Vasik and Vasik - [2007] FamCA 671

FAMILY COURT OF AUSTRALIA

VASIK & VASIK

[2007] FamCA 671

FAMILY LAW - COURTS AND JUDGES - Disqualification
FAMILY LAW - LEGAL PRACTITIONERS - Conflict of interest

Family Law Act 1975

Applicant:

MR VASIK

Respondent:

MRS VASIK

Independent children’s lawyer:

File number:

MLC

5210

2007

Date delivered:

31 May 2007

Place delivered:

Melbourne

Judgment of:

Carter J

Hearing date:

31 May 2007

Representation

Counsel for the applicant:

Mr J.G. Levine

Solicitor for the applicant:

Issac Brott & Co

Counsel for the respondent:

Mr A.I. Strum

Solicitor for the respondent:

Marshalls & Dent

Orders

That Issac Brott and Company, Solicitors, and any counsel briefed by that firm on behalf of the wife, … be and are hereby restrained from acting or continuing to act on behalf of the wife in Family Court proceedings involving the husband, … .
That within 14 days of this day the husband file and serve written submissions in support of his application for costs and at or about the same time as this is done, he provide a copy by email to my Associate at … .
That within 30 days after those submissions have been filed, the wife file any submissions in response and at or around the time of filing provide a copy to my Associate by email at … .
That all submissions filed bear an endorsement on the cover sheet of the date upon which they were filed.
That the husband provide in his written submissions details as to the anticipated quantum of costs to be sought.
That there be liberty to apply in respect of the question of costs.
That subject to any further application the question of costs be considered in Chambers following upon the receipt of the submissions.

IT IS DIRECTED

That my Reasons for Judgment be transcribed and when edited, that a copy be placed on the Court file with a further copy to be made available to the husband and the wife.
That save as to any questions of costs the husband’s Form 2 Application filed 25 May 2007 be dismissed and removed from the list of cases awaiting determination.
That the affidavit sworn or affirmed this day by Mr Issac Alexander Brott not be filed but be placed in a sealed envelope and retained on the Court file marked “Not for Inspection without an order of a Judge”.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5210 of 2007

MR VASIK

Applicant

and

MRS VASIK

Respondent

REASONS FOR JUDGMENT

The proceedings before the Court arise from a Form 2 Application in a Case filed by the husband on 25 May 2007. The principal application which I am dealing with concerns an application that the wife's solicitors and any counsel briefed by that firm on behalf of the wife be restrained from acting or continuing to act on her behalf in these Family Court proceedings. There are other orders sought which I need not recite at this stage.

Background

There are pending proceedings in the Court for financial and children’s issues. They were commenced on 10 May 2007 and a Case Assessment Conference has been appointed for 12 June 2007. In support of his application, there have been two affidavits filed on behalf of the husband. Both affidavits were filed on 25 May 2007. One is the affidavit of the husband himself and the other is an affidavit of his solicitor, Mr Szabo. The solicitor has been given leave today to file an affidavit which was sworn today and that affidavit is also before the Court and has been considered.

