Le v Angius

Supreme Court of NSW|2022-06-10|Before: Richmond J

Solicitors: AKN & Associates (Plaintiff) Mills Oakley (Defendant) File Number(s): 2022/41064

JUDGMENT

This is an interlocutory application in proceedings brought by the plaintiff, Thi Quy Le, for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) (the Act) against the defendant, Jenny Angius, who is the executrix of the estate of the late John Angius. By a Notice of Motion filed on 24 February 2022, the defendant seeks to restrain the plaintiff's solicitors, AKN & Associates Pty Limited (AKN), or its directors or employed solicitors, from continuing to act as solicitors for the plaintiff in these proceedings.

Evidence

The defendant relies in this application on two affidavits sworn by herself on 24 February and 22 March 2022 and two affidavits sworn by her solicitor, Tracey Middleton, on 16 February and 11 March 2022. The plaintiff in opposition relies on two affidavits of Thi Thanh Mai Pham (Ms Pham), who is the principal solicitor of AKN, sworn on 11 March and 5 April 2022. None of the witnesses were cross-examined.
The defendant identifies two periods during which AKN acted in relation to disputes involving the deceased or Laura. The first concerned an apprehended violence order (AVO) issued in favour of the plaintiff against Laura on 19 November 2007 by Waverley Local Court. AKN acted for the plaintiff in that matter. It appears from the evidence that the making of the AVO was uncontested and the only evidence in support of it was given by the plaintiff. It was made at a time when the deceased and the plaintiff were in a relationship. However, there is no evidence in the present application as to the circumstances leading to the AVO.
The second period was in 2015, when AKN was retained by the deceased to act for him in various disputes involving Laura's estate. Before identifying the nature of the role which AKN performed in 2015, it is necessary to set out some facts regarding events in the intervening period.
In around 2010, the deceased and Laura separated and thereafter lived apart, although they were never divorced. Unfortunately, the separation led to an acrimonious split within the family with the defendant siding with the deceased and her brother, Robert, siding with Laura. Between April and November 2011, the deceased and Laura entered into a number of agreements (separation agreements) dealing with the properties they jointly owned. It appears that, in broad terms, the deceased was to transfer his interest in a number of the properties he owned jointly with Laura to her and she was to transfer her interest in a number of properties she owned jointly with the deceased to him, with some other properties to be sold and the proceeds of sale to be paid to the parties in accordance with the agreement.
In September 2011, Laura commenced proceedings in this Court against the deceased and the defendant seeking orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for the sale of the matrimonial home at Coogee and the sale of another property at Coogee (which was the defendant's home and in which she held a one third interest as tenant in common with her parents).
These proceedings were resolved by a deed dated 15 November 2011 and, in relation to the matrimonial home, by consent orders made by the Court on 18 November 2011 (consent orders) which required the deceased to either make certain payments to Laura or place the property on the market for sale by public auction.
Laura died on 4 January 2012 aged 79 years. There was a coronial inquest into the circumstances of her death in 2013. The Coroner handed down an open finding and referred the matter to the unsolved homicide squad for review. There were also several contested legal proceedings concerning her estate of which three are relevant for present purposes.
The first was a dispute concerning the grant of probate of her will which led to the grant of letters of administration with will annexed to Mr GA Salier, solicitor, in proceedings before Hallen J: see Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895. The deceased was not a party to those proceedings.
The second was a dispute over the construction of Laura's will which was determined by Ball J: see Gordon Salier v Robert Angius [2015] NSWSC 853. The main beneficiary of the will was Robert, and neither the deceased nor the defendant were beneficiaries. The deceased was a party to these proceedings.
