk that the confidential information is relevant to the current proceedings, then the onus shifts to the Respondent to establish that there is no real risk of misuse of the confidential information.
[12] See: Mumbin v Northern Territory of Australia at paragraph [18] of these Reasons.
The risk must be real and more than theoretical as confirmed by the Full Court in Osferatu (emphasis added):
Before leaving this discussion we wish to refer to the statement in McMillan that even “a theoretical risk of the misuse of the confidential information” is sufficient to found relief. The phrase “a theoretical risk” was echoed in Prince Jeffri in the passage quoted earlier. For our part, we find the word “theoretical” unhelpful. There is indeed a continuum of risk from obvious to remote. In Asia Pacific, Bergin J described the risk of disclosure or misuse as “probably real and not fanciful” (at [41]). In Billington Coleman J referred to “any real risk” (at [37]). That phrase was also used by Goldberg J in PhotoCure (at [78]). This is a more meaningful phrase. The consideration should be whether there is a real risk of misuse as opposed to one which is merely fanciful. To the extent that what we have said may be seen to represent a departure from McMillan (which we do not necessarily accept), it is to accord with more recent authority and provides a clearer test.
The risk is not necessarily less ‘real’ simply because the legal advisor has little recollection of as observed by Nettle J in Sent:
One knows as a matter of experience that when he has advised on documents and transactions, recollections of them, although long faded, may revive in the course of the sort of close and careful study which precedes the trial of an action. And when one has conferred with a client, recollection of things said and done in conference may be revived long after the event when the same or similar things are said or done in another place.[13]
[13] Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 [86].
Drummond J in Carindale Country Club Estate Pty Ltd v Rowan A Astill (1993) 42 FCR [27] observed that such information could also be used unintentionally:
[i]t has long been recognised that a solicitor who, with the best will in the world, is determined not to make use of one client's confidential information for the benefit of another client may still subconsciously draw on that information to the disadvantage of the former.
As to the third category identified in Osferatu — a Court’s inherent jurisdiction over its officers to control its process in aid of the administration of justice — the approach was again set out by Thawley J in Dyer v Chrysanthou — who noted the slightly different approaches from earlier decisions:[14]
[14] Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 [136] – [139].
In Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 at [76], Brereton J summarised the relevant principles in the following way:
During the subsistence of a retainer, where the court’s intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court’s jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests (Prince Jefri Bolkiah).
Once the retainer is at an end, however, the court’s jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure) (Prince Jefri Bolkiah).
After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court’s intervention, such duty having come to an end with the retainer (Prince Jefri Bolkiah; Belan v Casey; PhotoCure ASA; British American Tobacco Australia Services Ltd; Asia Pacific Telecommunications Ltd; contra Spincode; McVeigh; Sent).
However, 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 (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v Pattern Holdings; Spincode Pty Ltd; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt). Prince Jefri Bolkiah does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications Ltd appears to acknowledge its continued existence.
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 (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications Ltd).
The jurisdiction is to be regarded as exceptional and is to be exercised with caution (Black v Taylor; Grimwade v Meagher; Bowen v Stott).
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 (Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott).
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 (Black v Taylor; Bowen v Stott).
In Mumbin at [39], Griffiths J stated (emphasis in original):
The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:
(a) The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).
(b) The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).
(c) Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).
(d) This basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information (Dealer Support Services at [96] per Beach J).
(e) This basis for disqualification is an “exceptional one” and is “to be exercised with appropriate caution” (Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404; 237 ALR 612 at [35] per Young J).
(f) A legal practitioner may be restrained from acting in a matter not only where the practitioner has a conflict of interest viz a viz a former client, but also viz a viz a person who is “as good as” a client (Macquarie Bank Ltd v Myer [1994] VicRp 22; [1994] VR 350 at 359 per J D Phillips J).
It will be observed that there is a difference between the summaries of principles made by Brereton and Griffiths JJ in that Brereton J considered that the test was whether a reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner be prevented from acting, whereas Griffiths J considered it sufficient if such a person might so consider. The test as formulated by Griffiths J conforms or coheres more closely with the test for apprehended bias.
