11 She said that the solicitor took notes during the conference which she estimated lasted more than 2.5 hours. She said that during the conference he produced a diagram and explained with reference to it how a property settlement was reached in matrimonial proceedings. She said (para 13) that "… during the conference, Mr Miller became aware of certain facts that I was able to recollect and the facts that I was unable to recollect".
12 During the meeting he gave her a letter in which it was suggested she collect documents relevant to issues likely to arise in disputed property proceedings before the Family Court. It included the following:
"The interview that we are currently undertaking is a (sic) initial interview to discuss general points and to start somewhere. It will be necessary to have a detailed interview which can only meaningfully be undertaken when we have before us, documents that will either prove or disprove issues that will be asserted by either your husband or yourself during the matter."
13 The solicitor's evidence is that he has no specific recollection of what exactly was discussed at the meeting. His recollection is that the second defendant's major concern as expressed to him was that she had very limited income in the form of Austudy and she could not speak English very well. He says that, in accordance with his usual practice in the conduct of a preliminary conference with a potential client, a discussion in most general terms would have taken place about the fact that divorce and property settlement involve separate proceedings in the Family Court, and some general enquiry would have been made by him about the length of marriage, the number of children, and their ages. He says he probably did make some brief notes in the course of the conference, but they would have been very perfunctory and, in accordance with his usual practice, they were discarded sometime later as he had not heard from the second defendant again.
14 The solicitor denies that he was given any details of the second defendant's assets and liabilities, and no detailed information about her personal or financial circumstances, including information about the purchase of the property. He denies being given any information by her which could now be used either to advance the interests of the plaintiff in these proceedings or to disadvantage her.
15 The evidence of Yongmei Guo was to the effect that the second defendant's daughter acted as the interpreter. She says that she cannot recollect the detail of what was said at the conference except that what she described as the usual topics were discussed. These included the types of proceedings brought in the Family Court, matters relevant to applications for orders, the steps for divorce, the approach of the Family Court to property disputes, and the likely cost of divorce and property proceedings. She said that although the conference went on for about an hour, a lot of the time was taken up with conversations between the second defendant and her daughter discussing what the solicitor had said.
16 The solicitor had no contact with the second defendant thereafter.
17 On 14 April 2006 the first defendant retained solicitors, Austin Dunhill Berwick, to act in the matrimonial proceedings. He filed an application for divorce on 22 May 2006. A decree nisi was pronounced on 1 August 2006.
18 By their letter of 1 August 2006, the first defendant's solicitors informed the second defendant of their instructions to seek an order for 50 percent of the matrimonial property, and of a proposal to commence appropriate proceedings in the Family Court.
19 The second defendant retained Armstrong Legal, solicitors, to act for her. In their letter to the first defendant's solicitors of 28 April 2006 a number of issues were raised for consideration. The letter stated the second defendant's denial that the property was purchased from monies lent by the plaintiff. It stated that the money was a gift, and any claim by the first defendant to the contrary would be defended.
20 In October 2006 the solicitor was retained by the plaintiff to act for him in these proceedings. In his letter of 13 December 2006 to the second defendant he advised of the plaintiff's claim in respect of the property, and to monies advanced by him to the first defendant, and requested her to transfer her interest in the property to the plaintiff. He advised that if he did not receive a satisfactory reply proceedings would be commenced without further notice. In his affidavit (para 20) the solicitor states that at the time he sent the letter he did not realise that the second defendant was the person he had seen on 8 April 2006, as he had opened no file, retained no notes, and had received no fee.
21 On 18 May 2007 the second defendant filed a notice of motion for an order that these proceedings be transferred to the Family Court to be joined with the proceedings in that court between the first and second defendants. The application has not yet been heard and determined.
22 By letter of 19 June 2007 to the solicitor, the second defendant's solicitors, Armstrong Legal, requested him to immediately cease acting for the plaintiff. The letter referred to the meeting on 8 April 2006, and stated that the solicitor was provided with information as to the purchase of the property, and asserted that he was acting "… in a position whereby your knowledge places your client at an advantage".
23 The solicitor replied by letter of the same date. He advised he held no file relating to the second defendant, and requested a copy of documents said to have been provided to him. With their response of 22 June 2007, her solicitors sent only a copy of the letter given to her at the meeting.
24 In his letter of 28 June 2007 to the second defendant's solicitors, the solicitor accepted that he met her on 8 April 2006, but said he barely had a memory of the conference. He said that she never was a client of his firm, and requested details of the information given to him which put her at a disadvantage. The letter concluded:
"Anyway, if your client wishes to tell me what the secrets were that she alleges she told me on 8 April 2006, which now put her at a disadvantage, I will give the matter further thought, however on the information so far provided, in my view, your client hasn't raised any substantive matter that would call for the writer to cease to act for the plaintiff."
25 There was no response to this letter. On 9 July 2007 the second defendant's notice of motion for the present application was filed.
The principles
26 It is well recognised that there is no rule forbidding a lawyer acting in litigation against the former client (e.g. Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222, p 234; British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70, para 105).
27 In Bolkiah Lord Millett (p 234) held that the court's jurisdiction to intervene on behalf of a former client required satisfaction of two conditions: (i) that the solicitor was in possession of information which was confidential to the former client and (ii) that such information was or might be relevant to the matter on which he was instructed by the second client.
28 His Lordship said (p 235):
"… The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence.
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. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters. But given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. 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 …"