Fowler and Liddle & Anor - [2012] FamCA 450

FAMILY COURT OF AUSTRALIA

FOWLER & LIDDLE AND ANOR

[2012] FamCA 450

FAMILY LAW - INJUNCTION – Application to restrain solicitor and his firm acting for the wife in substantive proceedings – Solicitor previously acted for husband in various litigious matters including criminal proceedings, child support and property proceedings in relation to his previous marriage and conveyancing matters – Delay in raising the issue determined not a preclusion to grant of relief – Application granted.

FAMILY LAW - COSTS – Application for costs by both parties in event successful in these proceedings – Balancing all relevant s 117(2A) of the Family Law Act 1975 (Cth) considerations, determination that no order for costs be made.

Family Law Act 1975 (Cth)

Billington & Billington (No. 2) [2008] FamCA 409
Gagliano (1989) FLC 92-012
Griffis (1991) FLC 92-233
Karapataki & Karapataki [2011] FMCAfam 6
Kossatz (1993) FLC 92-386
In the marriage of Magro (1989) FLC 92-005
McGillivray v Mitchell (1998) FLC 92-818
McMillan & McMillan [2000] FamCA 1046, (2000) FLC 93-048, 26 Fam LR 653
Mills v Day Dawn Block Gold Mining Company Limited; In re Marsland (1882) QLJ 62
Penfold v Penfold (1980) 144 CLR 311, (1980) FLC 90-800
Pond & Thurga (No. 2) [2007] FamCA 587
Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831
Stewart [2000] FamCA 1039
Thevenaz (1986) FLC 91-748
Vasik v Vasik [2007] FamCA 671, 38 Fam LR 262

APPLICANT:

Mr Fowler

RESPONDENT:

Ms Liddle

THE SOLICITOR

Mr C

FILE NUMBER:

NCC

3033

2010

DATE DELIVERED:

15 June 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

12 June 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Kevin Byrnes
Byrnes & Cox Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Rhys O'Brien

SOLICITOR FOR THE RESPONDENT:

Mr C
C Law Firm

Orders

That Mr C and C Law Firm be and are hereby restrained from continuing to act for Ms Liddle in the proceedings between the said Ms Liddle and Mr Fowler.
That there be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: NCC 3033 of 2010

Mr Fowler

Applicant Husband

And

Ms Liddle

Respondent Wife

And

Mr C

The Solicitor

REASONS FOR JUDGMENT

Introduction

Mr Fowler (“the husband”), by his Application in a Case filed 1 June 2012, seeks orders restraining the wife’s solicitor, Mr C (“the solicitor”), and his firm, C Law Firm (“the firm”), from continuing to act for the wife.
It is the husband’s case that the solicitor acted for him in respect of a number of litigious matters and thus, relying on a weight of authority from decided cases, the solicitor and his firm should not continue to act for the wife in proceedings against the husband.
The Response to the Application in a…

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 Fowler and Liddle & Anor

Details

AGLC: FOWLER & LIDDLE AND ANOR [2012] FamCA 450
Case: [2012] FamCA 450
Decision Date: 15 June 2012

CaseChat Overview and Summary

In *Fowler and Liddle & Anor*, heard before Collier J, the applicant, Mr Fowler, sought an injunction to restrain the respondent, Ms Liddle's solicitor and his firm, from acting for Ms Liddle in substantive family law proceedings. The solicitor had previously acted for Mr Fowler in a range of matters, including criminal proceedings, child support and property proceedings related to Mr Fowler's previous marriage, and conveyancing matters.

The central legal issue before the court was whether the solicitor's prior representation of Mr Fowler created a conflict of interest that warranted restraining the solicitor and his firm from acting for Ms Liddle in the current proceedings. The court was also required to consider the impact of any delay by Mr Fowler in raising this objection.

Collier J reasoned that the solicitor's extensive prior involvement with Mr Fowler, encompassing matters that were closely related to the current family law dispute, created a real risk of a conflict of interest and a breach of the duty of confidentiality. The court determined that the delay in raising the issue did not preclude the grant of relief, as the potential for prejudice to Mr Fowler remained significant. Applying established principles regarding solicitor conflicts, the court found that the circumstances justified the grant of an injunction.

Consequently, the court ordered that the solicitor and his firm be restrained from continuing to act for Ms Liddle in the proceedings between her and Mr Fowler. In relation to costs, after balancing the relevant considerations under section 117(2A) of the *Family Law Act 1975* (Cth), the court made no order as to costs.

Orders

Orders of the court

That Mr C and C Law Firm be and are hereby restrained from continuing to act for Ms Liddle in the proceedings between the said Ms Liddle and Mr Fowler.

That there be no order as to costs.

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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