YARKIENES & CELANTA

[2009] FamCA 1239

FAMILY COURT OF AUSTRALIA

YARKIENES & CELANTA [2009] FamCA 1239

FAMILY LAW – INJUNCTIONS – Restraint of solicitor from acting

Family Law Act 1975 (Cth)

McMillan & McMillan (2000) FLC 93-048

APPLICANT: Mr Yarkienes

RESPONDENT: Ms Celanta

FILE NUMBER: SYC 953 of 2009

DATE DELIVERED: 16 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 16 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms I

SOLICITOR FOR THE RESPONDENT: Ms E

Orders

1. That paragraph 3 of the husband’s application in a case filed on 1 April 2009 is dismissed.

2. That all costs be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Yarkienes & Celanta is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 953 of 2009

MR YARKIENES

Applicant

And

MS CELANTA

Respondent

REASONS FOR JUDGMENT

1. The parties in the immediate proceedings are Ms Celanta and Mr Yarkienes.  For convenience I shall refer to them as “the wife” and “the husband” respectively. 

2. They were previously married.  They are parties to substantive property proceedings.  There are other parties also involved in those proceedings, namely various corporations involved in their business and financial affairs. 

3. An issue has arisen of an interim or preliminary nature which they have asked the Court to determine.  The husband seeks an order to the effect that the wife be restrained from continuing to instruct her solicitors, X Solicitors, in these proceedings.  I shall refer to X Solicitors as “the solicitors”.  The wife opposes such an order and asks for the husband’s application to be dismissed.

Background

1. The background matters are as follows.  The husband was born in1955 and the wife was born in 1977.  They commenced cohabiting in January 2001.  They married in October 2006 and they separated on 4 October 2008.  There are no children of the marriage. 

2. There are proceedings in the Supreme Court of New South Wales involving the parties and one or more of the corporations.  The husband and one of the corporations, L Pty Limited, have been represented in these proceedings by a firm of solicitors, Y Lawyers. 

3. The wife has instructed her solicitors in these proceedings since 11 December 2008. 

4. The husband said that at the end of January or the beginning of February this year he sought to find a suitable firm of family lawyers from whom to obtain some preliminary advice.  He said that when visiting a friend who operates a business in Sydney he noticed the name of X Solicitors and he decided to contact them for advice. 

5. He said that he could not recall the exact date he initially rang the solicitors, but recalled that it was between 9.00 am and 11.00 am.  He gave an account of the alleged conversation, the thrust of which was that he introduced himself and was informed that the person at the other end of the phone was a solicitor.  He said that the solicitor asked him to forward some documents about the matter.

6. The husband made two telephone calls to the solicitors on 13 February 2009.  The first was at 8.07 am and its duration was 48 seconds.  The second was at 9.24 am and its duration was 2 minutes and 53 seconds. 

7. The husband said that some time between 10 February 2009 and 15 February 2009 he sent a number of documents to the solicitors to obtain family law advice.  He said that the documents included a graph of companies, directors, personal accounts, details about the D Trust and a time line of various business structures, the purchase of the building in G and where and how the funds for the purchase were derived, details about L Pty LTd, personal details about tax returns, and non-lodgement of tax returns, a time line of the marriage and when it ceased and other personal details.  He said that these documents were sent in a brown envelope by standard mail to the solicitors’ office address.

8. The husband also said that as well as forwarding such documents to the solicitors he forwarded a letter to them which he created on his computer on 12 February 2009. 

9. Just prior to this on 11 February 2009 the husband’s solicitors, Y Lawyers, had written directly to the wife expressing various concerns about her alleged behaviour in relation to the corporation L Pty Limited. 

10. On 16 February 2009 the husband sent the wife an email in which he informed her that his:

    “lawyers are now ready to draft an agreement for settlement of financial affairs to be put to the Family Court.”

11. On 17 February 2009 the wife’s solicitors wrote to the husband’s solicitors informing them that the wife objected to the solicitors taking any further instructions from either the husband or the corporation, L Pty Limited.  This was said to be on the basis that the wife had previously retained Mr R’s firm to act for her in previous matters.  On the same day, that was 17 February 2009, Mr Y responded by letter denying that the wife had ever retained his firm.  But Mr Y conceded in the letter that he had been a partner of a different firm of solicitors whom the wife had previously retained.

