Edgley and Edgley - [2013] FCCA 2024

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDGLEY & EDGLEY

[2013] FCCA 2024

Catchwords:
FAMILY LAW – Practice and Procedure – application to restrain a solicitor from acting for the other party in de facto property settlement proceedings – the solicitor and the party seeking the restraint formerly in a solicitor client relationship during which the solicitor received confidential information from that party – the solicitor now acting for the opposing party – whether the information provided by the former client to the solicitor was confidential from the opposing party – where the former client is bound by the duty of full and frank disclosure in the property settlement proceedings – whether the former client delayed in objecting to the solicitor acting for the opposing party such as to warrant refusing to grant the relief the former client seeks – whether mala fides in the former client’s application such as to warrant refusing to grant the relief the former client seeks – whether prejudice to the opposing party if the solicitor is restrained from continuing to act such as to warrant refusing to grant the relief the former client seeks.

Legislation:

Family Law Act 1975, Part VIIIB, Division 3, s.114(3)

McMillan & McMillan [2000] FamCA 1046, (2000) 26 Fam LR 653; (2000) FLC 93-048
Mills v Day Dawn Block Gold Mining Co Ltd (1882) QLD 62
Griffis & Griffis (1991) FLC 92-233; (1991) 14 Fam LR 782
Stewart & Stewart, Lindenmayer J, 17 April 1997, unreported
Rakusen v Ellis Munday and Clarke (1912) 1 Ch 831
Prince Jefri Bolkiah v KPMG [1999] 2 WLR 215
Wake & Foda, Nicholson CJ, Lindenmayer & Jordan JJ, 9 February, 1998, unreported
McGillivray & Mitchell (1998) 23 Fam LR 238
Fowler & Liddle & Anor [2012] FamCA 450
Sogelease v MacDougall, Wood J (NSW Supreme Court), 17 July 1986, unreported
D & J Constructions Pty Limited v Head (1987) 9 NSWLR 118
A & B (1989) 13 Fam LR 789
National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209, 87 ALR 539

Applicant:

MR EDGLEY

Respondent:

MS EDGLEY

File Number:

PAC 5090 of 2011

Judgment of:

Judge Halligan

Hearing dates:

25 & 26 November 2013

Date of Last Submission:

26 November 2013

Delivered at:

Parramatta

Delivered on:

29 November 2013

REPRESENTATION

Counsel for the Applicant:

(X)

Solicitors for the Applicant:

(X)

Counsel for the Respondent:

Ms McIntosh

Solicitors for the Respondent:

Peter Cornock & Associates

ORDERS

Mr P, solicitor, and (X) Solicitors are each hereby restrained from continuing to act in these proceedings on behalf of the applicant, Mr Edgley.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5090 of 2011

MR EDGLEY

Applicant

And

MS EDGLEY

Respondent

REASONS FOR JUDGMENT

Introduction

This is the hearing of an application by the former de facto wife (who I will refer to as…

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 Edgley and Edgley

Details

AGLC: Edgley and Edgley [2013] FCCA 2024
Case: [2013] FCCA 2024
Decision Date: 29 November 2013

CaseChat Overview and Summary

In *Edgley and Edgley*, the Supreme Court of New South Wales considered an application to restrain a solicitor and his firm from continuing to act for the applicant, Mr Edgley, in ongoing proceedings. The application was brought by the respondent, Mrs Edgley.

The central legal issue before the Court was whether the solicitor and his firm should be restrained from acting for Mr Edgley due to a conflict of interest. This required the Court to assess whether the solicitor's continued representation of Mr Edgley would be likely to prejudice Mrs Edgley, or otherwise be contrary to the administration of justice.

Judge Halligan found that the solicitor had previously acted for Mrs Edgley in relation to the same subject matter as the current proceedings, and that confidential information had been imparted to the solicitor during that prior retainer. His Honour determined that there was a real and sensible risk that the confidential information could be used to Mrs Edgley's disadvantage in the current proceedings, thereby creating a conflict of interest. Consequently, the Court ordered that the solicitor and his firm be restrained from continuing to act for Mr Edgley in these proceedings.

Orders

Orders of the court

Mr P, solicitor, and (X) Solicitors are each hereby restrained from continuing to act in these proceedings on behalf of the applicant, Mr Edgley.

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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