As mentioned earlier, this ground does not depend upon a conclusion of risk of misuse of confidential information. I have concluded that there is such a risk. Asking what a fair minded reasonably informed member of the public would say of the requirements of the administration of justice in this case, if told of the events that I have described earlier including that confidential information had been disclosed, my conclusion is that a fair minded member of the public would say that Ms Chrysanthou should not act for Mr Porter in Mr Porter’s defamation proceedings. (emphasis added)
Thawley J’s preference for the approach in Mumbin, was approved on appeal.[15] The Full Court of the Family Court has previously approved the approach of Brereton J,[16] however, it has not been asked to determine which approach is to be preferred. Given its more recent pronouncement I intend to follow the approach of Thawley J, as approved by the Full Court of the Federal Court.
The first category stated in Osferatu — Breach of confidence
[15] Porter v Dyer (n10) [113].
[16] See: Sellers & Burns and Anor [2019] FamCAFC 113 [97].
What is the relevant information?
The nature of the confidential information that the Wife claims Mr E holds is his ‘impression[s]’[17] gained from his previous representation of her in a separate family court matter, where her claims of family violence were denied. She believes that Mr E had to ‘put his mind to scrutinising her weaknesses or her ability to withstand cross-examination. This poses a credible risk that the legal practitioner's recollection (or potential recollection) of the confidential information could be used against the Applicant in the present proceedings’.[18]
[17] Wife’s case outline (n1).
[18] Ibid [21].
In her affidavits, the Wife variously describes the nature of the information she says Mr E may hold as including:
‘knowledge about me’;[19]
‘very personal, very distressing details [of family violence]. He saw me at one of the most vulnerable times of my life, when I was very afraid’;[20]
‘[[Mr D]'s] attacks on my credibility’;[21]
‘personal, confidential information about me in the form of [Mr E]'s memories (or the potential that he may recall memories as this matter proceeds) about negative things about me, such as [Mr D]'s allegations that I was lying about his family violence, or the things I disclosed to [Mr E] in the course of instructing him about family violence, particularly how I reacted to [Mr D]'s non-physical abuse and harassment, the way he got under my skin with verbal abuse or subtle comments that I knew from past context were implicit threats or derogatory comments but may have seemed normal or unremarkable to another person. I fear that [Mr E] will recall these details and that there is a risk these memories and confidential information may prejudice my case by being used by [Mr E] in his advocacy of the Respondent’;[22] and
‘the many subtle ways in which [Mr D] controlled me’.[23]
[19] Affidavit of Ms Tandon, filed 21 March 2023 [13].
[20] Wife’s affidavit (n4) [6].
[21] Ibid [7].
[22] Ibid [12].
[23] Ibid [13].
It is clear that evidence of ‘impressions’ (as Ms Holloway describes them), can be relevant information. As stated in Yunghanns v Elfic Pty Ltd[24] the circumstances of the retainer and the nature of the legal work can be sufficient to establish the nature of the confidential information. This is essentially what the Wife argues. Ms Holloway referred to a decision of Magro &Magro [1989] FamCA (‘Magro’), which involved a solicitor, who acted for the Wife, moving to the firm acting for the Husband, in circumstances where the solicitor ‘knows my whole life and my past history’.[25] Rourke J concluded:
The answer to this contention appears to me to lie in the peculiar quality of Family Law litigation to which reference was made by Bryson J. in D. & J. Constructions Pty. Limited. Particularly in a proceeding involving the wealth of issues identified above, it is reasonable to infer that Mr Byrne, by dint of his lengthy retainer, is in possession of at least some privileged material belonging to the wife which could be put to good use by the husband. This might only consist of impressions of the wife's personality gained after many hours of confidence, which could be exploited by a skillful advocate presented with those impressions.[26]
[24] Yunghanns v Elfic Pty Ltd (unreported, Supreme Court of Victoria, Gillard J, 16 July 1998) in Sent v John Fairfax Publication Pty Ltd (n13) [67].
[25] Magro &Magro [1989] FamCA 2 [25].
[26] Ibid [38].
