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Abdou & Ahmed

Abdou & Ahmed

Case [2018] FamCA 396 1 June 2018

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FAMILY COURT OF AUSTRALIA

ABDOU & AHMED

[2018] FamCA 396

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from further acting in the proceedings – Where the husband’s solicitors are family friends of the husband and wife – Where there is no evidence to suggest the husband’s solicitors have breached their legal or ethical duties – Where the circumstances are not sufficient to disqualify the husband’s solicitors from acting – Wife’s application dismissed.

Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 rr 17, 27

Bosgard & Bosgard [2013]FamCA 308
Grimwade v Meagher & Ors (1995) 1 VR 446
Holborow and Ors v Macdonald Rudder [2002] WASC 265
Kallinicos v Hunt [2005] NSWSC 1181
Kennon v Public Trustee of the Australian Capital Territory [2008] FamCA 919
Mitchell v Burrell [2008] NSWSC 772
Osferatu & Osferatu [2015] FamCAFC 177
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501
Westpac Banking Corporation v Newey [2013] NSWSC 533

APPLICANT:

Ms Abdou

RESPONDENT:

Mr Ahmed

INDEPENDENT CHILDREN’S LAWYER:

Mr Ng

FILE NUMBER:

PAC

5203

2017

DATE DELIVERED:

1 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

21 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Wong
SOLICITOR FOR THE APPLICANT:	Veritas Law Firm

COUNSEL FOR THE RESPONDENT:

Ms De Vere

SOLICITOR FOR THE RESPONDENT:

Withstand Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ng of Adams & Partners

Orders

That the Wife’s application to restrain the Partners of Withstand Lawyers from acting for the husband in these proceedings be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abdou & Ahmed has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5203 of 2017

Ms Abdou

Applicant

And

Mr Ahmed

Respondent

REASONS FOR JUDGMENT

On 21 March 2018 various interlocutory applications were listed for interim hearing in this matter. Various orders were made by consent with the outstanding issue being an order sought by the wife to restrain the husband’s solicitor from further acting in the proceedings.
It was ordered that the matter proceed by way of written submissions as to the discrete issue for determination.

Context

The wife is presently aged 41 and the husband is aged 47.
The parties married in 2001. They separated under the one roof in mid-August 2017 and on 24 September 2017 the husband vacated the former matrimonial home at D Street, Suburb H and moved to his parents’ home nearby.
The wife commenced proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdou & Ahmed

Details

AGLC: Abdou & Ahmed [2018] FamCA 396
Case: [2018] FamCA 396
Decision Date: 1 June 2018

CaseChat Overview and Summary

In the matter of *Abdou & Ahmed*, Foster J of the Federal Circuit and Family Court of Australia considered an application by the Wife seeking to restrain the Partners of Withstand Lawyers from acting for the Husband in ongoing proceedings. The core of the dispute concerned allegations of a conflict of interest arising from the law firm's prior representation of the Wife.

The primary legal issue before the Court was whether the Wife had established a sufficient conflict of interest to warrant disqualifying the Husband's legal representatives. This required the Court to assess whether the former and current retainers were so closely related that the firm, acting for the Husband, would be likely to misuse confidential information obtained during its previous representation of the Wife, or whether there was a real sensible apprehension of a breach of confidence or loyalty.

Foster J dismissed the Wife's application, finding that the Wife had not discharged the onus of demonstrating a conflict of interest. The Court applied the principles governing conflicts of interest in legal practice, considering the nature of the previous retainer and the current retainer. His Honour concluded that the matters on which Withstand Lawyers had previously acted for the Wife were distinct from the current proceedings, and therefore, there was no real sensible apprehension that confidential information would be misused or that the firm would act in breach of its duty to the Wife. Consequently, the Wife's application to restrain the Partners of Withstand Lawyers from acting for the Husband was dismissed.

Orders

Orders of the court

That the Wife’s application to restrain the Partners of Withstand Lawyers from acting for the husband in these proceedings be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Abdou & Ahmed [2018] FamCA 396

Most Recent Citation

Evert & Pascal [2021] FedCFamC2F 291

Cases citing this decision · 3 of 3 shown

Buckley & Buckley
[2022] FedCFamC2F 577 Para 22

…In Abdou & Ahmed [2018] FamCA 396, a decision referred to by Mr Byrnes at some length, his Honour Foster J very helpfully reviewed the relevant authorities, particularly in paragraphs 18 through to 32 of his Honour’s judgment.…
Evert & Pascal
[2021] FedCFamC2F 291 Para 16