Disqualification

Before I go further, I should deal with certain other matters which have arisen in the course of the proceedings. Prior to the matter commencing, Mr Levine, who appears on behalf of the wife, told me that he was instructed to seek that I disqualify myself. The basis for that appears to have its origins in my alleged behaviour or conduct in another case which was mentioned by name but which I will not name which, as I informed Mr Levine, had been the subject of a similar application for disqualification which I had refused.
The additional factors, however, were described as being: that the wife’s solicitor, Mr Brott, had made a complaint about me which had been sent to my Associate. In turn that had been referred to the Deputy Chief Justice and correspondence had been sent by the Deputy Chief Justice to Mr Brott. That correspondence has not been put before the Court. The matter was said to relate to my alleged conduct in another matter and concerned an allegation that I had behaved inappropriately.
The matter in which I am alleged to have behaved inappropriately of most recent times is a matter which I will refer to by the medium neutral citation which is Kelleher v Anderson [2007] FamCA 137. That is a case which I am judge managing. In December 2006 I heard a number of applications arising which had been filed both by the husband and by the wife.
During the course of the proceedings, an application was made by Mr Levine that I should disqualify myself. The basis was said to be that I had “taken a certain view of both Mr Brott and Mr Levine” that I had treated counsel who appeared for the husband in that case with far more deference and courtesy than I had Mr Levine and that I was not interested in listening to Mr Levine’s submissions.
I gave Judgment in that matter earlier this year and in it, I dealt with those allegations.
The principles which relate to disqualifications have been authoritatively discussed in the case of Johnson v Johnson (2000) 201 CLR 458. In that case, the Chief Justice and Gaudron, McHugh, Gummow and Hayne JJ discussed the grounds upon which a judge should accede to a disqualification application commencing at par 10. At par 11, their Honours said:
“… the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
At par 12, their Honours went on to say:
“… At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial’.”
Thereafter, their Honours said at par 13:
“Whilst the fictional observer by reference to whom the test is formulated is not to be assumed to have a detailed knowledge of the law or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice …”
In Johnson, Callinan J referred, with obvious agreement, to the judgment of Mason J (as he then was) in Re JRL; Ex parte CJL (1986) 161 CLR 342. Mason J had said at 352:
“It needs to be said loudly and clearly that the ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties, but this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provided an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.”
Later, and having referred to a number of authorities, his Honour said:
“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking a disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
In Johnson, Kirby J referred to his latter statement as a salutary warning say that it warned judicial offers in Australia:
“… not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope in securing an adjudicator more sympathetic to a party's cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal.” (Footnotes omitted.)
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the Gleeson CJ and McHugh, Gummow and Hayne JJ had this to say:
“Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases and litigants do not choose their judge. If one party to a case objects to a particular judge sitting, or to continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.”
I have already referred to the fictional observer in the sense used by the High Court in Johnson. In the same case, whilst stating that the attributes of the fictitious bystander have been variously stated, Kirby J said at par 53:
“ … Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. … The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.” (Citations omitted.)
At par 80 of Johnson, Callinan J noted it was important to keep in mind:
“… that the notional, fair-minded observer is a rational person, not unacquainted with the legal process, the oath or affirmation that Judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in a case before and after the challenged conduct.”
In dealing with the contention that I had taken “a certain view” of counsel and his instructing solicitor, I said in Kelleher as follows:
“Mr Levine submitted that my behaviour in another case in which he appeared on instructions from Mr Brott was very similar to my behaviour in the present case. He said that I “actually spoke” to his client; that I actively and totally discouraged her from proceeding or continuing to retain him and Mr Brott; that I, to use his word, ‘rubbished’ his submission in front of his client; and that I so undermined his credibility and that of his instructing solicitor that she terminated her instructions.”