In Dyer v Chrysanthou,[27] a similar approach was taken in circumstances where a barrister for one of the parties’ had earlier provided a potential witness with advice in the same proceedings:
Further, Ms Chrysanthou’s assessment of Ms Dyer as a witness, and of the credibility of Ms Dyer’s account of the facts, is confidential information. Ms Chrysanthou denies she made such an assessment. Accepting that Ms Chrysanthou did not make any formal assessment of such matters, that does not gainsay that impressions were inevitably formed by her and formed in connection with particular facts, some of which were confidential. It is a part of human nature to assess what one is told by reference to the way in which it is said and the impression one forms, often if not generally subconsciously, of the person making the statement. Barristers are no exception; indeed they readily engage in such assessments out of professional necessity. This kind of confidential information has been rightly described as “highly confidential”: Sent at [70]; Timbercorp at [79]. Amongst other reasons, this is because the course of litigation, including whether it should be settled, and the result of litigation, can turn on whether or not a particular witness should be called and the credibility or reliability of witnesses. (emphasis added)
[27] Dyer v Chrysanthou (n14) [101].
Ms Cuthbertson SC submits that the information that Mr E allegedly holds or may recall, lacks precision and is described in ‘extremely nebulous terms’.[28] Ms Cuthbertson SC argues that the difficulty in applying the Magro analysis is that the Wife does not particularise how many attendances she had upon Mr E, nor how she provided instructions (in writing and/or in person), in circumstances where she only engaged him for ‘some’ months. In Magro, by contrast, the applicant referred to many hours of attendances and conferences[29] — a wealth of information — and the case was an obvious example of swapping sides.[30]
[28] Husband’s case outline (n7) [14].
[29] Magro &Magro (n25).
[30] Ms Cuthbertsons oral submissions.
I agree that the facts of Magro[31] are different to the facts here as this case relates to the Wife’s engagement of Mr E in a separate case, involving a different party 23 years ago. Dyer v Chrysanthou also involves a conflict arising in the exact same proceedings. These cases fall more readily into the category of obvious cases where the legal advisor is restrained from acting, as referred to in Osferatu:
It is, however, important to recognise that McMillan, as were Thevanez and Stewart, was a case where the applicant was seeking to restrain a solicitor or a clerk to whom they had recently, and directly, given instructions from acting, or the firm to which they had moved, from acting, in those proceedings. Because the applicants in those cases had given instructions to the solicitor about the very matter in issue, it follows easily that there would be a finding that the solicitor who had moved was in possession of confidential information which is or may be relevant to that matter.[32] (emphasis added)
[31] Magro &Magro (n25).
[32] Osferatu (n9) [26].
Mr E did, however, act as the Wife’s lawyer for ‘some months’, where she provided ‘comprehensive instructions about my family law matter in that time’,[33] where he saw her at one of the most vulnerable times of her life, when she was ‘very afraid’[34] As extracted earlier in these Reasons,[35] her description of the information included:
[[Mr E]'s memories] about negative things about me, such as [Mr D]'s allegations that I was lying about his family violence, or the things I disclosed to [Mr E] in the course of instructing him about family violence, particularly how I reacted to [Mr D]'s non-physical abuse and harassment, the way he got under my skin with verbal abuse or subtle comments that I knew from past context were implicit threats or derogatory comments but may have seemed normal or unremarkable to another person. I fear that [Mr E] will recall these details and that there is a risk these memories and confidential information. (emphasis added)
[33] Wife’s affidavit (n4) [2].
[34] Wife’s affidavit (n4) [6]
[35] Paragraph 26 of these Reasons.
The question is, whether in the circumstances of Mr E’s retainer, the nature of the legal work involved and the information that he gained about the Wife — including, ‘negative things about me’ and ‘how I reacted’ — are sufficient to establish or reasonably infer that Mr E holds or may recall information. Put another way, was the relationship between Mr E and the Wife such that he likely learned a great deal about his client — her strengths, her weaknesses, her honesty or lack thereof, her reaction to crisis, pressure or tension, her attitude to litigation and settling cases and her tactics — the “getting to know you” factor?[36] Is the Court able to reasonably infer that Mr E likely formed an overall opinion of his client as a result of his contact that should not be disclosed or used against her?[37]
[36] Yunghanns v Elfic Pty Ltd (n24) [10].
[37] Ibid.
