Vincenzo and Vincenzo - [2014] FamCA 46

FAMILY COURT OF AUSTRALIA

VINCENZO & VINCENZO

[2014] FamCA 46

FAMILY LAW – PRACTICE AND PROCEDURE – application by husband to have wife’s solicitor and barrister restrained from acting for the wife – application allowed in relation to the barrister – application dismissed in relation to the solicitor

Family Law Act 1975 (Cth)
Legal Professional Act 2004 (Vic)

Grieves & Tully [2011] FamCA 617

Volker and Anor & Dunwell and Anor [2013] FamCAFC 169
D & J Constructions (1987) 9 NSWLR 118
McMillan & McMillan [2000] FLC 93-048

APPLICANT:

Mr Vincenzo

RESPONDENT:

Ms Vincenzo

FILE NUMBER:

MLC

10204

2011

DATE DELIVERED:

7 February 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

15 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfield QC

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr G B Hevey

SOLICITOR FOR THE RESPONDENT:

Borchard & Moore

Orders

The wife, by herself, her servants and/or her agents be restrained by injunction from instructing or briefing, or in any manner matter engaging or taking advice from Mr Graeme Thompson of counsel in relation to these proceedings.
Otherwise the application in a case filed 16 December 2013 and response to an application filed 17 December 2013 are dismissed.
Should any party seek costs arising out of these orders, such application shall be made by written submission filed and served no later than 19 February 2014 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission is to have until 5 March 2014 to file and serve any response and such response being endorsed with the fact that it has been so served on the other party and on receipt of any such application for costs, it or they be determined in chambers.
Pursuant to Family Law Rule 1.14 the time to start an appeal in respect of this order is extended to forty two (42) days from the date of this order.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vincenzo & Vincenzo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10204 of 2011

Mr Vincenzo

Applicant

And

Ms Vincenzo

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Ms Vincenzo (“the wife”) is the applicant in the substantive proceedings for property and other orders in relation to her marriage to the husband, Mr Vincenzo (“the husband”). In this application in a case the husband is the applicant and the wife is the respondent.
The substantive proceedings were commenced by the wife in November 2011. The issues involve parenting and property and the parties have engaged in a number of interim hearings, some limited detail of which is contained in the affidavit of Bernard John Moore.[1]
[1] At paragraph 2 of the affidavit Bernard John Moore filed 17 December 2013.
Having regard to the evidence of the husband, wife, Mr Moore and Mr Thompson it is clear that these are complex property and parenting proceedings.
On 16 December 2013 the husband filed an application seeking an order restraining the wife from instructing her solicitor, Mr Moore, and her junior counsel, Mr Thompson. This application arose out of unfortunate and unhappy circumstances arising from the briefing on behalf of the wife of Mr Ackman QC.
The wife filed a response to that application on 17 December 2013.
The substantive proceedings are in the docket of Bennett J, and having regard to the nature of the application, the application and injunction was listed before me and was heard on 15 January 2014 in Melbourne. Each of the parties were represented by either senior counsel or junior counsel.
The husband relied upon the following factual material:-
(a)his affidavit sworn 13 December 2013 and filed 16 December 2013;
(b)transcript of proceedings before Bennett J on 19 December 2013;[2]
(c)affidavit of wife’s solicitor Mr B J Moore sworn 16 December 2013 and filed 17 December 2013;
(d)affidavit of barrister Mr Graeme Thompson sworn 16 December 2012 filed 17 December 2012; and
(e)affidavit of Mr Noel Ackman QC sworn 17 December 2013 and filed 18 December 2013.
[2] Exhibit H1.
Senior counsel for the husband provided a summary of argument which was filed on 9 January 2014 and provided oral argument in relation to the issue.
The wife relied upon the following:-
(a)her affidavit sworn 16 December 2013 and filed 17 December 2013;
(b)affidavit of Mr Graeme Thompson referred to earlier;
(c)affidavit of Mr B J Moore referred to earlier; and
(d)affidavit of Mr Noel Ackman QC referred to earlier.
Counsel for the wife had prepared written submissions dated 18 December 2013 and an amended version of those submissions was tendered in evidence.[3] That amended submission set out the framework of the argument on behalf of the wife which was then the subject of oral submissions made by counsel for the wife.
[3] Exhibit M1.

