Kallinicos v Hunt

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kozlova & Zajc has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 23 October 2025, orders were made by the Honourable Justice Curran listing this matter for interim hearing, to be heard by me on 8 December 2025, in relation to the interim orders sought in:

(a) The Application in a Proceeding filed by Mr Jans ("the third respondent") on 10 October 2025;

(b) The Application in a Proceeding filed by Mr Zajc ("the husband") on 22 October 2025 ("the husband's application"); and

(c) The Amended Initiating Application filed by Ms Kozlova ("the wife") on 24 September 2025, which was again further amended on 30 October 2025 ("the wife's application") and which is in relation to interim parenting and spousal maintenance issues.

1. On 12 September 2025, the wife commenced these family law proceedings, in relation to both property and parenting matters, following the breakdown of the spouse parties' marriage.
2. On 24 September 2025, the third respondent and B Pty Ltd (ACN [...]) ("the second respondent") were joined to these proceedings. The third respondent is the husband's brother, and he asserts that he is the director of the second respondent.
3. On 10 October 2025, the third respondent filed an Application in a Proceeding, in which, orders were sought to restrain the wife's solicitors from continuing to act for her in these proceedings ("the restraint application"). The husband's application included orders which would have the same effect.
4. On 30 October 2025, the wife filed two responses seeking to dismiss the restraint application and the husband's application.
5. On 1 December 2025, the second and third respondents jointly filed a Response to Initiating Application in which final orders were sought, and which includes a declaration that the third respondent is the beneficial owner of two pieces of real property in NSW ("[the Suburb C properties]"), that are registered in the name of the husband.
6. On the morning of 8 December 2025, the husband's counsel indicated that his client no longer separately sought orders for a restraint against the wife's lawyers (but supported the restraining orders being made as sought by his brother, the third respondent). An order was made that day, dismissing the husband's application.
7. The spouse parties had each also sought interim orders with respect to the care of their children, X, born 2014, and Y, born 2019.
8. An Independent Children's Lawyer was appointed by order on 23 October 2025 ("the ICL"). The ICL had prepared a minute of proposed orders which had been filed on 4 December 2025. The husband's case outline document, also filed on 4 December 2025, included a minute of orders sought about the care of the children, in which interim parenting orders different to those sought in his Response to Final Orders (filed 28 November 2025) were proposed. There was considerable overlap between the orders proposed by the ICL and those proposed by the husband in his case outline document.
9. After a brief adjournment to enable the parties to have further discussions, an agreed parenting minute was produced, and orders were made that morning resolving the parenting issues on an interim basis.
10. The two children, who currently live with the wife, do not presently have any contact with the husband or the paternal family. The parenting orders made by consent on 8 December 2025 maintain that position (on a without admissions basis, on behalf of the husband). The husband has been charged with a range of criminal offences, and those matters are listed for hearing in D Court on [...] April 2026.
11. The third respondent has not at this stage prepared detailed evidence about the nature of, or foundation to, his assertion that the properties are in effect held on trust for him by the husband. The third respondent was excused by way of order made on 23 October 2025 (Order 18) from complying with earlier orders for disclosure, in circumstances where he sought that the wife's lawyers be restrained.
12. The absence of that disclosure and the evidence of the third respondent relating to his asserted interest in the Suburb C properties was the foundation for the submission, on his behalf, that the court should first determine the restraint application, and only after that application was determined, should the court then consider the wife's application for spousal maintenance or the sale of the real properties.
13. In the event that the wife's solicitors, Maatouks Law Group, were in fact restrained, it was likely that the wife would then need an opportunity to engage further lawyers.
14. If the restraint application was dismissed, outstanding disclosure by the second and third respondents could then be produced (the order suspending the orders requiring such disclosure could be discharged) and the second and third respondents would have an opportunity to place relevant evidence before the court.
15. On those bases, the hearing on 8 December 2025 dealt with the restraint application by third respondent seeking orders to restrain the wife from continuing to instruct Maatouks Law Group, and the non-parenting aspects of the wife's application were not dealt with.

APPLICATION TO RESTRAIN THE WIFE'S LAWYERS FROM REPRESENTING THE WIFE

(a) His Application in a Proceeding filed 10 October 2025;

(b) His affidavit filed 10 October 2025; and

(c) His affidavit filed 28 November 2025.

(a) Her Response to an Application in a Proceeding filed 30 October 2025 in relation to the restraint application;

(b) An affidavit of Mr E filed 20 October 2025; and

(c) Her affidavit filed 28 November 2025.

1. A number of documents were made exhibits throughout the course of the interim hearing. I have read and had regard to each of those documents, including:

(a) The third respondent's case outline document filed 3 December 2025 (Exhibit 2); and

(b) The wife's case outline document filed 1 December 2025 (Exhibit 3).

1. Cross examination of the third respondent and the wife's solicitor, Mr E (Maatouks Law Group), occurred. I thereafter heard submissions on behalf of the third respondent and the wife.