It can be difficult for anyone to articulate the information that might have specifically enabled another person to gain an ‘impression’ of them. However, the Wife’s description of the type of information she gave Mr E over some months, in the context of family law litigation where ‘comprehensive instructions’ were given, including allegations of family violence, and where Mr E witnessed her reaction, is, in my view, sufficient to establish that Mr E received information about the Wife of the type described in Yunghanns and Dyer and set out at paragraph 32 of these Reasons — albeit acquired 23 years ago and now forgotten.
Whether there is a risk that the information is relevant to these proceedings is another matter, which I will explore shortly.
Is that information confidential?
The test for confidentiality was set out in Nash v Timbercorp Finance Pty Ltd [2019] FCA 957:
There is no one precise formulation for determining whether information is confidential: Australian Medic-Care Co Ltd (a company incorporated in Hong Kong) v Hamilton Pharmaceutical Pty Ltd (2009) 261 ALR 501; [2009] FCA 1220 at [634]. However, it is clear that, within the context of a relationship of legal practitioner and client, the concept is not to be construed narrowly.
[75] To start, unless a relevant exception applies, all communications by a client to the legal practitioner will prima facie be confidential, as explained by Riordan J in Babcock at [83]:
In my opinion, communications (other than those about matters of common or public knowledge) between a client and a solicitor for the purposes of obtaining or giving legal advice would have the necessary ingredient of confidentiality against all persons unless, by reason of implied direction or otherwise, the solicitor was authorised to provide the confidential communication to the third party.
[76] Even broader, Professor Dal Pont quotes a Canadian decision which expresses that “any information received by a lawyer in his professional capacity concerning his client’s affairs is prima facie confidential unless it is already notorious or was received for the purposes of being used publicly or otherwise disclosed in the conduct of the client’s affairs”: Dal Pont G E, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters, 2017) p 345, quoting Ott v Fleishman [1983] 5 WWR 721 at 723. Moreover, although the passing of information from client to legal practitioner is the most obvious means of information attracting a confidential character, it is not necessary for that information to have come directly from the client. The question is not who provided the information, but the character of the circumstances in which the legal practitioner received it: Re Holloway [1887] UKLawRpPro 20; (1887) 12 PD 167 at 171.[38]
[38] Nash v Timbercorp Finance Pty Ltd (n11) [74] – [76].
The information — his impression of the Wife as earlier described — was received by Mr E in his professional capacity concerning his clients’ affairs. In my view the information is confidential.
Does the legal practitioner have possession of that information?
Mr E states in his affidavit that he has no recollection of the Wife, Mr D nor the case involving them. He accepts, however, that he acted for her 23 years ago.[39] A lack of recollection does not mean that Mr E does not hold the confidential information.[40] In Dyer v Chrysanthou, Ms Chrysanthou SC argued that she was not in possession of the confidential information because she could not remember the same. Thawley J did not agree:
Ms Chrysanthou said she cannot remember any confidential information being disclosed. She also stated that she has not retained emails that she sent or received and, in relation to some of those emails, that she does not recall receiving or reading those emails. The question, accordingly, arises as to whether she is relevantly in possession of confidential information.
The duty of confidentiality attaches to information disclosed to a lawyer within the confines of a lawyer-client relationship. The fact that Ms Chrysanthou does not presently recollect the information does not mean that she is not in possession of confidential information. As Nettle J observed in Sent at [89]:
One knows as a matter of experience that when he has advised on documents and transactions, recollections of them, although long faded, may revive in the course of the sort of close and careful study which precedes the trial of an action.
Ms Chrysanthou is relevantly in possession of confidential information irrespective of whether or not she presently recalls the content of it.[41] (emphasis added)
[39] Affidavits of Mr E, filed 9 April 2023 [5] and 23 June 2023 [1.2] – [1.4].
[40] See paragraphs 21 and 22 of these Reasons.
[41] Dyer v Chrysanthou (n14) [98] – [100].
I am satisfied that Mr E has possession of the confidential information.
Is Mr E proposing to act “against” the Wife?
It is not in dispute that Mr E hopes to act against the Wife in this case.
Is there a real risk that the confidential information will be relevant?