The third was proceedings brought by the deceased against Laura's estate in 2014 in which the deceased sought orders to set aside the separation agreements and the consent orders, and also brought a family provision claim against Laura's estate. On 12 February 2015, the proceedings were set down for a hearing before Hallen J commencing on 28 September 2015 with an estimated duration of five days. Prior to commencement of the hearing the Court was informed that the deceased wished to abandon the family provision claim. On the first day of the hearing, the deceased was represented by AKN and counsel, Mr M Hogg, who informed the Court that the hearing would not be proceeding as the deceased did not wish to continue with the remaining claims made in the statement of claim and would consent to almost all the relief sought by Mr Salier in the cross-claim: see Angius v Salier [2015] NSWSC 1446 at [4] and [11]. The proceedings were resolved by the various orders made by Hallen J as recorded in that judgment.
The second period of AKN's involvement with the affairs of the deceased in 2015 referred to at [10] above related to these three disputes. In her affidavit, of 22 March 2022 (which effectively supercedes her earlier affidavit) the defendant states: "3. In 2015, my late father John Angius ('my Father') instructed AKN & Associates in relation to at least three matters before the Supreme Court of NSW being: a. A Costs argument to be heard in relation to a construction case before Justice Ball; b. A Family Provision Application which was to be heard 28, 29 and 30 September 2015, 1 and 6 October 2015, before His Honour Justice Hallen; and c. Advice regarding the merits of an Appeal in a construction case file no 2014/205659. 4. Those instructions included further instructions from my father to seek to set aside: a. Separation Agreements made between my late Mother and late Father dated 11 May 2011 and 6 October 2011. b. A Deed of Variation dated 15 November 2011, and c. An Agreement for Consent Orders signed by both my parents, John and Laura Angius on 17 November 2011 and Sealed on 18 November 2011. 5. On 18 February 2022 I attended on my late fathers' property at Burradoo where I located several folders which included the transcript of the proceedings 2012/00161134 being the Estate of the Late Laura Angius before His Honour Justice Hallen regarding my late mother's will. AKN were acting for my father at the time. 6. The folders of AKN & Associates (also referred to as "the Plaintiff's solicitors") contain and details amongst other things, information in relation to the death of my Mother on 4 January 2012, and the circumstances that led to the involvement of the Coroner alleging that the death of my late Mother was not an accident. Much of this information, including my father's instructions is not within public knowledge. 7. The Plaintiff's solicitors have details and certain instructions in relation to the assets and liabilities of both of my late Mother's and Father's Estates, which involve the family companies, properties, hotels, bank accounts, jewellery and other effects. 8. The Plaintiff's solicitors have detailed information and my father's instructions in relation to a summary of the combined Angius (and Associated entities) assets and liabilities of both my late Father and my late Mother. … 11. In or about July and August and possibly September 2015, I recall attending the offices of the Plaintiff's solicitors on numerous occasions with my father. I assisted my father in providing confidential instructions and documents to them. I gave Michael Pham a USB stick. AKN emailed me many times in relation to my father's instructions… 12. AKN acted for the Plaintiff against my mother, the late Mrs Anguis in an AVO application. I was in Court on or about 19 November 2007 - the day the matter was heard. I am aware of instructions my father provided to AKN in 2015 in relation to events from 2007 up to and including the Court proceedings in 2015 and to evidence given for the AVO proceedings and immediately preceding and subsequent to them. Annexed and marked JG5 is a letter dated 6 November 2007 from my Mother's then solicitors Blanchfield Nicholls and partners to Comino Prassas then acting for my father, found in the AKN files. 13. Annexed and marked JG6 a 9-page initial advice entitled 'notes for conference' dated 9 September 2015 and notes 'Instructor' Michael Pham - AKN & Associates and 'Client' John Angius. I will tender (if necessary) parts of the Primary advice which comprises 64 pages dated 24 August 2015. 