1. The factual circumstances giving rise to the third respondent's restraint application may be summarised as follows.
2. On 20 August 2025, Mr E's office received a telephone inquiry from the third respondent. The third respondent asserts that he advised the person with whom he spoke that, "I need to speak to someone in regards to protecting assets which I own but which are registered in my brother's name. I believe he is about to go through a divorce with his wife".
3. An email was sent to Mr E by his receptionist that morning, advising him of a telephone call from the third respondent. That email became Exhibit 7. It does not mention the matters asserted by the third respondent, only suggesting that the inquiry was about "setting up a family trust". No mention is made of a family law matter, and the particulars of third parties are not included (for example, the names of the spouse parties).
4. Mr E returned that call on the same morning. A discussion between Mr E and the third respondent occurred. There is dispute as to the length of that discussion and as to the matters communicated at that time. That telephone call occurred without charge to the third respondent.
5. It is not controversial that Mr E advised the third respondent to gather documents which the third respondent might consider relevant to the matters discussed between them and that he could make an appointment in the future. The third respondent was advised that he would be charged a particular hourly rate by Mr E at that appointment.
6. Mr E's office also later received an inquiry from the husband, relating to his criminal proceedings. The husband and Mr E spoke on or around 22 August 2025 and Mr E advised the husband that he was not available on the day that the husband's criminal matter went to court. It is not controversial that Mr E suggested to the husband that he seek an adjournment of the criminal matter to enable him to secure legal advice.
7. It appears that the husband secured an adjournment of his criminal proceedings.
8. When inquiries were later made of Mr E's firm by the third respondent and the husband, neither of them had any further contact directly with Mr E and no appointment with Mr E was made for either of them. Later, the husband was advised by a staff member that Mr E would not be able to assist him.
9. The third respondent deposed to making follow up inquiries with Mr E's firm.
10. Mr E did not provide the husband or the third respondent with a fee agreement nor any written communication about the terms of any future or ongoing engagement.
11. The wife contacted Mr E at some point, and on 25 August 2025, had a meeting with him and paid both for the appointment and his retainer.
12. The third respondent said that he became aware of a claimed conflict of interest for Mr E acting for him on 28 August 2025 when he rang Mr E's firm and was advised by a staff member that "[Mr E] has already informed your brother that he can't represent him because there is a conflict of interest".
13. The wife deposes to certain information being provided to her by named members of her family, in discussions which she says occurred on or around 1 September 2025, following her family allegedly speaking with named members of the husband's family. The wife asserts that she became aware, as a result of those discussions, of a plan formed by the husband and, or, members of his family, to transfer certain real property into the name of the husband's brother and to claim that the third respondent was the beneficial owner (because of payments he had allegedly made to the mortgages for those properties).
14. Certain ASIC searches were undertaken by the wife's solicitors, on her instructions, on 5 September 2025. The wife deposes to understanding, based on those searches and discussions with her solicitor, that shares in particular companies (which the wife understood were owned by the husband) were transferred by the husband to the third respondent, on 25 August 2025 (though the wife deposes to the transfer documents bearing an earlier date).
15. On 12 September 2025, the wife commenced these proceedings. The husband was served with her court documents on 16 September 2025, and the third respondent said that he became aware, consequently, that Mr E was acting for the wife.
16. On 15 September 2025, orders were made in chambers listing the matter for an urgent interim hearing to occur on 25 September 2025.
17. On 23 September 2025, the wife says that third respondent took steps to secure the return of a vehicle driven by the wife (and which she said had been hers to use, since its purchase in 2019), on the basis the car was owned by one of the companies, the shares in which had previously been owned by the husband.
18. On 24 September 2025, the second and third respondents were joined to the proceedings upon the wife filing an Amended Initiating Application listing them as respondents.
19. The wife also deposes to her knowledge of threats made to members of her family, directing her to withdraw and, or, discontinue her family law proceedings. This includes a message the wife received on 24 September 2025 (which the wife says contained a threat to her father), the English translation of which is extracted in the wife's affidavit. The wife deposes to a further conversation with her father that day in which he conveyed the import of conversations he had with the third respondent, which her father told her he experienced to be of a threatening nature.
20. On 25 September 2025, the matter came before the court for interim hearing and the third respondent was present at court, though he was not represented. Transcript of those proceedings is Exhibit 4.
21. On 30 September 2025, the third respondent's solicitors wrote to Mr E indicating that the third respondent and the husband objected to Mr E acting for the wife on the basis that it was asserted Mr E had received confidential information from the third respondent in their telephone discussion.
22. On 1 October 2025, Mr E wrote to the solicitors acting for the third respondent and asked that firm to particularise the confidential information which it was asserted had been conveyed to Mr E on the occasion of the phone call. It is not disputed that no reply was provided to Mr E from the husband's solicitors or the solicitors for the third respondent.
23. The wife deposes to additional conversations with members of her family in which she has been advised of further discussions they have had with members of the husband's family. The wife also deposes to a conversation between the wife and the third respondent, and his brother-in-law, on 13 October 2025, when certain comments were allegedly made by them which the wife asserts were threatening of her.
24. The wife says that she is experiencing persistent pressure from the husband, the third respondent and, or, from their family more generally, to abandon her family law claim. As recently as 27 November 2025, the wife says that she was advised by her brother that he had been approached by members of the husband's family to "sign a statement about me saying I was a liar". The wife deposed to being advised by her brother that day, that while he had not signed such a statement, her father had done so.
25. The wife has continued to instruct Mr E since 25 August 2025. Considerable work has been undertaken since then, on the wife's behalf, by Mr E.
26. Given the focus of the proceedings on 8 December 2025 was about the possible restraint of the wife's solicitors, cross examination of the third respondent as to the conduct the wife attributes to him did not occur, save that the third respondent was asked about his discussions with his father. He denied any such conversation had occurred.
27. The alleged conduct of the husband's family members as asserted by the wife are denied by the third respondent (at least in respect to the conduct attributed to him and as to his knowledge of conduct of his family members). At this interim stage and where the other participants in the asserted conversations are not on affidavit, I cannot make findings about these disputed matters.
28. However, the evidence provided by the wife provides an explanation for her apprehension about her security, the necessity of taking steps to secure her financial interests and joining the second and third respondents to these proceedings.

