Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BTH v NSW Public Guardian [2016] NSWCATAP 12 Hearing dates: 21 December 2015 Date of orders: 22 December 2015 Decision date: 15 January 2016 Jurisdiction: Appeal Panel Before: M Schyvens, Deputy President Decision: Application to revoke leave for legal representation previously granted to BTI dismissed. Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division INTERLOCUTORY – application to revoke leave for legal representation previously granted to subject person – legal principles – s 45(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) – r 32(2) of the Civil and Administrative Tribunal Rules 2014 (NSW) – solicitor's conduct – whether breach of conduct rules – confidential information held by solicitor – solicitor's duty to act in the best interests of each client – application dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 37, 45(3)(b), 45(4)(c), 80(3), Sch 6, cl 13(1) Civil and Administrative Tribunal Rules 2014 (NSW), r 32 Courts and Crimes Legislation Amendment Act 2015 (NSW), Sch 1, cl 1.2(1) (repealed) Guardianship Act 1987 (NSW), s 6I Powers of Attorney Act 2003 (NSW), s 36 Legal Profession Uniform Law Australia Solicitors' Conduct Rules 2015 (NSW), r 9, r 11 NSW Professional Conduct and Practice Rules 2013 (repealed), r 9, r 11 Cases Cited: BDN [2014] NSWCATGD 15 Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 at [32] Prince Jefri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222 Sanna v Wyse and Young International Pty Limited & Others (No.1) [2015] NSWSC 580 Texts Cited: Nil Category: Procedural and other rulings Parties: BTH (Appellant) The Public Guardian (First Respondent) BTI (Second Respondent) BTJ (Third Respondent) Representation: G Gayler, solicitor (Appellant) C O'Mahony, solicitor (Second Respondent) M Duncan, solicitor (Third Respondent) File Number(s): AP 15/05027 Publication restriction: The publication of the name of any of the parties or other people referred to in this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: 2014/4667 Date of Decision: 21 November 2014 Before: D Thorley, Dr I Beale, and L Manns File Number(s): C/54466 Reasons for Decision 1. These reasons relate to orders made on 21 December 2015 by the Appeal Panel of the NSW Civil and Administrative Tribunal ("the Tribunal") to dismiss an interlocutory application made by the appellant, BTH, on 10 November 2015. BTH had sought orders pursuant to s 45(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act") that leave previously granted to Ms Casey O'Mahony to represent BTI, who is the subject of ongoing appeal proceedings before the Appeal panel, be revoked and that an order be made pursuant to s 45(4)(c) that BTI be separately represented. Background to the proceedings 1. This interlocutory matter arises in the context of an ongoing appeal against a decision of the Guardianship Division of the Tribunal made on 21 November 2014 to lapse a guardianship order pertaining to BTI. 2. BTI is a 98-year-old woman of Italian background who resides in her own home in Regional NSW with her extended family living in the area. She has a son, BTJ, and a number of grandchildren. She is widowed. Her daughter, GBE, passed away in March 2013. GBE was married to DQE and there are three children from this marriage, including BTH. BTJ is married to OAN and they have two sons. 3. On 25 July 2003, BTI appointed her son, BTJ, and her daughter, GBE, as her attorneys. On 16 March 2006, she appointed BTJ as her enduring guardian. 4. In 2013 and 2014 BTI was the subject of a number of applications made to both the predecessor of the Tribunal, the Guardianship Tribunal of NSW, and the Tribunal (which commenced on 1 January 2014), by her grand-daughter, BTH, and her son, BTJ. These applications, made pursuant to the Guardianship Act 1987 (NSW) ("the Guardianship Act"), included applications made on 18 September 2013 by BTH seeking the appointment of a guardian and a financial manager, an application to review the operation and effect of an instrument appointing a power of attorney, and an application made on 11 February 2014, seeking a review of the enduring guardianship appointment. On 14 February 2014, BTJ also filed an application to review the instrument appointing a power of attorney and, in particular, sought orders to reinstate that instrument. 5. The Tribunal held a number of directions hearings and considered a number of interlocutory applications from the parties prior to hearing the substantive applications. On 3 December 2013 the then Guardianship Tribunal granted leave to BTI, BTH, and BTJ, to be legally represented in the proceedings. 6. On 27 May 2014, after three days of hearing conducted on 27 and 28 February, and 3 April 2014, the Tribunal made a limited guardianship order appointing the Public Guardian as BTI's guardian for a period of six months. The Public Guardian was appointed with the authority to decide: what access BTI has to others and the conditions of access; to make decisions about the services to be provided to BTI; and to advocate generally for her. 7. On the same date, the Tribunal confirmed the instrument appointing BTJ as BTI's enduring guardian, made on 16 March 2006. However, the effect of the limited guardianship order meant that all authority of the enduring guardian to exercise a function pursuant to the appointment was suspended for the duration of the guardianship order: s 6I of the Guardianship Act. 8. Also on 27 May 2014, the Tribunal determined: (a) to carry out a review of the making of the enduring power of attorney made by BTI on 25 July 2003, that had appointed BTJ and GBE (now deceased) as attorneys; (b) not to make any order under s 36 of the Powers of Attorney Act 2003 (NSW) in relation to the making of that enduring power of attorney; and (c) ordered that the applications made by BTH and by BTJ for the review of the making of the enduring power of attorney, be dismissed. The Tribunal also made a financial management order appointing the NSW Trustee and Guardian as the financial manager of BTI's estate, with such order to be reviewed within a period of six months. The Tribunal also issued its reasons for the orders made on 27 May 2014. The Tribunal then issued amended reasons for decision on 8 July 2014 (BDN [2014] NSWCATGD 15). 