JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: COLEY and DANAE [2020] FCWA 169
CORAM: TYSON J
HEARD: 29 JULY 2020
DELIVERED : 16 OCTOBER 2020
FILE NO/S: PTW 1603 of 2014
BETWEEN: MS COLEY
Applicant
AND
MR DANAE
Respondent
Catchwords:
FAMILY LAW – LEGAL PRACTITIONERS - INJUNCTIONS – Where the de facto husband seeks an order that the de facto wife’s solicitors be restrained from acting for her – Where a solicitor who previously conducted work on behalf of the de facto husband has since joined the firm acting for the other party – Where the court finds that the de facto husband has waived his right to object – Where the application is declined – Case turns on its own facts
FAMILY LAW – PRACTICE AND PROCEDURE – Objections to evidence – Where the de facto wife seeks to rely on extracts of correspondence marked without prejudice – Where there is no equivalent s 131(2)(g) of the Evidence Act 1995 (Cth) in the Evidence Act 1906 (WA) – Consideration of whether the correspondence is admissible on the basis that if it is not permitted, the court is likely to be misled – Case turns on its own facts
Legislation:
Evidence Act 1906 (WA)
Evidence Act 1995 (Cth)
Family Court Act 1997 (WA)
Family Law Rules 2004 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Berry SC |
| Respondent | : | Mrs Farmer |
Solicitors:
| Applicant | : | Law Firm A |
| Respondent | : | Law Firm B |
Case(s) referred to in decision(s):
Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2007] NSWSC 350
Billington & Billington (No 2) [2008] FamCA 409
Chancellor & McCoy (2016) FLC 93-752
Cottard v Crichton [2016] FamCA 819
Dalton & Dalton (2017) FLC 93-773
Field v Commissioner for Railways (NSW) (1957) 99 CLR 285
Foley and Foley [2016] FCWA 41
Holborow & Ors v Macdonald Rudder [2002] WASC 265
Kallinicos and Anor v Hunt and Ors [2005] NSWSC 1181
Karapataki & Karapataki [2011] FMCAfam 6
Korean Airlines Co Ltd v Australian Competition and Consumer Commission (No 3) [2008] FCA 701
Mancini v Mancini [1999] NSWSC 800
McGillivray v Mitchell (1998) FLC 92-818
Naczek & Dowler [2011] FamCAFC 179
Osferatu & Osferatu (2015) FLC 93-666
Phe & Leng (2019) FLC 93-887
Pitts v Adney [1961] NSWR 535
Rush & Tompkins Ltd v Greater London Council [1989] AC 1280
Sexton v Barton [2015] FCWA 38
State of Western Australia v Ward and Ors (1997) 145 ALR 512
Unilever Plc v Proctor & Gamble Co [2000] 1 WLR 2436
Walker v Wilsher (1889) 23 QBD 335
Zalfen & Anor v Gates & Anor [2006] WASC 296
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Coley & Danae has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family…
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- AGLC
- COLEY and DANAE [2020] FCWA 169
- Case
- [2020] FCWA 169
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to address included whether the husband's right to object to the wife's solicitors had been waived and whether the application should be declined. Additionally, the court had to consider whether the wife could rely on extracts of correspondence marked without prejudice and whether there was an equivalent to section 131(2)(g) of the relevant legislation. These issues were central to the court's determination of the case and the application.
The court found that the husband had indeed waived his right to object to the wife's solicitors, and therefore, the application was declined. The court noted that the case turned on its own unique facts and circumstances, and the decision was not based on any broader principles or precedents. The court's reasoning was grounded in the specific details of the case, and it found that the husband's rights had been waived, leading to the dismissal of the application. The court's decision was based on a careful consideration of the evidence and the applicable law.
The final orders of the court were that the application to restrain the wife's solicitors from acting on her behalf was dismissed. The court found that the husband had waived his right to object, and therefore, the application was declined. The court also noted that the case turned on its own unique facts and circumstances and did not establish any broader legal principles. The court's decision was based on a thorough analysis of the evidence and the applicable law, and it was satisfied that the orders were appropriate in the circumstances.
Orders
Orders of the court
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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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