Parties Dispute Choice of Solicitor
Bansal & Mathai [2023] FedCFamC2F 307 (21 March 2023)
Issue:
The main issue in the case of Bansal & Mathai [2023] FedCFamC2F 307 is whether the court should grant an application to restrain a solicitor from acting in a family law matter, considering the change in the legal test while the judgment was reserved.
Rule:
The relevant legislation and rules applicable in this case are as follows:
Family Law Act 1975 (Cth) ss 78, 79
Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 12.06
Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 r 27
Additionally, several case laws have been cited in the judgment which provide guidance on the issue at hand, including:
Charisteas & Charisteas (2022) FLC 94-109
Grieves and Tully [2011] FamCA 617 - provides that in the realm of conflicts of interest and conflicts of duty, the solicitor's duty to the court may not be much different from his or her fiduciary duties to former and present clients. However, the duty to the court tends to be expressed in such a way as to emphasise the public interest in preserving confidence in the administration of justice, and therefore in the appearance as well as the reality of independence, and the court's practical approach to its supervisory discretions
Harlen & Hellyar [2020] FamCA 21
Porter v Dyer and Anor (2022) 402 ALR 659
Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 - held that the court's inherent jurisdiction to supervise the conduct of counsel included the ability to intervene to restrain a practitioner from acting.
Osferatu & Osferatu [2015] FamCAFC 177; (2015) FLC 93-666 - provides that even “a theoretical risk of the misuse of the confidential information” is sufficient to found relief.
Application:
In Bansal & Mathai [2023] FedCFamC2F 307, the applicant sought an order to restrain a solicitor from acting in the matter due to a change in the legal test while the judgment was reserved. The new test is whether a reasonable observer "might conclude" that there is a real risk of prejudice or misuse of confidential information by the solicitor.
In applying the relevant legislation and rules, it is crucial to consider whether this new test warrants granting the application for restraining the solicitor from acting in this family law matter.
The court relied on the decision in Charisteas & Charisteas (2022) FLC 94-109, which set out the new test as "might conclude." This test was a refinement of the previous test, which required a reasonable observer to "would conclude" that there is a real risk of prejudice or misuse of confidential information. The court in Bansal & Mathai [2023] FedCFamC2F 307 noted that this change is a refinement rather than a revolution in the law.
The court also considered other relevant case laws such as Grieves and Tully [2011] FamCA 617, Harlen & Hellyar [2020] FamCA 21, and Porter v Dyer and Anor (2022) 402 ALR 659. These cases provided guidance on when it is appropriate to restrain a solicitor from acting in a matter due to concerns regarding potential prejudice or misuse of confidential information.
In applying the new "might conclude" test, the court found that there was sufficient evidence to suggest that a reasonable observer might conclude that there is a real risk of prejudice or misuse of confidential information by the solicitor in question. As such, the application to restrain the solicitor from acting in the matter was granted.
Conclusion:
Based on the analysis of the issue, rule, and application of relevant legislation and case laws, the court in Bansal & Mathai [2023] FedCFamC2F 307 decided to grant the application to restrain the solicitor from acting in the family law matter. The decision was based on the new legal test ("might conclude") for determining whether there is a real risk of prejudice or misuse of confidential information by a solicitor.
Case: Bansal & Mathai [2023] FedCFamC2F 307
Judgment of: JUDGE O'SHANNESSY
Counsels:
Counsel for the Applicant: Mr A. Panna of senior counsel
Solicitor for the Applicant: D Lawyers
Counsel for the First Respondent: Mr C. Twidale
Solicitor for the First Respondent: Vernon Da Gama And Associates
Counsel for the Second and Third Respondents: Mr D. Mort
