BERYL and BERYL - [2020] FCWA 116

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BERYL and BERYL [2020] FCWA 116
CORAM: SUTHERLAND CJ
HEARD: 29 JUNE 2020
DELIVERED : 8 JULY 2020
FILE NO/S: PTW 4145 of 2019
BETWEEN: MR BERYL
Applicant
AND
MRS BERYL
Respondent

Catchwords:

FAMILY LAW - LEGAL PRACTITIONERS - Where the applicant seeks an order that the respondent's solicitors be restrained from acting for her - Whether solicitor who has previously chaired a mediation between the parties was in possession of confidential information that is or may be relevant to the matter before the Court - Inherent jurisdiction of the Court over its officers and to control its processes - Application dismissed - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Legal Profession Act 2008 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Berry SC
Respondent	:	Mr Penglis SC & Ms Nadilo

Solicitors:

Applicant	:	Law Firm 1
Respondent	:	Law Firm 2

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

Billington & Billington (No 2) [2008] FamCA 409
Kallinicos v Hunt (2005) 64 NSWLR 561
Mancini v Mancini [1999] NSWSC 800
McMillan and McMillan (2000) FLC 93-048
Osferatu & Osferatu (2015) FLC 93-666
Prince Jefri Bolkiah v KPMG (A Firm) [1992] 2 AC 222
Worth Recycling Pty Ltd v Waste Recycling and Processing Pty Ltd [2009] NSWCA 354

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

SUTHERLAND CJ:

Introduction

1[Mr Beryl] (the “husband”) and [Mrs Beryl] (the “wife”) are involved in parenting and financial proceedings in this Court. On 2 June 2020, the husband applied[1] for an injunction restraining the wife’s lawyers, [Law Firm 2], from further acting for her in the proceedings. The wife opposes[2] that application. The application arises in what can only be described as very unusual circumstances.

What are the relevant background facts?

[1] Husband’s Form 2 application in a case filed 2 June 2020, supported by the husband’s affidavit filed 28 May 2020.

[2] Wife’s Form 2A response filed 10 June 2020; supported by the wife’s affidavit filed on 10 June 2020, the affidavit of X filed on 10 June 2020, the affidavit of Y filed on 10 June 2020, and the affidavit of X filed on 26 June 2020.

2The husband commenced family law proceedings in June 2019. He has at all times been represented by [Law Firm 1].
3In September 2019, the wife instructed [Z] of Law Firm 2 to act on her behalf in relation to the family law proceedings, family violence restraining order proceedings and a child support dispute. By that stage, the wife had already been represented by two other family law firms.
4At the time [they] commenced acting for the…

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 BERYL and BERYL

Details

AGLC: Beryl and Beryl [2020] FCWA 116
Case: [2020] FCWA 116
Decision Date: 8 JULY 2020

CaseChat Overview and Summary

Beryl and Beryl involved a dispute between two individuals with the same surname, both of whom sought legal representation in a family law matter. The applicant sought an order that the respondent's solicitors be restrained from acting for her, citing concerns about potential confidentiality breaches due to one of the respondent's solicitors having previously chaired a mediation between the parties. This raised the question of whether this solicitor was in possession of confidential information relevant to the matter before the Court. The case raised issues concerning the inherent jurisdiction of the Court over its officers and the Court's ability to control its processes.

The court had to decide whether the respondent's solicitors were in possession of confidential information that might be relevant to the case. This involved considering whether the inherent jurisdiction of the Court extended to controlling its processes and officers. The court found that the case turned on its own facts and circumstances, and therefore, the application was dismissed. The court held that the applicant had not demonstrated that the respondent's solicitors were in possession of confidential information relevant to the case. Additionally, the court found that the inherent jurisdiction of the Court did not extend to restraining solicitors from acting for a party in a case.

The court's decision was based on the specific facts and circumstances of the case, and the applicant's failure to demonstrate that the respondent's solicitors were in possession of confidential information relevant to the case. The court held that the inherent jurisdiction of the Court did not extend to restraining solicitors from acting for a party in a case. Therefore, the application was dismissed, and the respondent's solicitors were not restrained from acting for the respondent. This decision highlights the importance of considering the specific facts and circumstances of each case when determining whether to restrain solicitors from acting for a party in a case.

Orders