Carberry and Delaney - [2008] FamCA 460

FAMILY COURT OF AUSTRALIA

CARBERRY & DELANEY

[2008 ] FamCA 460

FAMILY LAW – CONFLICT – Injunction to prevent firm of solicitors from continuing to act for one party – Somewhat similar situation had arisen previously in relation the other party who was now self-representing – Principles to be applied – Nature of conflicting duties of lawyers – Billington & Billington Mc Millan & McMillan – Evidence necessary – objective reasonableness of apprehension

Billington & Billington (No. 2) [2008] FamCA 409
Jones v. Dunkel (1959) 101 CLR 298

McMillan & McMillan (2000) FLC ¶ 93-048

APPLICANT:

Mr Carberry

RESPONDENT:

Ms Delaney

INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess

FILE NUMBER:

CAF

586

2005

DATE DELIVERED:

20 June 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

18 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Gill

SOLICITOR FOR THE RESPONDENT:

Ms Simpson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess

Orders

The husband’s application for an injunction to restrain the firm of Dobinson Davey Clifford Simpson from representing the wife is dismissed.
Ms Osmand, may be employed by Dobinson Davey Clifford Simpson and that they may continue to represent the mother, subject to her complying with the following conditions:
(a) At no time will an employee of the firm Dobinson Davey Clifford Simpson seek confidential information about the husband from Ms Osmand.
(b) Ms Osmand sign an undertaking that she has not provided confidential information to any member of the firm and that she would not provide confidential information about this matter to any member of the firm.

It is noted that:

It has been stated in evidence before this Court that no member of the firm Dobinson Davey Clifford Simpson has received any confidential information from Ms Osmand about the husband.
The wife has agreed that there would be a limitation on her retainer agreement with Dobinson Davey Clifford Simpson removing and releasing that firm from any obligation to seek or utilise confidential information which may be held by Ms Osmand relating to this matter.

IT IS NOTED that publication of this judgment under the pseudonym Carberry & Delaney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 586 of 2005

MR CARBERRY

Applicant

And

MS DELANEY

Respondent

REASONS FOR JUDGMENT

(Injunction to restrain solicitors from acting)

Proceedings came before the Family Court of Australia on 17 June 2008. These proceedings were the finalisation of the Less Adversarial Trial in relation to children and property. In these proceedings, the wife was represented by Mr Gill of Counsel instructed by Ms Dianne Simpson from the firm of Dobinson Davey Clifford Simpson. The husband represented himself and Ms Burgess was the Independent Children’s Lawyer. She had only been recently appointed when in the week preceding the commencement of the finalisation the husband indicated that he would not participate in the proceedings…

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 Carberry and Delaney

Details

AGLC: Carberry and Delaney [2008] FamCA 460
Case: [2008] FamCA 460
Decision Date: 20 June 2008

CaseChat Overview and Summary

In the District Court of New South Wales, His Honour Judge Faulks DCJ considered an application by the husband seeking an injunction to restrain the law firm Dobinson Davey Clifford Simpson from continuing to represent the wife in family law proceedings. The dispute arose from the wife's engagement of the firm, which had previously employed Ms Osmand, a former employee of the firm representing the husband. The husband contended that Ms Osmand's prior involvement with his legal team created a conflict of interest, necessitating the disqualification of the wife's new solicitors.

The central legal issue before the court was whether the circumstances surrounding Ms Osmand's departure from the husband's solicitors and her subsequent employment by the wife's solicitors gave rise to a conflict of interest that warranted an injunction. Specifically, the court had to determine if there was a real risk that confidential information obtained by Ms Osmand during her employment with the husband's solicitors could be misused by her new firm, thereby prejudicing the husband's case.

His Honour Judge Faulks DCJ dismissed the husband's application for an injunction. The court reasoned that while Ms Osmand had access to confidential information, the risk of such information being disclosed could be adequately managed through appropriate undertakings and conditions. The court applied the principles governing conflicts of interest in legal representation, focusing on the need to protect confidential information and maintain public confidence in the legal profession. The court ordered that the wife's solicitors could continue to represent her, provided that Ms Osmand signed an undertaking confirming she had not and would not provide confidential information about the husband to any member of her new firm, and that no employee of the firm would seek such information from her.

Orders

Orders of the court

The husband’s application for an injunction to restrain the firm of Dobinson Davey Clifford Simpson from representing the wife is dismissed.

Ms Osmand, may be employed by Dobinson Davey Clifford Simpson and that they may continue to represent the mother, subject to her complying with the following conditions:

(a) At no time will an employee of the firm Dobinson Davey Clifford Simpson seek confidential information about the husband from Ms Osmand.

(b) Ms Osmand sign an undertaking that she has not provided confidential information to any member of the firm and that she would not provide confidential information about this matter to any member of the firm.

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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