1. The third respondent seeks to restrain Maatouks Law Group from acting for the wife. The restraint is sought on the basis that it is asserted that Mr E is in receipt of confidential information given to him by the third respondent; that Mr E has a duty to maintain that confidential information; and that in acting for the wife, a conflict of duties arises for Mr E, between protecting the confidence of a former client (the third respondent) and his duty to advance the interests of the wife as his subsequent client.
2. In the alternative, the third respondent asserts that the court should exercise its inherent jurisdiction, to disqualify a solicitor from acting, to protect the proper administration of justice and the appearance of the proper administration of justice.
3. It was acknowledged by counsel appearing that orders to restrain a solicitor from acting are rare and the discretion to do so is to be exercised exceptionally and with caution (see for example Li v Jin Lian Group Pty Ltd [2018] NSWSC 479 ("Li v Jin Lian") and Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 ("Kallinicos v Hunt")).
4. It is fundamental to the adversarial legal system that a party has a right to the representation of a lawyer of their choice. In the exercise of the discretion to restrain a lawyer from acting, the court is to also to take into account the cost and inconvenience of requiring the wife to retain new lawyers as well as the public interest, insofar as a litigant not being deprived of the lawyer of their choosing without due cause (Billington & Billington (No 2) [2008] FamCA 409 at [43]).

1. Rule 10 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) ("the Legal Profession Rules") provides:
   1. Conflicts concerning former clients

10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients.

10.2 A solicitor or law practice who or which is in possession of information which is confidential to a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS -

10.2.1 the former client has given informed consent to the disclosure and use of that information, or

10.2.2 an effective information barrier has been established.

1. The glossary to the Legal Profession Rules defines "former client" as:

former client for the purposes of Rule 10.1, may include a person or entity that has previously instructed -

(a) the solicitor,

(b) the solicitor's current law practice,

(c) the solicitor's former law practice, while the solicitor was at the former law practice,

(d) the former law practice of a partner, co-director or employee of the solicitor, while the partner, co-director or employee was at the former law practice,

or, has provided confidential information to a solicitor, notwithstanding that the solicitor was not formally retained and did not render an account.

1. It was accepted that the third respondent had not formally retained Mr E (he did not sign a fee agreement, no further instructions were given, and no work was undertaken on his behalf). However, it was maintained that Mr E had received confidential information from the third respondent, who believed that he was having a discussion with a lawyer on the basis that their discussions would be confidential (and the expansive definition of former client set out above is engaged in these circumstances).
2. In Kallinicos v Hunt at [76], Brereton J explained the circumstances in which a lawyer may be restrained from acting as follows:

The foregoing authorities establish the following:

- During the subsistence of a retainer, where the court's intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court's jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests.

- Once the retainer is at an end, however, the court's jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure).

- After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court's intervention, such duty having come to an end with the retainer.

- However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice. Prince Jefri Bolkiah does not address this jurisdiction at all. Belan v Casey and British American Tobacco Australia Services Ltd are not to be read as supposing that Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications Ltd appears to acknowledge its continued existence.

- The test to be applied in this inherent jurisdiction is whether 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 interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

- The jurisdiction is to be regarded as exceptional and is to be exercised with caution.

- Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.

- The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.

(Citations omitted)

1. In Charisteas & Charisteas [2022] FedCFamC1A 160, the Full Court at [37] endorsed the test as set out by the Full Court of the Federal Court of Australia in Porter v Dyer (2022) 402 ALR 659, as follows:

The correct test that should have been applied by the primary judge, in determining whether a legal practitioner should be restrained from acting on behalf of a party, is that which is adumbrated by the Full Court of the Federal Court of Australia (Besanko, Lee and Abraham JJ) in Porter v Dyer (2022) 402 ALR 659 who applied, with approval, the following statement of principle by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475:

1. The relevant principles which guide the exercise of the Court's separate discretion are broadly as follows:

   (a) The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).

   (b) The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term "would": see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).