…sel reinforce and clarify the operation of the Conduct Rules. As is clear from decisions such as Wong & Shen & Ors [2016] FCCA 1443 and Abdou & Ahmed [2018] FamCA 396, the Court’s jurisdiction to restrain a solicitor from acting depends upon an assessment of the conduct or circumstances that are alleged.…
Ahmed and Abdou
[2018] FamCA 648 Para 2

…These reasons for judgement assume familiarity with reasons for judgement delivered on 1 June 2018 in respect to that application: Abdou & Ahmed [2018] FamCA 396.…

View all 3 citing cases →

Cases cited in this decision · 12 of 12 shown

Osferatu & Osferatu
[2015] FamCAFC 177 Para 10

…In Osferatu & Osferatu [2015] FamCAFC 177 Full Court succinctly summarised the position as follows: 20.There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. They are: breach of confidence, breach of fiduciary duty and the inherent…
Westpac Banking Corporation v Newey
[2013] NSWSC 533 Para 8

…The caution to be exercised was referred to by Pembroke J in Westpac Banking Corporation v Newey [2013] NSWSC 533 at [22] said: The law and lawyers would be held in disrepute if judges acceded too readily and too often to such applications. Before doing so, there must be some realistic sense of impropriety about th…
Kennon and Anor and Public Trustee of the Australian Capital Territory
[2008] FamCA 919 Para 7

…On this issue in Kennon v Public Trustee of the Australian Capital Territory [2008] FamCA 919 Faulks J said: 24.On the other hand, if the solicitor had been a direct witness relating to a primary matter relating to the establishment of the issues in dispute before the Court, it would be a matter of some concern in…
Mitchell v Burrell
[2008] NSWSC 772 Para 6

…In Mitchell v Burrell [2008] NSWSC 772 Brereton J observed, after finding that the solicitor may be a witness and that his evidence might 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 restra…
Kallinicos v Hunt
[2005] NSWSC 1181 Para 5

…Later in Kallinicos v Hunt [2005] NSWSC 1181 the principles involved in the application to restrain the solicitor from acting for the opposing party were discussed at length by Brereton J and were, relevantly, summarised by him at [76]: •The court always has inherent jurisdiction to restrain solicitors from acting i…
Holborow v MacDonald Rudder
[2002] WASC 265 Para 3

…In Holborow and Ors v Macdonald Rudder [2002] WASC 265 at [27] his Honour EM Heenan J said: 27.Concurrently with the obligations to the client will be the practitioner’s obligations to the court which have been described as an “overriding duty” - per Mason J [sic] in Giannarelli v Wraith (1988) 165 CLR 543 at 555,…
Spincode Pty Ltd v Look Software Pty Ltd
[2001] VSCA 248 Para 2

…In Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 at [52]-[58], Brooking JA identified three possible grounds for restraining a solicitor or counsel from acting for a particular party to litigation: a)the danger of misuse of confidential information; b)a breach of a fiduciary duty of loyalty not to act a…
Scallan v Scallan
[2001] NSWSC 1078 Para 6

…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 a…
Giannarelli v Wraith
[1988] HCA 52 Para 3

…ll be the practitioner’s obligations to the court which have been described as an “overriding duty” - per Mason J [sic] in Giannarelli v Wraith (1988) 165 CLR 543 at 555, where the Chief Justice cited a passage from the judgement of Pollock CB in Swinfen v Lord Chelmsford (1860) 5 H & M 890 at 921; [1860] EngR 838; 1…
157 ER 1436
157 ER 1436 Para 3

…ere the Chief Justice cited a passage from the judgement of Pollock CB in Swinfen v Lord Chelmsford (1860) 5 H & M 890 at 921; [1860] EngR 838; 157 ER 1436 at 1499. Mason CJ went on to expound the nature of counsel’s obligation to the court in a manner which is germane in the present case, not only because it…
[1994] 1 NZLR 587
[1994] 1 NZLR 587 Para 6

…ction "additional to his interest in doing his best for a client to have success in an action". Similarly, in Kooky Garments Ltd v Charlton [1994] 1 NZLR 587, Thomas J recognised the distinction between the situation where solicitors were, in effect, called on to defend their own actions or advice on the one hand –…
Swinfen v Lord Chelmsford
(1860) 157 ER 1436 Para 3

…er Mason J [sic] in Giannarelli v Wraith (1988) 165 CLR 543 at 555, where the Chief Justice cited a passage from the judgement of Pollock CB in Swinfen v Lord Chelmsford (1860) 5 H & M 890 at 921; [1860] EngR 838; 157 ER 1436 at 1499. Mason CJ went on to expound the nature of counsel’s obligation to the court in a manner which is…

Legislation cited in this decision · 3

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
17, 27 3 mentions (from Para 1)
Family Law Act 1975 (Cth)
1 mention
Family Law Rules 2004 (Cth)
1 mention