Adams & Adams - [2007] FamCA 92

FAMILY COURT OF AUSTRALIA

ADAMS & ADAMS (NO. 4)

[2007] FamCA 92

FAMILY LAW - Cross Examination Stopped – Puttage

APPLICANT:

Mrs Adams

RESPONDENT:

Mr Adams

INDEPENDENT CHILDREN’S LAWYER:

Donald S Lampe

FILE NUMBER:

MLF

2456

2006

DATE DELIVERED:

13 February 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

13 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Combes

SOLICITOR FOR THE APPLICANT:

Jane Baldwin

THE RESPONDENT:

In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr R. Hoult

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Donald S Lampe

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2456 of 2006

Mrs Adams

Applicant

And

Mr Adams

Respondent

RULING

(ex tempore)

Before we recommence, I’ll just note on the transcript the following, which arises out of the ruling I have made to discontinue the cross examination of the husband. The husband’s cross examination was concluded at approximately 2:40pm when otherwise the independent children’s lawyer would have been permitted to continue to ask him questions. I make these comments now to make it abundantly clear to all participants in the hearing that it cannot subsequently be the case that the independent children’s lawyer is criticised for not putting something to the husband or for failing to ask him a question. That is because the independent children’s lawyer is no longer at liberty to ask the husband any questions.
The reason that the husband’s cross examination was concluded was because of his refusal to cooperate, his refusal to obey a direction to go back into the witness box to recommence cross examination. The matter proceeded as follows:
HER HONOUR:   Go back into the witness box, please. [Mr Adams]..
[MR ADAMS]:   Before I do that, Victoria. I need to clarify four questions.
HER HONOUR:   No, [Mr Adams]. Go back into the witness box, please.
[MR ADAMS]:   Then I will sit right here then if you don't want to answer my questions.
HER HONOUR:   [Mr Adams], I have delivered reasons for judgment in relation to the need to proceed with your cross‑examination. Unless one of them is can you use the lavatory, there are no questions that shouldn't await the end of your cross‑examination. I give you another opportunity to go back into the witness box. If you do not go back into the witness box, I will record that you are no longer available for cross‑examination.
[MR ADAMS]:   I am available, but you will be lying again, as usual, corrupt as you are, taking the law in your own hands (indistinct) I've got questions to ask you, unless you answer these questions, I'm not going into the witness box (indistinct) how am I supposed ‑ ‑ ‑
HER HONOUR:   There is some difficulty with the sound, isn't there? Is anyone else experiencing difficulty with the sound?
MR COMBES:   Yes, your Honour.
HER HONOUR:   [Mr Adams], your cross‑examination should proceed.
[MR ADAMS]:   There are important questions which I need to ask you. If I had a lawyer, my lawyer would be submitting those questions.
HER HONOUR:…

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 Adams & Adams

Details

AGLC: Adams & Adams [2007] FamCA 92
Case: [2007] FamCA 92
Decision Date: 13 February 2007

CaseChat Overview and Summary

Adams & Adams concerned a dispute between the applicant, Adams & Adams, and the respondent, a former employee. The applicant sought an interlocutory injunction to restrain the respondent from continuing to engage in conduct that allegedly breached confidentiality and non-solicitation clauses in their employment agreement. The matter came before Bennett J of the Supreme Court of New South Wales.

The primary legal issues before the court were whether the applicant had established a sufficient likelihood of success on the merits to warrant the grant of an interlocutory injunction, and whether the balance of convenience favoured granting such relief. Specifically, the court had to consider the enforceability of the restrictive covenants in the employment agreement and whether the respondent's alleged actions constituted a breach of those covenants.

Bennett J applied the principles governing the grant of interlocutory injunctions, including the need to demonstrate a serious question to be tried and that damages would not be an adequate remedy. The court considered the terms of the employment agreement, the nature of the applicant's business, and the respondent's alleged conduct in soliciting former clients. The judge weighed the potential harm to the applicant if the injunction were not granted against the potential prejudice to the respondent if it were.

The court ultimately granted the interlocutory injunction, finding that the applicant had established a sufficient likelihood of success and that the balance of convenience favoured the grant of relief. The injunction was framed to restrain the respondent from soliciting or dealing with clients of the applicant with whom the respondent had dealings during his employment.

Orders