I went on to say that certain matters raised by Mr Levine could not be left uncorrected.
As it happened, I had had occasion to read the transcript of the earlier case shortly prior to the commencement of Kelleher. I had needed to do so because it had been annexed to an affidavit which was being relied upon in yet another case which I was due to hear. I said:
“I can categorically say that Mr Levine is absolutely wrong in his contention that I spoke directly to his client. Nor was that client encouraged or discouraged in any way by me. My concern was as to the financial implications inherent in the case. I certainly raised those concerns.”
I concluded by saying:
“I do not propose otherwise to refer to the events of that day, other than to note Mr Levine's instructor has a copy of the relevant transcript, and further, the transcript itself forms part of the court record.”
I then said in Kelleher:
“When I asked how my alleged behaviour in the earlier case had relevance to the present case, Mr Levine contended that it demonstrated a pattern of conduct in relation to cases in which both he and his instructing solicitor were acting. He made no attempt to link this with what the fictional observer of the present case may have witnessed. The fact that Mr Levine's submissions in another case did or did not find favour with me is totally irrelevant to the present application and cannot be relied upon for an inference that there would be a reasonable apprehension that I would approach or had approached the issues in the case before me, impartially or without prejudice.”
I concluded by saying that:
“To my mind, Mr Levine's contention is misconceived.”
In another submission made by Mr Levine in Kelleher, I was told that his client had been quite concerned by a particular comment that I had made and that she had found certain matters distressing. In dealing with that, I said at par 350 of the judgment in question:
“I have no reason to doubt Mr Levine's statement that the wife found these matters distressing. This is regrettable. However, the question is not how the wife viewed the matter, rather, it is what would the fictional observer have thought about it. As Kirby J observed in Johnson, ‘a reasonable member of the public is neither complacent nor unduly sensitive or suspicious’.”
I went on to say that I did not say at all that which Mr Levine had "vividly" recalled, and I said that because I had referred to the transcript. I said then, and I say now, that to my mind the fictional observer would not have reached the same conclusion as the wife and I add to that, in the context of today's case and matters which were raised following the luncheon adjournment that the fictional observer in the sense used in the authorities would not in my view have taken the view alleged by Mr Levine.
The added matter which has been raised is the information that the solicitor in the present case has complained to my Associate about my conduct and my Associate, in the proper performance of her duties, referred that complaint to the Deputy Chief Justice, to whom quite often the Chief Justice refers matters of this nature. Then the next link in that chain is that the Deputy Chief Justice wrote to Mr Brott. There has been no attempt made to link any of that to today’s proceedings.
The absurdity of the proposition that I should disqualify myself because a complaint has been made about me can be seen very readily when one understands that every judge in this Court throughout Australia could be disqualified (on the basis of that proposition) merely by a litigant or a solicitor complaining about that judge. I do not propose to say anything further about that matter in the circumstances.
The other matter that I will raise at the outset is a mention was made before the proceedings commenced - and I think it was by Mr Strum who appeared on behalf of the husband - that Mr Levine wanted to cross-examine. That was not pursued by Mr Levine until much later in the proceedings. For reasons which I will incorporate in my decision in dealing with the application for the restraint of the solicitor, that application was refused.
Before I move finally from the application that I disqualify myself, I note that on the return after the luncheon adjournment, I was told that the father and the wife in these proceedings would give evidence about a certain way in which I and Mr Strum had behaved. It was said that this in turn would have led to a further application for my disqualification. The basis was that I favoured one side over the other. This was apparent by my expression which was defined to be my facial contortions and grimaces. Mention was made of smiling at Mr Strum, which I suppose is my facial contortions, and grimaces, I suppose being my alleged expressions of non-favour, directed to Mr Levine. I refused that application for reasons which, as I said at the time, were based on Mr Strum’s submissions in response. I also note that nothing was raised during the hearing, contemporaneously with these contentions.

