Crittenden and Collins

Case [2017] FamCA 716


FAMILY COURT OF AUSTRALIA

CRITTENDEN & COLLINS [2017] FamCA 716
FAMILY LAW – INJUNCTION – Legal Professional Privilege – Where the wife sought that the husband’s solicitors be restrained from acting for the husband – Where documents were obtained by the husband’s solicitors which were confidential between the wife and her solicitors – Where there is no issue that the documents in question are on their face privileged – Where there is no doubt the husband knew the documents were confidential before providing them to his solicitors – Court ordered that the husband be restrained from instructing the current solicitors during the currency of proceedings – Court ordered that the husband destroy all copies of the documents forthwith and be restrained from using information derived therefrom.
Australian Solicitors’ Conduct Rules 2012
Family Law Act 1975 (Cth)
Australian Commercial Research & Development Ltd v Hampson [1991] 1 Qd R 508
Baker v Campbell (1983) 153 CLR 52
Celanese Canada v Murray Demolition Corp [2006] SCC 36
Dalton & Dalton [2017] FamCAFC 78
Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; 213 CLR 543
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1
Gillies v Dibbets [2001] QSC 459
GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123
H Stanke & Sons Pty Ltd v Von Stanke. Omeara & Ors [2006] SASC 308
Ismail-Zai v Western Australia (2007) 34 WAR 379
Kallinicos v Hunt (2005) 64 NSWLR 561
Kingston v State Fire Commission (1998) 8 Tas R 152
Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357
McMillan & McMillan (2000) FLC 93-048
Mills v Day Dawn Block Gold Mining Company Limited (1882) 1 QLJ 62
Newman v Phillips Fox (1999) 21 WAR 309
Pott v Jones Mitchell [2004] 2 Qd R 298
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222
Zalfen v Gates [2006] WASC 296
APPLICANT: Ms Crittenden
RESPONDENT: Mr Collins
FILE NUMBER: BRC 3770 of 2014
DATE DELIVERED: 15 September 2017
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Carew J
HEARING DATE: 21 August and 31 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sullivan QC
SOLICITOR FOR THE APPLICANT: Keating Lehn Solicitors
COUNSEL FOR THE RESPONDENT: Mr Williams
SOLICITOR FOR THE RESPONDENT: Barry.Nilsson Lawyers

Orders

  1. The husband is restrained and an injunction hereby issues restraining the husband from instructing or continuing to instruct Barry.Nilsson Lawyers during the currency of proceedings in Family Court of Australia file number BRC 3770 of 2014.

  2. The husband is restrained and an injunction hereby issues restraining the husband from:

    (a)Discussing or communicating to any other person the contents of any of the documents referred to in the husband’s affidavit sworn 17 August 2017 at paragraphs 15(b) to 15(d) (herein referred to as “the documents”); and

    (b)Making any use for the purpose of the said proceedings…

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Crittenden and Collins [2017] FamCA 716
Case
[2017] FamCA 716
Decision Date

CaseChat Overview and Summary

In *Crittenden and Collins*, heard by Carew J of the Family Court of Australia, the wife sought interlocutory relief against the husband. The dispute concerned the husband's alleged misuse of confidential documents and his continued engagement of a particular law firm in ongoing Family Court proceedings.

The primary legal issues before the court were whether the husband should be restrained from continuing to instruct Barry.Nilsson Lawyers, and whether he should be prohibited from discussing, communicating, or making use of information contained within specific documents referred to in his affidavit, and if so, whether those documents should be destroyed. The court was also required to consider the appropriate orders regarding the costs of the application.

Carew J granted the injunctions sought by the wife. The reasoning involved the application of principles relating to the preservation of confidentiality and the proper conduct of litigation. The court found it necessary to restrain the husband from instructing Barry.Nilsson Lawyers to prevent potential prejudice to the proceedings. Furthermore, the court ordered that the husband be restrained from communicating or using information derived from the specified documents and that he destroy all copies of these documents, thereby upholding the integrity of the evidence and the proceedings.

The court made orders restraining the husband from instructing Barry.Nilsson Lawyers and from using or disclosing the contents of the specified documents, ordering their destruction. The matter was adjourned for mention for further directions, and provisions were made for the parties to either agree on costs or make written submissions for determination by the court.

Orders

Orders of the court

1.

The husband is restrained and an injunction hereby issues restraining the husband from instructing or continuing to instruct Barry.Nilsson Lawyers during the currency of proceedings in Family Court of Australia file number BRC 3770 of 2014.

2.

The husband is restrained and an injunction hereby issues restraining the husband from:

(a) Discussing or communicating to any other person the contents of any of the documents referred to in the husband’s affidavit sworn 17 August 2017 at paragraphs 15(b) to 15(d) (herein referred to as “the documents”); and

(b) Making any use for the purpose of the said proceedings of any information derived from the documents.

3.

The husband shall destroy all hard copies and electronic copies of the documents forthwith.

4.

The matter is to be listed for mention before a Registrar for further directions at a date and time to be advised.

5.

In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:

(a) Each party file within a further 14 days written submissions in respect of that issue; and

(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.

6.

In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.

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

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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