Bergman and Porter

[2007] FamCA 846

FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN [2007] FamCA 846

FAMILY LAW - Procedural Issues – Removal or Disqualification of Solicitor from Acting – Issues of Potential Third Parties

Family Law Act 1975 (Cth)

APPLICANT: MS BERGMAN

RESPONDENT: MR BERGMAN (BY HIS CASE GUARDIAN, MS BERGMAN)

POTENTIAL THIRD PARTY: MR SARINSSON

FILE NUMBER: MLF 5245 of 2003

DATE DELIVERED: 1 AUGUST 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 1 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR VAN DER HAYDEN

SOLICITOR FOR THE APPLICANT: MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT: MS VORWERG

SOLICITOR FOR THE RESPONDENT: CAROLINE COUNSEL FAMILY LAWYERS

COUNSEL FOR THE INTERVENOR: MR ROCKMAN

SOLICITOR FOR THE INTERVENOR: ROCKMAN & ROCKMAN

ORDERS

1. THAT the hearing of all extant applications remain listed for Friday 3 August 2007 at 10.00 a.m.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties, including Mr Rockman.

3. THAT the costs of appearance at Court this day on this mention for all practitioners be reserved for determination on 3 August 2007.

4. IT IS NOTED:

5. A.       THAT Mills Oakley, solicitors, have by letter indicated to the other parties that they have withdrawn from acting for Mr Pritt and that otherwise the Court can expect a firm of family lawyers to appear on his behalf at further hearings.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as BERGMAN & BERGMAN

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5245 of 2003

MS BERGMAN

Applicant

And

MR BERGMAN (BY HIS CASE GUARDIAN, MS BERGMAN)

Respondent

And

MR SARINSSON
Potential Third Party

REASONS FOR JUDGMENT

1. The matter of Bergman and Bergman and others was requested to be mentioned this day prior to the listing of the matter this Friday before me as an interim defended hearing, allocated up to two hours. 

2. For the purposes of this mention, I have treated the wife as applicant, she is represented by Mr Van Der Heyden; Ms Vorwerg represents the appointed case guardian for the husband; and Mr Rockman, solicitor, has announced an appearance on behalf of Mr Sarinsson, a potential respondent.  There is no representation by or on behalf of Mr Pritt, also a potential respondent. The mention has taken the better part of one and a half hours. 

3. I identify that the immediate issues include whether or not leave should be granted to Mr Rockman to file an affidavit in relation to the allegation of a conflict of interest and responding to the application that his firm be excluding from acting for Mr Sarinsson.  That affidavit has now been filed this day, but it is five days out of time, pursuant to the directions for filing.  It has not formally been served but has been provided to other solicitors. 

4. I make no ruling and will reserve that issue to Friday, but, in all reality, there should be time between now and Friday for that four‑page affidavit to be read and understood.  I would doubt that any application to exclude that affidavit would be successful.  However I do not finally hear and determine that issue. 

5. The next matter then is whether or not Mr Rockman and his firm, or any counsel now or previously briefed by Mr Rockman, should be excluded from the case and from the representation of Mr Sarinsson herein.  Again I make no determination, but that is a matter for Friday. 

6. I have had a very preliminary overview of the affidavit of the case guardian filed 11 July 2007, and in particular have been directed to paragraph 16 thereof.  I have no concluded view, and, presumably, like all other matters in this case, it must await argument. 

7. However, if it is that paragraph 16 is the high point of the application for removal or disqualification, there needs to be very real consideration given by the case guardian to her case and instructions.  That is intended as a general and constructive guideline.  Of course the matter is open to argument and consideration in the limited time available on Friday.

8. The next issue involving Mr Sarinsson will be as to his involvement in the case and whether he is named as a respondent or third party and wholly involved in all aspects of the case.  That is a matter that will depend upon the evidence. 