9. On 21 November 2014 the Guardianship Division of the Tribunal conducted a hearing to review the guardianship and financial management orders made on 27 May 2014 concerning BTI. 10. On 17 November 2014 the Tribunal made an order joining BTH, the applicant for the original orders, as a party to both reviews. The Tribunal made an order joining BTJ as a party to both reviews on 20 November 2014. 11. On 21 November 2014, the Tribunal reviewed the previous guardianship order concerning BTI made on 27 May 2014 and decided that the order should lapse. This had the effect that BTJ's authority as enduring guardian was no longer suspended. 12. Also on 21 November 2014, the Tribunal confirmed the financial management order it made on 27 May 2014 and confirmed the appointment of the NSW Trustee and Guardian as the manager of the estate of BTI. The Tribunal directed that a further review be conducted in twelve months. The Tribunal issued its reasons for decision in the review proceedings on 21 November 2014. The Tribunal's reasons were provided to the parties on 17 December 2014. Notice of Appeal 1. On 20 January 2015 BTH lodged an application for an internal appeal with the Tribunal to appeal the decision of the Guardianship Division made on 21 November 2014 in relation to the guardianship order. In the original notice of appeal, BTH appealed against the order of the Tribunal to allow the guardianship order for BTI made on 27 May 2014 to lapse. BTH sought the making of a further guardianship order for a period of 12 months with the Public Guardian to be appointed. BTH did not seek to appeal the decision in relation to financial management. 2. A directions hearing was held on 10 February 2015 and directions were made for the filing and service of documents, including an amended notice of appeal. Amended grounds of appeal were filed on 2 March 2015. 3. The Tribunal issued a notice of hearing on 16 February 2015 advising that the Appeal would be heard on 6 May 2015. 4. A further directions hearing was held on 10 March 2015 and directions were made for the filing and service of documents, including a (further) amended notice of appeal, following receipt by BTH of the transcript of the Tribunal proceedings under appeal. Further Amended grounds of appeal were filed on 24 March 2015 and BTI's reply to the Appeal was filed on 7 April 2015. 5. In summary, BTH contended, inter alia, that the Tribunal had erred in applying the applicable law, in failing to provide reasons or adequate reasons for its decision, in making findings of fact without probative evidence, and denied BTI procedural fairness by dismissing her application to be legally represented. 6. On 6 May 2015 an Appeal Panel, consisting of three members as required by cl 13(1) of Sch 6 of the Act, convened in Sydney to conduct the hearing of the Appeal. Some parties, including BTI, sought to participate via telephone from Regional NSW. Because of technical difficulties with the telephone connection and engaging with BTI by way of a hearing conducted by telephone, the Appeal Panel adjourned the proceedings so that the matter could be heard at a later date in Regional NSW. This was to promote and assist the participation of BTI who required the assistance of an interpreter in the proceedings. 7. The matter was so adjourned and the Appeal Panel made the following directions: 1. Leave to Ms Z Heger to represent [BTH]. 2. Leave to Mrs C Mahony to represent [BTI]. 3. Leave to Ms D Reid to represent [BTJ]. 4. [BTH] is to file and serve by 22 May 2015: a. an outline of written arguments and any further material to be relied on (including a transcript of the hearing below) in respect of the internal appeal and, b. in the event the Appeal Panel decides to deal with the internal appeal by way of a new hearing under s 80(3) of the Civil and Administrative Tribunal Act 2013, any material that [BTH] may wish to rely on at a new hearing. 5. The Respondent is to file and serve by 5 June 2015 an outline of written arguments and any further material to be relied on in response to the written arguments and material filed and served by the A as referred to in (4). 6. The proceedings to be listed for hearing in [Regional NSW] on a date to be advised by the Tribunal. 1. The Tribunal issued a notice of hearing on 21 May 2015 advising that the Appeal would be heard on 14 July 2015. 2. The Appeal Panel, constituted by a different three member Panel, proceeded to hear the Appeal in Regional NSW on 14 July 2015. The First Respondent, the Public Guardian, elected not to participate in the proceedings. All other parties to the Appeal participated in the hearing and were legally represented. 3. BTI participated throughout the Appeal Hearing with the assistance of an interpreter. It was evident to the Appeal Panel, through BTI's comments and actions, that the proceedings greatly distressed her and that she wanted the proceedings to end. 4. The Appeal Panel proceeded to hear the Appeal and then stood the matter down to engage in deliberations. In light of the directions made by the Appeal Panel on 6 May 2015 (order 4(b)) and having regard to the principles outlined in s 36 of the Act, prior to standing the matter down, the Tribunal sought confirmation from the parties that they were in a position for the matter to proceed by way of a new hearing before the Appeal Panel, on that same day, if the Appeal Panel determined to uphold the Appeal and take that course of action. All parties advised of their readiness if this was to eventuate. 5. Upon recommencing the hearing, the Appeal Panel was advised by the parties' representatives that during the break there had been discussion directly between BTI and BTH and that there was some prospect of a resolution. However, all parties indicated their position that the outcome of the Appeal should be announced before continuing any resolution discussions. 6. The Appeal Panel announced to the parties that it was minded to allow the Appeal and to proceed to deal with the Appeal by way of a new hearing pursuant to s 80(3) of the Act. 7. The parties requested further time to pursue options for resolution prior to the Tribunal making further orders on the Appeal and otherwise conducting a new hearing. The Tribunal granted several requests for the proceedings to be stood down so that resolution discussions could proceed. The Tribunal granted these requests in furtherance of s 37 of the Act. 8. The parties ultimately advised the Tribunal that a resolution had been reached and that by agreement, requested that the Appeal Panel not make final orders on the Appeal but rather adjourn the proceedings for a period of approximately two months. If the terms of the resolution were successful then BTH would discontinue the Appeal proceedings. 