FAMILY LAW – SUCCESSIVE CLIENT CONFLICTS – Application of husband to restrain the firm of solicitors retained by the wife from acting for her in the husband’s appeal to the Full Court dismissed – A particular solicitor in the firm retained by the wife had previously been employed by the firm of solicitors retained by the husband and had appeared in a directions hearing on behalf of the husband – Not found that the solicitor would have come into possession of confidential evidence relating to the husband through appearing at such directions hearing – Even if she had, not shown that such information was actually or potentially relevant to the husband’s appeal – Rule 8.03 Family Law Rules 2004 (Cth); Durban Roodepoort Deep Limited v Mark David Reilly and Ors [2004] WASC 269; Qihua Zhoa v Sheng Yu Zhand and Anor [2007] NSWSC 891; Pond & Thurga (No 2) [2007] FamCA 587; Kallinocos & Anor v Hunt & Ors (2005) 64 NSWLR 561 and S & S (17 April 1997, unreported) cited – McMillan & McMillan (2000) FLC 93-048 followed – Distinction between trial and appeal proceedings in this context discussed.
FAMILY LAW – EVIDENCE – FURTHER EVIDENCE – The applications to adduce further evidence in the appeal do not appear to pertain to evidence capable of being in any way dependent upon anything the solicitor may have come to know – The application arises only after substantive judgment and the issue was not raised at trial – There has been no participation of the solicitor since delivery of judgment.
FAMILY LAW – EVIDENCE – FAILURE TO GIVE EVIDENCE – No Jones v Dunkel (1959) 101 CLR 298 inferences arise by the failure of the solicitor to give evidence as there was a reasonable explanation for not doing so – Further, the solicitor did not come into possession of confidential information not shown to be actually or potentially relevant to the husband’s pending appeal to the Full Court.
Allesch v Maunz (2000) 203 CLR 172 Durban Roodepoort Deep Limited v Mark David Reilly and Ors [2004] WASC 269 Qihua Zhoa v Sheng Yu Zhand and Anor [2007] NSWSC 891 Jones v Dunkel (1959) 101 CLR 298 McMillan & McMillan (2000) FLC 93-048 Pond & Thurga (No 2) [2007] FamCA 587 Kallinocos & Anor v Hunt & Ors (2005) 64 NSWLR 561 S & S (17 April 1997, unreported)
APPLICANT:
MR BILLINGTON
RESPONDENT:
MS BILLINGTON
FILE NUMBER:
SYF
3567
of
2005
DATE DELIVERED:
6 June 2008
PLACE DELIVERED:
SYDNEY
JUDGMENT OF:
COLEMAN J
HEARING DATE:
27 May 2008
REPRESENTATION
COUNSEL FOR THE APPLICANT:
Mr Foster
SOLICITOR FOR THE APPLICANT:
Watts McCray Lawyers
COUNSEL FOR THE RESPONDENT:
Mr Richardson SC
SOLICITOR FOR THE RESPONDENT:
Barkus Edwards Doolan
Orders
That the application of the husband filed 7 May 2008 be dismissed.
That the husband pay the wife’s costs of and incidental…
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
AGLC
Billington & Billington (No 2) [2008] FamCA 409
Case
[2008] FamCA 409
Decision Date
CaseChat Overview and Summary
In *Billington & Billington (No 2)*, the husband applied to the Full Court of the Family Court of Australia to restrain the firm of solicitors retained by the wife from acting for her in his appeal. The basis of the application was that a particular solicitor within the wife's firm had previously been employed by the husband's solicitors and had appeared at a directions hearing on behalf of the husband.
The primary legal issue before the court was whether the wife's solicitors should be restrained from acting for her due to a potential conflict of interest arising from the solicitor's prior employment. This involved considering whether the solicitor had come into possession of confidential information relevant to the husband's appeal and, if so, whether that information was actually or potentially relevant to the appeal proceedings. The court also considered applications to adduce further evidence on appeal and the implications of the solicitor's failure to give evidence.
Coleman J dismissed the husband's application, finding that it had not been established that the solicitor had come into possession of confidential evidence relating to the husband through her appearance at the directions hearing. Even if she had, the court held that it was not demonstrated that such information was actually or potentially relevant to the husband's appeal. The court distinguished between trial and appeal proceedings in this context and noted that the applications to adduce further evidence did not appear to be dependent on any knowledge the solicitor might have acquired. Furthermore, no adverse inferences could be drawn from the solicitor's failure to give evidence, as there was a reasonable explanation for her not doing so.
Consequently, the court ordered that the husband's application be dismissed and that the husband pay the wife's costs of and incidental to the application.
Orders
Orders of the court
1.
That the application of the husband filed 7 May 2008 be dismissed.
2.
That the husband pay the wife’s costs of and incidental to such application as agreed or assessed on a party and party basis.