FAMILY COURT OF AUSTRALIA
| GRATTAN & GRATTAN AND ANOR (NO. 3) | [2014] FamCA 839 |
| FAMILY LAW – INJUNCTIONS – Injunction application against solicitor acting for company under husband’s control – Wife slept on her rights – Solicitor’s evidence that he understood his obligations – Injunction refused. |
| Family Law Act 1975 (Cth) |
| Billington & Billington (No. 2) [2008] FamCA 409 Grimwade v Meagher [1995] 1 VR 446 Kallinicos and Anor v Hunt and Ors [2005] NSW SC 1181; [2005] 64 NSWLR 561 Koncz & Koncz [2013] FamCA 444 Macmillan & Macmillan [2000] FamCA 1046 McGillivray & Mitchell [1998] FamCA 96 Naczek & Dowler [2011] FamCAFC 179 Spincode Pty v Look Software [2001] VSCA 248 Thevenaz (1986) FLC 91-748; 11 FamLR 95 |
| APPLICANT: | Mr Grattan |
| RESPONDENT: | Ms Grattan |
| INTERVENOR: | B Pty Ltd |
| FILE NUMBER: | MLC | 4259 | of | 2013 |
| DATE DELIVERED: | 3 October 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 29 September; 3 October 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ackman QC with Mr Werner |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Mr Glick QC with Mr Strum |
| SOLICITOR FOR THE RESPONDENT: | Kainelaw Australian Lawyers |
| COUNSEL FOR THE INTERVENOR: | Ms Ben-Simon |
| SOLICITOR FOR THE INTERVENOR: | C Law Firm |
Orders
That paragraph 3 of the application in a case filed by the wife on 11 August 2014 is dismissed.
That to the extent that paragraph 1 of the response to the application in a case filed 29 September 2014 seeks costs against the wife, that application is adjourned to Friday 3 October 2014 for determination.
That the application in a case filed 11 August 2014 and the response thereto filed 29 September 2014 are otherwise dismissed.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grattan & Grattan and Anor (No. 3) 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 MELBOURNE |
FILE NUMBER: MLC 4259 of 2013
| Mr Grattan |
Applicant
And
| Ms Grattan |
Respondent
REASONS FOR JUDGMENT
By application in a case filed 11 August 2014, Ms Grattan sought (inter alia) two specific injunctive orders. The orders were very similar. The first related to restraining the husband by himself, his servants and/or his agents, from
instructing or briefing, or in any manner engaging or taking advice from or otherwise discussing matters arising from the breakdown of the parties’ marriage
with a solicitor Mr C, his firm or any counsel engaged by them.
The second order was couched in similar terms but this time, the injunction related to B Proprietary Limited doing the same things as sought against the husband but from the same lawyers.
At a hearing on 29 September 2014, Mr Ackman QC on behalf of the husband advised the Court that his client had signed an undertaking in…
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- Grattan and Grattan and Anor (No. 3) [2014] FamCA 839
- Case
- [2014] FamCA 839
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the wife had established grounds for an injunction to restrain Mr C and his firm from continuing to act for the husband and the company, given her prior knowledge and apparent acquiescence regarding Mr C's involvement. The court also had to determine the company's application for costs against the wife.
Cronin J dismissed the wife's application for injunctive relief, reasoning that a reasonably informed member of the public would understand that a failure to protest or take steps to restrain a practitioner at or near the time of becoming aware of their involvement is a significant factor. While the wife had concerns about Mr C acting for the husband personally, she had unequivocally indicated no concerns about his role acting for the company, which she described as peripheral. The court found that the wife had not acted expeditiously to restrain Mr C's involvement with the company, and that at this late stage, with a looming timetable, granting such an injunction would likely derail the proceedings. The court also noted the husband's undertaking and the solicitor's assurance of diligence in his role as an officer of the court. The company's application for costs against the wife was adjourned for determination.
Orders
Orders of the court
1.
That paragraph 3 of the application in a case filed by the wife on 11 August 2014 is dismissed.
2.
That to the extent that paragraph 1 of the response to the application in a case filed 29 September 2014 seeks costs against the wife, that application is adjourned to Friday 3 October 2014 for determination.
3.
That the application in a case filed 11 August 2014 and the response thereto filed 29 September 2014 are otherwise dismissed.
IT IS CERTIFIED:
4.
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
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
The reasonably informed member of the public however would also understand what was said by the Full Court in McGillivray & Mitchell [1998] FamCA 96 where their Honours observed that the failure to protest or to take steps to restrain the other practitioner at or very close to the point in time when the client became aware of the practitioner’s involvement was the most relevant consideration which would have to be taken into account adversely to the person who was later complaining. Thus, whilst the wife may have had cause for concern up to and including the start of July 2014, and was vociferously complaining about Mr C in relation to the husband, I can and do distinguish that role from that of acting for the company. The wife not only allowed Mr C to continue to act in various forms but unequivocally indicated she had no concerns about his role as acting for the company. The fair-minded, reasonably informed member of the public would be advised that one cannot sleep on one’s rights. It would seem to me that the wife’s concern about Mr C’s continued involvement with the husband in his personal capacity has now been resolved by the husband’s undertaking and therefore her position as articulated in the early July 2014 letter that she had no concern about Mr C’s role because the company’s position in the proceedings was peripheral, should still stand. The very purpose of bringing the proceedings expeditiously to restrain a solicitor applies in this case. Senior counsel for the husband observed before he left the precincts of the Court that an order of the injunctive nature sought by the wife had the capacity to derail the proceedings in December. Whilst I am not in a position to say that that is correct, it must be obvious that at this late stage, with the timetable looming, that must be a real prospect. As the wife observed in July that the company’s role was peripheral, and I have the assurance of the solicitor that as he will be diligent in his consciousness about the role that he fulfils as an officer of the court in relation to the husband, it would not be proper for the Court to make an injunction against the company from continuing to brief Mr C. Accordingly, the application for the injunctive relief of the wife must be denied. The company’s application also sought orders for costs on an indemnity basis against the wife. That was not argued nor should it be until this determination. To the extent that the company wishes to seeks costs, I will deal with that application bearing in mind that this is a discretionary judgment and the hearing was part of another proceeding on the one day. There will be orders accordingly.