Burns & Sellers

[2018] FamCA 91

FAMILY COURT OF AUSTRALIA

BURNS & SELLERS [2018] FamCA 91

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain a solicitor from further acting in the proceedings – Where the solicitor is the brother in law of the husband – Where there is a likelihood that the solicitor may be required to give evidence in the proceedings – Where there is an assertion that the solicitor has lost objectivity – Where consideration of applicable principles – Order made restraining the solicitor from acting.

Evidence Act 1995 (Cth) s 36
Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 rr 17.1, 27.1, 27.2

Bosgard & Bosgard [2013]FamCA 308
Grimwade v Meagher & Ors. (1995) 1 VR 446
Holborow and Ors v Macdonald Rudder [2002] WASC 265
Jones v Dunkel (1959) 101 CLR 298
Kallinicos v Hunt [2005] NSWSC 1181
Kennon v Public Trustee of the Australian Capital Territory [2008]FamCA 919
Mitchell v Burrell [2008] NSWSC 772
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501
Westpac Banking Corporation v Newey [2013] NSWSC 533

APPLICANT: Ms Burns

RESPONDENT: Mr Sellers

FILE NUMBER: PAC 5854 of 2016

DATE DELIVERED: 23 February 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 23 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: DD Lawyers

Orders

1. That Mr CC, solicitor, DD Lawyers and any employee or partner in that firm be and is hereby forthwith restrained from further acting for the husband or any other party in these proceedings.

2. That any application for costs of and incidental to this application be made by written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days and thereafter judgment be reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burns & Sellers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5854  of 2016

Ms Burns

Applicant

And

Mr Sellers

Respondent

REASONS FOR JUDGMENT

1. In the context of ongoing parenting and financial proceedings between the applicant wife and respondent husband, the wife on 15 August 2017 filed an Application in a Case seeking orders that would effectively restrain the husband’s present solicitor from acting on his behalf or acting on behalf of any entity over which the husband has control or in which he…