THE FACTS

Senior counsel for the husband observed that there was little controversy as to the evidence before the Court.
In this case the husband had obtained a ‘second opinion’ in relation to the legal advice he was being provided in these complex proceedings. The husband had engaged Taussig Cherrie Fildes to act on his behalf in September 2011. In July 2012 the husband arranged with lawyers, other than Taussig Cherrie Fildes, to brief senior counsel to provide that second opinion. That senior counsel was Mr Ackman QC and on 31 July 2012 the husband had conference with senior counsel lasting about ninety minutes.
Sometime later the wife’s solicitors briefed Mr Ackman QC to act on behalf of the wife. Mr Ackman QC did not recall providing advice to the husband and accepted a brief. He appeared for the wife at a defended subpoena hearing before Registrar Sikiotis on 14 August 2013. The husband was not present on that day.
Mr Ackman QC also appeared for the wife before Bennett J at an interim hearing on 23 August 2013. That application was resolved by consent orders after negotiation with the parties.
Whilst the husband was present he did not see Mr Ackman QC until the consent orders were made and even then did not observe Mr Ackman QC as he was facing the Court.
The parties arranged for the Hon. Mr Peter Young to conduct a mediation to see whether some or all issues between the parties could be resolved. Mr Ackman QC was briefed to appear for the wife with Mr Thompson at the mediation.
On the day of the mediation the parties and their solicitors, junior counsel and senior counsel were together in a conference room and Mr Ackman QC made a comment to the effect that there may be some concern that he may have previously acted for one of the husband’s brothers. At that time the husband noted that Mr Ackman QC looked familiar to him.
Enquiries were made and Mr Ackman QC reviewed his records and determined that he had seen the husband in 2012. It is not in issue that Mr Ackman QC had no recollection of ever conferring with or providing advice to the husband and it was only when he checked his documents that he saw that he had advised the husband on 31 July 2012.
The evidence of Mr Ackman QC, which was not in issue, was that he returned to the mediation and advised the wife, senior counsel for the husband and the mediator of those facts.
Mr Ackman QC went on to say, and I accept, that he had not informed Mr Moore or Mr Thompson of any matter of fact or circumstance in relation to the husband’s case as he has no recollection of having acted for him.
The mediation continued with Mr Ackman QC remaining involved, with the consent of all parties, but that after the mediation concluded, Mr Ackman QC withdrew from the proceedings and no longer acts for the wife.
There is some dispute as to what happened next. The husband asserts in his affidavit[4] that:-
… an agreement was reached (to which I consented) pursuant to which Mr Moore and Borchard Moore would continue to act for the wife on the condition they undertake not to brief or otherwise consult or engage Messrs Ackman and Thompson in relation to these proceedings (“the conflict agreement”). I consented to the conflict agreement on the wife’s representations … although I remained very concerned regarding Mr Moore’s conflicted position, I consider it less likely that he was affected by Mr Ackman’s conflict than was Mr Ackman’s junior counsel.
[4] At paragraph 13.
In relation to the same issue, Mr Moore says:-[5]
6.The husband made it known at the mediation that Mr Ackman has previously given advice, the husband’s solicitors produced an ‘memorandum of agreement’. Annexed hereto and marked with the letters “BJM1” is a copy of the said memorandum. This memorandum was never signed or agreed to by me or the firm and to the best of my knowledge it was not agreed to by Mr Thompson, although Mr Ackman acknowledged that he would no longer represent the wife at the conclusion of the mediation.
[5] At paragraph 6 of Mr Moore’s affidavit filed the filed 17 December 2013.
This is not a determination which I need to make in respect of this matter. I am satisfied that, given the nature of confidentiality at mediation, that the mediation continued with Mr Ackman QC, Mr Thompson and Mr Moore continuing to represent the wife but without there being an acquiescence or agreement on the part of the husband that Mr Ackman QC, or for that matter Mr Thompson, could continue to act. It is clear that the husband, despite his concerns, acquiesced that Mr Moore should be entitled to continue to act for the wife.
