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Buckley & Buckley

Buckley & Buckley

Case [2022] FedCFamC2F 577 7 April 2022

Jurisdiction

Restraint of Legal Practitioners

Admissibility of Evidence

Hearsay Evidence

Inherent Jurisdiction

Family Law

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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

Dyers v R [2002] HCA 45

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

Westpac Banking Corporation v Newey [2013] NSWSC 533

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…

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 Buckley & Buckley

Details

AGLC: Buckley & Buckley [2022] FedCFamC2F 577
Case: [2022] FedCFamC2F 577
Decision Date

CaseChat Overview and Summary

This case concerns the proceedings brought by the wife against the husband following the breakdown of their marriage, involving allegations and counter-allegations on both sides. The wife has been running the family business since late 2020, while the husband was seeking that the business be transferred to him. The husband's solicitor filed an affidavit in respect of conversations he had with previous employees of the business in relation to the wife, which led the wife to seek that the husband's solicitor be restrained from continuing to act for him. The court had to deal with the discrete issue of the restraint before any substantive issues could be dealt with.

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