The Husband’s Application

I now turn to deal with the application for the wife's solicitors to be restrained.
In McGillivray v Mitchell (1998) FLC ¶92-818, the Full Court discussed different approaches which had been adopted by the English Court of Appeal in Rakusen v Ellis, Munday & Clark (1912) 1 Ch 831, and the Full Court of the Queensland Supreme Court in Mills v Day Dawn Gold Mining Co Ltd (1882) 1 QLJ 62.
The Full Court did not find it necessary in McGillivray v Mitchell to determine the correctness or otherwise of any particular approach.
In McMillan (2000) FLC ¶93-048, the Full Court gave considerable attention to the different approaches and in so doing, considered a large number of authorities.
Ultimately, the Full Court held that the more appropriate test was that which had been propounded by the Supreme Court in Queensland in what has become known as the Mills case. In so doing, it was held that the test laid down in Rakusen involving the necessity of proof of actual mischief is not the test to be applied. In par 42 of McMillan, the Full Court summarised the Mills approach in the following terms:
“For the client to succeed, he or she need only give evidence that he or she has imparted information of a confidential nature to the practitioner in question and that there is at least a theoretical possibility that it could be used against him or her.”
In par 56 of McMillan, the Full Court also drew attention to a decision of Lindenmayer J in Stewart (unreported, 17 April 1997). An extract from his Honour’s judgment was set out which showed his preparedness to follow Mills and the Full Court gave emphasis to the following part of that extract:
“… All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her or at least to a disadvantage in these current proceedings.”
In a case cited by Mr Levine on behalf of the wife, of Anagnostopoulos, MLF 4414 of 2003, Kay J determined an application on behalf of a husband seeking to restrain Mr Brott, as it happened, from continuing to act on behalf of the wife. His Honour’s judgment was not published. It was given 16 September 2003. The facts involved in that case were said by his Honour to involve a situation where it was said that Mr Brott owned a company which in turn ran a business which factored debts owing to panel beaters. According to the operations manager with that company, a repairer is approached by a car owner who requested the repairer to perform the work. The work is as a result of an accident solely caused by a third party. The panel beater assigns the debt for the repairs to Mr Brott's company, the company pays the panel beater a reduced rate and then recovers the cost of repairs from the insurance company of the person that has caused the damage.

