DANILOV & WYNN - [2020] FamCA 763

FAMILY COURT OF AUSTRALIA

DANILOV & WYNN

[2020] FamCA 763

FAMILY LAW – PRACTICE AND PROCEDURE – where the husband seeks the wife’s solicitor to be restrained from acting for the wife – whether the wife’s solicitor was privy to confidential or sensitive information from a previous transaction – application dismissed.

Family Law Act 1975 (Cth) s 117
Land Title Act 1994 (Qld) s 126
Solicitors Conduct Rules 2012 (Qld) r 10.1

Antony & Joyce [2020] FamCA 150
Yunghanns & Ors v Elfic (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)

APPLICANT:

Ms Danilov

RESPONDENT:

Mr Wynn

FILE NUMBER:

BRC

15350

2019

DATE DELIVERED:

17 September 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

19 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr P Cooke
Barbeler & Cooke

COUNSEL FOR THE RESPONDENT:

Mr S Hegedus

Orders

That the application by the husband made 20 April 2020 to restrain Mr Phillip Cooke from acting on behalf of the wife in these proceedings, is dismissed.
That if the wife seeks, at this time, to pursue an application for costs against the husband in respect of the discrete hearing conducted on 19 June 2020, she shall:
(a)file and serve within twenty one (21) days of this Order any written submissions in respect of such application including a quantification of such costs sought;
(b)the husband shall file and serve within forty two (42) days of this Order any written submissions in response; and
(c)unless otherwise ordered, the issue of costs on the discrete issue shall be determined on the papers in Chambers.

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 Danilov & Wynn 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 15350 of 2019

Ms Danilov

Applicant

And

Mr Wynn

Respondent

REASONS FOR JUDGMENT

Introduction

In the midst of property and financial matters commenced by the wife Ms Danilov against the husband Mr Wynn on 17 December 2019 in the Federal Circuit Court of Australia and transferred to this Court on 17 February 2020, the husband on 20 April 2020 filed an Application in a Case seeking an order, inter alia:
That Mr Phillip Cooke, solicitor, be restrained from acting on behalf of the Applicant [m]other in these proceedings.
The wife opposes such order and on 19 June 2020 the Court received written submissions and also oral submissions – with Mr Hegedus of Counsel (directly briefed) appearing for the husband and solicitor Mr Cooke appearing for…

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 DANILOV & WYNN

Details

AGLC: DANILOV & WYNN [2020] FamCA 763
Case: [2020] FamCA 763
Decision Date: 17 September 2020

CaseChat Overview and Summary

In the matter of *Danilov & Wynn*, heard before Baumann J, the husband sought an order to restrain Mr Phillip Cooke from acting as legal representative for the wife in the proceedings.

The central legal issue before the Court was whether Mr Cooke should be prevented from continuing to act for the wife, presumably due to a conflict of interest or other professional impropriety.

Baumann J dismissed the husband's application. While the reasons for dismissal are not detailed in the provided text, the Court's decision indicates that the husband did not establish sufficient grounds to warrant the restraint of Mr Cooke's representation. The Court also made orders regarding the potential for the wife to pursue costs against the husband in respect of a discrete hearing conducted on 19 June 2020, outlining a process for written submissions and determination on the papers.

Orders

Orders of the court

That the application by the husband made 20 April 2020 to restrain Mr Phillip Cooke from acting on behalf of the wife in these proceedings, is dismissed.

That if the wife seeks, at this time, to pursue an application for costs against the husband in respect of the discrete hearing conducted on 19 June 2020, she shall:

(a) file and serve within twenty one (21) days of this Order any written submissions in respect of such application including a quantification of such costs sought;

(b) the husband shall file and serve within forty two (42) days of this Order any written submissions in response; and

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

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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