9. Having regard to the provisions of s 37 and the requests of the parties, including BTI , the Appeal Panel decided not to make any final orders in the Appeal, to note the terms of the agreement between the parties, and to otherwise adjourn the matter for approximately two months. 10. The Appeal Panel issued the following orders in relation to the hearing conducted on 14 July 2015: 1. Upon the request of [BTH], [BTI] and [BTJ], the Tribunal ordered that the proceedings be adjourned for approximately two (2) months; 2. A directions hearing is to be listed in approximately two (2) months; and 3. The Tribunal notes that [BTH], [BTI] and [BTJ] requested an adjournment of the proceedings after agreement was reached in the following terms: a. That arrangements be made for [BTI] to be provided with access to an interpreter in the Italian language for the purpose of interpreting to her the reasons for decision of the Tribunal (Guardianship Division) for the orders made in relation to [BTI] on 27 May 2014; b. Once the event described in paragraph (a) above has occurred, three (3) meetings are to be arranged involving a representative of Relationships Australia, [BTI] and [BTH]; c. Subject to certain conditions, so long as the meetings described in paragraph (b) above occur, [BTH] will request to discontinue the Appeal proceedings. 1. At the time of making these orders, the Appeal Panel stated for the record that if the resolution proposed failed, then the Tribunal would recommence the proceedings, formally allow the Aappeal and make consequential orders, which may be to remit the matter to the Guardianship Division of the Tribunal for rehearing or to proceed to hear the matter itself under s 80(3) of the Act. 2. The Appeal Panel is yet to issue final orders on the Appeal, and accordingly is yet to issue reasons for decision. Events since the Appeal Hearing of 14 July 2015 1. By correspondence to the Tribunal dated 3 August 2015 from Walsh & Blair Lawyers, solicitors for BTI, and dated 4 August 2015 from Farrell Lusher, solicitors for BTH, the Tribunal was advised that the terms of resolution between the parties had failed and BTH requested that the matter be relisted before the Appeal Panel. 2. On 17 August 2015, the Tribunal issued notice of a directions hearing to be conducted in the matter on 31 August 2015. 3. By correspondence dated 24 August 2015 from his representative, BTJ made an application that the proceedings be permanently stayed. In that correspondence, BTJ's representative explained that the basis of the application for the permanent stay was as follows: the application of [BTH] is an abuse of process pursued for an improper purpose being outside the jurisdiction of the Tribunal and not for the benefit of the subject person the first respondent. 1. The Appeal Panel conducted the directions hearing on 31 August 2015 and made the following orders and notations: 1. [BTJ], by correspondence from his legal representative dated 24 August 2015, lodged an application with the Tribunal requesting a permanent stay of the proceedings being pursued by [BTH], seeking a limited guardianship order over [BTI]; 2. The Tribunal directed that [BTJ] file and serve an outline of the submissions and material to be relied upon in relation to the application for a permanent stay by 14 September 2015; 3. The Tribunal directed [BTH] and the [BTI] to file and serve an outline of their submissions and material to be relied upon by way of reply to the [BTJ]'s application by 29 September 2015; and 4. The proceedings are to be listed for further hearing before the Appeal Panel at a venue, and upon a date, to be fixed by the Principal Registrar. 1. The Tribunal Registry communicated with the parties to the proceedings to advise of a potential hearing date before the Appeal Panel on 6 November 2015. Following advice as to the unavailability of some parties and/or representatives, the Tribunal subsequently issued a notice of hearing advising that all matters would proceed to hearing on 15 January 2016 in Regional NSW. Application for revocation of leave for legal representation The interlocutory application 1. By way of correspondence from BTH's representative dated 10 November 2015, BTH lodged supplementary submissions to the Appeal together with an affidavit sworn by Mr Grant Gayler on 10 November 2015. The supplementary submissions, at 36[2], contained the following application: For the reasons outlined above, an order is sought pursuant to s 45(3)(b) of the CAT Act that leave granted to Walsh & Blair Lawyers to represent [BTI] be revoked, and that an order be made pursuant to s 45(4)(c) of the CAT Act that she be separately represented. 1. By way of further correspondence to the Tribunal dated 2 December 2015, BTH's representative submitted that the application made in BTH's supplementary submissions should be determined prior to continuation of proceedings before the Appeal Panel listed for 15 January 2016. 2. On 14 December 2015 the Tribunal issued a notice of hearing advising that an interlocutory hearing would be conducted on 21 December 2015 to determine the application. The representatives for BTI lodged submissions in reply to the application by letter dated 17 December 2015. No written submissions were lodged on behalf of BTJ. 3. The Appeal Panel proceeded to hear the application on 21 December 2015. All parties and their representatives participated in the hearing by telephone. The Appeal Panel reserved its decision and made orders later that same day. The orders were issued to the parties on 22 December 2015. The submissions filed with the Appeal Panel 1. The submissions filed on behalf of BTH in respect of the application to the Tribunal to exercise its discretion pursuant to ss 45(3)(b) and 45(4)(c) of the Act submitted as follows, inter alia: 18. [BTI] was legally represented at the Appeal Panel hearing by Ms Casey O'Mahony, solicitor, employed by Walsh & Blair Lawyers. 