Camp and Pace - [2009] FMCAfam 1460

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAMP & PACE

[2009] FMCAfam 1460

FAMILY LAW – Practice & procedure – solicitor – conflict of interest – potential pecuniary interest in matrimonial property proceedings – proposal for solicitor to acquire for no consideration matrimonial property – interests due administration of justice – solicitor restrained from continuing to act.

Legal Profession (Solicitors) Rule 2007, rr.9, 13.4

McMillan & McMillan [2000] FamCA 1046
Chapman v Rogers ex parte Chapman [1984] 1Qd R 54
Tsutomo Yamaji and Caysand; Caysand [1993] FCA 253
Lester & Ors v Lester Ors [2007] SASC 298
Pearlbran & Anor v Win Mezz No. 19 Pty Ltd & Anor [2009] QSC 292
Watkins v Christian [2009] QCA 101
Mitchell v Burrell [2008] NSWSC 772

Lawyers' Professional Responsibility Fourth Edition by Gino Dal Pont, Lawbook Company of Australia

Applicant:

MS CAMP

Respondent:

MR PACE

File Number:

BRC 6284 of 2009

Judgment of:

Demack FM

Hearing date:

10 December 2009

Date of Last Submission:

10 December 2009

Delivered at:

Brisbane

Delivered on:

16 December 2009

REPRESENTATION

Counsel for the Applicant:

Ms Carew

Solicitors for the Applicant:

Cassandra Pullos Lawyers

Counsel for the Respondent:

Mr L

Solicitors for the Respondent:

[J] & Co Lawyers

ORDERS

Mr J and [J] & Co Lawyers cease to act as the solicitors for the respondent husband herein, and that [J] and Co Lawyers take steps to withdraw as solicitors on the record within fourteen (14) days of today.
That the matter be set down for final hearing for not more than three (3) days commencing at 10.00am on 26 May 2010 in the Federal Magistrates Court of Australia at Brisbane.
That the applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 14 April 2010.
That each party file and serve on each other party no later than 4.00pm on 28 April 2010:
(a)one affidavit setting out any further evidence in chief; and
(b)one affidavit of each witness intended to be relied upon at trial.
That each party file and serve any affidavit strictly in reply only no later than 4.00pm on 5 May 2010.
That each party file and serve on each other party no later than 4.00pm on 20 May 2010, a case outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a list of affidavits and applications and/or responses (where appropriate) intended to be relied upon at trial;
(d)a list of assets and liabilities that make up the property pool; and
(e)a statement of evidence which they say supports the principles contained in section 79(4) and 75(2) of the Family Law Act 1975.
That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
That wife’s costs be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Camp & Pace is approved pursuant to s.121(9)(g) of the Family Law Act

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 Camp and Pace

Details

AGLC: Camp and Pace [2009] FMCAfam 1460
Case: [2009] FMCAfam 1460
Decision Date: 16 December 2009

CaseChat Overview and Summary

The case of Camp and Pace involved a dispute between Mr Camp and his former wife, Mrs Pace, concerning their financial arrangements following their divorce. The matter was brought before the Federal Magistrates Court of Australia, where the primary issue was the management and distribution of the couple's assets. The court had to address the validity of the existing financial agreement between the parties, and the appropriateness of the current legal representation for Mr Camp.

The court had to determine whether Mr Camp's solicitors, J and [J] & Co Lawyers, were adequately representing his interests, and whether there was a need to change legal representation. Additionally, the court needed to establish a timeline and procedural framework for the upcoming final hearing, including the preparation and submission of evidence, and the identification of the assets to be considered in the property pool. The court also needed to ensure that both parties complied with the stipulated deadlines for filing and serving affidavits and other documentation.

The court found that Mr Camp's solicitors were not adequately representing his interests and ordered that J and [J] & Co Lawyers cease to act as his solicitors, with a requirement to withdraw within a specified period. The court set a clear timeline for the final hearing, mandated the filing and serving of affidavits and evidence, and outlined the contents of the case outline to be submitted by each party. The court emphasised that any material not filed and served according to these directions could not be relied upon without the court's leave. The wife's costs were reserved for later determination.

The court issued several orders to manage the proceedings, including the cessation of legal representation for Mr Camp by J and [J] & Co Lawyers, the setting of a final hearing date, and the imposition of strict deadlines for the submission of evidence and documentation. The court also reserved the wife's costs for future consideration.

Orders

Orders of the court

Mr J and [J] & Co Lawyers cease to act as the solicitors for the respondent husband herein, and that [J] and Co Lawyers take steps to withdraw as solicitors on the record within fourteen (14) days of today.

That the matter be set down for final hearing for not more than three (3) days commencing at 10.00am on 26 May 2010 in the Federal Magistrates Court of Australia at Brisbane.

That the applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 14 April 2010.

That each party file and serve on each other party no later than 4.00pm on 28 April 2010:

(a) one affidavit setting out any further evidence in chief; and

(b) one affidavit of each witness intended to be relied upon at trial.

That each party file and serve any affidavit strictly in reply only no later than 4.00pm on 5 May 2010.

That each party file and serve on each other party no later than 4.00pm on 20 May 2010, a case outline setting out:

(a) a precise minute of the final orders sought;

(b) a relevant chronology;

(d) a list of assets and liabilities that make up the property pool; and

(e) a statement of evidence which they say supports the principles contained in section 79(4) and 75(2) of the Family Law Act 1975.

That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.

That wife’s costs be reserved.

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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