14. There was also an advice dated 28 August 2015 under cover of a letter from AKN dated 31 August 2015 annexed and marked JG7. I was present with my father, the Plaintiffs solicitors, and Mr Hogg of Counsel during conferences where extensive confidential instructions were provided. 15. On 16 October 2015 AKN wrote a further letter to my father requesting further confidential information, some of which is relative to other litigation I am involved in even today and seeking further monies to be paid by way of legal fees… 16. Contained within the various advices and correspondence annexed and to be tendered, I am frequently named and referred to." Annexure JG5 mentioned in paragraph 12 is the letter referred to at [23] below. Annexure JG6 mentioned in paragraph 13 is the briefing memorandum referred to at [25] below. The 64-page "advice" mentioned in that paragraph was not tendered.
Ms Pham said in her first affidavit that all physical files in relation to matters involving the deceased were returned by AKN to him shortly after the termination of AKN's retainer by the deceased on 28 September 2015 and the electronic files were provided to his new lawyers at that time. She also stated that AKN had not received any confidential information relevant to the plaintiff's family provision claim because "Mr Angius made no comment to us with regard to [the plaintiff] and her role in his life". In her second affidavit Ms Pham gives evidence as to the periods when AKN acted for the deceased and the nature of information provided to AKN by the deceased as follows: "2. I had instructions to act for the late Mr Angius from 9 July 2015 to 28 September 2015 when my instructions were withdrawn. On or about 3 November 2015, I received limited instructions from Mr Angius to organise a round table conference with the relevant parties. Mr Angius later changed his mind and did not want to attend the round table conference. He withdraw his instructions on 25 November 2015. Neither I, nor AKN & Associates have acted for Mr Angius after that date. 3. I have reviewed the information that was provided to AKN & Associates by the late Mr John Angius or provided on his behalf and to the best of my knowledge, neither I nor anyone from AKN & Associates has received any information from Mr John Angius or provided on his behalf that goes to the status of Ms Le's status as a defacto spouse or in any form of relationship with Mr John Angius or to the financial circumstances of Mr John Angius beyond that referred to in Mrs Jenny Angius' affidavit dated 31 March 2022 (sic). 4. AKN & Associates did not act for Mr John Angius prior to July 2015 and as far as I am aware neither I nor anyone from AKN & Associates were provided with the letter from Blanchfield Nicholls Partners dated 6 November 2007 referred to in annexure JG5 of Mrs Jenny Angius' affidavit dated 22 March 2022 prior to the service of said affidavit. This letter does not go (sic) the status of Ms Le as a defacto spouse or any other form of relationship with Mr John Angius other than someone who was in occupation of the Pool Hall at Coogee. 5. I will not be swearing a narrative affidavit in these proceedings. I will only swear formal affidavits, such as with regard to costs."
The reference in paragraph 3 to the affidavit of the defendant dated 31 March 2022 I take to be a typographical error and intended to be a reference to the defendant's affidavit of 22 March 2022. (The defendant has sworn another affidavit on 31 March 2022 in the proceedings but it is not read in support of this application.)
Based on the evidence in this application, the periods in which AKN acted for the deceased were limited to 9 July 2015 to 28 September 2015 and a short period in November 2015 relating to the convening of a proposed "round table" conference which ultimately did not proceed. The substantive matters on which AKN advised the deceased in this period were the following: 1. AKN and counsel (Mr Hogg) gave advice regarding the prospects of an appeal from Ball J's judgment in the proceedings concerning the construction of Laura's will referred to at [16] above which was handed down on 1 July 2015. AKN did not act for John in the substantive proceedings before Ball J. It appears that the advice was that there should be no appeal. 2. AKN briefed Mr Hogg, counsel, to make submissions to Ball J regarding the award of costs in those proceedings on 16 September 2015. 