19. At that time the parties reached an agreement that: (a) the findings and decision of the Tribunal dated 27 May 2014 are to be read and translated to [BTI] by an independent person; and (b) a mediation is to take place, with a minimum of three meetings to be held with [BTH]. 20. [BTH]'s legal representatives sent draft terms of settlement on 16 July 2015 to Walsh and Blair Lawyers regarding the agreement reached. 21. On 20 July 2015 Ms O'Mahony was appointed by Walsh & Blair Lawyers to attend the proposed meetings. 22. Farrell Lusher Solicitors objected to the appointment of Ms O'Mahony on 20 July 2015. 23. On 28 July [BTI] withdrew from the agreement. No explanation was provided. Conflict of Interest Issue 24. These submissions concern [BTH]'s application to seek an order from the Tribunal that [BTI] be separately legally represented by lawyers other than Walsh & Blair Lawyers. 25. At the present time [BTI] is represented by the same legal representatives, who had, until the end of 2013, also represented the interests of [BTJ] in these proceedings. [BTJ] is currently legally represented by M Duncan & Associates, Lawyers, and has been since early 2014. 26. In the process of representing both parties up until the end of 2013 confidential information would have been gained by Walsh & Blair Lawyers concerning the relationship between the [BTJ] family and the [GBE's family], the guardianship issues and the financial management issues, which were the subject of the decision of the Tribunal at first instance on 27 May 2014. 1. BTI then provides extracts in the submissions from the Tribunal's decision of 27 May 2014 and concludes: 28. It is apparent from the Tribunal's findings that [BTI] held some misconceptions and incorrect beliefs about her finances, the reason the application for guardianship and financial management was brought by [BTH], and in respect of the reason for the deterioration in the relationship with the [GBE's family]. It is also clear that she was not disabused of these misconceptions and incorrect beliefs by her solicitors. This has led to the Tribunal at first instance to make an order directing the appointment of an independent party to "advocate for her in respect of her dealings with [GBE's family] and [BTJ]'s family" (at [114] of the Decision dated 27 May 2014. Such a person would not have been necessary if [BTI had been separately and independently represented from the beginning of the proceedings. Walsh & Blair Lawyers however represented both [BTI] and [BTJ] in 2013 when the proceedings were first commenced. During that time they would have been privy to confidential information from both [BTI] and [BTJ] and, despite ceasing to represent [BTJ] from January 2014, they continued to represent [BTI]. The situation is an extremely sensitive one, in which one part of the family is being pitted against another part of the family. It is clear from the comments made by the Tribunal that [BTI] does not wish to hear anything adverse said about her son. It is not possible for Walsh & Blair Lawyers to act in the best interests of [BTI] and provide her with frank and fearless advice, when they were also [BTJ]'s lawyers. It is apparent that this has not been done to date. 29. The various statements, affidavits and reports that were filed in the proceedings and considered by the tribunal have never been translated or explained to [BTI]. Mr Michael Kennedy, Solicitor, employed by Walsh & Blair Lawyers, acting on behalf of [BTI], gave evidence at the February 2014 hearing to the effect that he: (a) had not completely had the statements of evidence translated to [BTI]; (b) did not have the Driver Forensic Accounting report translated to [BTI]; (c) stated that some of the statements were interpreted by members of [BTI]'s family for her or by another client of his; (d) did not seek [BTI]'s instructions on issues that were raised in the proceedings and Mr Driver's report; (e) admitted that [BTI] was not aware of a number of the issues in the proceedings (see transcript pp 126-130) 30. The Tribunal's findings and reasons of May 2014 have still not been read, explained or translated to [BTI]. There has been no explanation by Walsh & Blair as to its failure to do so. 31. The circumstances are such that Walsh & Blair have not provided full disclosure of relevant facts, statements, evidence and tribunal findings to [BTI] and failing to do so is promoting the interests of [BTJ] and his family in preference to the interests of [BTI]. This failure must be viewed in the context that Walsh & Blair are the previous long-standing solicitors for [BTJ] and his family, and as such on any view are not appropriately involved in these legal proceedings in any capacity and particularly in relation to matters concerning [BTI]'s relationship with the applicant and her family. 32. [BTI]'s best interests can only be served if Walsh & Blair Lawyers do not continue to represent [BTI]. 33. The NSW Professional Conduct and Practice Rules 2013 (Solicitor's Rules) permit a law practice to act for more than one client in circumstances where there is potential for conflict of interest between the clients, but only where informed consent has been given by each client (Solicitors' Rules 11.3.1), because a solicitor must act in the best interests of a client. In such circumstances acting for more than one client is permitted provided that the duty of confidentiality is not put at risk (Solicitor's Rules 9.1). the concerns about the potential for confidential information from previously acting for a client are discussed in cases such as Prince Jefri Bolkiah v KPMG [1999] 2 AC 222. 34. It is submitted that it is unlikely that [BTI] is able to give the necessary informed consent, and there is no evidence that she has given informed consent, because the detail of the Tribunal's decision and the reason for the application have not been explained to her. 35.