1. The particular facts in this case are somewhat unusual. As summarised previously, the extent of the engagement by the third respondent with Mr E was a short phone call and no formal retainer was established.
2. Counsel for the third respondent indicated that he was unable to identify authority where a lawyer has been "engaged" to the extent of a no charge, brief preliminary phone call only and whereby that engagement was considered sufficient to found the basis for an order being made to restrain the solicitor for acting for another party.
3. This is not a situation where a party had engaged a particular lawyer in a firm of solicitors, and that solicitor then changed their employment to join the firm representing the other party in the proceedings (see for example Hatzis & Hatzis [2022] FedCFamC1F 745); or where a solicitor who did not assist the party directly but who was employed by the firm where another practitioner acted for one party, later moves to the firm representing the spouse party (the migratory lawyer, see for example, Osferatu & Osferatu [2015] FamCAFC 177; (2015) FLC 93-666); nor is it a case where the party seeking the restraint had a single stand-alone consultation with a solicitor, for which they were charged and a fee was paid for that service, and the firm, at a later point begins to act for the other party (despite the first party having the paid consultation) (as was the case, for example, in Mihova & Mihova [2025] FedCFamC1F 113).
4. In circumstances of a considered and formal consultation or established solicitor client engagement, the court may more readily infer that confidential information was conveyed by the party to the solicitor in the course of that consultation or engagement. That is consistent with authority, including Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 ("Mumbin"). Here, however, where a single, short conversation occurred and where the solicitor was not subsequently formally retained and no further discussions occurred, there is a dispute as to the extent and nature of the information conveyed in that brief conversation. The consideration of what confidential information may have been passed in those circumstances requires closer scrutiny.
5. A duty of confidentiality is owed by lawyers to former clients. The information communicated does not lose its confidentiality just because the relationship in which it was communicated has expired. The lawyer-client relationship is one of the utmost confidence (see for example Rakusen v Ellis, Munday and Clarke [1912] 1 Ch 831).
6. The power to restrain a practitioner from acting for a party where there is a danger of misuse of confidential information is well established. In Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [33] Nettle J observed:

Authority establishes that the court will restrain a legal practitioner continuing to act for a party to litigation if a reasonable person informed of the facts might reasonably anticipate a danger of misuse of confidential information of a former client and that there is a real and sensible possibility that the interest of the practitioner in advancing the case in the litigation might conflict with practitioner's duty to keep the information confidential, and to refrain from using that information to the detriment of the former client.

1. These principles have been reiterated in many Australian authorities and, in Mumbin at [38], Griffith J summarised the principles and the elements necessary to be established in order to establish the basis for the restraint of a legal practitioner, as follows:

(a) An injunction may be granted if there is a real and sensible possibility of the misuse of confidential information by a legal practitioner (Farrow Mortgage Services Pty Ltd (In liq) v Mendall Properties Pty Ltd [1995] VicRp 1; [1995] 1 VR 1 at 5 per Hayne J).

(b) The moving party must identify with precision both the confidential information which is in the possession of the legal practitioner and the reason why that information is or may be relevant to the issues in dispute (Smirke on behalf of the Jurruru People v Western Australia [2017] FCA 825 at [13] per Barker J).

(c) It is not necessary to demonstrate some particular quality of confidentiality in relation to the material - any information received by a legal practitioner in relation to a client's affairs is prima facie confidential (Re Nash v Timbercorp Finance Ltd (In liq) [2019] FCA 957; 137 ACSR 189 at [73]- [77] per Anderson J).

(d) A structured approach to the issue whether a legal practitioner should be restrained on the basis of the possible misuse of confidential information is as follows:

(i) What is the relevant information?

(ii) Is that information confidential?

(iii) Does the legal practitioner have possession of that information?

(iv) Is the legal practitioner proposing to act "against" the former client or a person as good as a client in the requisite sense?

(v) Is there a real risk that the confidential information will be relevant?

(vi) Is there no real risk of misuse of the confidential information? (Timbercorp at [64] per Anderson J).

(e) The party moving for an injunction bears the onus of identifying the relevant information with sufficient particularity (question (i) immediately above), as well as demonstrating that the Court should answer the balance of questions (ii) to (v) described immediately above in its favour. However, once these matters are sufficiently demonstrated, the evidential onus shifts to the respondent to address the last question (Timbercorp at [65] per Anderson J).

(f) Most significantly, it is common ground that each case necessarily turns on its own particular facts and circumstances as is illustrated, for example, by cases such as Smirke and Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) [2019] FCA 2115 at [25] ff per Reeves J).

1. The third respondent carries the burden of identifying the confidential information given by him to Mr E which might be used against him, in circumstances where Mr E now acts for the wife.
2. Even if the court does not accept that Mr E holds confidential information of the third respondents and, or, that there is no risk of misuse of confidential information, restraint is also sought in the exercise of the court's inherent, exceptional jurisdiction to disqualify a lawyer to preserve the appearance of justice. It was submitted that to do otherwise would be detrimental to the public's confidence in the legal system as justice must not only be done but seen to be done (Thevenaz & Thevenaz [1986] FamCA 44; (1986) FLC 91-748).