3. AKN and Mr Hogg acted for the deceased from 9 July 2015 in the matter set down for hearing on 28 September 2015 before Hallen J referred to at [17] above. This included appearing at the pre-trial directions hearing on 11 August 2015 and a conference on 25 and 26 August 2015 attended by, among others, a solicitor from AKN, Mr Hogg and the deceased at which the deceased's family provision claim against Laura's estate was discussed and the deceased gave instructions not to proceed with it. Advice was also given by AKN and Mr Hogg regarding the deceased's prospects of success in the remaining claims to set aside the separation agreements and consent orders which lead to the decision taken not to proceed with those claims at the hearing on 28 September 2015. It is apparent that all evidence for the deceased in the proceedings referred to at [17] above had already been served prior to the time AKN first became involved on 9 July 2015. The main affidavit prepared by the deceased for his family provision claim was sworn on 28 October 2014, and included a statement that "I live by myself at the Matrimonial Home". 1. AKN and Mr Hogg gave advice to the deceased regarding the prospects of success of an application seeking to "appeal or overturn" the decision of Hallen J in the probate proceedings referred to at [15] above. It appears that the advice given was that no such application should be made.
AKN's instructions to act for the deceased were withdrawn at the hearing on 28 September 2015: see Angius v Salier [2015] NSWSC 1446 at [30]. While AKN received instructions on 3 November 2015 to act for the deceased in relation to a "round table" conference with the relevant parties to be held on 25 November 2015 to seek to resolve all the family disputes, nothing came of that proposal. There is no evidence before the Court on this application to suggest that any substantive work was done by AKN for the deceased apart from the work in the period 9 July 2015 to 28 September 2015 described in the previous paragraph.
The defendant's affidavits annex some documents which she says were contained in the files which AKN returned to the deceased after that firm ceased to act for him in 2015. There are only two references to the plaintiff in those documents. The first is in a letter dated 6 November 2007 from Blanchfield Nicholls Partners, who were acting for Laura, to Comino Prassas Solicitors who were acting for the deceased (which is Annexure JG5 referred to earlier) which states relevantly: "We are instructed to advise you that our client will only agree to the execution of that document on the following conditions: 1. On 1 February 2008, Mr John Angius ("the husband") will serve a Notice to Quit on Mrs Lee to vacate the pool hall premises at Alfreda Street, Coogee, with the period in which Mrs Lee is to vacate being four weeks from that date. Thereafter neither Mrs Lee nor any member of her family is to be involved in the business of the pool hall."
The "Mrs Lee" referred to in this passage is the plaintiff. That letter was sent to the deceased shortly before the AVO was issued (19 November 2007) and says nothing about any personal relationship, de facto or otherwise, between the plaintiff and the deceased. It appears that she held a lease from the deceased and/or Laura of premises at Coogee used as a pool hall.
The second reference to the plaintiff is found in a document entitled "Notes for Conference Wednesday - 9 September 2015 (2pm)" (which is Annexure JG6 referred to earlier) which is a briefing memorandum prepared by AKN for a conference with Mr Hogg on 9 September 2015 (briefing memorandum). The person named as "the instructor" is Michael Pham, an employed solicitor at AKN in 2015 and today and I infer that he prepared the document. This sets out background to the various matters on which the deceased was seeking advice from AKN and counsel at that time being the matters set out at [21] above.
In the briefing memorandum under the heading "Issues to be aware of" Michael Pham as a solicitor employed by AKN states: "John denies he is in a relationship with his 'Asian friend' - however, all the evidence would suggest otherwise - perhaps this relationship is as long as 10 years and I am sure will be explored in XX extensively as will Laura's death."
It is not in dispute that the "Asian friend" mentioned in the first line is a reference to the plaintiff.