12. A subsequent letter dated 17 February 2009 was sent by the wife’s solicitors to Y Lawyers in which, amongst other matters, they informed the husband’s solicitor that the wife continued to object to Y Lawyers acting in the proceedings.  The letter also indicated that if the husband was not referred for representation by a different firm of solicitors the wife would seek orders from the Court.

13. There was a further letter about this matter from the husband’s solicitors to the wife’s solicitors dated 18 February 2009. 

14. The husband said that on 20 February 2009 he telephoned the solicitors, X Solicitors, at 11.04 am and asked to speak with the lawyer with whom he had previously spoken.  He said that he was informed that the solicitor would be asked to return his call.  He said that at 11.29 am that day he again rang the solicitors and informed them that he had received a missed call from their number and was informed that the person he needed to speak with had left the office, and that they received his message and phone number and would return his call. 

15. These telephone calls were said to be supported by details of the husband’s mobile telephone account, although objection was taken to these details on the basis that they were produced by the husband accessing the account from his computer and printing the account.  As such they are not conclusive, in my view, but appear to be some evidence supporting the husband’s allegation.

16. The husband said that at approximately 12.30 pm that day, that is 20 February 2009, a male person telephoned him who appeared to be from the solicitors and he asked the person whether he had looked at his file, meaning his documents, and was informed that they had not as it must have gone to someone else at the office.  The husband said he then had a telephone conversation with the person and sought specific legal advice about his family law matter, and was provided with some advice of a general nature. 

17. The husband’s former solicitor, Mr Y, said that he was with the husband at the Local Court on 20 February 2009 because the husband had asked Mr Y to represent his son, G Yarkienes at the Court on that day.  Mr Y said that at approximately 10.50 am he had a conversation with the husband about the solicitors X Solicitors.  He said that the husband informed him that he was ringing the solicitors then, and that the husband appeared to have a conversation on his mobile phone.  Mr Y said that at 11.30 am the husband informed him he had just spoken to the solicitors and that they were going to ring back.  He said that a few minutes later he heard the husband’s phone ring and that the husband said it was X Solicitors. Mr Y said that the husband subsequently informed him that the person he spoke with appeared to know what he was talking about and gave him some details about the alleged conversation.

18. The husband changed his solicitors apparently to Armstrong Legal, although the circumstances of this are not in evidence in these proceedings.  But on 24 March 2009 the wife’s solicitors wrote a letter to Armstrong Legal seeking specific information from the husband. 

19. The husband said that at approximately 12.30 am on 30 March 2009 he realised that the wife’s solicitors were the same solicitors as those he had been consulting so he sent an email to his solicitors, Armstrong Legal, notifying them of the conflict of interest.  Later that day the husband telephoned the solicitors, that is X Solicitors, and asked to speak with Ms E but she was not available.  The husband said that he informed the person to whom he was speaking that there was a serious conflict of interest in the solicitors representing the wife and demanded that they cease acting for her immediately.  He said the other person said that they would pass on the message. 

20. Later that day the solicitors wrote to the husband’s solicitors asking him not to contact them directly.  On 31 March 2009 the husband’s solicitors wrote to the solicitors informing them about the husband’s assertions and requesting that the solicitors cease to act for the wife.

21. I now make some observations about the matters which would tend to support the husband’s case. 

22. Firstly, there are the husband’s assertions that he had conversations with a solicitor from the solicitors, and that he forwarded confidential documents to the solicitors. 

23. The husband made two telephone calls to the solicitors on 13 February 2009 as referred to above.  There is some support for the possibility of two telephone calls on 20 February 2009 as I have said.  But I am not prepared to make a finding to this effect. 

24. There is the alleged letter dated 12 February 2009 created on the husband’s computer which he said he forwarded to the solicitors in addition to the documents he alleged he sent to them.  I must say, in my view, it would be inappropriate to afford this any evidentiary value in the absence of some further evidence in admissible form. 

25. In relation to the husband’s assertion that he sent confidential documents to the solicitors, the evidence of Mr S, the senior family law partner with the solicitors, did not indicate that there had been any search conducted by the solicitors for the documents.  It was also the case that another partner with the solicitors, Mr A, has been assisting the wife particularly in relation to matters concerning the relevant corporations.  There was no evidence at all from Mr A. 

