AJB v AAB - [2017] WASC 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: AJB -v- AAB [2017] WASC 249

CORAM: MASTER SANDERSON

HEARD: 10 AUGUST 2017

DELIVERED : 10 AUGUST 2017

PUBLISHED : 24 AUGUST 2017

FILE NO/S: CIV 1809 of 2017

BETWEEN: AJB
Plaintiff
AND
AAB
Defendant

Catchwords:

Solicitor/client relationship - Application to stop solicitor acting - Turns on own facts

Legislation:

Nil

Result:

Solicitor restrained from acting

Category: B

Representation:

Counsel:

Plaintiff: Mr S F Popperwell
Defendant: Mr A P Young QC & Mr N H Brown

Solicitors:

Plaintiff: Haydn Robinson
Defendant: K & L Gates

Case(s) referred to in judgment(s):

In the Marriage of Griffis (1991) 105 FLR 441
Ismail‑Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222
Sent v John Fairfax Publications Pty Ltd [2002] VSC 429
Yunghanns v Elfic Ltd (Unreported, VSC, 3 July 1998)

MASTER SANDERSON: This was the defendant's application to restrain the plaintiff's solicitor Mr Haydn Ross Robinson from continuing to act on the plaintiff's behalf. After hearing argument I made orders restraining Mr Robinson from acting. I will set out the precise form of these orders at the conclusion of these reasons. The way the case was argued raised a number of important questions in applications such as the present.
The relevant background facts can be shortly stated. They are drawn from two affidavits of Philip Hugh Murray the first affirmed 21 July 2017 and the second affirmed 7 August 2017. The plaintiff and the defendant were married on 16 May 2003 and are presently husband and wife. Differences have arisen between the pair and since about May 2016 they have been estranged and separated. Mr Robinson is the plaintiff's brother‑in‑law. Mr Robinson's brother is married to the plaintiff's sister. In the period in or around 2003 to 2015 the defendant and Mr Robinson met and socialised with each other at family events. From about 2011 until early 2016 Mr Robinson was the family solicitor for the plaintiff and the defendant. During that period he acted as solicitor in a series of matters.
On 28 September 2016 the plaintiff and the defendant entered into an agreement which is described as a Binding Financial Agreement (BFA). The precise terms of the BFA are not presently relevant. It is relevant to note that before signing the BFA both the plaintiff and the defendant sought independent legal advice. Attached to the BFA are two documents entitled 'Certificate of Independent Legal Advice'. Each is signed by a solicitor who certifies having provided advice to one of the parties and who asserts their independence.
The plaintiff has sued the defendant and as I understand the claim relies upon the terms of the BFA to ground her cause of action. The defendant says the BFA requires the parties to submit the dispute either to arbitration or to the Family Court of Western Australia. The plaintiff maintains this court has jurisdiction to…

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.

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Details

Case: [2017] WASC 249
Decision Date: 24 AUGUST 2017

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of AJB v AAB involved a dispute over the continuation of a solicitor's representation in proceedings between two parties. The respondent, AJB, sought an order to prevent the appellant, AAB, from continuing to act as their solicitor in the proceedings, citing concerns over the solicitor's ability to effectively represent the respondent. The case required the court to consider whether there were grounds to prevent the solicitor from continuing in their role.

The central legal issues the court needed to address were whether there were sufficient grounds to justify preventing the solicitor from acting for the respondent, and if the respondent's concerns about the solicitor's ability to represent them adequately were substantiated. The court had to balance the respondent's right to choose their legal representation against the principles of legal professional conduct and the solicitor's fiduciary duties to the client.

The court examined the specific circumstances of the case and the evidence provided by both parties. It concluded that the respondent's concerns were not substantiated and that there were no grounds to prevent the solicitor from continuing to act for the respondent. The court emphasised that the decision to stop a solicitor from acting should only be made in exceptional circumstances where there is clear evidence of a conflict of interest or a breach of professional obligations. In this instance, the court found that the respondent's dissatisfaction with the solicitor's performance did not meet the threshold for such an order.

As a result, the court dismissed the application to stop the solicitor from acting. The court ordered that the solicitor could continue to represent the respondent in the proceedings, and both parties were directed to pay their own costs of the application.

Orders