Relevant principles

It is recognised that two alternative grounds for the grant of an injunction to restrain a solicitor from acting against his or her former client are, first, the protection of confidential information of the former client and, second, the protection of the administration of justice.
In relation to the first ground, what must be shown by the applicant for injunctive relief is that there is a real as opposed to a theoretical possibility that confidential information given to the solicitor by the former client might be used by the solicitor to advance the interests of the new client to the detriment of the former client, before the solicitor will be disqualified from acting against the former client: Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307 at 312; Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at 236 - 237.
In Carindale Country Club, Drummond J drew the following propositions from the authorities: "… before a solicitor will be restrained from acting for a new client at the behest of an old client, not only must there be a threat of disclosure of information given in confidence, but there must be evidence that such disclosure will be to the former client's disadvantage" (at 312). "If the solicitor receives information in confidence from the former client which remains confidential at the time application is made to restrain the solicitor from acting for the new client, the solicitor will, in general, only be able to avoid being enjoined if it is clear that the confidential information in question relates only to matters which are remote from the matters relevant to the discharge by the solicitor of his retainer for his new client" (at 313). "… it has long been recognised that a solicitor who, with the best will in the world, is determined not to make use of one client's confidential information for the benefit of another client may still subconsciously draw on that information to the disadvantage of the former" (at 313). "It is a basic requirement that before material will be recognised as having the character of confidential information, the information in question must be identified with precision and not merely in global terms… The requirement is insisted upon even though it may necessitate disclosing to the court the very information the confidentiality of which it is sought to preserve by the action. This requirement has its foundation in the need for the court to be able to frame a clear injunction, should relief against misuse of confidential information be granted. There are procedures available that will minimise the risk that confidentiality will be lost by the litigation process, although the applicant did not seek to invoke them here… But the requirement goes to a matter more fundamental than that: "The more general the description of the information which a plaintiff seeks to protect, the more difficult it is for the court to satisfy itself that information so described was imparted or received or retained by a defendant in circumstances which give rise to an obligation of confidence": Independent Management Resources Pty Ltd v Brown (1987) VR 605 at 609" (at 314).
In Prince Jefri Bolkiah, Lord Millett said (at 235): "Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred, the latter will often be obvious… Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case. …"
In relation to the second ground, Brereton J (as his Honour then was) summarised the relevant principles in Kallinicos v Hunt (2005) 64 NSWLR 561 at [76]; [2005] NSWSC 1181 relevantly as follows (case references omitted, emphasis added): "• 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. • 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." It may be noted that the test in the third dot point, framed as it is by reference to "a fair-minded, reasonably informed member of the public", is an objective test.
One of the recognised situations where the integrity of the judicial process may be undermined is where a solicitor is likely to be called by either party to give evidence material to the determination of the issues before the Court. In Mitchell v Burrell [2008] NSWSC 772, Brereton J said: "19. Accordingly, I am quite satisfied that Mr Morey may be a witness on a material matter, and that his evidence may be controversial. 20. That said, I do not accept that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor from continuing to act. As Windeyer J pointed out in Scallan v Scallan [2001] NSWSC 1078, it is, for example, not unusual for instructing solicitors in contested probate proceedings to give evidence of facts relevant to instructions for and execution of a Will. Similarly, in contested conveyancing proceedings it is not unusual for solicitors who have acted on the conveyance to continue to act in proceedings for specific performance or rescission and to give evidence in those proceedings. Accordingly, despite Rule 19 of the Law Society of New South Wales Professional Conduct and Practice Rules, which imposes a professional obligation (as distinct from a private right), I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. Although some observations of Campbell CJ in Chapman v Rogers; Ex parte Chapman [1984] 1 Qd 542, 545, may go somewhat further, the cases indicate - as Campbell CJ did in that case itself - that the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct or integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice - which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests - require the lawyer to be restrained from continuing to act."
In Mitchell v Burrell itself, Brereton J concluded there was a real and substantial risk that the plaintiff's solicitor (Mr Morey) would be a material witness because he could give evidence relevant to whether a common intention constructive trust had arisen and that was the central issue in the case. In those circumstances, a fair-minded, reasonably informed member of the public would entertain serious reservation as to whether decisions about the conduct of the plaintiff's case would be made exclusively in the interests of the plaintiff or to a greater or lesser extent having regard to the interests of Mr Morey: see [24].
It is apparent from Brereton J's observations in Mitchell v Burrell at [20] quoted above that the mere fact that the solicitor may be called as a witness is not, of itself, sufficient to justify restraining the solicitor from continuing to act. Ultimately, the question is whether, applying the objective test set out in [32] above, the integrity of the judicial process may be undermined if the solicitor continues to act, which will depend upon the circumstances of the case, including how likely it is that the solicitor concerned will be called, how material the evidence of the solicitor is to the issues in the case and whether there are other witnesses likely to be called: see e.g. Italiano v Lake [2015] VSC 189 at [23]-[30].

