In Osferatu [2015] FamCAFC 177 (15 September 2015), the husband appealed from an injunction that restrained Barkus Doolan from acting for him, where a solicitor (“Mr F”) joined that firm having previously worked for the wife’s solicitors, Watts McCray.

It was common ground that Mr F did not have any direct dealings with the wife whilst he was member of the firm instructed by her. Furthermore upon joining Barksu Doolan, Mr F had made an undertaking to the wife that he would not speak, disclose or convey any information he may have had concerning the wife to anyone at Barkus Doolan nor involve himself to the wife’s matter.

In February 2015, the husband filed an Application in a Case applying for the case to be relisted. An e-mail from the wife has stated that she had ‘no issue’ with the husband re-engaging Barkus Doolan as his solicitor. However, upon doing so, the wife objected and filed an Application in a Case seeking an injunction restraining the firm from acting on the husband’s behalf.

Court’s Reasoning

The court stated that there are three established categories in which a solicitor may be restrained from acting against their client or former client:

  1. Breach of confidence
  2. Breach of fiduciary duty
  3. Inherent jurisdiction of a court over its officers and to control its process.

The category that concerned the court in this case was number one, ‘breach of confidence,’ specifically the risk of the misuse of confidential information.

Frederico J in Thevenaz & Thevenaz (1986) FLC 91-748 explained the manner in which a client’s confidential information is to be protected in family law proceedings which was adopted by the court:

‘A practitioner who wishes to cease acting for one party and continue to act for the other party will be restrained from doing so by the court if there is any evidence that confidential communications have been made to him by the party for whom he is ceasing to act. In such a case the court will not weigh conflicting evidence as to confidence. It will act upon the evidence of the client who swears that he has made the confidential communication’.

Furthermore, Lindenmayer J in Stewart & Stewart (unreported, Family Court of Australia, Lindenmayer J, 17 April 1997) said:

‘… 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 her disadvantage, in these current proceedings…’

The three stages that needs to be considered, as Goldberg J said in PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905:

  1. Whether the firm is in possession of information which is confidential to the former client;
  2. Whether the information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
  3. Whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.

The burden of establishing the first two propositions is upon the former client to establish.

The third proposition is for the firm to establish once the first two propositions have been established. As such the law requires the applicant, the wife, seeking to restrain a solicitor from acting to establish the confidential information and risk of the misuse that information in the circumstances.

In the current scenario, the wife never spoke to or provided instructions to Mr F. Furthermore, there was not capable evidence to support the trial judge’s findings that Mr F engaged in detailed discussion to the wife’s case. Mr F left Watts McCray in February 2012. The wife 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 is not, or could now be, relevant to current proceedings. The wife did not do so but merely stated that any information at all received by Mr F could have been relevant.

As such, it was held that the trial judge erred in not taking such matters into account. Furthermore, the court below erred for giving no reasons as to why the wife’s email waiving the objection did not carry any significant weight.

The appeal was allowed, the injunction by the wife was set aside and the wife was ordered to pay the husband’s cost.

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