After the mediation concluded the husband’s solicitors sent a letter to the wife’s solicitors.[6] In that letter it was said:-
We confirm that [the husband] consented to your firm continuing to act for [the wife] on the basis that you undertake not to brief, accept advice from, or otherwise communicate with, Messrs Ackman and Thompson (or either of them) in relation to this matter. Please provide a written undertaking to that effect forthwith.
[6] Exhibit “BJM2” referred to in the affidavit of Mr Moore.
The effect of this letter was to acquiesce to the continuation of Mr Moore and his firm to act as solicitors for the wife but object (in a timely way) in relation to Mr Ackman QC and Mr Thompson continuing to accept briefs.
On 29 November 2013[7] the solicitors for the wife informed the husband’s solicitors that they intended to continue to act for the wife and that they would continue to brief Mr Thompson on behalf of the wife.
[7] Ibid Exhibit “BJM3.
The reason for this seems to fall into a number of areas. Firstly, it was asserted that:-
(a)no information had been provided to Mr Thompson by Mr Ackman QC, at least in a conscious sense;
(b)that Mr Thompson had been briefed in this matter and had provided considerable legal advice and had spent considerable hours in respect of these proceedings; and
(c)the wife had expended considerable monies in relation to obtaining legal advice from both a junior barrister and solicitor.
The husband then sought orders restraining the wife from instructing the solicitors Mr Moore and his firm and restraining the wife from briefing Mr Thompson.
At the conclusion of the submissions by senior counsel for the husband I raised with him whether the husband had acquiesced in relation to Mr Moore.
The exchange went as follows:-[8]
[8] Transcript of Proceedings dated 15 January 2014, page 10 at lines 5 to 44.
MR BARTFELD:   He has, your Honour, but on the basis of an agreement that has been reached. And that agreement has been repudiated, but I …
HIS HONOUR:      Does that make any difference?
MR BARTFELD:   It probably doesn’t, your Honour, and if the outcome of this case was that Mr Moore were to continue, then there’s nothing more I would say about that. We were prepared to do it as a means of progressing the matter and we stand, I think, still prepared to do it.
HIS HONOUR:    Yes.
MR BARTFELD:   And finally, your Honour, the application is not directed against the lawyers, but rather against the wife, seeking to restrain her from engaging the people we seek to have removed; that is, we think, a more professional approach than seeking injunctions against lawyers when there is no allegation made of anything other than a theoretical problem and no allegation of impropriety. If there was impropriety, then of course we would be seeking injunctions against the lawyers themselves. Your Honour, the case that I handed to your Honour of Grieves & Tully, represents a nice summary by Young J of how the law is to be applied in proceedings where the complaint is one of not a fiduciary relationship, but a personal relationship and inappropriate behaviour.
So again, it is slightly different in fact to the present case, but nevertheless, a reading of the section commencing under the heading of Legal Principles at paragraph 69 clearly indicates the way his Honour saw the application of these principles to the case that was before him, which was a family law case. Your Honour, you can see what I mean about buzzing. The test that is now well and truly enshrined is one of theoretical harm, rather than actual harm. In other words, in the commercial sphere and other litigation, you’ve got to show more than something theoretical. In family law, because of the nature of proceedings as identified by Bryson J in D & J Constructions, there is a higher test which is applied and it is the higher test, we say, which is not met by the wife’s solicitor and counsel. So I commend that the legal principles are part of that judgment, and voice a complaint that his Honour found differently to Mullane J in Kossatz ...
So your Honour, briefly stated, that’s the case for the husband and unless there is anything else to which I can assist your Honour, those are my submissions.
HIS HONOUR:    Thank you, Mr Bartfeld. Yes.

