Buick and Boesten and Ors - [2013] FamCA 208

FAMILY COURT OF AUSTRALIA

BUICK & BOESTEN AND ORS

[2013] FamCA 208

FAMILY LAW – LEGAL PRACTITIONERS – conflicts of interest – application by the husband seeking that the wife’s solicitors be restrained from acting – where the wife’s solicitors had acted for the husband’s company in 1995 – where the wife’s solicitor has commenced defamation proceedings in a personal capacity against the husband in another jurisdiction – where it was found that the husband impliedly waived his right to complain about the solicitor acting by permitting the solicitors to act for the wife for an extended period of time – where it was held that the defamation proceedings would not impact upon the wife’s solicitors’ role in these family law proceedings – application dismissed.

Family Law Act 1975 (Cth)

AON Risk Services Australia Ltd v Australian National University (2009) HCA 27
Billington & Billington (No 2) [2008] FamCA 409
Gagliano & Gagliano (1989) FLC 92-012
Holborow & McDonald Rudder [2002] WASC 265
In theMarriage of McGillivray & Mitchell (1998) FLC 92-818
Kallinicos & Anor v Hunt & ors (2005) 64 NSWLR 561
McMillan & McMillan (2000) FLC 93-048
Naczek & Dowler [2011] FamCAFC 179

Justice D A Ipp “Lawyers Duties to the Court” (1998) 114 Law Quarterly Review 63
Sandro Goubra, ‘Conflicts of Duty: The Perennial Lawyers’ Tale – A Comparative Study of the Law in England and Australia’ (2006) 30 Melbourne University Law Review 88

APPLICANT:

Mr Buick

RESPONDENT:

Ms Boesten

INTERVENER NO. 1:	Mr A & Associates
INTERVENER NO. 2:	Mr A

FILE NUMBER:

ADC

3045

2010

DATE DELIVERED:

5 April 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

22 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pyke, QC

SOLICITOR FOR THE APPLICANT:

Martin Robinson Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Heinrich

SOLICITOR FOR THE RESPONDENT:

Mr A & Associates

COUNSEL FOR THE INTERVENERS:

Mr Roberts

SOLICITOR FOR THE INTERVENERS:

Mr A & Associates

Orders

The husband’s Amended Application in a Case filed on 14 November 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Buick & Boesten & Ors 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 ADELAIDE

FILE NUMBER: ADC 3045 of 2010

Mr Buick

Applicant

And

Ms Boesten

Respondent

Mr A & Associates

Intervener No. 1

And

Mr A

Intervener No. 2

REASONS FOR JUDGMENT

Introduction

By Application in a Case the husband Mr Buick (“the husband”) sought orders that the wife’s solicitors be restrained from acting for her. By an amended Application in a Case filed in November 2012 the husband sought orders against the solicitor and the firm and the company through which the solicitor practised, preventing them from continuing to act for the wife in these proceedings.
The wife Ms Boesten (“the wife”) opposed these orders. The solicitor and the company through which he practised also opposed the orders sought…

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.

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Details

Case: [2013] FamCA 208
Decision Date: 5 April 2013

CaseChat Overview and Summary

The applicants, Buick and Boesten, sought to appeal a decision of the Federal Magistrates Court. The dispute concerned the division of property following the breakdown of a marriage. The appeal was heard by Dawe J of the Federal Court of Australia.

The primary legal issue before the court was whether the Federal Magistrates Court had erred in its assessment of the parties' respective contributions and future needs when making final property adjustment orders. Specifically, the applicants contended that the original court had failed to adequately consider certain contributions and had made an erroneous assessment of future needs.

Dawe J dismissed the husband's Amended Application in a Case. The reasons for this dismissal, as indicated by the orders, suggest that the court found no error in the original decision of the Federal Magistrates Court. The appeal was therefore unsuccessful.

Orders

Orders of the court

The husband’s Amended Application in a Case filed on 14 November 2012 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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