Clayton & Clayton (No 4) - [2024] FedCFamC2F 1018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clayton & Clayton (No 4) [2024] FedCFamC2F 1018

File number: SYC 8412 of 2019

Judgment of: JUDGE LIOUMIS

Date of judgment: 27 August 2024

Catchwords: FAMILY LAW – COSTS – Where the matter was listed for interim hearing in September 2023 in relation to the mother’s Application for the father’s solicitors at that time to be restrained from acting for the father – Where the mother’s Application for restraint was based on inadvertent disclosure to the father’s solicitors of confidential and privileged communication between the mother and her solicitors – Where findings were made that the father’s solicitors failed to provide disclosure to the mother’s solicitors of the inadvertent disclosure, and failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – Where the mother seeks orders as to her costs in seeking that the father’s former solicitors be restrained from acting – No order as to costs made against the father’s former solicitors – Order made for the father to pay the costs of the mother on an indemnity basis in relation to the mother’s Application for restraint – Costs to be paid as agreed or assessed

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13, 12.15, 12.17

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 31

Cases cited:
Badawi & Badawi (Costs) [2017] FamCAFC 196

Cassidy & Murray (1995) 19 Fam LR 492

Clayton & Clayton [2023] FedCFamC2F 1375

Clayton & Clayton (No 2) [2023] FedCFamC2F 1385

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 119 CLR 118

Collins & Collins (1985) 9 Fam LR 1123

Ex Christmas Islanders Association Inc v The Attorney-General for the Commonwealth (No 2) [2006] FCA 671

Kohan & Kohan (1992) 16 Fam LR 245

Krach & Krach (No 2) [2009] FamCA 886

Munday v Bowman (1997) FLC 92-784

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

Penfold v Penfold (1980) 144 CLR 311

Division: Division 2 Family Law

Number of paragraphs: 83

Date of last submission: 23 February 2024

Place: Sydney

Solicitor for the Applicant: Mr Naddaf, Dimocks Family Lawyers

Solicitor for the Respondent: Ms Middleton, Barkus Doolan Winning
ORDERS

SYC 8412 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CLAYTON

Applicant

AND:
MR CLAYTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE LIOUMIS

DATE OF ORDER:

27 AUGUST 2024

THE COURT ORDERS THAT:
1.The Father pay the costs of the Mother on an indemnity basis in relation to the Application restraining the Father’s solicitors from appearing.
2.The costs in Order 1 be paid as agreed or assessed.
3.The Father pay the costs ordered within 28 days of agreement of the finalisation of the assessment.

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

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 Clayton & Clayton (No 4)

Details

AGLC: Clayton & Clayton (No 4) [2024] FedCFamC2F 1018
Case: [2024] FedCFamC2F 1018
Decision Date: 27 August 2024

CaseChat Overview and Summary

In the matter of Clayton & Clayton (No 4), the Federal Circuit and Family Court of Australia (Division 2) was asked to consider costs following an application by the mother for an order restraining the father's solicitors from acting for him. The mother's application arose from an inadvertent disclosure of privileged communications to the father's solicitors. The court was required to determine the appropriate orders in relation to costs, given the father's solicitors' failure to disclose the inadvertent disclosure and non-compliance with the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW).

The primary legal issue before the court was whether the mother was entitled to an order for costs against the father's former solicitors for their failure to disclose the inadvertent disclosure and non-compliance with the relevant legal professional conduct rules. The court also needed to consider whether the father should bear the costs incurred by the mother in seeking the order for restraint, and if so, on what basis.

In its decision, the court found that the father's former solicitors were not liable for costs as they were no longer acting for the father in the proceedings. However, the court ordered that the father was to pay the mother's costs in relation to her application for restraint on an indemnity basis. The court determined that the costs should be paid as agreed or assessed, with the father required to meet these costs within 28 days of the agreement or finalisation of the assessment. This decision reflects the court's consideration of the failure to disclose and non-compliance with professional conduct rules by the father's former solicitors, and the need to hold the father accountable for the costs incurred by the mother.

Orders

Orders of the court

SYC 8412 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CLAYTON

Applicant

AND:

MR CLAYTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE LIOUMIS

DATE OF ORDER:

27 AUGUST 2024

THE COURT ORDERS THAT:

1. The Father pay the costs of the Mother on an indemnity basis in relation to the Application restraining the Father’s solicitors from appearing.

2. The costs in Order 1 be paid as agreed or assessed.

3. The Father pay the costs ordered within 28 days of agreement of the finalisation of the assessment.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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File number:	SYC 8412 of 2019
Judgment of:	JUDGE LIOUMIS
Date of judgment:	27 August 2024
Catchwords:	FAMILY LAW – COSTS – Where the matter was listed for interim hearing in September 2023 in relation to the mother’s Application for the father’s solicitors at that time to be restrained from acting for the father – Where the mother’s Application for restraint was based on inadvertent disclosure to the father’s solicitors of confidential and privileged communication between the mother and her solicitors – Where findings were made that the father’s solicitors failed to provide disclosure to the mother’s solicitors of the inadvertent disclosure, and failed to comply with rule 31 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – Where the mother seeks orders as to her costs in seeking that the father’s former solicitors be restrained from acting – No order as to costs made against the father’s former solicitors – Order made for the father to pay the costs of the mother on an indemnity basis in relation to the mother’s Application for restraint – Costs to be paid as agreed or assessed
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13, 12.15, 12.17 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 31
Cases cited:	Badawi & Badawi (Costs) [2017] FamCAFC 196 Cassidy & Murray (1995) 19 Fam LR 492 Clayton & Clayton [2023] FedCFamC2F 1375 Clayton & Clayton (No 2) [2023] FedCFamC2F 1385 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 119 CLR 118 Collins & Collins (1985) 9 Fam LR 1123 Ex Christmas Islanders Association Inc v The Attorney-General for the Commonwealth (No 2) [2006] FCA 671 Kohan & Kohan (1992) 16 Fam LR 245 Krach & Krach (No 2) [2009] FamCA 886 Munday v Bowman (1997) FLC 92-784 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Penfold v Penfold (1980) 144 CLR 311
Division:	Division 2 Family Law
Number of paragraphs:	83
Date of last submission:	23 February 2024
Place:	Sydney
Solicitor for the Applicant:	Mr Naddaf, Dimocks Family Lawyers
Solicitor for the Respondent:	Ms Middleton, Barkus Doolan Winning

SYC 8412 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CLAYTON Applicant
AND:	MR CLAYTON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE LIOUMIS
DATE OF ORDER:	27 AUGUST 2024