[1] It is clear from the developments that have occurred since the appeal was dealt with that the concerns raised by the Tribunal and its reasons still have not been explained to [BTI]. It can be inferred, and it is logical, that a reason for this is that Walsh & Blair do not wish to upset the [BTJ]'s family because they continue to act for [BTJ] in other matters. It can also be inferred, and it is logical, that [BTI] does not wish to upset her son and his lawyers and for that reason, is reluctant to accept that there were discrepancies in her financial matters while he was managing them, and reluctant to accept any criticisms of him. 36. It is in [BTI]'s best interests to have this matter resolved and to restore her relationship with the [GBE's family], because as the Tribunal observed, the situation is causing her "anguish and sadness" (at [113] of the Tribunal decision dated 27 May 2014). This cannot be achieved if Walsh & Blair Lawyers continue to be involved in the matter…. 35.[2] Section 45 gives the Tribunal broad power in respect of legal representation in Tribunal proceedings. Section 45(3)(b) empowers the Tribunal to revoke any leave that has been granted, and s 45(4)(c) empowers the Tribunal to order that a party be separately represented. 1. BTI opposed the application made by BTH and submitted that the application should be dismissed. 2. BTI, through her representative, submitted that she had been represented by Walsh & Blair Lawyers since the application was first made to the Tribunal in September 2013, and given the Appeal matter was listed for hearing on 15 January 2016, it would be grossly unfair and prejudicial to BTI if this application was entertained and the decision of the Tribunal to allow her to be legal represented by Walsh & Blair Lawyers was now revoked. 3. At [2] to [11] of the submissions in reply to BTH's submissions in respect of her application to the Tribunal to exercise its discretion pursuant to ss 45(3)(b) and 45(4)(c) of the Act, BTI's representative submitted, inter alia, as follows: 2. The appeal presently before the Tribunal was made by [BTH] in March of this year. The original application brought by [BTH] was made in September 2013. Since that time, Walsh & Blair Lawyers have represented [BTI]. 3. [BTH] unsuccessfully through her solicitor at the beginning of the original application opposed Walsh & Blair Lawyers acting in the matter. As far as [BTI] is concerned this issue was determined by the Tribunal at that time. 4. Since then, [BTH] has had ample opportunity to make a formal written application on the issue. 5. Given the matter is listed for hearing on 15 January 2016, it would be grossly unfair and prejudicial to [BTI] if this application was now entertained and the decision of the Tribunal to allow her to be legally represented by Walsh & Blair Lawyers was now revoked. 6. Submissions on this issue were made on behalf of [BTI] on 5 June 2015 and are repeated below for convenience: [BTH] raises concerns about whether the First Respondent is receiving independent legal advice. [BTH] simply makes this assertion without any evidence and as such the matter cannot be taken further. Even if it were substantiated by evidence (which it is not), the circumstances fail to meet the current test to be applied as set out in Sanna v Wyse and Young International Pty Limited & Others (No.1) [2015] NSWSC 580 (18 May 2015): 14 As pointed out by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 at [32], there has been acceptance in New South Wales of the authority of Prince Jefri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222 for that, in a case where the retainer is no longer active, the jurisdiction of the court to intervene at the suit of a former client to restrain a solicitor from acting is founded solely on obligation of confidence and is not and cannot be connected with some principle of conflict of interest. That view has subsequently been endorsed by the Court of Appeal (see Cooper v Winter [2013] NSWCA 261 at [96], and Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146; (2014) 86 NSWLR 481 at [24]). … In Kallinicos (supra), Brereton J stated (at [35]): "Prince Jefri Bolkiah holds that a former client who seeks to restrain its former solicitor from acting against it must show (1) that the solicitor is in possession of the former client's confidential information, to the disclosure of which the former client has not consented, and (2) that the information is or may be relevant to the new matter, in which the interests of the solicitor's new client may be adverse to those of the former client. […]" 7. [BTH] claims that Walsh & Blair Lawyers have a conflict of interest as they have previously acted for [BTI] and [BTJ]. That in itself is not sufficient to establish a conflict of interest. As set out above, the solicitor must be in possession of client's confidential information the disclosure of which the former client has not consented to. That has not been made out in [BTH]'s submissions. 8. [BTJ] has and continues to be independently legally represented in these proceedings. There is no confidential information that Walsh & Blair Lawyers have obtained from him in previous matters that are of a confidential nature and relevant to this matter. 9. [BTH] submits that [BTI] ought to be ordered to obtain independent legal representation as Walsh & Blair Lawyers have not read out to her through an interpreter a 26 page transcript. [BTH] makes the assumption that as the lengthy document has not been read out to [BTI], the decision has not been explained to her. This assumption is not only offensive but also factually incorrect. 10. It is submitted the requirement for the Tribunal to observe the principle of the welfare and interests of the subject person being given paramount consideration extends to this application. 11. It would not be in the welfare and interests of [BTI] to now be ordered to obtain separate legal representation in circumstances where she is a 98 year old woman, English is her second language and where she has instructed Walsh & Blair Lawyers in this matter for over two years. The submissions at the hearing 1. Both representatives for BTI and BTJ advised that their clients were opposed to the application. BTI herself, through the assistance of an interpreter, made her position abundantly clear stating: I want Casey and nobody else. If don't have Casey, I will withdraw myself from this hearing. I'm sick and tired of the whole business. At my age, being subjected to this is ridiculous. 1. Towards the end of the proceedings BTI reinforced her position by stating: I have made it clear who I want as my lawyer and I don't want anybody else. And if I were asked to find another lawyer, I would refuse to do so and I would refuse to attend any more of this hearing. 