At [12] of her affidavit of 29 May 2023, the Wife states the relevance of the confidential information is that:
I believe that [Mr E] holds personal, confidential information about me in the form of [Mr E]'s memories (or the potential that he may recall memories as this matter proceeds) about negative things about me… I fear that [Mr E] will recall these details and that there is a risk these memories and confidential information may prejudice my case by being used by [Mr E] in his advocacy of the Respondent.[42]
And at [13]:
[Mr D] was a very controlling and manipulative person. I discussed the many subtle ways in which [Mr D] controlled me with [Mr E] when he was my lawyer. The Respondent was also controlling to me during our relationship and after we separated. This is very relevant to any property proceedings as it goes to the issue of why the Respondent refused to put my name on the certificate of title for the property, despite my considerable financial contributions to the mortgage or to renovations, and any discussions we may have at mediation or in negotiation about our respective contributions to the assets of the relationship.
[42] Wife’s affidavit (n4) [12].
Ms Holloway submits that the information is relevant in two ways:
(a)The solicitor's impressions of the Applicant and knowledge that may be refreshed or recalled during these proceedings presents a significant risk of a breach of the duty of confidentiality, which cannot be suitably rectified with information barriers or undertakings, and
(b)The current matter also involves allegations of coercion, control and intimidation, making the past information directly relevant to the present matter, which increases the risk that information may be used, even subconsciously, in the preparation of the Respondent's case for mediation or trial, and the perception that it is inappropriate for her former lawyer to 'take up the cudgels' against her.[43]
[43] Wife’s case outline (n1) [25].
Ms Cuthbertson SC counters that the confidential information is not relevant to the current proceedings:
The applicant relies on what she describes as the factual similarity between the respondent's conduct and that of [Mr D]. The only way in which that conduct of the respondent is said by the applicant to be relevant to the current matter is to explain the absence of her name on the title to the respondent's property which he owned prior to the commencement of the relationship.
This is not a consideration that is of any moment in the resolution of proceedings. The absence of the applicant's name on the title will not inhibit this court from considering the relative contributions of each of the parties and making an adjustment accordingly.
There is no suggestion in the applicant's affidavits that the respondent's alleged conduct is otherwise relevant to the assessment of the parties' relative contributions to the property pool, for example, in the sense explained in Kennon and Kennon. It is difficult to see how issues of family violence and the credibility of the applicant's allegations are at all material to the present matter let alone able to be leveraged by the respondent to the applicant's detriment.[44]
[44] Husband’s case outline (n7) [16] – [18].
Risk of relevance is to be assessed by reference to the lawyer’s proposed retainer or brief, not simply a risk of relevance to specific facts in issue in another proceeding.[45] The relevance of the information is often obvious, even if the information was received by the lawyer a long time before the relevant proceedings. For example in Sent v John Fairfax Publication Pty Ltd,[46] the Court restrained a barrister from acting in circumstances where the barrister had attended a conference 14 years prior for perhaps 2 hours, where he represented the applicant and became privy to sensitive information about a company in which the applicant was involved. The Court found that the sensitive information was likely discussed at the conference and that there was, if he were to continue as Counsel for the defendants, a real and sensible possibility of confidential information being used to the detriment of the Applicant in present proceedings.[47]
[45] Porter v Dyer (n10) [96].
[46] Sent v John Fairfax Publication Pty Ltd (n13).
[47] Ibid [94].
Carindale Country Club Estate Pty Ltd v Rowan A Astill involved a solicitor, Mr Astill, who was restrained from acting for parties' who were suing Carindale Country Club. Astill had represented Carindale in the past, help set the company up, was a former Director and held sensitive information as to its operation. The Court found that information Astill held relating to the minimum size and quality of housing on an Estate was relevant to the accusation that Carindale had built dwellings smaller than the minimum size allowed.
By way of contrast, in Mancini v Mancini,[48] a firm of solicitors acted for companies and the husband in various business over four years. The husband and the wife were sole directors and divorced. Dissention arose in management of the companies, and the wife removed the husband as a director and commenced proceedings against him for remedies relating to the companies' affairs. An application to restrain the husband from retaining certain solicitors failed due to the poor state of the evidence:
The plaintiff did not herself give evidence in these proceedings and no evidence establishes in a specific way that any confidential information, or indeed any specific information was furnished to the lawyers…The view that some confidential or other information which it is appropriate for the court to protect was communicated to those lawyers is left to inference from the fact that they acted for the companies and in some cases for Mr Mancini in various pieces of legal business…It is also left to inference that it is likely that those lawyers will be in a position to use some of that information while acting for Mr Mancini in the proceedings.[49] (emphasis added)
[48] Mancini v Mancini [1999] NSWSC 800.
