FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Buckley & Buckley [2022] FedCFamC2F 577
File number(s): NCC 1238 of 2021 Judgment of: JUDGE BETTS Date of judgment: 7 April 2022 Catchwords: FAMILY LAW – Property proceedings – interim hearing – where the wife has been running the family business since late 2020 – where the husband was seeking that the business be transferred to him – where the husband’s solicitor filed an affidavit in respect of conversations he had with previous employees of the business in relation to the wife – where the wife now seeks that the husband’s solicitor be restrained from continuing to act for him in the proceedings pursuant to rule 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – where the court must deal with the discrete issue of the restraint before any substantive issues. Legislation: Evidence Act 1995
Family Law Act 1975 (Cth), Pt VIII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Revised Professional Conduct and Practice Rules 1995
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Cases cited: Abdou & Ahmed [2018] FamCA 396
Apostilides v R (1984) 154 CLR 563
Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542 at 545
Giannarelli v Wraith (1988) 165 CLR 543
Holborow and Ors v Macdonald Rudder [2002] WASC 265
Kallinicos v Hunt (2005) 64 NSWLR
Kennon & Anor & Public Trustee of the Australian Capital Territory [2008] FamCA 919
Kooky Garments Ltd v Charlton [1994] 1 NZLR 587
Mitchell v Burrell [2008] NSWSC 772
Scallan v Scallan [2001] NSWSC 1078
Swinfen v Lord Chelmsford [1860] 5 H & M 890 at 921; [1860] EngR 838; 157 ER 1436 at 1499
Division: Division 2 Family Law Number of paragraphs: 90 Date of last submission/s: 6 April 2022 Date of hearing: 6 April 2022 Place: Newcastle Solicitor for the Applicant: Byrnes Lawyers Counsel for the Respondent: Mr Bithrey Solicitor for the Respondent: Stevens Family Law & Mediation ORDERS
NCC 1238 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BUCKLEY
Applicant
AND: MS BUCKLEY
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
1.The Wife’s application to restrain Mr Byrnes from continuing to act for the Husband in these proceedings is dismissed.
2.The Husband’s costs of and incidental to 6 April 2022 be reserved.
3.All outstanding interim matters remain listed for hearing on 8 June 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules…
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CaseChat Overview and Summary
The court considered whether Mr Byrnes, the husband’s solicitor, should be restrained from acting for the husband. The court examined the relevant rule 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), which provides that a solicitor may not appear as an advocate for the client in a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court. The court also considered the husband’s affidavit, in which he alleged that the wife was mismanaging the business and mistreating employees, which Mr Byrnes corroborated in his affidavit.
The court concluded that the application to restrain Mr Byrnes was brought simply for the purposes of prolonging or delaying the hearing of the substantive application proper. The court found that the application had no merit and that the wife’s solicitors had been on notice as to Mr Byrnes’ conversations with the employees ever since he sent them his letter of 12 August 2021. The court also found that there was no directly contradictory evidence to that given by Mr Byrnes, and that it would be a very serious step to restrain Mr Byrnes from continuing to represent the husband. The court therefore dismissed the wife’s application to restrain Mr Byrnes from continuing to act for the husband.
The court ordered that the wife’s application to restrain Mr Byrnes from continuing to act for the husband in these proceedings is dismissed. The husband’s costs of and incidental to 6 April 2022 be reserved, and all outstanding interim matters remain listed for hearing on 8 June 2022.
Orders
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Background
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Evidence
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