FAMILY COURT OF AUSTRALIA
| BRANSDON AND DAVIS & GILBERT | [2007] FamCA 579 |
| FAMILY LAW - APPEAL – CONFLICT OF INTEREST - Whether proceedings should not have been commenced by trial Judge when there was a prospect of conflict of interest – Whether legal representatives then appearing for the appellants and the cross appellant should have been restrained from further acting for both parties in the proceedings – Trial Judge specifically advised by counsel for the appellants and cross appellant there was no conflict - No application made that trial be aborted or that counsel or solicitors for the appellants and cross appellant should be restrained from further acting in the proceedings –Trial Judge, having raised issue of prospective conflict was not in the circumstances obliged to do more – Adopt decision in Holborow v Rudder [2002] WASC 265 that the court would only restrain the appearance of a legal representative because of his or her duty to the court in a clear case – This was not a “clear” case – At the commencement of the trial the prospect of conflict of interest was not such that it required trial Judge to herself abort the trial and restrain appellants’ and cross appellant’s legal representatives from further acting in the proceedings - Where evidence conflict arose resulting in counsel’s withdrawal from proceedings on the third day - Whether, to afford procedural fairness to the appellants and the cross appellant after withdrawal of counsel, trial Judge should have stood matter down to enable legal advice to be sought – In the circumstances no prejudice by reason of lack of procedural fairness to the appellants or the cross appellant by trial Judge continuing the matter. Appeal dismissed. FAMILY LAW - CROSS APPEAL – In contrast to appellant’s submissions, cross appellant’s submissions not directed to a prospective conflict but assumed an actual conflict between cross appellant and appellants – Do not accept there was an actual property conflict established prior to the commencement of the hearing or that the hearing, until the evidence conflict emerged, was permeated by a property conflict - Whether trial Judge erred in assessment of contributions – Whether trial Judge failed to provide adequate reasons – Trial Judge’s findings open on the evidence and within the ambit of discretion. Cross appeal dismissed. FAMILY LAW - COSTS – COSTS OF APPEAL – Appellants wholly unsuccessful – Appellants to pay two thirds of respondent’s costs – Wife unsuccessful - Wife to pay one third of respondent’s costs. |
| Family Law Act 1975 (Cth), s 117(2A) |
Giannarelli v Wraith (1988) 165 CLR 543
Gosper and Gosper (1987) FLC 91-818
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Holborow v Rudder [2002] WASC 265
House v The King (1936) 55 CLR 499
Johnson v Johnson (1997) FLC 92-764
Kessey and Kessey (1994) FLC 92-495
Nangus Pty Ltd and Anor v Charles Donovan Pty Ltd (In liquidation) and Anor [1989] VR 184
Oceanic Life Ltd v HIH…
Continue reading Bransdon v Davis & Gilbert
Sign in free to access the full text
- AGLC
- Bransdon v Davis & Gilbert [2007] FamCA 579
- Case
- [2007] FamCA 579
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the trial judge erred in allowing the trial to proceed when there was a potential conflict of interest, and whether she failed to afford procedural fairness to the appellants and cross-appellant after their counsel withdrew due to an actual conflict. Further issues included whether the trial judge erred in her assessment of contributions and in failing to provide adequate reasons for her decision. The appellants also raised numerous grounds concerning the trial judge's conduct towards them as unrepresented litigants after their counsel's withdrawal, including failing to offer opportunities to seek legal advice, abort the trial, or obtain necessary documentation.
The Full Court dismissed the appeal and cross-appeal. Regarding the conflict of interest, the court adopted the principle from *Holborow v Rudder* [2002] WASC 265, holding that a court would only restrain legal representatives in a clear case of conflict. The court found that at the commencement of the trial, the prospect of conflict was not so significant as to oblige the trial judge to abort the proceedings or restrain counsel. The court also found no prejudice to the appellants or cross-appellant by reason of a lack of procedural fairness when the trial judge continued the matter after counsel's withdrawal. The court did not accept that an actual property conflict was established prior to the hearing or that the hearing was permeated by such a conflict until the evidence emerged. The trial judge's findings on contributions were deemed open on the evidence and within her discretion.