Having regard to that exchange it is clear that the acquiescence remains and that the husband’s rights with respect to objecting to Mr Moore have passed by virtue of that acquiesce. As such I do not intend to restrain the wife from continuing to instruct Mr Moore and his firm.
The remaining question for me to determine is whether the wife should be restrained from briefing Mr Thompson or whether he should be able to continue.
The wife asserted that she had ran the risk of wasting hundreds of thousands of dollars in legal costs. It is clear that there would be some loss although from the affidavit of Mr Thompson it is clear that a significant proportion of his work was in relation to appearance on behalf of the wife.[9]
[9] At Paragraph 2 of Mr Thompson’s affidavit filed 17 December 2013.

THE LAW

Senior counsel for the husband referred me to a decision of Young J in Grieves & Tully [2011] FamCA 617 where from paragraph 69 to 87 the Court set out an analysis of the relevant cases in this area of law. I have had regard to that detailed analysis.
The submissions on behalf of the wife included that the test to be applied was, in this case, not in relation to a fiduciary obligation but whether [in the particular circumstances] 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 interest of protection of the integrity of the judicial process, and the due administration of justice, including the appearance of justice.
Further, that the jurisdiction is to be regarded as exceptional and to be exercised with caution and finally, that the time of the application may be relevant, in that the cost, inconvenience and practicability of requiring lawyers to cease to act may require reason for refusing to grant relief.
It is clear that Mr Thompson has never acted for the husband nor has he given advice to the husband. The question is whether he may have been provided with confidential information by the husband either directly or through Mr Ackman QC.
I accept the submission by senior counsel for the husband that the factual situation was different in Volker and Anor & Dunwell and Anor [2013] FamCAFC 169 in that it involved a solicitor who had never acted for the other party but it was a question of his behaviour that was the substance of that proceeding.
In this case Mr Ackman QC had a clear conflict and dealt with that appropriately. Mr Ackman QC cannot say if he communicated matters as those matters could have been unconscious. Mr Ackman QC, Mr Thompson and Mr Moore worked closely together to advance the wife’s case.
There was the hearing on the subpoena, the negotiations before Bennett J and of course the preparation for the mediation. Senior counsel for the husband submitted:-[10]
In this case, what is complained of is not that Mr Thompson ever acted for our client, because clearly he didn’t, neither did Mr Moore, but the problem which gives rise to this situation is Mr Ackman’s very clear and admitted conflict situation, coupled with Mr Ackman’s failure to recollect that he had seen the client or what he had told him. In circumstances where that failure is exhibited – that is, the failure to recollect – then Mr Ackman can’t say, in my respectful submission, whether he did or didn’t communicate matters because he doesn’t know what he was communicating.
In other words, the communication may well have been subconscious in nature and quite undeliberate and again, I say very clearly, we’re not suggesting that Mr Ackman or anybody else would ever deliberately act unprofessionally, but these things happen, and the lack of memory and the inability to say with any precision that he had met my client and spoken to him and the subject, leaves a large cloud hanging over the relationship and the communication between Mr Ackman and the gentleman about whom the application is made. And at paragraph 16 of our submission, we identify for your Honour some cases which support the proposition that the lack of memory raises the possibility of unconscious communications.
[10] Transcript of Proceedings dated 15 January 2014, page 9 at lines 5 to 20.
There is not a need for this Court to make a finding that the confidential information has been used.
The Full Court in McMillan & McMillan [2000] FLC 93-048 said at paragraphs 42 and 55:-
42.Before referring to the decisions of this Court made subsequent to the decision in Thevenaz, there is probably value in our quoting at greater length (than did Frederico J. in Thevenaz) from the main judgment of the Full Court of the Supreme Court of Queensland in Mills v. Day Dawn Block Gold Mining Company Limited; In re Marsland (1882) QLJ 62, being the judgment of Lilley CJ. This is because of the reliance which this Court has placed on the decision in Mills in the development of this Court’s approach to the question of when a solicitor will be restrained from acting against a former client (or a former client of his or her partner or employee). The significant feature of this approach is that 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. The relevant passages from the decision of Lilley CJ are (at 62-63):
…It appeared that Mr. Marsland had been acting as the town agent of the country attorney who had been retained by Mr. Mills, the plaintiff in this case. He was not merely town agent, but seemed to have been active in the investigation of the plaintiff's claim, and proceeded so far in the matter as to give an opinion on it.
…