1. BTI was represented by Ms O'Mahony at the hearing of the application. Ms O'Mahony submitted that the subject of the application was "not a new issue," that it was a topic that had "been around for about two years" and BTI had been consistent in her instructions on the topic over that period. She added that BTI's consistency on her instructions on the subject matter had been confirmed in discussions with her that morning. 2. In response to a question from the Appeal Panel, Ms O'Mahony advised that she had discussed BTH's application with BTI directly for the first time on the morning of the hearing. She subsequently conceded that she had previously taken instructions on the matter in a conversation with OAN, the wife of BTJ. She explained that OAN had contacted her once BTJ had received notice of BTH's application. Ms O'Mahony stated that OAN had advised her that there had been a discussion with BTI and that her view was that her instructions were to resist the application as she only wanted Ms O'Mahony to continue to represent her. Ms O'Mahony advised that she based her written submissions previously lodged with the Tribunal on these indirect instructions. 3. Mr Gayler, representative for BTH, relied upon BTH's written submissions previously lodged with the Tribunal. As those submissions failed to make reference to r 32(2) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the NCAT Rules") which outlines the basis on which the Tribunal may revoke leave as sought by BTH, the Appeal Panel requested that Mr Gayler address the Appeal Panel on the grounds upon which he relied for revocation of leave for representation previously granted to BTI. 4. Mr Gayler submitted that he relied upon cls 2 (c), (d), and (e) of r 32. He argued that Ms O'Mahony was the subject of a conflict of interest which meant that she was not able to deal fairly and honestly with the Tribunal and/or other persons involved in the proceedings (r 32 cl 2(c)). In relation to reliance upon r 32 cl 2(d), Mr Gayler submitted that the Appeal Panel could infer from his submissions that BTI was not capable of giving instructions to Ms O'Mahony as to the manner in which she obtained instructions from OAN in respect of this application. Alternatively, Mr Gayler argued that all of the circumstances he had put to the Appeal Panel should satisfy the Appeal Panel that there were other grounds present to justify the revocation: r 32 cl 2(e). 5. Mr Gayler focused mainly in his oral submissions upon the comments made in the hearing by Ms O'Mahony as to manner in which she had obtained instructions on the application. He submitted that Ms O'Mahony's concession that she had engaged directly with OAN exemplified BTH's concerns regarding representation and that the Appeal Panel should infer from this that BTI is not capable of providing instructions. 6. Ms O'Mahony replied to the application by outlining the contents of her written submissions previously lodged with the Tribunal. 7. In addressing the issue of having taken instructions through communication with OAN, Ms O'Mahony stated: This is not a fresh issue that was only raised last month. This is something that was raised right at the beginning two years ago. Whilst my former colleague, Michael Kennedy, had carriage of the matter, I was present at a teleconference on his behalf because he was away that day, with [BTI], and the issue was raised in my presence and I discussed it with her at that time. And it was also raised again in correspondence throughout this appeal and that's why I referred to and made some comments about the alleged conflict of interest again in my last lot of submissions…. To suggest that I have never spoken to her [BTI] about it until this morning is just absurd. We've had many discussions about it in the past and she's always provided very clear instructions as she has this morning about our role in the matter….I concede that I spoke to a family member after Mr Gayler's submissions were made and the message that came through to me was very clear that she wanted me to remain and I have no doubt that was her instruction and that's the reason why I filed the submissions that I did. 1. On the issue of whether BTI was capable of providing instructions to a legal representative, Ms O'Mahony expressed a view that she believed BTI did possess such capacity and submitted that: Mr Gayler has made the assumption that all my instructions have come through other parties which I deny outright. But I said before this is something that has been canvassed well and truly before last month and I have taken instructions specifically on this point from [BTI] on more than one occasion before today. I was very clear on what her position was. She's told me numerous times before that she wanted me to continue to act for her. 1. Ms Duncan, BTJ's representative, advised that BTJ was in full support of the submissions made by Ms O'Mahony. Ms Duncan submitted that if anything, BTI and BTJ had interests that were mutual, and submitted that "being aligned does not amount to a conflict of interest." The applicable legislation 1. The following provisions of s 45 of the Act are relevant to the interlocutory application: 45 Representation of parties (1) A party to proceedings in the Tribunal: (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave: (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party. (2) However, a party to an internal appeal (or in an application for leave to make an internal appeal) may be represented by a person without requiring the leave of an Appeal Panel if the party was entitled to be represented by such a person without the leave of Tribunal in the proceedings in which the decision under appeal was made. Note. A Division Schedule for a Division of the Tribunal may, in some cases, allow certain kinds of persons to represent parties in proceedings allocated to that Division without requiring the leave of the Tribunal. (3) The Tribunal may at its discretion: (a) grant or refuse leave under subsection (1) (b), and (b) revoke any leave that it has granted. (4) The Tribunal may: (a) appoint a person to act as guardian ad litem for a party, or (b) appoint a person to represent a party, or (c) order that a party be separately represented. (4A) The Tribunal may, at its discretion, revoke any appointment or order made under subsection (4). 