Tandon & Farber

Case [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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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