Applicant Sought to Restrain Counsel in Relation to Confidential Information

SCVG & Estate of KLD [2021] FedCFamC1F 8 (2 September 2021)

The applicant sought leave to apply for an order restraining the counsel in relation to confidential information and a  subpoena for the counsel to testify in relation to alleged misuse of confidential information. The Court, in considering the applications, applied the test for summary dismissal.   

Facts:

On 27 July and 16 August 2021, the applicant sought leave to apply for an order which would restrain Mr SS and Mr TT from acting as counsel for the respondent in these proceedings.  The applicant also sought leave to issue subpoenas directing Mr SS, Mr TT and Mr UU to testify.  Lastly, the applicant seeks judicial review of orders made by Registrar Chayna on 19 July 2021.  Due to repeated unsuccessful applications by the applicant to amend his pleadings, the Court previously made orders restraining the applicant from making further applications in these proceedings without first seeking the leave of the Court to do so.  

Mr UU of counsel previously represented the applicant in the now impugned proceedings in the Federal Circuit Court before Judge Scarlett, such proceedings being challenged on the basis that the judgment was procured by fraud on the part of the late Ms KLD.  Mr UU is now the tutor for junior counsel instructed in these proceedings by the Estate, Mr SS, who is led by Mr TT.  The applicant contends that Mr UU holds relevant confidential information by virtue of that previous representation and, by virtue of his relationship of tutor-reader with Mr SS, should be inferred to have potentially passed that information to Mr SS and thereby onto Mr TT.

The respondent challenged the applicant’s ability to satisfy the issues of whether there was any relevantly identified confidential information and any proper basis to infer the misuse of such information.  The challenge brought against the judgment of Judge Scarlett claims a fraud perpetrated upon the court by virtue of a deliberate misrepresentation made by Ms KLD as to the value of assets that she held in three entities, being L Pty Ltd, K Pty Ltd and N Pty Ltd, to which she ascribed nil or nominal value, as opposed to their true worth which are claimed to have exceeded millions of dollars.

Issues: 

I. Whether or not tutor-reader relationship invites an implication as to the sharing of confidential information between barristers. 

II. Whether or not a relevantly informed reasonable person would anticipate a misuse of confidential information in the circumstances.

III. Whether or not the application for subpoena should be granted.

Applicable law:

Family Law Rules 2004 (Cth) r 10.12 - provides that consideration of whether the applications had no reasonable likelihood of success or were frivolous, vexatious or an abuse of process is the test for summary dismissal.

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 - established that a subpoena may not be used as a fishing expedition to determine whether there is a case to pursue.

Analysis:

An appropriate way to consider the applications is through consideration of whether the applications had no reasonable likelihood of success or were frivolous, vexatious or an abuse of process.  If either limb of this test were satisfied, leave to proceed with the applications would not be granted.  It is not the case that the applicant's previous counsel Mr UU is to appear in a matter concerning the applicant, or calling on the use of confidential information.  The claim is founded merely upon the tutor-reader relationship with Mr SS.

The applicant submits that the proceedings involved the misrepresentation by Ms KLD of her financial position.   He further submits that he conveyed to Mr UU matters beyond what was conveyed in the hearing before Judge Scarlett, including information as to the financial practices of Ms KLD’s family.  It remains unsubstantiated that there is relevant confidential information.  The submissions regarding how the concept of the sharing or use of information which Mr UU was obliged to keep confidential is implicit in the tutor-reader relationship between Mr UU and Mr SS. 

However, the nature of the relationship is one informed by the proper preparation of readers for the work of counsel with the role of forensic skill, and judgment within the ethical framework demanded by the position.  The reader-tutor relationship is not one that points toward the breach of confidentiality obligations in developing the characteristics of counsel within the reader.  There is no obligation on the tutor to read each brief and advise the reader on each brief, as was implicit to the submissions put by the applicant.   Whereas there may be good reason to imply the sharing of knowledge within a law firm, there is no analogous implication either for barristers sharing chambers, or for barristers in a tutor-reader relationship. 

Conclusion:

The application to restrain counsel is dismissed.  The Court refused the leave to issue subpoena as the applicant has been unable to present evidence suggestive of the breach of confidence, or reasonable apprehension of the risk of breach of the confidence.  As to the judicial review of Registrar Chayna's orders, the Court held that such leave should automatically be granted due to the nature of the delegation of powers to registrars.  The Court ordered the parties and lawyers on the record attend a Conciliation Conference with a Registrar at 10 am on 19 October 2021.   At least 14 days prior to the Conciliation Conference each party must pay the Conciliation Conference fee in equal shares or obtain an exemption from payment of the fee.  By 12 October 2021 each party is to provide to each other party and to the court a statement of their current proposal for settlement.  In the event that the parties fail to comply with the directions for the preparation for the Conciliation Conference, the Conference may be vacated and a further Conference date not be appointed until a Registrar is satisfied that the matter is ready to proceed.