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LEKMAN and QUALMANN

LEKMAN and QUALMANN

Case [2023] FCWA 289 12 December 2023

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: LEKMAN and QUALMANN [2023] FCWA 289
CORAM: COHEN J
HEARD: 12 DECEMBER 2023
DELIVERED : Ex tempore
FILE NO/S: 2992 of 2015
BETWEEN: MS LEKMAN
Applicant
AND
MR QUALMANN
Respondent

Catchwords:

FAMILY LAW – LEGAL PRACTITIONERS – Where the Respondent seeks an order that the Applicant’s solicitors (“the Legal Practice”) be restrained from continuing to act in circumstances where proposed counsel concurrently represented the Applicant and a material witness for the Respondent in that person’s child-related Family Court proceedings – Where counsel supervises and has direct oversight of other solicitors at the Legal Practice – Whether counsel and/or the Legal Practice are in possession of confidential information that is or may be relevant to the matter before the Court – Whether any real risk of misuse of confidential information – Inherent jurisdiction of the Court over its officers and to control its processes – Application successful – Case turns on its own facts.

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	[The Legal Practitioner]
Respondent	:	[Counsel A]
Independent Children's Lawyer	:	[Counsel B]

Solicitors:

Applicant	:	[The Legal Practice]
Respondent	:	[Law Firm A]
Independent Children's Lawyer	:	[Law Firm B]

Case(s) referred to in decision(s):

Cassidy v Murray (1995) FLC 92-633
Charisteas & Charisteas (2022) FLC 94-109
Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1
Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467
Hatzis & Hatzis [2022] FedCFamC1F 745
Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561
Kallinicos v Hunt (2005) 64 NSWLR 561
McMillan & McMillian (2000) FLC 93-048
Nasr v Vihervaara (2005) 91 SASR 222
Newman v Phillips Fox (1999) 21 WAR 309
Osferatu and Osferatu (2015) FLC 93‑666
Othonos and Costa-Othonos [2022] FCWA 16
Porter v Dyer (2022) 402 ALR 659
Re JTT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Sellers & Burns and Anor (2019) 59 Fam LR 593
Song and Song [2021] FCWA 125
Tandon & Farber [2023] FedCFamC2F 916
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98
Walthamstow Pty Ltd v Caratti (No 2) [2023] WASC 363
Worrall and Bartley [2023] FCWA 2

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lekman and Qualmann has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r…

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.

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Details

AGLC: LEKMAN and QUALMANN [2023] FCWA 289
Case: [2023] FCWA 289
Decision Date: 12 DECEMBER 2023

CaseChat Overview and Summary

In the Family Court of Australia, the case of Lekman and Qualmann involved a dispute concerning the propriety of the Applicant's solicitors, referred to as the Legal Practice, continuing to act in the proceedings. The Respondent sought an order that the Legal Practice be restrained from continuing to act, given that the proposed counsel concurrently represented the Applicant and a material witness for the Respondent in child-related Family Court proceedings. This raised concerns about potential conflicts of interest and the confidentiality of information.

The central legal issues before the Court were whether the counsel and/or the Legal Practice were in possession of confidential information relevant to the matter and if there was a real risk of misuse of such information. The Court needed to balance the inherent jurisdiction over its officers and processes with the practicalities of family law proceedings. The case hinged on the specific circumstances presented, making it a unique application of the Court's powers.

The Court found that there was a real risk of misuse of confidential information and granted the Respondent's application. The reasoning was based on the counsel's role in supervising and having direct oversight of other solicitors at the Legal Practice, which increased the risk of confidential information being shared. The inherent jurisdiction of the Court to control its processes and ensure the integrity of the proceedings was paramount. Consequently, the Court concluded that the Legal Practice should be restrained from continuing to act in the case.

Orders