1. It was submitted on behalf of the third respondent that he was not required to detail the confidential information provided in the consultation, as to do so would, in effect, result in the loss of the confidentiality of the information which that party was attempting to protect. It was submitted that the court would infer that confidential information was provided to Mr E in that conversation. It was agreed that the third respondent bore the onus of establishing this.
2. The evidence of the third respondent was as follows:
   1. I then went on to explain to him that I own two properties that are in [Mr Zajc's] name and I asked for his advice on how I could protect those assets. I expressed to [Mr E] my concern about the position I am in and I gave him a detailed background of the purchase of the properties, my family history related to the properties, the various contributions made to those properties, and why the properties are mine even if they are not registered in my name. He also gave me advice about things that the Court would consider when determining who the true owner of the properties was.
3. This was disputed by Mr E who deposed to the following:
   1. During our telephone call [Mr Jans] advised me that his brother, whom he did not give me any details about, had 2 houses that were in his name but they were actually his (ie [Mr Jan's]) houses and that he wanted to transfer them over into his name or a family trust. He stated that this had been the situation for about 10 years.
   2. I advised him as to the stamp duty costs and the potential costs involved with respect to the transfer of these properties, as well as the costs of setting up a family trust. I also told him that there may be capital gains tax implications and that he should obtain his own financial and tax advice before proceeding down this path.
   3. I questioned him as to his motivation for wanting to do this now, and why all of a sudden, after 10 years he has decided to transfer the 2 houses into a family trust. In answer to this question [Mr Jans] indicated that his brother had a few minor issues with an AVO and although there is no divorce foreshadowed, he wanted to transfer the 2 houses, "just in case".
   4. I then advised him that the transfer of any properties post separation with respect to family law matters would always "look suss" and that I would not waste my time or money trying to take such action as the Family Court would have the power to undo it all anyway.
   5. I then told him that if he wanted to proceed with setting up the family trust and transferring the properties, he should gather all his evidence together to support his assertions and then call my office to bring it all in to see me during a paid consultation to properly discuss the matter. I indicated to him that I had my reservations about acting for him and that he would have to convince me otherwise.
4. Mr E refers to the file note he made at that time (Exhibit 8).
5. Both the third respondent and Mr E were cross examined about the conversation which occurred on 20 August 2025.
6. The third respondent in his oral evidence:

(a) Accepted that he had no basis to dispute that the conversation with Mr E continued for only 15 minutes;

(b) He agreed that he told Mr E of his brother's arrest;

(c) He agreed that he spoke to Mr E about possibly creating a family trust and, or, transferring the properties into his name;

(d) He accepted that Mr E spoke about the costs of the transfers, including stamp duty, but denied that Mr E spoke about capital gains tax. The third respondent maintained that Mr E did not discuss the costs of setting up a family trust;

(e) He denied discussing with his brother and with his father the basis of his claim to the properties as he maintained that they were both aware of these matters and no discussion was necessary;

(f) The third respondent initially agreed that he had not provided Mr E with his brother's details, but then added he had provided his name;

(g) He did not accept that Mr E recommended that he seek tax and financial advice but said that he was told to "get my paperwork in order";

(h) The third respondent agreed that Mr E asked him why he wanted to transfer the properties now, after 10 years. He added that he had explained then that his brother had been arrested and he had an AVO out on him. He agreed that he had told Mr E that "no divorce was foreshadowed" but he wanted to transfer the properties "just in case";

(i) The third respondent agreed that Mr E observed to him that transferring the properties at this time would "look suss" and he agreed that Mr E said to him that he "would not waste my time or money trying to take such action as the Family Court would have the power to undo it all anyway". The third respondent clarified that Mr E used the term "claw back" in reference to the powers of the court; and

(j) He accepted that Mr E said to him that if he wanted to proceed with setting up a family trust and transferring the properties, he should gather his evidence together to support his assertions.

(a) That the file note (Exhibit 8) of his conversation with the third respondent had not been altered by Mr E and it had been prepared by him at the time of the telephone call (and the date was included on the document);

(b) Mr E maintained that the gist of the conversation he had with the third respondent was about the transfer of properties, not asset protection;

(c) He said that he discussed the pros and cons of transferring the properties, including the costs of doing so;

(d) He did not agree that his conversation went further saying, "Not really, apart from telling him if the purpose of it was to defeat the wife's claim in Family Court, don't waste your time because the court will undo it all";

(e) Mr E said that he formed the view that the third respondent didn't actually have a claim and that he was "making it up" and "the stuff he was telling me was - sounded like he was trying to defeat the wife's claim";

(f) Mr E denied that the third respondent told him that he had paid the deposit for the properties but agreed that he was told that he had made some payments towards the mortgages;

(g) Mr E maintained that he had said to the third respondent to get "whatever evidence you think you've got to convince me otherwise, and I'll look at it. Pay the $440, come and see me and convince me, and I'll consider whether I want to act for you in the matter";

(h) Mr E agreed that the third respondent mentioned his brother's AVO and criminal matters and that the discussion about the transfer of properties was "one of many (topics of conversation) in a short 15-minute phone call";

(i) Mr E maintained that the conversation related, not to asset protection, but the transfer of properties, which he thought was to "defeat a woman's entitlement in the Family Court. Hence why I said the Family Court will always find this suss";

(j) Mr E denied that he provided advice to the third respondent about how "he might go about doing what he wanted to do" apart from discussing the pros and cons, including costs and "whether it would be worth putting in a family trust". Mr E maintained that he said to the third respondent "it would look suss, transferring property post-separation would always look suss to the court and you would have to prove your claim to the court";

(k) Mr E maintained that he was giving common sense advice, especially about not wasting his money "because no matter what, you will be in court proving your claim";

