Le v Angius

1. [1]

   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.

Background

1. [2]

   The deceased was born in October 1936 in Italy. He came to Australia in 1957 or 1958 and around the same time married his wife, Laura. Together they had two children, Robert and the defendant. The deceased’s wife Laura died in January 2012. He did not remarry and died on 31 January this year at the age of 85.

2. [3]

   The deceased left a will dated 21 April 2021, which appoints the defendant as sole executrix and leaves the entirety of his estate to the defendant.

3. [4]

   The deceased’s estate is very significant with a value in excess of $30 million, reflecting the fact that over a number of years the deceased and Laura accumulated substantial real estate holdings, primarily in various suburbs of Sydney but also in other parts of New South Wales. The properties were either held by them personally as joint tenants or through companies which they controlled.

4. [5]

   The plaintiff, Thi Quy Le, was born in March 1963. She claims that she and the deceased lived together in a de facto relationship for the last 10 years or so of the deceased’s life.

5. [6]

   It is not in dispute that a central issue in the family provision claim is whether the plaintiff satisfies the eligibility requirements for a claim under Chapter 3 of the Act; in particular, whether at the time of the deceased’s death she was living in a de facto relationship with the deceased (s 57(1)(b)) or alternatively, was wholly or partly dependent on the deceased and a member of his household (s 57(1)(e)).

6. [7]

   I was informed at the hearing of the Notice of Motion that all the evidence for the family provision claim has been served and the only outstanding matters are the obtaining of a hearing date and the filing of updating affidavits in accordance with paragraph 17 of Practice Note SC Eq 7.

Evidence

1. [8]

   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.

2. [9]

   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.

3. [10]

   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.

4. [11]

   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.

5. [12]

   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).

6. [13]

   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.

7. [14]

   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.

8. [15]

   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.

9. [16]

   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.

10. [17]

    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.

11. [18]

    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:

12. [19]

    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:

13. [20]

    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.)

14. [21]

    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:

15. [22]

    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.

16. [23]

    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:

17. [24]

    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.

18. [25]

    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.

19. [26]

    In the briefing memorandum under the heading “Issues to be aware of” Michael Pham as a solicitor employed by AKN states:

20. [27]

    It is not in dispute that the “Asian friend” mentioned in the first line is a reference to the plaintiff.

Relevant principles

1. [28]

   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.

2. [29]

   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.

3. [30]

   In Carindale Country Club, Drummond J drew the following propositions from the authorities:

4. [31]

   In Prince Jefri Bolkiah, Lord Millett said (at 235):

5. [32]

   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):

6. [33]

   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:

7. [34]

   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].

8. [35]

   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

1. [36]

   The defendant submitted that AKN should be removed as solicitors for the plaintiff for two reasons.

2. [37]

   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.

3. [38]

   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:

4. [39]

   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.

5. [40]

   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.

6. [41]

   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.

7. [42]

   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.

8. [43]

   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.

Consideration

1. [44]

   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.

2. [45]

   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. (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. (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. (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)).

3. [46]

   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)).

4. [47]

   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].

5. [48]

   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.

6. [49]

   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.

7. [50]

   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.

8. [51]

   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.

9. [52]

   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.

10. [53]

    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.

11. [54]

    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.

12. [55]

    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)).

13. [56]

    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.

14. [57]

    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.

15. [58]

    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.

16. [59]

    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

1. [60]

   For the above reasons, AKN (and its directors or employed solicitors) should not be restrained from continuing to act for the plaintiff.

2. [61]

   Accordingly, the Notice of Motion is dismissed with costs.