Kitson and Michael - [2016] FCCA 3308

FEDERAL CIRCUIT COURT OF AUSTRALIA

KITSON & MICHAEL

[2016] FCCA 3308

Catchwords:
FAMILY LAW – Property proceedings – application to restrain solicitor from acting for one party – parties jointly consulted former solicitor of firm seeking advice about preparation of consent order to finalise property proceedings – subsequently another member of the same firm instituted property proceeding on behalf of the husband – wife seeks to restrain firm from acting – did wife provide information in confidence to first solicitor – inherent jurisdiction of the court to manage its processes – interests of the administration of justice – matters to be considered – costs.

Legislation:

Family Law Act 1975, s.114(1)

Federal Circuit Court Rules 2001, rr.1.05(2); 21.02; 24.03
Family Law Rules 2004, r.8.03

Cases cited:
Kalinicos v Hunt (2005) 64 NSWLR 561
Mintel International v Mintel (Aust) (2000) 181 ALR 78
Mallesons Stephen Jacques v KPMG Peat Marwick (1990) 4 WAR 357
Grant v Downs (1976) 135 CLR 674
Baker v Campbell (1983) 153 CLR 52
Carindale Country Club Estate v Astill (1993) 42 FCR 307
Mintel International v Mintel (Aust) (2000) 181 ALR 78
Briese & Briese (1986) FLC 91-713
Magro & Magro (1989) FLC 92-005
Naczek & Dowler [2011] FamCA 179
Thevenaz & Thevenaz (1986) FLC 91-749
D & J Constructions Pty Ltd v Head & Ors trading as Clayton Utz (1987) 9 NSWLR 119
Kossatz & Kossatz (1993) FLC 92,386
In re A firm of Solicitors [1991] 1 QB 959
McMillan & McMillan (2000) FLC 93,048
Holborrow v McDonald Rudder [2002] WASC 265

McVeigh v Linen House Pty Ltd [1999] 3 VR 394

Applicant:

MS KITSON

Respondent:

MR MICHAEL

File Number:

PAC 1337 of 2015

Judgment of:

Judge Brown

Hearing date:

23 September 2016

Date of Last Submission:

23 September 2016

Delivered at:

Adelaide

Delivered on:

21 December 2016

REPRESENTATION

Counsel for the Applicant:

Mr Livingstone

Solicitors for the Applicant:

Eaves Legal

Counsel for the Respondent:

Ms Mahony

Solicitors for the Respondent:

Napier Keen

ORDERS

That Wayne Gregory Keen solicitor of Keen Lawyers and any other member of that firm be restrained from acting on behalf of the husband in these proceedings and an injunction issue to this effect.
The husband pay the wife’s costs fixed in the sum of $2,000.00.
The parties are to attend a Conciliation Conference with a Registrar of this Court at 2:15pm on 17 March 2017 in Parramatta.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 prior to the Conciliation Conference.
No later than 17 February 2017 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules 2001.
Further consideration of the matter is adjourned to 20 April 2017 at 11:30am before Judge Dunkley.
The interim proceedings be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Kitson & Michael is approved pursuant to s.121(9)(g) of the Family…

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 Kitson and Michael

Details

AGLC: Kitson and Michael [2016] FCCA 3308
Case: [2016] FCCA 3308
Decision Date: 21 December 2016

CaseChat Overview and Summary

In *Kitson and Michael*, heard before Judge Brown, the dispute concerned an application to restrain a solicitor and their firm from acting on behalf of the husband in family law proceedings. The wife sought this injunction, and the court also made orders regarding costs, a conciliation conference, informal discovery, and the further consideration of the matter.

The primary legal issue before the court was whether there were grounds to disqualify the husband's solicitor from continuing to represent him. This involved an assessment of potential conflicts of interest or breaches of professional conduct that would warrant such a significant intervention by the court.

Judge Brown ordered that Wayne Gregory Keen, a solicitor of Keen Lawyers, and any other member of that firm be restrained from acting for the husband. The court also ordered the husband to pay the wife's costs fixed at $2,000.00. Further directions were given for the parties to attend a conciliation conference, exchange informal discovery, and the matter was adjourned for further consideration before Judge Dunkley. The interim proceedings were otherwise dismissed.

Orders

Orders of the court

That Wayne Gregory Keen solicitor of Keen Lawyers and any other member of that firm be restrained from acting on behalf of the husband in these proceedings and an injunction issue to this effect.

The husband pay the wife’s costs fixed in the sum of $2,000.00.

The parties are to attend a Conciliation Conference with a Registrar of this Court at 2:15pm on 17 March 2017 in Parramatta.

Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 prior to the Conciliation Conference.

No later than 17 February 2017 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules 2001.

Further consideration of the matter is adjourned to 20 April 2017 at 11:30am before Judge Dunkley.

The interim proceedings be otherwise dismissed.

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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