9. Mr Rockman has highlighted that he has acted for and on behalf of Mr Sarinsson and other corporate entities over five years.  He has made the observation to the court that there is in excess of 10,000 pages of documents that might be required to be understood by any substituted solicitor.  I make no comment or finding in that regard.  I will, however, endeavour to resolve on Friday issues of the legal representation of this potential respondent or third party and as to their standing in the case.  That may involve particular questions of jurisdiction and of course factual matters upon which I do not intend to comment at this stage and upon which I await argument.

10. The circumstance of Mr Pritt raises other issues.  I have been handed today a letter dated 31 July 2007 from Mills Oakley Lawyers.  In part that letter says:

    “We are instructed that our client wishes to engage a solicitor who is an accredited specialist of the Law Institute of Victoria and Family Law.  To that end, Mills Oakley is ceasing to act for Mr [Pritt] in the Family Court proceedings”.

11. Formerly, Mills Oakley have not appeared, Mr Pritt is not before the court and is not a party and there is no notice of address for service from that firm of solicitors.  Mr Pritt is the subject of an application, as was Mills Oakley; but seemingly, that application may be now redundant by their withdrawal.  Whether there is any ancillary application arising therefrom, only time will tell, and I make no comment or judgement thereupon. 

12. The immediate issue is as to whether any firm of solicitors represents Mr Pritt on Friday, whether they formally know of the hearing day and what will develop on that day.  I do not know and make no further comment in relation to the applications in that regard.  I will have my court officer formally mark this letter from Mills Oakley as an exhibit in the proceeding this day and to be retained upon the court file.  I will mark it just exhibit "A".

13. Otherwise, there are issues of the ongoing involvement of Mr Pritt as a third party or respondent and they are matters to be determined when and if there is evidence before the court or otherwise the matter is listed and heard. 

14. There remains, as I am advised, an issue arising out of the wife's previous Form 2 application as to the repayment of an National Australia Bank debt of approximately $200,000.  It does seem that aspects of that financial transaction are of and involved with a reserved judgment of Mushin J as to the payment of the National Australia Bank debt post‑September 2006 and matters of and related to security for costs and spousal maintenance.  I am persuaded that those matters should await the outcome of the reserved judgment in that regard and should otherwise be adjourned for hearing at a later date.

15. The solicitor for the wife has requested, for costs reasons, that they be excused from the hearing on Friday as they are not directly involved with the issues as between the husband and case guardian, and, otherwise, the respective and potential third parties and issues of conflict and jurisdiction on those related matters.  I indicate, given the fact that there are two matters listed on Friday and this matter will have no more than two hours, that it would be relatively safe and, in my eyes, appropriate for solicitor but not counsel to be present. 

16. Mr Rockman has sought some guidance as to preparation and briefing of counsel, or, otherwise, his appearance on Friday and ultimately I can give no guarantees.  It is clear that the issues of the affidavit and the question of conflict and whether his firm continues to act, at least on preliminary issues, will be determined.  The wider question of the joining of Mr Sarinsson to the proceedings should ideally be determined, but time and the available facts before the court might make that a forlorn possibility. 

17. I would simply adjourn this case on the basis that all that can be done will be done on Friday, though I would not envisage matters of more than two hours duration being individually heard and determined.  I therefore leave open the right for any further application to be made on Friday morning as to how this matter can and should best be dealt with. 

18. I have generally raised with all practitioners, but in particular those representing the husband and wife, the bigger picture of security for costs.  This case is now into its 10th volume of court files and, seemingly, its future remains open and alive.  The cost of litigation is prodigious, but the parties must understand that.  Nevertheless, the requirement of financial security by one or other on grounds that might be considered is an issue that does need to be at least reflected upon by practitioners.

19. I will have these brief reasons transcribed, but, realistically, they will not be available prior to Friday.  I propose simply to stand over all of these matters to Friday at 10.00 a.m.  The matter will be listed at 10.00 a.m. on Friday as one of two matters before me in the Judicial List interim hearing day.

20. What I propose to do, because it is before me on Friday, is reserve the costs of all parties and others. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date:  13 August 2007