Grieves & Tully

Case [2011] FamCA 617


FAMILY COURT OF AUSTRALIA

GRIEVES & TULLY [2011] FamCA 617

FAMILY LAW - LEGAL PRACTITIONERS – Conflict of interest – Where the wife asserted that the husband’s solicitor had a conflict of interest and sought an order restraining the solicitor and his firm from acting – Where the husband’s solicitor had a long standing friendship with the husband – Where the firm previously ceased to act for the husband in family law proceedings in 2006 on the wife’s then assertion of bias after the husband’s solicitor joined that firm – Where the firm then denied any conflict – Where the solicitor resumed acting for the husband in 2011 in relation to incidental parenting matters following final orders in 2008 – Whether the husband’s solicitor should have continued to act after the wife’s assertion of conflict   

FAMILY LAW - JURISDICTION – Inherent – Whether the Court in its inherent supervisory jurisdiction, and in aid of the due administration of justice, should restrain the husband’s solicitor and firm from acting – Whether a reasonably informed fair-minded lay observer would conclude that the proper administration of justice and the appearance of justice requires the practitioner to be prevented from acting – Where the jurisdiction is exceptional, to be exercised with caution and with due consideration of the public interest that a litigant  should not lightly be deprived of his or her choice of representation – Where the wife did not bring the application or raise the conflict issue in correspondence at the earliest possible time – Whether the wife’s delay is fatal to her application – Whether aspects of the affidavit of the husband’s solicitor raised a reasonable doubt in relation to the practitioner’s capacity to exercise independent judgement – Whether in all the circumstances the husband’s solicitor should be restrained from acting       

Family Law Rules 2004 (Cth), r 8.03
Professional Conduct and Practice Rules 2005 (Vic)

A v B (1990) FLC 92-126
Bar Association (Qld) v Lamb (1972) 45 ALJR 712
Black v Taylor [1993] 3 NZLR 403
Bowen v Scott [2004] WASC 94
Bransdon v Gilbert (2007) FLC 93-328
D & J Constructions Pty Ltd v Head & Ors (1987) 9 NSWLR 118
Griffis v Griffis (1991) FLC 92-233
Grimwade v Meagher [1995] 1 VR 446
Holborow v Rudder [2001] WASCA 91
Kallinicos v Hunt (2005) 64 NSWLR 561
Kooky Garments Ltd v Charlton [1994] 1 NZLR 587
Kossatz v Kossatz (1993) FLC 92-386
Law Society of New South Wales v Harvey [1976] 2 NSWLR 154
Legal Practitioners Complaints Committee v Chang [2007] WASAT 86
Magro v Magro (1989) FLC 92-005
Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357
Martin v MacDonald Estate (Gray) [1991] 1 WWR 705
McGillivray v Mitchell (1998) FLC 92-818
McMillan v McMillan (2000) FLC 93-048

Oceanic Life Ltd v HIH Casualty and General Insurance Ltd [1999] NSWSC 292
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204

Prothonotary v Jackson [1976] 2 NSWLR 457
Rakusen v Ellis, Munday &…

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AGLC
Grieves & Tully [2011] FamCA 617
Case
[2011] FamCA 617
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the wife sought an order to restrain the husband's solicitor and his firm from continuing to act for him in family law proceedings. The wife asserted that the solicitor had a conflict of interest due to a long-standing friendship with the husband. This assertion followed a previous instance in 2006 where the wife had raised a similar concern about bias after the solicitor joined his current firm, leading the firm to cease acting for the husband at that time. The solicitor had resumed acting for the husband in 2011 concerning parenting matters.

The court was required to determine whether the husband's solicitor should be restrained from acting, considering the wife's assertion of a conflict of interest. This involved examining the court's inherent supervisory jurisdiction, exercised in aid of the due administration of justice, to ascertain if a reasonably informed, fair-minded lay observer would conclude that the proper appearance of justice necessitated the solicitor's removal. Key considerations included whether the wife's delay in bringing the application was fatal, whether aspects of the solicitor's affidavit raised doubts about his capacity for independent judgment, and ultimately, whether the circumstances warranted restraining the solicitor from acting.

Young J reasoned that while the court's inherent jurisdiction to restrain a practitioner is exceptional and to be exercised with caution, the public interest in a litigant not being lightly deprived of their chosen representation must be balanced against the appearance of justice. The court found that the solicitor's long-standing friendship with the husband, coupled with certain aspects of his affidavit, created a reasonable doubt regarding his capacity to exercise independent judgment and could lead a fair-minded observer to question the impartiality of the proceedings. Consequently, the court concluded that the solicitor and his firm should be restrained from continuing to act for the husband. The court ordered that the solicitor and his firm be restrained from acting for the husband and directed parties to make written submissions on costs.

Orders

Orders of the court

1.

That the solicitor for the husband, Mr D, and the firm Law Firm 1, be and are hereby restrained from continuing to act on his behalf in these proceedings.

2.

That all parties make, file and serve any written submission as to the award of costs of, and incidental to, this hearing within seven (7) days, such submissions to be limited to no more than three (3) pages.

IT IS CERTIFIED

3.

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.

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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