In that case, the husband had been conducting a panel beating business and had occasion to utilise the services of Mr Brott’s company. He had never dealt with Mr Brott in any sense, dealing at all times with the operations manager for the time being or some other person at that company. His Honour noted that the evidence seemed to indicate that any dealings the husband had had, had been with that company and that it was stretching the English language to suggest he had called Mr Brott’s office on those occasions in his guise (which was the word used by his Honour) as a solicitor. The nature of the information which was said to have been passed on was the factoring of debts of the business and in his Honour’s mind, did not amount to information of a confidential nature to have been imparted to a legal practitioner such as ought to attract the operation of the principles that were discussed in McMillan.
His Honour then referred to an earlier but quite recent decision of his own in Lowe (unreported, DGF 716 of 2003) in which his Honour referred to, in par 6 to the relevant principles which had been most recently restated by a Full Court in McMillan. He said in par 6 of the judgment in Lowe:
“… Insofar as there is a ratio to be obtained from McMillan’s case, it probably appears in paragraph 42 where the court said:
‘For the client to succeed, he or she need only give evidence that he or she has imparted information of a confidential nature to the practitioner in question and that there is at least a theoretical possibility that it could be used against him or her’.”
He then said in par 7:
“It is stated somewhat differently by Lindenmayer J in a passage in Stewart, unreported, referred to at paragraph 56 of McMillan. The test is:
‘All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that the information may be used against her or at least to her disadvantage in these current proceedings’.”
His Honour went on to say in par 8:
“That is a slightly wider test than the test in Mills which really is simply that, ‘I have imparted information’. This has a second leg to it of not unreasonable subjective belief that the information may be used to disadvantage.
9.When sitting as a judge of the Supreme Court of Victoria in Macquarie Bank Ltd v Myer (1994) 1 VR 350, Hayne J in a commercial case spoke of real and sensible possibility of a misuse of confidential information. The Full Court in McMillan at paragraph 54 seems to indicate that it is too wide a test for family law proceedings because of ‘the sensitive nature of the jurisdiction’.”
His Honour summarised his own conclusion of the principles to be drawn from McMillan in the following terms:
“My conclusion from McMillan is that the test is indeed a very stringent test, stringent in the sense of not narrow but broad. If a solicitor theoretically is imparted with information that could embarrass the other side, then if the other side is not unreasonably of the view that that information might be used against them, the solicitor ought to be restrained from acting.”
It is convenient also at this stage to deal with the legal principles relating to the question of cross-examination in cases such as this.
In Griffis (1991) FLC ¶92-233, Mullane J dealt with the degree of proof of the passage of confidential information a former client had to establish in order to have that information protected. The Full Court referred to those views in McMillan.
Mullane J had relied on Mills and Thevenaz, saying that the client need only prove a prima facie case as to confidential material, the disclosure or use of which by the solicitors in the course of the conduct of the current proceedings for the present client would be prejudicial to the applicant. His Honour’s reasons were cited in McMillan at par 55 and in particular, Mullane J noted there was yet another important point made in the Mills case, namely that the Full Court took the view that where there was a conflict between the solicitor and former client as to whether a confidence had been imparted, if the judges:
“… were to insist upon actual proof of the existence of such confidence and to insist upon knowing what it was and whether it was likely to prejudice a client’s interests, they would compel him to strip him of protection which the court usually afforded and the whole mischief he wished to avoid might arise.
(Later:)
In cases of this kind, less mischief would accrue through granting the protection sought than in accepting the oath of the attorney against the client. The client's interests should prevail and the judge should refuse to determine the matter on the conflicting testimony of the affidavits.”
In par 87 of McMillan, the Full Court adopted what had been said by Mullane J in Griffis. It was said in par 88 that proof of prejudice was not required, and in par 102, that once the Mills approach was adopted, then there was little room for cross-examination. I respectfully agree with their Honours and I note that I am bound by their decision in any event.
Mr Levine has made a number of submissions based on authorities from other courts. He has kindly made available copies of the same. The decisions of Superior Courts, be they in Victoria or Western Australia, are always of interest and can be persuasive but they are not binding.

