Gillam & Gillam - [2017] FCCA 64

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILLAM & GILLAM

[2017] FCCA 64

Catchwords:
FAMILY LAW – Legal practitioners – conflict of interest – grounds to restrain solicitor from acting against former client – inherent jurisdiction or implied power of court to supervise and control the conduct of legal practitioners as officers of the court – danger of misuse of confidential information – continuing duty of loyalty – relevance of "getting to know you" factors – conclusion that wife's solicitor should no longer act for her in current proceedings.

Legislation:

Family Law Act 1975 (Cth), s.106A

Powers of Attorney Act 1998 (Qld), s. 87

Osferatu & Osferatu (2015) FamCAFC 177
Kallinicos v Hunt (2005) NSWSC 1181
Smith & Glegg (2004) QSC 443
Thevenaz & Thevenaz (1986) FLC 91-748
McMillan & McMillan [2000] FamCA 1046
Magro & Magro (1989) FLC 92-005
Karapataki & Karapataki [2011] FMCAFam 6
Manner & Manner (2012) FamCAFC 6
L & L (2003) FamCA 777

Applicant:

MS GILLAM

Respondent:

MR GILLAM

File Number:

TVC 705 of 2016

Judgment of:

Judge Coker

Hearing date:

30 November 2016

Date of Last Submission:

30 November 2016

Delivered at:

Townsville

Delivered on:

19 January 2017

REPRESENTATION

Counsel for the Applicant:

Mr Page QC

Solicitors for the Applicant:

The Brad Robins Legal Centre

Counsel for the Respondent:

Mr Collins

Solicitors for the Respondent:

McDonald Leong Lawyers

ORDERS

That the Applicant Wife be restrained and an injunction issue restraining the Applicant Wife from providing any further instructions to The Brad Robins Legal Centre, Mr Bradley Mark Robins or any other partner, associate or employee of The Brad Robins Legal Centre to act on her behalf in relation to Family Law proceedings number TVC705/2016.
That within fourteen (14) days of the date of these orders, the Applicant Wife:
(a)File a Notice of Address for Service advising the Court and the Respondent as to her updated Address for Service; and
That the legal representatives for the husband file and serve written submissions within 14 days of the date of this order in relation to the issue of costs to be claimed and the amount of costs as may be claimed by them.
That the legal representatives then on the record for the wife within 28 days of the date of this order file any written submissions in relation to the question of costs as may arise in relation to the proceedings.
That unless otherwise requested in writing, the determination of the issue of costs be dealt with in chambers
That the substantive application be otherwise be listed for mention at 10.00am on 28 February 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

TVC 705 of 2016

MS GILLAM

Applicant

And

MR GILLAM

Respondent

REASONS FOR JUDGMENT

INTRODUCTION:

On 18 July 2016 Ms Gillam, whom I shall refer to as the wife, filed an application in this Court seeking orders with…

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 Gillam & Gillam

Details

AGLC: Gillam and Gillam [2017] FCCA 64
Case: [2017] FCCA 64
Decision Date: 19 January 2017

CaseChat Overview and Summary

In the matter of *Gillam & Gillam*, heard before Judge Coker, the applicant wife sought to restrain her legal representatives, The Brad Robins Legal Centre, Mr Bradley Mark Robins, and associated individuals, from acting on her behalf in family law proceedings numbered TVC705/2016. The dispute centred on the wife's instructions to her legal team and the court's power to intervene in that solicitor-client relationship.

The primary legal issue before the court was whether it possessed the authority to grant an injunction restraining a legal practitioner from acting for a client in ongoing family law proceedings. This involved considering the nature of the solicitor-client relationship and the circumstances under which such a relationship could be terminated by court order at the behest of one of the parties.

Judge Coker reasoned that the court had the power to make orders concerning the conduct of legal practitioners in proceedings before it, particularly where there was a clear and demonstrable need to do so. The court found that it was appropriate to grant an injunction restraining the wife from providing further instructions to her current legal representatives. The court also made orders regarding the wife's address for service, and directed that written submissions be filed by both parties concerning the issue of costs, with the determination of costs to be dealt with in chambers unless otherwise requested. The substantive application was listed for mention at a later date.

Orders

Orders of the court

That the Applicant Wife be restrained and an injunction issue restraining the Applicant Wife from providing any further instructions to The Brad Robins Legal Centre, Mr Bradley Mark Robins or any other partner, associate or employee of The Brad Robins Legal Centre to act on her behalf in relation to Family Law proceedings number TVC705/2016.

That within fourteen (14) days of the date of these orders, the Applicant Wife:

(a) File a Notice of Address for Service advising the Court and the Respondent as to her updated Address for Service; and

That the legal representatives for the husband file and serve written submissions within 14 days of the date of this order in relation to the issue of costs to be claimed and the amount of costs as may be claimed by them.

That the legal representatives then on the record for the wife within 28 days of the date of this order file any written submissions in relation to the question of costs as may arise in relation to the proceedings.

That unless otherwise requested in writing, the determination of the issue of costs be dealt with in chambers

That the substantive application be otherwise be listed for mention at 10.00am on 28 February 2017.

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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