The appellants were unsuccessful on appeal and were ordered to pay two-thirds of the respondent's costs. The wife, as cross-appellant, was also unsuccessful and was ordered to pay one-third of the respondent's costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The grounds of appeal ultimately relied on by the wife’s parents are as follows:1.The learned trial Judge erred in allowing the trial to proceed when there was a clear conflict on the evidence tendered to the Court which would prohibit Counsel appearing for the First Respondent / Wife [the cross appellant] and her parents (“the Second Respondents”) [the appellants]. 2.The learned trial Judge erred in not inviting the Second Respondents to seek legal advice before proceeding. 3.The learned trial Judge erred in that she failed to provide the Second Respondents with the opportunity to obtain legal advice in respect of the following issues:(a)their options arising from the loss of legal representation as to the future conduct of the trial which options inter alia would have been:(i)an adjournment of the proceedings;(ii)an application to seek leave for further cross examination of the Applicant;(iii)the presentation of further evidence to the Court by [the wife’s father];(iv)further cross examination of [the wife’s father] by the First Respondent’s new Counsel;(v)the taking of instructions of [the wife’s mother] and her cross examination by the First Respondent’s Counsel.(b)an application to abort the trial.(c)an application for the provision of a transcript prior to the case proceeding to enable new practitioners to form a belief as to what options they should consider before proceeding with the trial.(d)an application for the provision of inspection of exhibits prior to the resumption of the trial by new practitioners. 4.The learned trial Judge erred in that she failed to comply with her obligations to unrepresented litigants in the conduct of the trial. 5.The learned trial Judge erred in accepting any indications as to the attitude of the Second Respondents from their Counsel for them as to the further conduct of the case when he had announced that he was conflicted. 6.The learned trial Judge erred in acting upon submissions of their former Counsel when he had ascertained he was conflicted and the trial Judge advised the Second Respondents that they could not and should not act on the advice of their former Counsel. 7.The learned trial Judge failed to provide a fair trial by proceeding and expecting that the Second Respondents would engage legal advisors to prepare written submissions in respect of a case where they had not appeared and did not have access to exhibits. 8.The learned trial Judge erred and failed to provide a fair trial upon receiving written submissions from the Second Respondents which addressed only the issue of the aborting of the trial failed after ruling upon same to invite the Second Respondents to make submissions on the merits of the case. 9.The learned trial Judge erred in allowing the Second Respondents to proceed unrepresented when she knew or ought to have known that their capacity to engage in a contested trial was hopelessly compromised through the fault of their former legal practitioners. 10.The learned trial Judge erred in that she failed to invite [the wife’s father] before the close of his case the opportunity to produce further taxation returns which opportunity the Judge foreshadowed would be provided. 11.The learned trial Judge erred in not providing or explaining to [the wife’s father] his entitlement to ask questions of [the wife’s mother]. 12.The learned trial Judge erred in depriving [the wife’s father] the opportunity of Counsel representing him to engage in appropriate re-examination and presentation of discoverable documents to the Court. ...14.The learned trial Judge erred in calculating the Husband’s contributions to the construction of the home on the property and further erred in respect of same by not adjusting the Husband’s contributions in view of the concessions made by the Husband in cross-examination. 15.The learned trial Judge erred in accepting the extent of the Husband’s contributions when there was no corroboration thereof from any written source. 16.The learned trial Judge erred in not accepting the evidence of [the wife’s father] as opposed to the Husband who engaged a licensed builder in respect to building costs and who was experienced at developing residential buildings when the Husband had no such experience and failed to produce any appropriate documentation to support his claims of costings. (original emphasis)