1. Rule 32 of the NCAT Rules sets out the matters the Tribunal must have regard to in considering a request for a party to be represented in proceedings before the Tribunal, and also sets out the circumstances which the Tribunal must be satisfied exist if it is to exercise the discretion to revoke leave previously granted: 32 Granting and revocation of leave for a person to represent party (1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to: (a) such of the following circumstances as it considers are relevant to the proceedings: (i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal, (ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings, (iii) whether the proposed representative is vested with sufficient authority to bind the party, and (b) any other circumstances that it considers relevant. (2) The Tribunal may revoke leave granted to a person to represent a party to proceedings only if the Tribunal is satisfied that: (a) the party no longer consents to the person representing the party, or (b) the person applied for leave to represent that party without the consent of the party, or (c) the person does not have the qualities referred to in subrule (1) (a) (i) or (ii) to act as the party's representative, or (d) the party is, or has become, incapable of instructing the representative, or (e) any other grounds are present that the Tribunal considers sufficient to justify the revocation. 1. On 6 May 2015, when the Appeal Panel granted leave for BTI to be represented by Ms Casey O'Mahony, a now-repealed version of s 45(1)(b) of the Act was in force, which was as follows: (1) A party to proceedings in the Tribunal: … (b) may be represented by another person only if the Tribunal grants leave for the person to represent the party. 1. The Appeal Panel notes that the provision in force at that time required that the Tribunal grant leave "for the person," which would explain why Ms O'Mahony was named in the Tribunal's order. 2. On 15 May 2015, the Courts and Crimes Legislation Amendment Act 2015 (NSW) ("the Amendment Act") was assented to and came into force. By virtue of cl 1.2(1) of Sch 1 to the Amendment Act, s 45(1)(b) was amended as follows and was still in force at the time of these proceedings: 1.2 Civil and Administrative Tribunal Act 2013 No 2 [1] Section 45 Representation of parties Omit section 45 (1) (b). Insert instead: (b) may be represented by another person only if the Tribunal grants leave: (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party 1. The Appeal Panel further notes that no amendments were made to s 45(3)(b) of the Act by the Amendment Act and accordingly the Tribunal's power to revoke leave for legal representation previously granted is unaltered. The Appeal Panel is of the view that nothing turns on the legislative amendment in terms of the current application. Consideration 1. The orders sought by BTH are that leave for BTI to be legally represented be revoked pursuant to s 45(3)(b) of the Act and that the order be made that BTI be separately represented in the proceedings pursuant to s 45(4)(c). Both of the orders are matters for the exercise of discretion by the Appeal Panel. Further, in exercising the discretion as to whether to revoke leave for representation, the Appeal Panel may only do so if it is satisfied that one or more of the grounds for revocation, as stated in r 32 cl 2 of the NCAT Rules, are present. 2. The Appeal Panel was not satisfied that any of the circumstances provided for in r 32(2) were currently present, and therefore the Appeal Panel was unable to exercise the discretion to revoke leave, as requested by BTH, pursuant to s 45(3)(b). Given this determination, there was no requirement for the Appeal Panel to address the issue of whether or not to appoint a separate representative for BTI as was also sought by BTH. 3. BTH's representative submitted that the Appeal Panel could be satisfied that it may exercise the discretion to revoke leave previously granted to Ms O'Mahony on the following grounds: 1. that Ms O'Mahony did not have the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings (r 32 (2)(c)); 2. that BTI is incapable of instructing Ms O'Mahony (r 32 (2)(d)); and/or 3. there are other grounds present that the Appeal Panel could consider sufficient to justify the revocation of Ms O'Mahony's leave (r 32 (2)(e)). 1. BTH's submissions focussed upon Ms O'Mahony's alleged inability to provide BTI "with frank and fearless advice" or to otherwise act in her best interests which BTH submitted could satisfy the Appeal Panel it should revoke the leave in question pursuant to r 32 cl (2)(c). 2. First, BTH submitted that it could be inferred that Ms O'Mahony had taken instructions in the proceedings from a person other than BTI, specifically from OAN, the wife of BTJ. 3. Ms O'Mahony strongly refuted the submissions of BTH on this point and outlined the circumstances of her engagement with OAN in the period leading up to the hearing. The Appeal Panel accepted Ms O'Mahony's submissions as to what occurred as summarised in these reasons at [54] to [55]. 4. The Appeal Panel is of the view that Ms O'Mahony's actions of taking initial instructions on behalf of her client from OAN was an insufficient ground to conclude that she was acting upon the instructions of a person other than BTI. 5. It was evident to the Appeal Panel from the submissions of BTH, particularly the affidavit of Mr Gayler, that there has been dispute between the parties as to BTI's representation in these proceedings for more than two years. The Appeal Panel accepted that Ms O'Mahony had taken instructions on the topic the subject of this interlocutory application on several occasions over the last two years from BTI and that her instructions have been consistent, that is, she continues to direct Ms O'Mahony to represent her. This consistent position was clearly evident to the Appeal Panel by BTI's statements during the hearing. 6. Whilst there was evidence that there was a connection between Ms O'Mahony and OAN in terms of the receipt of instructions from BTI, this does not lead to the conclusion that Ms O'Mahony was not acting upon the instructions of BTI as submitted by BTH. BTI is 98 years of age and she is of a non-English speaking background. It is not entirely unexpected that a person with the characteristics of BTI would discuss issues pertaining to legal proceedings with family members. On the events described, OAN relayed BTI's initial instructions to Ms O'Mahony who subsequently confirmed those instructions with BTI directly prior to the hearing. 