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Bosgard & Bosgard

Bosgard & Bosgard

Case [2013] FamCA 308 8 May 2013

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FAMILY COURT OF AUSTRALIA

BOSGARD & BOSGARD

[2013] FamCA 308

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from acting – Solicitors’ overriding duty to the Court – Where the wife objects to the solicitor for the husband from further acting for the husband – Where the solicitor for the husband is in a de facto relationship with the husband – Where the solicitor for the husband is the sole director and sole shareholder of a company which is a creditor of the husband – Whether a solicitor in a de facto relationship with their client can act with objectivity and independence – Whether a solicitor with a pecuniary interest in the outcome of proceedings can act with objectivity and independence

Family Law Act 1975 (Cth)
Revised Professional Conduct and Practice Rules 1995 (NSW)
Australian Solicitors’ Conduct Rules 2011

Bowen v Stott [2004] WASC 94
Giannarelli v Wraith (1988) 165 CLR 543
Grieves and Tully [2011] FamCA 617
Holborow and Ors v Macdonald Rudder [2002] WASC 265

APPLICANT:

Ms Bosgard

RESPONDENT:

Mr Bosgard

FILE NUMBER:

SYC

2964

2012

DATE DELIVERED:

8 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

3 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Walker Kissane & Plummer

COUNSEL FOR THE RESPONDENT:

Mr Gruzman

SOLICITOR FOR THE RESPONDENT:

C Law Firm

Orders

The husband’s solicitor, Ms B of C Law Firm is to forthwith cease acting for the husband in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bosgard and Bosgard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2964 of 2012

Ms Bosgard

Applicant

And

Mr Bosgard

Respondent

REASONS FOR JUDGMENT

The proceedings before the Court are interim proceedings in which the wife by an application contained in her Response to an Application in a Case dated

24 April 2013 seeks an order restraining the husband’s solicitor,

Ms B (“the solicitor”), from further acting for the husband in the proceedings.
The wife objects to the solicitor acting for the husband in the following circumstances as set out in her affidavit filed on 24 April 2013:
a)[The solicitor] is in a relationship with [the husband] and it is my understanding that she has been in a relationship with him since some time in 2012.
b)[The solicitor] is the sole director, sole secretary and sole shareholder of [D Pty Ltd] which is the company that has allegedly lent funds to [the husband] pursuant to various loan agreements. [reference to annexure omitted]
c)[The solicitor] has acted for [the husband] with respect to the lease and other legal matters concerning [the husband’s] businesses and possibly other assets which now form part of the matrimonial pool of assets.
d)I am seeking an order that [D Pty Ltd] be joined as a party 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.

Continue reading Bosgard & Bosgard

Details

AGLC: Bosgard & Bosgard [2013] FamCA 308
Case: [2013] FamCA 308
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Bosgard (the wife) sought an order restraining Mr Bosgard's (the husband) solicitor, Ms B, from continuing to act for him in ongoing interim proceedings. The wife's objection was based on two primary grounds: firstly, that Ms B was in a de facto relationship with the husband, and secondly, that Ms B, through her company D Pty Ltd, was a creditor of the husband, having advanced significant funds to him. The wife also indicated an intention to call Ms B as a witness in the proceedings.

The court was required to determine whether the solicitor's personal relationship with the husband and her company's financial interest in the husband's affairs compromised her ability to act with the necessary objectivity and independence. Specifically, the court considered whether these circumstances created a conflict of interest that would prejudice the administration of justice, particularly in light of the solicitor's overriding duty to the Court. The court also had to assess the potential prejudice to the husband should a change of representation be ordered at this early stage of the proceedings.

The court reasoned that a solicitor owes paramount duties to the Court, which must be fulfilled even if they conflict with duties to a client. Drawing on established principles, the court noted that a solicitor's independent judgment is crucial for the proper administration of justice. The solicitor's de facto relationship with the husband raised concerns about her ability to maintain objectivity and independence, potentially leading her to prioritise her personal relationship over her professional obligations. Furthermore, her position as the sole director and shareholder of a company that was a significant creditor of the husband created a direct pecuniary interest in the outcome of the property proceedings. This financial stake could impede her ability to act impartially and fulfil her duty to the Court, as the extent and repayment of the debt were likely to be contested issues. The court also considered the rules of professional conduct, which prohibit a solicitor from acting in a case where they are likely to be required to give material evidence.

The court ordered that the husband's solicitor, Ms B, must forthwith cease acting for the husband in the proceedings. This decision was based on the conclusion that the solicitor's personal relationship with the husband and her company's creditor status created a conflict of interest that undermined her capacity to act with the required objectivity and independence, thereby potentially prejudicing the administration of justice. The court also noted that the proceedings were at an early stage, and there was no evidence that the husband would suffer significant prejudice from changing his legal representation.

Orders