His Honour did not think for a moment that Mr Marsland would conscientiously do any wrong, but it might happen that in an unguarded moment he might let fall something which would injure the interest of Mr. Mills, and which would amount to a breach, although an unwitting breach of his duty. It was needless, after the numerous cases cited, to review the authorities for the purpose of showing jurisdiction. It rested on this, the court kept a firm control over all its officers, and would restrain them from doing anything inconsistent with their duty to their clients. It was the duty of the attorney not to place himself in such a relation as might lead to there being even an unwitting breach of duty. Here they found a man retained by a party who was in direct opposition to the interest of his client, an interest upon which he had previously actually advised, and Mr. Mills was therefore entitled to the protection of the court. Upon the main question, whether any confidence had in fact been imparted to Mr. Marsland by Mr. Mills, there was a conflict of testimony. If they (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 himself of the protection which the court usually afforded, and the whole mischief he wished to avoid might arise. As it seemed to him, on the one side the client insisted on oath that he had imparted confidence to Mr. Marsland; and, on the other side, the solicitor said, “I have no confidence.” How could the court decide it? If they took the oath of the attorney against the oath of the client, and refused the protection which the client sought, why, then, the matter might proceed, and the mischief which the client feared might arise, and the court could afford no remedy. 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 interest should prevail, and the judge should refuse to determine the matter on the conflicting testimony of affidavits.
55.Before leaving these authorities, reference should also be made to the views expressed by Mullane J. in Griffis as to what degree of proof of the passage of confidential information a former client has to establish in order to have that information protected. His Honour’s view, relying again on Mills and Thevenaz, was 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 as follows (at 78,600-78,601):
There was another important point made by the Queensland Full Court in the decision of Mills v Day Dawn Block Gold Mining Co Ltd. As to proof of the confidence, their Honours (at page 63) 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 himself of the protection which the court usually afforded and the whole mischief he wished to avoid might arise . . . on the one side the client insisted that he had imparted confidence to Mr Marsland; and on the other side, the solicitor said ‘I have no confidence’. How could the court decide it? If they took the oath of the attorney against the oath of the client and refused the protection which the client sought, why, then, the matter might proceed, and the mischief which the client feared might arise and the court could afford no remedy. 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.
And: “It was not for the judge to determine the conflict of facts but that he should have decided that the client had made out a prima facie case for his protection.”
At page 64 they said “If there was any evidence of confidential communication such as there was here the court would not enter upon a judicial enquiry whether it was true or false”. The court would not ask for detailed disclosure where there was evidence of confidence and “[t]he court would not weigh conflicting testimony as to confidence when the client swears he has made confidential communications”.
The point did not arise in Rakusen as it was not in issue that there was a confidence which had been given to the solicitor's partner by Mr Rakusen, and which could be used to the prejudice of Mr Rakusen in proceedings in which the solicitor was acting for Mr Rakusen's former employer.
The Australian courts have not generally followed this aspect of the Mills decision. It has not usually been discussed but in the D and J Constructions case, (at page 124) Bryson J expressed reserve about such an approach.
Generally, instead of accepting a prima facie case as to the confidentiality of information the Australian courts have indulged in weighing conflicting testimony of the solicitor and his confider. The injunction proceedings have thus in many cases been a venue for the solicitor to disclose confidential information of the confider without his consent by way of establishing that such information is not, despite the general damage of its disclosure, such as would cause particular damage by use for, or disclosure to, the new client in the course of conducting litigation against the confider.
Wills, instruction sheets, tax returns, correspondence between solicitors and clients, advices to clients, advices by barristers, and statements taken by solicitors from clients or officers of client companies, have all been placed in evidence in the course of such proceedings so that the proceedings themselves become a mischief of their own in terms of solicitor/client confidences and the public policy considerations behind them. Resort has even been had to conducting proceedings in camera and confidentiality orders made in an attempt to minimise damage and prejudice to the former client from the proceedings themselves e.g. see Mallesons Stephen Jaques v KPMG Peat Marwick (at page 6).
The very nature of the proceedings and the perversity of the courts allowing the hearing of such an application to become the venue for lengthy and detailed evidence by the solicitor of information which he received in confidence, or at least the former client alleges was received in confidence, are matters which strongly support the approach of the Queensland Full Court in the Mills case and of Frederico J in Thevenaz. So do the public policies so often declared by the courts that justice must be seen to be done, and the fact that the duty of confidentiality is based in part on the need for public confidence in legal representation and the legal system.
For these reasons the court should follow the approach in Mills that the former client be required only to prove a prima facie case as to confidential material, the disclosure or use of which by the solicitor in the course of the conduct of the current proceedings for the present client would be prejudicial to the applicant.