(l) Mr E said that he had observed the husband's solicitor speaking with the third respondent prior to addressing the court on 25 September 2025 and that he (the husband's solicitor) had "turned around and spoke to both of them" before sharing certain information with the court. Mr E accepted that the matters he discussed with the third respondent went beyond the matters expressed in court on that occasion;

(m) Mr E was asked if his client had sought orders to restrain the husband from dealing with, or disposing of, the Suburb C properties as a result of the information obtained by Mr E in his conversation with the third respondent. He denied that suggestion;

(n) When asked about his file note, Mr E said that it was his usual habit to make those notes to assist him to remember who the caller was, what they wanted done and what he quoted to them;

(o) Mr E said that he starts calls of this nature with ""This phone call, I'm not going to give legal advice. It's general in nature. How can I assist you? What's the nature of your inquiry?" I literally start most of my calls with that disclaimer, if you want to call it that." He accepted however, that he did not expressly say to the third respondent that their conversation was not privileged or confidential. Mr E said that he did say to the third respondent that he was not his client until he came to his office and saw him and that the third respondent "continued to talk". Mr E said that he formed the view that the third respondent "was fishing for costs on several different issues, several different matters" and the conversation jumped from topic to topic; and

(p) Mr E denied that the third respondent provided his full name to him during that conversation. He added that the message left with reception had left his name. Mr E maintained that "nothing about [Mr Zajc] or about [Ms Kozlova] or about anything like that was discussed" (being a reference to the names of the spouse parties). Mr E said that he thinks the third respondent referred to his brothers first name saying "[Mr Zajc] will call you".

1. Exhibit 7 corroborates Mr E's evidence that when contact was first made with his firm by the third respondent, the subject matter of the call was identified as "setting up a family trust".
2. I accept Mr E's evidence as to the duration of the phone call which was verified by his phone record (Exhibit 11). The third respondent was in error therefore when he asserted in his written evidence that the phone conversation "lasted for approximately 30 minutes" and in cross examination the third respondent agreed that he had no reason to dispute the length of the call.
3. The brevity of the phone conversation adds weight to Mr E's evidence that the discussion was only general in nature and that the conversation was contained to the matters identified in the short contemporaneous file note made by Mr E. The particular matters that Mr E recorded in his file note were consistent with his written and oral evidence as to the nature of the topics discussed with the third respondent. The existence of that contemporaneous record weighs in favour of acceptance of Mr E's version of the discussion.
4. I accept Mr E's evidence that he was not provided with the details of the spouse parties, apart from being advised of the husband's first name. I consider it inherently unlikely that Mr E, with almost 30 years post admission experience, would not have recorded those important details in his file note, if they had been provided as such might have formed the basis for further conflict checks to be undertaken.
5. The general nature of the conversation Mr E asserts occurred is consistent with his evidence as to the many such conversations he undertakes with potential new clients and the approach he takes in handling those inquiries: trying to keep the conversation short, providing only general information or high level and not specific advice, and providing information about likely costs (including in relation to further engagement). The general nature of the discussion, as recalled by Mr E, is not inherently improbable given these circumstances.
6. Counsel for the wife submitted that it was incumbent upon the third respondent to set out with particularity the confidential information which he said was passed to Mr E in that short discussion, such that the discretion of the court should be exercised to prevent the wife from continuing to engage her solicitor of choice. In this regard, I was referred to the reasons of Gleeson JA in Li v Jin Lian at [43]:

... it is a basic requirement of an action for breach of confidence that before material be recognised as having the character of confidential information, the information in question must be identified with precision and not merely in global terms: Smith Kline & French at 87; Carindale Country Club Estate v Astill [1993] FCA 218; (1993) 42 FCR 307 at 314 (Drummond J) (citing Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) at 443 ). Even if it be assumed that the factual dispute as to the information disclosed by Mr Jin was resolved in JLG's favour, the required precision or specificity of the information allegedly disclosed is lacking in the evidence adduced by JLG on this application. The information is identified by Mr Jin merely globally as including "[JLG's] funding strategies" and "some general background of those dealings" between Mr Jin, Mr Hong and Mr Li. That also makes it more difficult to be satisfied that the information so described by Mr Jin was (on the present assumption) imparted or received or retained by Mills Oakley in circumstances which give rise to an obligation of confidence: Carindale Country Club Estate v Astill at 314.