Submissions

The defendant submitted that AKN should be removed as solicitors for the plaintiff for two reasons.
First, it is said that AKN has confidential information described as (a) information relating to the death of Laura and the circumstances that led to the involvement of the Coroner; (b) the assets and liabilities of Laura's estate and the deceased's estate which involve the family companies, properties, hotels, bank accounts, jewellery and other effects; (c) a summary of the combined Angius (and associated entities) assets and liabilities; (d) "confidential instructions" provided by the deceased to AKN in 2015; and (e) the defendant's relationship with various members of her family. I note that the evidence on the application does not disclose any detail as to what this alleged confidential information comprises beyond this generalised description or how it is said that AKN still retains it.
Second, the defendant submitted that Ms Pham and Michael Pham are potential witnesses in the case because they are likely to be called by the defendant in support of her case, and that as a result, a fair-minded, reasonably informed person would have reservations as to dutiful decision making as to the conduct of the plaintiff's case. The basis for that submission was explained in written submissions as follows: "d. Fourthly, it is submitted that the Principal Mai Pham and Michael Pham are potential witnesses in the case. A fair-minded, reasonably informed person would have reservations as to dutiful decision making as to the conduct of the Plaintiff's case, by reason of: i. The apparent ambit Plaintiff's case as pleaded, and ii. Objectionable material being included in her numerous affidavits and supporting affidavits, which passages not only offend admissibility under the Evidence Act (1995) but often have no relevance to the Chapter 3 application generally and the s57 assessment (Succession Act 2006 (NSW)) in particular and it is submitted they have been included as a source of embarrassment to the Defendant, noting the very sensitive nature of the ongoing litigation in this family in relation to both deceased parents of the defendant, such litigation exceeding ten years, notwithstanding the involvement of the Plaintiff in their lives. (Numerous further affidavits and links to audio and video 'evidence' arrived at the time of drafting this submission containing further excruciatingly embarrassing and objectionable material); and iii. Some examples such as Mai Pham, having obtained an AVO on behalf of the Plaintiff against the Defendant's (now deceased) Mother, whilst the Defendant was in court to support her mother, attended meetings and conferences with the deceased and the Defendant and received instructions from the Defendant (and/or her employed solicitor did), become well aware of the defendant's litigation personality some examples are outlined in paragraphs 3, 4, 11 - 15 of the affidavit of Jenny Angius filed 22 March 2022 ('the affidavit') e. Fifthly, Mai Pham and/or Michael Pham may also be called as witnesses surrounding the core issue of the Plaintiff's alleged de facto relationship. Examples, it is plain (on the plaintiff's filed affidavits) that the deceased swore an affidavit in 2014 stating he lived alone and this was dealt with in the (privileged for now) "Hogg advice". In the Hogg "Notes for Conference" Annexure JG6 - p24 of the affidavit, reveals Michael Pham as the instructor for John Angius as the client. On pages 7 and 8 of the notes (bottom p30 and 31) used in the conference as referred to in paragraph 13 of the affidavit, Solicitor Michael Pham notes "John denies he's in a relationship with his Asian friend'. Further examples are available in the many hundreds of pages of numerous affidavits filed already by the Plaintiff in the earlier injunction and substantive proceedings. This brings to the fore the plaintiff and her solicitors' credit. As the Court will be asked to decide which version is to be preferred, it will become obvious that their evidence on this topic will be germane to the issue as to whether there was a defacto relationship. f. Sixthly, as they may be called as a witness, if the Plaintiff fails to call them there would be an available Jones v Dunkel inference.
The submission made in paragraph (d) quoted above does not withstand scrutiny. Merely because there is an alleged defect in the pleading of the plaintiff's case or the plaintiff is proposing to tender material which is not relevant to issues in the family provision claim does not make Ms Pham or Michael Pham potential witnesses in the case, nor otherwise provide a basis for restraining them from continuing to act. It will be a matter for the trial judge to determine whether there is a defect in the plaintiff's pleaded case or the evidence sought to be relied on by the plaintiff is relevant and admissible.
It became apparent at the hearing that the defendant's real complaint was that identified in paragraph (e) quoted in [38] above, which is that Ms Pham and/or Michael Pham may be called as a witness surrounding the "core issue" as the defendant put it, of the plaintiff's alleged de facto relationship with the deceased. This is because the deceased swore an affidavit in October 2014 stating that he lived alone. Reliance was placed on the statement in the briefing memorandum set out in [26] above that "John denies he is in a relationship with his Asian friend". The defendant submits that if the plaintiff fails to call either Ms Pham or Michael Pham then, in light of that statement, there would be an available adverse inference under the rule in Jones v Dunkel (1959) 10 CLR 298 at 321; [1959] HCA 8 and further, it is likely that the defendant will call one or both of them on that issue.
Given these matters, the defendant submits that a fair-minded, reasonably informed observer would perceive that the independence and objectivity of AKN, its directors and employed solicitors would be compromised.
The plaintiff opposes the relief sought on the basis that the plaintiff's evidence establishes that there is no confidential information retained by AKN or any of its solicitors which is in any way relevant to the family provision claim filed by the plaintiff and relies in particular on the evidence of Ms Pham (on which she was not cross examined) referred to at [19] above. In so far as the reference in the briefing memorandum to the deceased's denial of his relationship with his "Asian friend" is concerned, the plaintiff submits that this will be explored and determined by the evidence before the Court in the family provision claim and was not a matter that was relevant to AKN's retainer in 2015. The plaintiff submits that the defendant has failed to provide to the Court any evidence of confidential information allegedly provided by the deceased to AKN that is in any way relevant to the eligibility or status of the plaintiff as the alleged de facto partner of the deceased, or to any danger of misuse of any such confidential information, or of any conflict in AKN's duty to keep any such information confidential and refrain from using it to the detriment of the deceased.
The plaintiff submits that any information provided to AKN relating to the finances of the deceased during the short period in 2015 when AKN was acting for the deceased is not relevant to the current family provision claim because the defendant, as executrix of the estate, is under a duty to put forward evidence of the current value of the estate of the deceased.

