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
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.
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
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…
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- AGLC
- Burns & Sellers [2018] FamCA 91
- Case
- [2018] FamCA 91
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the solicitor and his firm should be disqualified from acting for the husband due to a conflict of interest.
Foster J applied the principles governing conflicts of interest in legal practice, particularly concerning the duty of confidentiality owed to former clients and the potential for misuse of information. The Court found that the circumstances warranted the disqualification of the solicitor and his firm to maintain the integrity of the legal process and protect the interests of the parties involved.
The Court ordered that the solicitor and his firm be forthwith restrained from further acting for the husband or any other party in these proceedings. Directions were also given for written submissions regarding costs.
Orders
Orders of the court
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.
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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