[49] Ibid [4].
In Osferatu,[50] a solicitor of the firm representing the husband previously worked for the firm representing the wife, but had no dealings with the wife during his previous employment. The Full Court found that the trial judge had erred in restraining the solicitor for a number of reasons, including the lack of information from the wife as to the relevance of the information to the current proceedings:
It is clear that the wife need not, for obvious reasons, divulge in her evidence the confidential information she asserts is held by the solicitor she is trying to restrain. However, for evidence to be persuasive and cogent she should have identified the nature of the information received or likely to have been received by Mr F between 24 June 2011 and February 2012 that was now, or could now be, relevant to the current proceedings. She did not do so. It is not sufficient to say that, as family law proceedings cover a range of matters, any information at all received by Mr F could have been relevant. This was especially so given that three years had passed since he could have received any information and both sets of substantive proceedings (parenting and property) had resolved.[51] (emphasis added)
[50] Osferatu (n9).
[51] Osferatu (n9) [48].
With regard to Ms Holloway’s second argument regarding relevance — that both matters involve allegations of family violence — I agree with Ms Cuthbertson SC, that just because both cases ‘involves allegations of coercion, control and intimidation’,[52] does not, in my view, make the past information directly relevant to the present matter.
[52] Wife’s case outline (n1) [25].
The Wife does not set out how the Husband’s alleged ‘coercion, control and intimidation’ of her is relevant to these proceedings. I agree with Ms Cuthbertson SC that her name not being registered upon the title to a property is unlikely to hold any significance in determination of her property application. The parties’ legal and equitable interests in property will need to be identified,[53] however, the Wife’s contributions, as she describes in her affidavit, must be considered as part of the overall assessment of the parties’ entitlements.[54] The fact that a property is not registered in her name is unlikely to be of great consequence. In any event, that assertion is no longer confidential.
[53] Stanford & Stanford (2012) 247 CLR 108 [37] – [42]; Family Law Act 1975 (Cth) ss 90SM(4)(a) and (b).
[54] Jabour & Jabour [2019] FamCAFC 78.
Nor does the wife claim in her material that the Husband’s alleged family violence made her contributions significantly more arduous than they ought to have been, such that the purported family violence should be taken into account in assessing the parties’ respective contributions in the property proceedings.[55]
[55] Kennon & Kennon [1997] FamCA 27.
It is therefore unlikely, on the basis of the evidence before me, that the Husband’s alleged family violence has relevance to the questions to be considered by the Court in these proceedings. As such, that Mr E has knowledge of the earlier accusations concerning Mr D is, of itself, irrelevant to the issues to be determined in the current proceeding.
It may be, without more, that the Wife’s current evidence regarding family violence — if maintained at trial — would likely be struck as irrelevant to the issues to be determined.[56] Similarly, if the allegations were raised in cross-examination then the Court would likely prevent the question(s) being asked on the basis of irrelevance and being unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive.[57]
[56] Evidence Act 1995 (Cth) s 56.
[57] Ibid s 41.
The only remaining confidential information that Mr E has or may recall that can be said to be relevant to these proceedings is — to borrow from Gillard J[58] — information of the Wife’s strengths, her weaknesses, her honesty or lack thereof, her reaction to crisis, pressure or tension, her attitude to litigation and settling cases and her tactics — the “getting to know you” factors, or ‘impression’, as Ms Holloway puts it — the overall opinion or impression formed by Mr E of the Wife as a result of his retainer.
[58] Yunghanns v Elfic Pty Ltd (n24) [10].
