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COLEY and DANAE

COLEY and DANAE

Case [2020] FCWA 169 16 October 2020

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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…

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 COLEY and DANAE

Details

AGLC: COLEY and DANAE [2020] FCWA 169
Case: [2020] FCWA 169
Decision Date: 16 OCTOBER 2020

CaseChat Overview and Summary

The case of Coley and Danae concerned a dispute between a de facto husband and wife, with the husband seeking an order to prevent the wife's solicitors from acting on her behalf. The husband's application was based on the fact that a solicitor who had previously worked on his case had subsequently joined the firm representing the wife. The application was brought before the Family Court, which was tasked with determining whether the husband's rights had been waived and if the application should be dismissed.

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