Bransdon v Davis & Gilbert

The appeal concerned proceedings in the Family Court of Australia, brought by the wife's parents (the appellants) and the wife (the cross-appellant) against the husband (the respondent). The primary dispute revolved around allegations of a conflict of interest concerning the legal representatives acting for the appellants and cross-appellant, and the trial judge's conduct in allowing the trial to proceed. The appellants argued that the trial judge should not have permitted the trial to commence given the prospect of a conflict, and that legal representatives should have been restrained from acting for both parties. The cross-appellant's submissions, in contrast, focused on an assumed actual conflict between the cross-appellant and the appellants.

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.