I reiterate that risk of relevance is to be assessed by reference to the lawyers proposed retainer or brief, not simply a risk of relevance to specific facts in issue in another proceeding.[59] A retainer in relation to disputed property proceedings can involve a wide ranging inquiry. The information Mr E holds — his impression of the Wife — is relevant to the current family law property proceedings because that impression might be used to the Husband’s advantage in litigation where there may be disputed evidence as to the matters that need to be considered under s90SM and s90SF(2). As observed in Magro:
By way of contrast, it would be hard to imagine litigation involving more complex factual issues than a contested property proceeding in this jurisdiction involving valuable property of the nature and to the value of the assets at stake in these proceedings… A property proceeding under section 79 of the Act involves the exercise of the Court's discretion on the basis of factual findings related to the classes of contribution referred to in sub-sections 79(4)(a)(b) and (c) of the Act, as well as the various section 75(2) factors imported by section 79(4)(e). The Court will be required, inter alia, to evaluate the wife's indirect contribution made in the capacity of homemaker and parent: Mallet v. Mallet [1984] HCA 21; (1984) FLC 91-507. This will involve the Court in a wide ranging factual inquiry into the financial history of the parties' long marriage, the parties' own financial conduct, and matters going to their respective contributions to the welfare of their family. These are highly sensitive issues, and the passions which such litigation can and does excite are well known in this jurisdiction.[60] (emphasis added)
[59] Porter v Dyer (n10) [96].
[60] Magro (n25) [34].
This case, of course, involves a relationship of 3 - 4 years where there are no children. Nevertheless, such cases can still involve a wide ranging factual inquiry, particularly where, as here, the parties are in dispute, at a minimum, as to the extent of the Wife’s contributions.[61]
[61] Wife’s affidavit (n4) [13], [26] & [31]; Affidavit of Mr E filed 26 June 2023 [1.5].
I note also what Bryson J said in D. & J. Constructions Pty. Limited:[62]
It seems natural that a particularly careful view would be taken in Family Law business, as such litigation tends to be about highly confidential facts and a very wide range of facts and circumstances can conceivably be relevant; the sensitivity which even the most reasonable people feel about such litigation when they are engaged in it calls for careful measures to secure not only that justice is done but also that it is apparent that it is done, an appearance which would not survive any general impression that lawyers can readily change sides. (Emphasis added)
[62] D & J Constructions Pty Ltd v Head (t/as Clayton Utz)(1987) 9 NSWLR 118, 123.
In my view, the Court is not left to simply ‘inference’[63] the relevance of the confidential information to the current proceedings. The Wife sets out, as best as she can in circumstances, the information that she gave Mr E 23 years ago that resulted in him having an overall opinion of her. The nature of the family law retainer, at that time, where ‘comprehensive instructions’ were given, involving disputed family violence allegations, I infer, gave Mr E information about the Wife that could be used to the benefit of the Husband in the current proceedings, where the parties are in dispute about relevant facts. I conclude that there is a real risk that Mr E holds relevant confidential information in the form his overall opinion and impression of the Wife, formed when he acted for her 23 years ago.
[63] Mancini v Mancini (n48) as extracted at paragraph 45 of these Reasons.
Is there no real risk of misuse of the confidential information
Given my finding that there is a real risk that the information held by Mr E is relevant to the proceedings, the Wife has met her evidential threshold. The Husband must now establish that there is no real risk that the confidential information will be misused.
The importance of a legal practitioner not disclosing confidential information was reiterated in Porter v Dyer:
It is insufficient to focus solely on whether specific aspects of the confidential information will or might be disclosed during the conduct of the proceedings the subject of the proposed retainer. Absent consent to disclosure by the former client, the duty on the barrister to preserve confidentiality is unqualified. It is a duty to keep the information confidential, not to take reasonable steps to do so. The issue of risk of misuse cannot be approached narrowly. To do so would be incongruent with the breadth of the duty, which encompasses “all communications made by the client about his affairs, and information learnt directly or indirectly about the client, in the course of the professional relationship”: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98 (at 108 per Ipp J). It is not good enough to adopt some form of “wait and see” approach as to whether confidential material will be disclosed though the ordinary incident of future document or information disclosure procedures.[64] (emphasis added)
[64] Porter v Dyer (n10) [104].
The risk must be real and not theoretical. It is not, however, difficult to imagine circumstances where the confidential information held by Mr E — his impressions of the Wife as described — is at real risk of being disclosed, even subconsciously, when advocating for the Husband — particularly during conferences and hearings.
