DELANY & DELANY - [2014] FCCA 2042

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELANY & DELANY

[2014] FCCA 2042

Catchwords:
FAMILY LAW – Application to restrain solicitor from acting.

Legislation:

Evidence Act 1995, s.122(2)

Balsienev Penhall [2008] NSWSC 1414
Bureau Interprofessional Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588 (9 May 2002)
Carindale Country Club Estate Pty Limited v Astill (1993) 42 FCR 307
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266
D & J Constructions Pty Ltd v Head (t/as Clayton Utz) (1987) 9 NSWLR 118
Kallinicos and Anor v Hunt and Ors [2005] NSWSC 1181
Magro [1989] FLC 92-005
Mallesons Stephen Jacques v KPMG Peat Marwick (1991) 4 WAR 357
PhotoCure ASA v Queens University at Kingston [2002] FCA 905 (22 July 2002)
Prince Jeffri Bolkiah v KPMG [1998] UKHL 52: [1999] 2 AC 222
Re a Firm of Solicitors [1997] Ch 1
Sent v Fairfax [2002] VSC 429 (Unreported, Nettle J, 7 October 2002)
Thevenas [1986] FLC 91-748
Village v BDW [2004] Aust Torts Reports 81-726

Applicant:

MS DELANY

Respondent:

MR DELANY

File Number:

SYC 3157 of 2008

Judgment of:

Judge Altobelli

Hearing date:

1 August 2014

Date of Last Submission:

1 August 2014

Delivered at:

Wollongong

Delivered on:

22 September 2014

REPRESENTATION

Counsel for the Applicant:

Ms D

Solicitors for the Applicant:

[R] Lawyers

Solicitors for the Respondent:

Johnson Horsley Lawyers

ORDERS

That the Husband’s Application in a Case filed 26 July 2014 be dismissed.
That any application for costs arising out of these Orders must be filed and served within 14 days and shall not exceed 500 words.
That any response to an application for costs must likewise be filed and served within a further 14 days and shall not exceed 500 words.

IT IS NOTED that publication of this judgment under the pseudonym Delany & Delany is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 3157 of 2008

MS DELANY

Applicant

And

MR DELANY

Respondent

REASONS FOR JUDGMENT

Introduction

By way of an Application in a Case filed 26 June 2014 the Husband, who is the respondent in substantive parenting and property proceedings before the Court, seeks to restrain the solicitor currently acting for the Wife from continuing to do so. The Wife opposes this.

Background facts

The Husband’s case outline document contains the following useful short chronology:

Date	Event	Reference
[omitted] 1973	Father was born (now aged 40)
[omitted] 1977	Mother was born (now aged 37)
Mid 2002	Parties commence cohabitation	F’s affd filed 23.10.13 para 4
[omitted] 2003	Parties marry	F’s affd filed 23.10.13 para 4
[omitted] 2004	Child [X] was born (now aged 10)	F’s affd filed 23.10.13 para 5
[omitted] 2012	Child [Y] was born (now aged 2)	F’s affd filed 23.10.13 para 5
23.09.2012	Parties separate on final basis	F’s affd filed 23.10.13 para 5
October 2012	Father referred directly to Ms R from [R] Lawyers	F’s affd filed 26.06.14 para…

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 DELANY & DELANY

Details

AGLC: DELANY & DELANY [2014] FCCA 2042
Case: [2014] FCCA 2042
Decision Date: 22 September 2014

CaseChat Overview and Summary

In the matter of *Delany & Delany*, the Family Court of Australia, presided over by Judge Altobelli, considered an application filed by the Husband on 26 July 2014. The precise nature of the dispute is not detailed in the provided text, but it is clear that the Husband sought some form of relief or determination from the court.

The central legal issue before the court was whether to grant the Husband's application. The court was required to determine the merits of the application and decide whether it should be dismissed or otherwise dealt with.

Judge Altobelli dismissed the Husband's application. The reasoning behind this decision is not elaborated upon in the provided text. Following this determination, the court made orders regarding the filing and service of any applications for costs, specifying time limits and word count restrictions for both the initial application and any subsequent response.

Orders

Orders of the court

That the Husband’s Application in a Case filed 26 July 2014 be dismissed.

That any application for costs arising out of these Orders must be filed and served within 14 days and shall not exceed 500 words.

That any response to an application for costs must likewise be filed and served within a further 14 days and shall not exceed 500 words.

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

Full text does not contain this section.