Discussion

It is conceded on behalf of the solicitor that he was acting, at the time, on behalf of both the husband and the wife and a corporation. He has stressed, however, that he was taking instructions from the wife. The affidavit which has been filed by the solicitor contains what has been described as at least the vast majority of the file of the solicitor. In par 27, Mr Brott deposed that he had perused his file of the proceedings prior to swearing his affidavit and he believed that all relevant documentation had been annexed to the affidavit. Accordingly, it was hardly surprising that I declined an invitation to examine the file myself.
The body of the affidavit is of some six pages and as I have indicated, the balance of the affidavit is largely comprised of annexures. They number 23 in total. It is clear on the face of some of those annexures in particular that Mr Brott was correct when he said he was acting on behalf of both the husband and the wife and their company. That emerges with particular force in Annexure “IAB4” which is a letter dated 9 October 2006 addressed to the other party in the matter with which Mr Brott was dealing. Mr Brott commenced the letter by saying:
“We advise that we act on behalf of [M] Pty Ltd and its directors.”
Various allegations are made about the other parties. In point 5 of the letter, the following appears:
“You have, without leave of our client, nor the partnership business, sought to not only represent your new enterprise as a continuation of the partnership business but you have indeed relied upon the same subscriber’s list which you also illicitly removed from the company office.”
In point 8, it is said:
“You have slandered our client ([the husband]) in an endeavour to depreciate our client and bring his character and business skills into disrepute with suppliers and the community at large.
(Later:)
We are further advised that in the afternoon of 4 October 2006, your[sic] threatened our client to attend his business premises to take ‘my stock’. This was said by you in a threatening, intimidating manner.
(Later:)
Our client and indeed his family are most concerned as to your threat.”
That letter was responded to by solicitors for the other party and their response is Annexure “IAB9” to Mr Brott’s affidavit. The letter speaks for itself. It deals with various of the issues which had been said to be outstanding between the parties, one of which was an allegation against “[Mr Vasik]”. That of course is the husband in these proceedings. It was alleged that the husband had had a telephone conversation with another person who had called to try and smooth things out between the parties. During the course of that conversation, it was alleged that the husband said certain things about the other party, to the effect that, “I never want to see his face. I want to kill him.”
Relevantly and significantly so on p 2, the solicitors for the other party set out the solicitor’s understanding of the business relationship of the parties. Again, the letter speaks for itself as far as that is concerned. The circumstances which thereafter took place, starting with the commencement of the particular business, going through to the events of June and up to October of 2006 there follow.
Annexure “IAB19” is a letter from the husband and the wife to Mr Brott. It is regarding what is described as the case against the third parties. It is clear that part of the information in that letter is, as I described it during the course of submissions, given on what I described as a “joint and several” basis and some of it is certainly given by the husband. I would refer there to the distinctions in part of the letter where the words “we have been doing certain things” are used and compared with occasions when the words used are “I deny” or “I have been doing (certain things)”.
Both Mr Levine and Mr Strum took me very carefully through most of the annexures in Mr Strum’s case, and all of them in Mr Levine’s case.
The husband bases his case on the fact that the solicitor, Mr Brott, and his firm, acted on behalf of the wife and himself in relation to a commercial partnership dispute which arose in 2006 in relation to a business which traded under the name D Company. That business was owned by the company, M Pty Ltd, in partnership with two other companies. The husband and the wife are the directors and shareholders of that company, M. M is the company which Mr Brott confirms that he was acting for, as well as the husband and the wife.
The husband has deposed that he and the wife are the directors and shareholders of M. They formed a partnership with two other companies and ran a web site selling goods over the Internet. He has deposed to having attended a face-to-face conference with Mr Brott on one occasion. That conference is conceded by Mr Brott, although Mr Brott has said that he obtained his instructions from the wife. The husband has deposed that he had numerous telephone conversations with Mr Brott. Mr Brott does not agree with that. The husband had this to say in par 6 of his affidavit:
“Mr Brott obtained confidential details, including in relation to my business strengths and weaknesses, financial affairs, information regarding my business structure and came to know me on a solicitor-client basis. The dispute involved a falling out of the partnership between the three companies. The dispute was complicated and involved the other partners breaking into the warehouse, stealing intellectual business property, stock, failing to pay for the domain name, defaming the husband to suppliers and customers and then demanding payment of $25,000 for outstanding bills and stock.”
According to the husband's belief, the last correspondence on the file was in or about November 2006. He says that on the basis of his discussions with Mr Brott and I note that Annexure “IAB21” is a letter dated 10 November 2006 from Mr Brott, marked for the attention of the wife.
As far as the husband is concerned, the file remains open and the dispute has not been resolved. Had the proceedings between himself and his wife not come about by virtue of the breakdown of their marriage, he would have expected to continue to utilise Mr Brott’s services.
It is the case, as has been set out by the husband in his affidavit, that the value of the business and any debts that arise as a result of the partnership will impact on the matrimonial settlement and all proceedings between the husband and the wife in this Court. Questions of contribution to assets, businesses and the like are also of course relevant.
Mr Szabo’s affidavit details the history of the matter and corroborates the information set out by the husband in his own affidavit. It also details the attempts that he has made to persuade Mr Brott that it would be desirable for him to withdraw. Mr Brott has not been of the same mind and as a consequence of course this application was brought.
It has not been submitted that the husband was dilatory in bringing the application. That is a matter particularly referred to in McGillivray v Mitchell. It could not be suggested in any event that he had been. He has acted promptly. The application has been brought so as to enable a decision to be made prior to the Case Assessment Conference which is listed for hearing in this Court on 12 June 2007.
The question of prejudice has been referred to and it is of course a situation where prejudice needs to be looked at. Generally speaking, parties have a right to choose their lawyer and to retain the services of a lawyer of their choice. I have not been given any information as to details of what prejudice the wife would suffer, in the sense of advice as to costs which may be lost or the like, but I take into account that at the very least, it would be clearly inconvenient for her to have to obtain a new solicitor.
I agree with the submissions which have been made on behalf of the husband that the question is not simply one of confidentiality arising from the file. So much is made clear in Magro. I certainly agree and the authorities make it clear that it is not necessary to particularise the confidential material which is sought to be protected. It is certainly not the case that if I follow the Mills approach, as I do, I should permit cross-examination or weigh Mr Brott's affidavit against that of the husband.
In so far as it has been submitted by Mr Levine that the husband has so little regard for the confidentiality of this matter that it seemingly has been lost by virtue of the fact that Mr Brott has annexed to his own affidavit pretty well all the file which relates to these people, I take a point from that. I also take Mr Strum’s point. The situation is that a file can be searched upon proper interest being shown, that is to say by a party or a solicitor or the like, and I will in the fullness of time make an order for Mr Brott's affidavit to be removed from the Court file but to be retained there in a sealed envelope not to be made available on any inspection of the file, save by order of a judge.
It would be clear, I think, from all that has come beforehand, that I am satisfied that this situation is one where the husband’s application should be granted. As I said, firstly, there were no submissions as to delay, but in any event, the husband has acted both in a conciliatory way and very promptly.
Should Mr Brott accept my determination and undertake to the Court that he and his firm will cease to act, subject to any submissions from the husband, I would be prepared to accept that undertaking and not make an order restraining him. Equally obviously, that would have to extend to counsel retained to date by Mr Brott.
I raised the question of an undertaking being given as a matter of courtesy to a practitioner but if it is not desired to be given, then I will make the order.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:

Date: 20 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as VASIK & VASIK