1. That requirement is made clear in the other authorities referred to previously.
2. The third respondent has the onus of establishing, with precision, the confidential information that is asserted that Mr E received. In response, it was submitted that the third respondent could not be expected to particularise the confidential information as to do so would destroy the confidential nature of the information he sought to protect. However, that approach ignores the possibility of the court receiving such information and taking steps to protect the dissemination of that information. The third respondent did not seek to avail himself of those protections and the general evidence he has given as to the matters discussed between he and Mr E (as set out in paragraph 16 of his affidavit), was disputed by Mr E.
3. The authorities make clear that there is a requirement to identify the relevant confidential information with particularity, show that the solicitor is in possession of that information, and that there is a risk that such will be used in a manner adverse to the interests of the former client. Where the identification of the definable relevant confidential information is not undertaken, the application to disqualify is more likely to be refused (Law Society of NSW v Holt [2003] NSWSC 629).
4. The third respondent did not provide particulars or additional detail of confidential information which he claims was provided by him to Mr E (save for the summary in general terms, provided in paragraph 16 of the third respondent's affidavit). Mr E was not asked to accept that the third respondent had "provided detailed background of the purchase of the properties". To the extent of the basis for the third party's claim to beneficial ownership of the properties, Mr E agreed that he was told that the third respondent paid money towards the mortgages but denied being told that the third respondent's father had paid a deposit. Mr E was not asked to accept that he had been provided "the family history related to the properties", nor was he asked to accept that he had been told about "the various contributions made to those properties. No questions were put to Mr E asserting that the third respondent had told Mr E why the Suburb C properties were registered in the husband's name or why the third respondent was paying funds towards the mortgages on those properties.
5. I prefer the evidence of Mr E about the matters discussed in the 15-minute conversation with the third respondent, given the matters identified previously in these reasons. I am not persuaded in these circumstances that the additional matters (to the extent I can identify them from the affidavit of the third respondent) were discussed with Mr E.
6. It was also contended on behalf of the wife that the information provided to Mr E, as revealed in his evidence, was now in the public domain in any event. In circumstances where the third respondent and the husband asserted before the court that the third respondent was the beneficial owner of the Suburb C properties, certain matters have already been placed on the record. Exhibit 4 is transcript of the court event on 25 September 2025.
7. While the third respondent was present on that occasion, he was not formally represented by a solicitor. The solicitor appearing for the husband however, advised the court that he had certain discussions with the third respondent (along with his client) that morning. The following submissions were made by Mr Mitchell, on behalf of the husband and implicitly, after those discussions had occurred with the third respondent (Exhibit 4 extract):

...

MR MITCHELL: ... If there's a caveat on all three properties, restraining the applicant - the respondent husband to dealing with the properties, I don't know why [Mr E] needs to put a caveat on there. So we consent to the applicant wife putting a caveat on [F Street]. No issue with that. There's no evidence, my learned friend said, about [Property 1 and 2 at G Street]. There will be evidence showing that the second respondent, for the last 10 years, has been paying for a mortgage on both properties. That's a matter of evidence for courts, but we will be asking if a court is minded not to lodge a caveat on those two properties if they're against me, Senior Judicial Registrar - -

THE REGISTRAR: Why? Is he planning on doing something with them or?

MR MITCHELL: No. No, no. Not at all, at this stage.

...

MR MITCHELL: As far as [F Street], no issue. [Property 1 and 2 at G Street] - if Senior Judicial Registrar is against me, I will be asking that we give an undertaking to [Property 1 and 2 at G Street] that we don't dissipate or deal with the property. We will be saying they are held on trust for the second respondent, [Mr Jans]. And evidence will be produced by him, when he gets legal advice, that he has been paying the mortgage for 10 years. And the applicant wife is aware of that. That they were purchased for the benefit of him.

THE REGISTRAR: He may- well, that's going to be a matter of evidence, isn't it?

MR MITCHELL: Yes.

THE REGISTRAR: Sorry, [Mr Jans], the third respondent, do you mind coming to the bar table, please? Is there a reason, then, why you also shouldn't be bound by an order restraining you? You can sit down Mr Mitchell, when I'm not addressing you. Is there a reason why the court shouldn't restrain you from dealing with [Property 1 and 2 at G Street] as well, until further order of the court?

[MR JANS]: They're the family homes, your Honour. They've been with us for - we're not planning on selling them.

THE REGISTRAR: Okay.

[MR JANS]: As I said, if she wants to put a - you want to put a caveat in her mind, we don't mind, but not someone outside the family. They're family homes. One, my sister lives in with an autistic kid and the other, my sister-in-law lives in, so.

THE REGISTRAR: Appreciate that. But - - -

[MR JANS]: So we're not planning on selling or doing anything with them.

THE REGISTRAR: Okay. So if you're not planning on selling or doing anything with them, is there any reason why you wouldn't be agreeing to an order that says you're not allowed to sell or do anything with them until further order of the court?

[MR JANS]: No, no. I'm happy with an order for me not to sell.

THE REGISTRAR: You're happy with an order like that?

[MR JANS]: I'm not planning to get rid of them at all.

...

1. It was submitted and I accept, that the reference by the husband's solicitor in the transcript to the second respondent paying the mortgage, should have been a reference to the third respondent making those payments.
2. I accept on that basis that at least by 25 September 2025, any confidentiality around the third respondent's claim to a beneficial interest in the Suburb C properties was gone, along with, at least, one of the bases upon which he asserts his beneficial ownership may be established (that being the payment of monies towards the mortgages secured against the properties).
3. The third respondent is pursuing his claim for a declaration as to his beneficial ownership of the Suburb C properties in these proceedings and will be subject to requirements of disclosure relevant to the claims related to those properties. He will be required to place evidence before the court to establish the contentions he makes. In those circumstances, it will be incumbent upon him to provide particulars about the basis of his claim and documents relevant to those matters.
4. I am satisfied that this was a 15-minute discussion only. The third respondent was a prospective client only at the time of those discussions. His engagement with Mr E was as a consequence, limited and I am not persuaded he conveyed information beyond that identified by Mr E.
5. In those circumstances, I am not satisfied that the third respondent has established that Mr E received other confidential information (beyond the matters identified already in the proceedings on 25 September 2025), the use of which by Mr E, on behalf of his client, might imperil the interests of the third respondent.
6. Mr E squarely rejected the contention that his client had only sought to restrain the husband from dealing with and disposing of the properties because of information provided to Mr E. Quite properly, given the state of the evidence, no submission was made to the effect that such a conclusion could be drawn. In any event, the wife has placed other evidence before the court as to conversations had with other family members which have caused her concern about the security of her position in the dispute between she and the husband. While aspects of those conversations involving the husband and, or, the third respondent are disputed, these are matters that can only be resolved at a final hearing, to the extent that the issues remain relevant.
7. Having dealt with the confidentiality issue, it is submitted on behalf of the third respondent that the court would still exercise its discretion to restrain Mr E as the interests of justice require it.