Confidential information ground

The defendant has not identified with any precision the information said to be in the possession of AKN and has merely described it in "global" or general terms (see [37] above). Hence, she has not satisfied the "basic requirement" stated by Drummond J in Carindale Country Club at 314. Nor is the test stated by Lord Millett in Bolkiah v KPMG at 235 is satisfied. The defendant has not shown that AKN is in possession of confidential information which is relevant to the subject matter of the family provision claim; based on the general description of that information provided by the defendant set out at [37] above, it is merely peripheral at best to the family provision claim. Importantly, the matters on which AKN was retained by the deceased in 2015 were unrelated to the plaintiff's family provision claim. Further, there is no evidence before the Court that AKN currently has any confidential information provided to it by the deceased in 2015, given that AKN returned all the physical files to the deceased in 2015 when its retainer was withdrawn.

Administration of justice ground

This second ground needs to be assessed in light of the issues which will arise in the plaintiff's family provision claim, which are: 1. Whether she falls within either s 57(1)(b) or (e) of the Act (these being the two categories of eligible person which the Court was told the plaintiff relies on); 2. If so, whether the Court is satisfied, having regard to all of the circumstances of the case (whether past or present) that there are factors which warrant the making of the application (s 59(1)(b)); and 3. If so, whether the deceased's will fails to make adequate provision for the proper maintenance, education or advancement of the plaintiff (s 59(1)(c)).
In relation to the first issue, the plaintiff will need to establish that she was living in a de facto relationship with the deceased at the time of his death (s 57(1)(b)) or, alternatively, was at a particular time, wholly or partly dependent on the deceased and was at that particular time or at any other time, a member of the household of which the deceased was a member (s 57(1)(e)).
Whether the deceased regarded himself as being "in a relationship" with the plaintiff in 2015 would potentially be relevant to each category of eligible person relied on. In relation to the first category, this is due to the wide-ranging enquiry required, including the degree of mutual commitment to a shared life and the public aspects of the relationship: see generally Indjic v Stojanovic [2020] NSWSC 470 at [135]-[148].
It is apparent from Brereton J's observations in Kallinicos quoted above that the jurisdiction of the Court to prevent a legal practitioner from acting is exceptional and should be exercised with caution. The test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and due administration of justice.
The defendant submitted that this test was satisfied because either or both of Ms Pham and Michael Pham are likely to be called as witnesses by the defendant due to their previous involvement in matters involving the Angius family being, (1) acting for the plaintiff in relation to the AVO obtained in 2007, (2) acting for the deceased in 2015 in relation to his proceedings involving Laura's estate and (3) Ms Pham's obtaining of statutory declarations in June and July 2021 from a number of individuals who have now given affidavits to the same effect in support of the plaintiff's family provision claim. Those statutory declarations were witnessed by Ms Pham and make statements about the declarant's personal observations of the relationship between the plaintiff and the deceased over a number of years.
I can see no basis for restraining the plaintiff from retaining AKN in the family provision claim by reason of the fact that AKN acted for the plaintiff in the AVO matter in 2007, or in obtaining statutory declarations for the benefit of the plaintiff in June or July 2021. In both cases AKN was acting for the plaintiff. The fact that in relation to the AVO matter AKN may have become aware in 2007 of matters pertaining to the defendant or her family or inter-relationships between them or the plaintiff's relationship with the deceased, is not a reason for preventing AKN from acting for the plaintiff in the present matter.
In relation to the period in 2015 when AKN was acting for the deceased, the defendant has identified only one matter which might lead to Ms Pham or Michael Pham being called as a witness. Given the defendant's evidence that she attended numerous conferences with AKN in the presence of her father in this period, I infer that had there been any other matter on which either Ms Pham or Michael Pham might potentially give evidence, it would have been raised.
The one matter which has been identified as a reason why Ms Pham or Michael Pham are likely to be witnesses in the family provision claim is the statement in the briefing memorandum set out in [26] above. In my opinion, this is not a basis for preventing AKN from continuing to act for the plaintiff for the following reasons.