7. Secondly, BTH argued that as the law practice at which Ms O'Mahony practices, Walsh & Blair, had up until the end of 2013 also represented BTJ in the proceedings before the then Guardianship Tribunal, confidential information would have been gained by that law practice concerning the relationships between various family members and the applications before the Tribunal. BTH did not identify what such confidential information consisted of, how it related to the substance of the Appeal, or how it was in the possession of Ms O'Mahony. The Appeal Panel was requested to infer that transmission of such confidential information would have occurred. The Appeal Panel was not satisfied that such inference could be drawn. In any event, if such confidential information were in the possession of Ms O'Mahony, it would be BTJ whose rights may be prejudiced by such possession as the former client of Walsh & Blair, not the current client, BTI. 8. Similarly, BTH raised the requirements of r 9.1 of the Legal Profession Uniform Law Australia Solicitors' Conduct Rules 2015 (NSW) ("the Conduct Rules") as a factor the Appeal Panel should have regard to in relation to the holding of confidential information by Ms O'Mahony or Walsh & Blair. The Appeal Panel did not consider such rule was of relevance in its considerations as it was not satisfied on the evidence that any confidential information had been disclosed. 9. Thirdly, BTH argued that r 11.3 of the Conduct Rules were of relevance in the Appeal Panel's considerations. Rule 11.3 prohibits a solicitor or law practice from acting for two or more clients in the same or related matters where the clients' interests are adverse and there is a conflict or potential conflict of the duties to act in the best interest of each client, unless each client is aware that the solicitor or practice is acting for the other party and has also given informed consent for such to occur. BTH submitted that it was "unlikely that BTI was able to give the necessary informed consent" on the basis that "there was no evidence that she has given informed consent, and because of the Tribunal's decision and the reason for the application have not been explained to her." 10. As outlined in r 11.1, r 11 only applies when the two or more clients concerned are current clients of the solicitor or law practice. It was not evident to the Appeal Panel that both BTI and BTJ were current clients of either Ms O'Mahony or Walsh & Blair. It was not in dispute that Walsh & Blair had ceased acting for BTJ in relation to the proceedings in the Tribunal in January 2014. At [35.[1]] of BTH's submissions it was asserted by BTH however that Walsh & Blair "continue to act for [BTJ] in other matters." The Appeal Panel notes that no evidence of this assertion was available from the affidavits of Mr Gayler relied upon in the interlocutory hearing. The matter was not pursued by BTH at the hearing, and there was no evidence or admission from Ms O'Mahony on this point. 11. In the event that the Appeal Panel was satisfied that r 11.1 of the Conduct Rules was applicable, in that Ms O'Mahony or Walsh & Blair currently acted for both BTI and BTJ, BTH had not established that informed consent had not been sought and obtained from both BTI and BTJ. Further, BTH had not established that previous Tribunal decisions or applications the subject of the proceedings had not been satisfactorily explained to BTI to allow her to make an informed decision. BTH relied upon historical evidence on his point as outlined at [29] of BTH's submissions to support this argument. BTI's representative rejected this claim. It is difficult to see how BTH could contemporaneously support the assertion that BTI is not being properly informed by Ms O'Mahony given the solicitor and client relationship that exists between them. 12. Fourthly, BTH submitted that the Appeal Panel should determine that BTI is no longer capable of instructing Ms O'Mahony and accordingly could be satisfied it could proceed to revoke leave pursuant to r 32 cl (2)(d). BTH did not provide the Appeal Panel with evidence as to BTI's capacity to provide instructions to a legal representative. BTI's representative, Ms O'Mahony, advised that she was aware of her professional responsibilities in respect of ensuring that her client was capable of providing instructions, and that she was of the firm view that BTI had capacity to provide her with instructions. The Appeal Panel was not satisfied that BTI is incapable of providing instructions. 13. Fifthly, BTH submitted that the Appeal Panel could be satisfied that there are other grounds sufficient to justify the revocation of leave as provided by cl 2(e) of r 32. BTH did not lead any submissions to support this position and accordingly the Appeal Panel was not satisfied that this ground was present. 14. It is mandatory that the Appeal Panel conclude that one or more of the grounds outlined in r 32 (2) are present before it can proceed to exercise the discretion to revoke leave for legal representation. As the Appeal Panel was not satisfied that any grounds were present, it was not required to determine whether the discretion should in fact be exercised. The Appeal Panel notes that in the event that it had concluded there were grounds to move to exercise the discretion to revoke the leave granted to Ms O'Mahony, it would then have been required to weigh a number of factors to decide whether to actually revoke the leave. The fact that BTI made it clear that she would only permit Ms O'Mahony to act for her, and that she would only participate in the Appeal Panel's ongoing proceedings if Ms O'Mahony continued to be permitted to act for her, would have been a factor that weighed against the exercise of the discretion. In the circumstances however, the Appeal Panel was not required to determine whether to exercise the discretion to revoke leave. Orders 1. For these reasons, the Appeal Panel orders that the application to revoke leave for legal representation previously granted to BTI is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 15 January 2016 - paragraph 76 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: 15 January 2016