Consideration - restraint in the interests of justice

1. As part of the court's supervisory jurisdiction, as was confirmed by the Full Court in Charisteas, the court has inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process by restraining a practitioner from acting in certain circumstances. The test remains whether a "fair minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice" (Griffiths J in Mumbin).
2. In the exercise of the court's inherent jurisdiction to restrain a practitioner from acting, regard must be had to a number of competing important considerations. As stated previously, the court's power to restrain a party from engaging a solicitor of their choosing is to be exercised cautiously and exceptionally. The assessment is one of balancing competing interests.
3. While it was submitted on behalf of the third respondent that the interests of justice and the proper administration of the legal system favoured the restraint as sought by the third respondent, there are considerations which weigh against granting the relief sought by the third respondent.
4. The wife has engaged Mr E since 25 August 2025. She sets out in her affidavit circumstances in which she has relied upon Mr E for assistance, including in resolving matters relevant to her safety and security at her home, in emergency circumstances and at times, in engagement with him out of hours. It is clear from the wife's affidavit and the Costs Notice filed by Mr E, that substantial work has been undertaken at this time, on behalf of the wife such that fees have been incurred of more than $114,000.
5. Mr E has set out in the Costs Notice having also provided certain advice and assistance to the wife without charge, which he estimates to have a value of $22,500. The wife continues to owe Mr E a substantial part of the total fees which have been incurred on her behalf.
6. The wife deposes to being dependent upon commonwealth benefits for her financial support and to meet the needs of the children. Modest child support has been assessed to be paid by the husband.
7. The wife asserts that she has experienced serious and sustained family violence by the husband throughout the relationship. The circumstances of the husband's arrest by the NSW police and the criminal charges that have followed (and which will be determined on a date in April 2026) precipitated the final separation between the parties.
8. The evidence establishes, and I accept, that the wife has a relationship of trust and confidence in Mr E as her solicitor. The matters contended by the wife as to her experiences during the relationship, though disputed by the husband (and where applicable, the third respondent), makes clear that the wife being required to engage new solicitors at this time will be a substantial burden for her. In that circumstance, the wife will be required to repeat her instructions to another lawyer and in doing so, revisit what are ostensibly (on her account) traumatic matters.
9. Those considerations weigh heavily in my assessment.
10. Mr E has now obtained detailed knowledge of aspects of the family law dispute between the parties, given the substantial work undertaken as suggested by the fees charged to the wife in a period of less than four months. The possible restraint of Mr E will by necessity result in duplication of legal fees for the wife, as any new solicitor engaged by the wife would need to become familiar with the matter. That will also take additional time and would result in the necessary deferral of the consideration of the wife's application for spousal maintenance and, or, the sale of real property (from which funds might be released to her for her financial assistance).
11. The husband has obtained legal representation. The third respondent has legal representation.
12. The wife will be required to "start again" if the application sought by the third respondent was granted.
13. In circumstances where I have found that the third respondent had a 15-minute telephone conversation with Mr E only, in which certain matters were discussed at a general level and where no fee was charged by Mr E for that service, I do not accept that a fair minded, reasonably informed member of the public might conclude that the proper administration of justice requires that Mr E ought to be restrained. The wife is a vulnerable party, and it would be a distortion of the due administration of justice and the appearance of justice if she was compelled, in these circumstances, to secure new representation.

1. The interests of justice considerations favour the wife being permitted to continue to engage her solicitor of choice and the restraint application being dismissed.
2. I dismiss the third respondent's Application in a Proceeding filed 10 October 2025.
3. The matter will be listed for case management on 16 January 2026 at 9.30 am by Webex, in respect of what ought to occur prior to the outstanding interim issues being set down for interim hearing.
4. The wife sought costs in the event that she was successful in her opposition to the restraint application. Directions will be made for the management of that costs application, to the extent it remains unresolved, on the next occasion.
5. Finally, as mentioned above, the second and third respondents had, on 23 October 2025, been excused from complying with any prior orders requiring disclosure, pending the outcome of the determination of the issue in relation to the ongoing representation of the wife. In circumstances where that issue has now been determined and there is consequently no impediment to the wife in continuing to instruct Maatouks Law Group, I will discharge that order (Order 18 of the orders made on 23 October 2025), thus lifting the stay.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Simpson.