Dalton & Dalton

Case [2017] FamCAFC 78

FAMILY COURT OF AUSTRALIA

DALTON & DALTON [2017] FamCAFC 78

FAMILY LAW – APPEAL – Where the primary judge dismissed the husband’s application to restrain the wife’s solicitors from acting – Where the wife’s solicitor’s had previously acted for the husband – Whether an undertaking provided to create an effective information barrier is effective – Waiver – Implied waiver of the right to object – Appeal dismissed – Costs ordered.

FAMILY LAW – APPEAL – LEAVE TO APPEAL –Where there was sufficient doubt about the trial reasons to justify consideration and supposing the decision to be wrong the husband would suffer substantial injustice – Where the proposed appeal raises matters of considerable importance – Leave to appeal granted
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 1.05, 13.10, 13.04, Schedule 1 Clause 1(6)(i)
Asia Pacific Telecommunications Limited v Optus Networks Pty Limited [2007] NSWSC 350
Billington & Billington(No 2) [2008] FamCA 409
Expense Reduction Analysts Group Pty Ltd and Ors v Armstrong Strategic Management and Marketing Pty Limited and Ors (2013) 250 CLR 303
Mancini v Mancini [1999] NSWSC 800
Mann v Carnell (1999) 201 CLR 1
McMillan and McMillan (2000) FLC 93-048
Osferatu & Osferatu (2015) FLC 93-666
PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905
APPELLANT: Mr Dalton
RESPONDENT: Ms Dalton
FILE NUMBER: NCC 1909 of 2015
APPEAL NUMBER: EA 54 of 2016
DATE DELIVERED: 28 April 2017
PLACE DELIVERED: Brisbane
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace, Ryan and Murphy JJ
HEARING DATE: 22 June 2016
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 14 March 2016
LOWER COURT MNC: [2016] FamCA 174

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Richardson SC and Ms Steggall
SOLICITOR FOR THE APPELLANT: Marshall Law
COUNSEL FOR THE RESPONDENT: Mr Kearney SC and Mr Tregilgas
SOLICITOR FOR THE RESPONDENT: Paton Hooke Lawyers

Orders

  1. That the husband’s application for leave to appeal be granted.

  2. The appeal be dismissed.

  3. That the husband pay the wife’s costs of and incidental to this appeal within 28 days of agreement as to quantum, and failing agreement, of assessment.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalton & Dalton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 54 of 2016
File Number: NCC 1909 of 2015

Mr Dalton

Appellant

And

Ms Dalton

Respondent

REASONS FOR JUDGMENT

AINSLIE-WALLACE AND RYAN JJ

  1. Mr Dalton, who we will refer to as the husband, seeks leave to appeal…

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AGLC
Dalton & Dalton [2017] FamCAFC 78
Case
[2017] FamCAFC 78
Decision Date

CaseChat Overview and Summary

In the matter of Dalton & Dalton, the husband appealed against the decision of the Family Court to dismiss his application to restrain the wife’s solicitors from acting in the case. The wife’s solicitors had previously acted for the husband, and he was concerned about the potential for disclosure of confidential information. The appeal was heard in the Federal Court of Australia.

The central issue before the court was whether an undertaking provided by the wife’s solicitors to create an effective information barrier was sufficient to allay the husband’s concerns. The court also had to consider whether the husband had waived his right to object to the wife’s solicitors acting by not raising the issue in a timely manner.

The court found that the undertaking provided by the wife’s solicitors was sufficient to create an effective information barrier, and that the husband had impliedly waived his right to object by not raising the issue in a timely manner. The court held that there was no substantial injustice to the husband in allowing the wife’s solicitors to act, and dismissed the appeal. The court also ordered the husband to pay the wife’s costs of and incidental to the appeal.

The court granted leave to appeal on the basis that there was sufficient doubt about the trial reasons to justify consideration and that, supposing the decision to be wrong, the husband would suffer substantial injustice. The court held that the proposed appeal raised matters of considerable importance and should be heard. The final orders of the court were that the husband’s application for leave to appeal be granted, the appeal be dismissed, and that the husband pay the wife’s costs of and incidental to this appeal within 28 days of agreement as to quantum, or of assessment if no agreement was reached.

Orders

Orders of the court

1.

That the husband’s application for leave to appeal be granted.

2.

The appeal be dismissed.

3.

That the husband pay the wife’s costs of and incidental to this appeal within 28 days of agreement as to quantum, and failing agreement, of assessment.

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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