26. The husband said that he recalled that when he received a list of all of the lawyers at X Solicitors he thought the person who had spoken with him on 20 February 2009 was Mr N. 

27. The solicitors produced records of phone calls made from their land line telephone numbers for the relevant period pursuant to a notice to produce, but the solicitors did not produce records of phone calls from mobile phones used by their various solicitors for the relevant period. 

28. Now I make some observations about the matters which would tend to suggest that the husband’s case is unlikely.  Firstly, the husband said that he had six telephone conversations with persons at the solicitors.  He was unable to name any person at the firm with whom he had conversed, apart from Mr N.  But the husband did not identify Mr N as the person with whom he said he spoke on 20 February 2009 until during his cross-examination in this hearing. 

29. The husband has never been a client of the solicitors. 

30. Mr S said that the general practice of the solicitors is that his secretary or he generally take all calls relating to new clients or initial instructions.  He said that generally the client would then attend their offices for an initial consultation and would usually be seen by him.  He said that the firm’s policy is to either have new clients pay or the firm issues a bill at the time of the initial consultation.  They have a policy that they do not provide free consultations.  Mr S said that there is no record of the husband having been seen or having been provided with advice, either personally or over the telephone by him, or having paid for an initial consultation, having been billed for an initial consultation or having deposited money into the solicitors’ trust account. 

31. The relevant time sheets for the solicitors at X Solicitors did not contain any reference to Mr Yarkienes. 

32. The land line telephone account details do not show any phone calls from the offices of the solicitors to the husband.  But as indicated above, the mobile phone account details were not provided to those representing the husband, despite service of a Notice to Produce. 

33. The husband’s allegations about conflict of interest arise in the context of the solicitors having written to the husband’s then solicitors, Y Lawyers, asserting that there was a conflict of interest in Y Lawyers continuing to act for the husband because they had previously acted for the wife. 

34. At a time when the husband was asserting that he had been communicating with the solicitors with a view to seeking advice from them, he wrote directly to the wife on 16 February 2009 informing her that Y Lawyers were ready to draft a property settlement agreement. 

35. On 17 February 2009 the husband’s solicitors wrote to the wife’s solicitors about the alleged conflict of interest.  The husband gave instructions for this letter and conceded that he had seen the letter.  It was obvious from the face of the letter that it was addressed to X Solicitors. 

36. The husband demonstrated during his cross-examination a far less than complete recollection of events between 16 February 2009 and 20 February 2009, yet he asks this Court to believe him in relation to his assertions about 20 February 2009.  The husband did say that he had a heart problem and a cancer scare over this period. 

37. To the extent that the husband relies on the affidavit of Mr Y to support his assertions about a telephone conversation with a solicitor from X Solicitors, there are problems in my view.  Firstly, at no point does Mr Y say he actually heard any alleged conversation between the husband and a person at X Solicitors.  Secondly, Mr Y says that the husband asked him whether he had heard of a family law firm, X Solicitors. Mr Y replied that he had heard of the firm but he had not had dealings with them.  Yet as recently as two days earlier he had written one of several letters he had sent to the firm in response to the letters he had received from the solicitors as referred to above.  In these circumstances in my view this Court can place very little weight on any of the material in Mr Y’s affidavit.

Submissions

1. The Court was asked to deal with this case on the basis that the application would succeed or fail on a finding of whether or not the solicitors were put in possession of confidential information about the husband which created a risk that it could be used to the prejudice of the husband.  It was submitted on behalf of the husband that he has done everything that he could to put before the Court evidence available to him in support of his case.  It was submitted that there is nothing more that he could do and that the Court should accept his evidence.  On the other hand, it was submitted on behalf of the wife that what the husband asserts is inherently improbable. 

Conclusion

1. While I am unable to rule out the possibility that what the husband asserts is correct, I am unable to find in his favour. 

2. It is the husband who is the applicant in these proceedings.  He bears the onus of establishing his case on a balance of probabilities.  Having weighed the available evidence at this point I am unable to satisfy myself that it is more probable than not that what he asserts is correct, and this is so even bearing in mind the “broader” or “family law” approach referred to in the decision of the Full Court of this Court in the case of McMillan & McMillan [2000] FLC 93-048 at pages 87,725, 87,733 and particularly at page 87,734.

3. In these circumstances in my view the husband’s application for the injunction is to be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     

Date:              5 June 2009