In this case it is possible that Mr Thompson had access to confidential information through Mr Ackman QC and I am satisfied that in the circumstances of this case a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice would require that Mr Thompson should be prevented from acting, in the interest of the protection of the integrity of the judicial process and due administration of justice, including the appearance of justice.[11]
[11] Volker and Anor & Dunwell and Anor [2013] FamCAFC 169, paragraph 45.
Once the husband raised the issue about Mr Ackman QC have acted for him the question of Mr Ackman QC, Mr Thompson and Mr Moore continuing to act for the wife was raised by the husband and those advising him. This is clear from the document that was handed to Mr Moore and which is annexed to his affidavit as annexure “BJM1”. It is also clear that there was no acquiescence to the barrister (at least) continuing to act.
Whether there was an agreement or not it is clear that the husband was objecting to the continuation of these legal practitioners acting for the wife in the circumstances in which the parties found themselves and to which neither the husband or wife or for that matter members of the legal profession could have reasonably envisaged.
It is not in issue that immediately after the mediation (at that time) was concluded Mr Ackman QC ceased to act for the wife.
At the same time the husband raised objection to Mr Thompson continuing but said he was prepared, subject to conditions, for Mr Moore to continue to act for the wife. That condition was that Mr Thompson withdrew from the proceedings.
As I have indicated earlier, in relation to Mr Moore that was in acquiescence. There was no acquiescence in relation to Mr Thompson.
On the material before me it is open for me to infer that Mr Ackman QC, an experienced senior counsel, regarded it as a problem for Mr Thompson to continue to act. That inference is open to me and I make that finding.
In the decision of D & J Constructions (1987) 9 NSWLR 118 Bryson J stated at 123 that:-
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.
I accept that family law proceedings have a different character to commercial proceedings.
Senior counsel for the husband submitted that the Full Court of the Family Court in McMillan & McMillan [2000] FLC 93-048 contains a comprehensive analysis of the relevant legal principals as set out in paragraphs 41, 43 and 54 in that:-[12]
(a)The test is that defined in Frederico J in Thevenaz (1986) FLC 91-748;
(b)The test is one of perception and theoretical risk rather than actual evidence of access to confidential information;
(c)It is of the upmost importance that justice should not only be done but should appear to be done;
(d)A cautious approach should be taken to any proposal that a legal practitioner should be permitted to act against a litigant about whom they may have had access to confidential information; and
(e)A particularly cautious approach is appropriate in the Family Law jurisdiction.
[12] At paragraph 10 of the husband’s summary of argument filed 9 January 2014.
The Full Court decision relied upon by the wife of Volker (supra) does not change the substantive law as set out by the Full Court in McMillan (supra).
Having regard to the evidence as it stands I am satisfied that whilst in the circumstances of this case there is some realistic sense of impropriety about the circumstances in that it is possible that some of the information gleaned by Mr Ackman QC at that conference in July 2012 could well have been passed on to Mr Thompson in their close working association for the wife in 2013.
It is possible that some information could have passed and we do not know if that unconscious information has been conveyed to Mr Thompson.
This is an exceptional case in that the circumstances are highly unusual and in exercising the discretion to grant the injunction with regard to Mr Thompson, this Court has exercised significant caution.
The real problem is terms of Mr Thompson’s continuation is, as submitted by senior counsel for the husband, that:-[13]
… the real problem with this application is that we don’t know what we don't know, your Honour. We don't know what Mr Ackman does or doesn’t remember. We don't know what he has or hasn’t communicated, and it’s in these circumstances that we’re coming to the court with more than a theoretical risk. The risk is actual, because there is a danger that things can be unwittingly and unknowingly disclosed or have been, over which we have no control. And it is this that is the nub of our client’s case.
[13] Transcript of Proceedings dated 15 January 2014, page 17 at lines 41 t o47.
I accept this submission as we do not know what information, if any, passed into Mr Ackman QC’s mind after providing advice to the husband. We do not know what, if any, information was passed by Mr Ackman QC subconsciously to Mr Thompson. The husband does not know, for instance, whether an assessment of the husband may well be, in part, formed from the sub-conscious material from the conference with the husband which has in turn been passed to Mr Thompson.
In all of those circumstances I am satisfied that there ought to be an order restraining the wife from continuing to facilitate and/or brief Mr Thompson.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 February 2014.

Associate:

Date: 7 February 2014