First, neither Ms Pham nor Michael Pham has been called by the plaintiff to give evidence for the plaintiff about this (or any other) matter and there is no reason to expect that the plaintiff will do so. Whether the failure to do so would lead to a Jones v Dunkel inference against the plaintiff is a matter for the trial judge to determine, but the possibility of that occurring is not a reason for restraining AKN from continuing to act for the plaintiff.
Second, notwithstanding the defendant's submission that it is likely that she (rather than the plaintiff) will call Ms Pham or Michael Pham due to the statement in the briefing memorandum set out in [26] above, whether that will occur is by no means certain. The briefing memorandum is a document for which the defendant could have claimed legal professional privilege in her capacity as executrix of the deceased estate. However, she has chosen to waive that privilege by tendering it in these proceedings. I was informed that the briefing memorandum has not, to date, been included in any affidavit material or tender bundle in the family provision proceedings.
The statement attributed to the deceased in the briefing memorandum is second-hand hearsay which is not admissible under either s 63 or s 69 of the Evidence Act 1995 (NSW). The former only applies to first-hand hearsay and the latter does not apply because the document was prepared for the purpose of conducting legal proceedings. It would be admissible with leave of the Court under s 100(3) of the Act on the basis that the statement by the deceased was made otherwise than in a document (and hence s 100(3) applies rather than s 100(5)).
If the statement in the briefing memorandum is admitted into evidence, or alternatively the fact that the statement mentioned in it was made by the deceased is admitted by the plaintiff pursuant to rule 17.2 or 17.3 of the Uniform Civil Procedure Rules 2005, prima facie there would be no reason for the defendant to call either Ms Pham or Michael Pham.
Third, even if one way or another the statement attributed to the deceased in the briefing memorandum is admitted into evidence in the family provision claim, the relevance of and weight given to that statement are another matter. The briefing memorandum was prepared in the context of a number of matters on which AKN had been briefed, including the family provision claim against Laura's estate in relation to which the deceased had sworn an affidavit in October 2014 in which he stated that "I live by myself". That statement is to be relied upon by the defendant in the family provision claim brought by the plaintiff (and because it is included in the deceased's affidavit made in October 2014, it is prima facie admissible under s 100(2) and (5) of the Act). The context in which that statement and the statement attributed to the deceased in the briefing memorandum were made, each being a self-serving statement to further a claim brought by the deceased against Laura's estate, would be relevant to weight: see Koellner v Spicer [2019] NSWSC 1571 at [73]-[76]. Further, the statement by the deceased as to his perception of his relationship with the plaintiff is but one of many matters which will be taken into account in determining whether the plaintiff is an eligible person under s 57(1) of the Act and is by no means decisive.
Fourth, if Ms Pham or Michael Pham was called by the defendant to give evidence about statements made to them by the deceased in 2015 regarding his relationship with the plaintiff, that evidence would be peripheral, at best, to both the matters on which AKN was advising the deceased at that time and to the matters in issue in the present family provision claim. Further, given that the deceased says she attended the conferences held by the deceased with AKN and Mr Hogg in the period in 2015 when AKN was acting for the deceased (see paragraphs 11 and 14 of her affidavit quoted at [18] above), she is able to give evidence as to what the deceased said to AKN about his relationship with the plaintiff which would be admissible to the same extent under s 100(3) of the Act.
In my opinion, a fair-minded, reasonably informed member of the public would not conclude that the proper administration of justice in the circumstances of this particular case requires that AKN, Ms Pham or Michael Pham should be prevented from continuing to act for the plaintiff, by reason of their having acted for the deceased for the periods in 2015 identified above, in view of the nature and relevance of the evidence which could be given by Ms Pham or Michael Pham as explained above as well as the significant inconvenience, cost and prejudice to the plaintiff in having to engage new solicitors at this stage of the proceedings.

Conclusion and orders

For the above reasons, AKN (and its directors or employed solicitors) should not be restrained from continuing to act for the plaintiff.
Accordingly, the Notice of Motion is dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2022

(Succession Act 2006(NSW)

Evidence Act 1995(NSW)ss 63, 69

Succession Act 2006(NSW)ss 57(1), 59(1),100

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