Risk of misuse may even occur by virtue of Mr E’s lack of recollection of the Wife and the previous family law litigation. The risk was explained in Dyer v Chrysanthou:
The first reason for that is that there is also a real and sensible risk that Ms Chrysanthou would use confidential information (being information not otherwise in the public domain) obtained during the conference without realising that what was said in the conference was the source of that information. Ms Chrysanthou states she does not recall what was said during the conference. It follows that there is also a risk that she might use information obtained during the conference without appreciating its source… A second reason is that, if she did later recall what was said during the conference, the present issue might be revived. It might be that the nature of the information recollected is of sufficient significance that Ms Chrysanthou perceived an obligation to raise the issue with her former client, Ms Dyer. By that time, the litigation between Mr Porter and the ABC and Ms Milligan might be expected to have significantly progressed. An even worse situation would be if Ms Chrysanthou later realised that she had in fact already subconsciously used confidential information, for example in drafting interrogatories or preparing cross-examination of one of the witnesses called by the ABC and Ms Milligan.[65]
[65] Dyer v Chrysanthou (n14) [131].
I am satisfied that there is a real risk of misuse of the confidential information. I agree with Ms Holloway that briefing Counsel to conduct any conferences and hearings will not cure the problem.
Given my findings, I conclude that it has been established that a reasonable person informed of the facts might reasonably anticipate a danger of misuse of confidential information of the Wife by Mr E and there a real and sensible possibility that the interests of Mr E, in advancing the Husband’s case in the litigation, might conflict with Mr E’s duty to keep the information confidential and to refrain from using that information to the detriment of the Wife.
The third category stated in Osferatu — the administration of justice
I have found that Mr E holds confidential information from when he acted for the Wife in family law proceedings against Mr D 23 years ago. I have also found that the information Mr E has is relevant to these proceedings and there is real risk of the information being misused. These findings are also relevant to this category.
The Husband has not provided any evidence as to the cost and inconvenience to him of losing Mr E and finding another lawyer, but I accept there will be some. Fortunately, the Wife has brought her application early in the proceedings, so there is less prejudice to the Husband in that regard.
The question for this third category is whether a fair minded reasonably informed member of the public might conclude that the proper administration of justice requires that Mr E be prevented from acting — giving due weight to the public interest that litigants should not be deprived of their choice of Counsel without good cause, and that it may cause inconvenience and expense for the Husband to instruct a new lawyer.
Here, the fair minded member of the public would be informed that Mr E, 23 years ago, gained ‘impressions’ of the Wife when acting for her in family law proceedings where she provided comprehensive instructions over some months, including her reaction to disputed family violence accusations, when, given the nature of a family law retainer, he likely assessed her strengths and weaknesses, in a case involving a person who is not the Husband. That fair minded person would also be informed that Mr E is now acting for the Husband against the Wife in new family law proceedings, where allegations of family violence are also made, but those allegations, on the evidence to date, likely have no relevance to the property proceedings that are to be determined. The confidential information may, however, assist Mr E, even subconsciously, when dealing with other matters in dispute in contested property proceedings where there may be a wide ranging factual inquiry. Weighing this information with the public interest in the Husband retaining his chosen lawyer and the inconvenience and cost to the Husband, I accept that fair minded member of the public might conclude that the requirements of the administration of justice in this case should deprive the Husband of his lawyer.
Conclusion
As a consequence of my findings, on balance, the Wife’s application to restrain Mr E from acting for the Husband should succeed.
Finally, I note that I was referred to the Australian Solicitor Conduct Rules (applied in Tasmania pursuant to the Legal Profession (Solicitor Conduct) Rules 2020) (ASCR or TSCR respectively) provided at Rule 10 ASCR I Rule 14 TSCR, that a lawyer must not act for a former client unless:
(a)The former client gives informed consent to the lawyer acting in the present matters; or
(b)There are adequate information barriers in operation that reduce the risk of disclosure of confidential information to an acceptable level.
I have not found it necessary to make any finding as to whether the stated Rules have been breached. I do note, however, as evident from these lengthy Reasons, that this was a finely balanced case.
I make orders in the terms set out at the commencement of these Reasons.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 26 July 2023
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