McKay and Forrest

Case [2018] FCCA 2287

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCKAY & FORREST [2018] FCCA 2287
Catchwords:
FAMILY LAW – Solicitor for Respondent changes firms – she is employed by Applicant’s former employer – the same firm acted for father and sister in Part IV Proceedings – alleged confidential information – alleged familiarity – alleged conflict – injunction sought – application dismissed. 

Legislation:

Family Law Act 1975 (Cth), s.90SS

Cases cited:

Osferatu & Osferatu [2015] FamCAFC 177

Karapataki& Karapataki [2011] FMCAfam 6

McMillan & McMillan [2000] FLC 93-048

Spincode Pty Ltd v Look Software Pty Ltd & Ors (2001) 4 VR 501

Gillam v Gillam [2017] FCCA 64

Wilmer v Golding (No.2) [2017] FamCAFC 213, (2017) FLC 93 A13

Dalton & Dalton [2017] FamCAFC 78, (2017) FLC 93-773
Applicant: MR MCKAY
Respondent: MS FORREST
File Number: MLC 1960 of 2018
Judgment of: Judge Curtain
Hearing dates: 5 April 2018 & 13 June 2018
Date of Last Submission: 14 May 2018
Delivered at: Melbourne
Delivered on: 21 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Chislett
Solicitors for the Applicant:
Counsel for the Respondent: Ms Swann
Solicitors for the Respondent: Mills Oakley

ORDERS

  1. That Order 20 sought in the Applicant’s Further Amended Application filed 29 March 2018 be dismissed.

  2. That Ms R, her servants and agents being members of, employees of or servants of the firm known as Mills Oakley Lawyers be and are hereby restrained from accessing physically, electronically or otherwise, the file or any part of the file of Ms F without first obtaining an order from this Court whilst these proceedings are still on foot.

  3. Liberty be reserved to the Applicant and the Respondent to seek any relevant undertaking in relation to this matter on the interim return date 23rd August, 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1960 of 2018

MR MCKAY

Applicant

And

MS FORREST

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The Applicant Mr McKay and the Respondent Ms Forrest lived in a de facto relationship from 2002, to around April or June, 2016. There are three children from that relationship and on the 24th of February, 2018 the Applicant filed proceedings in this Court seeking relief in relation to parenting and property matters.  On the 9th of March 2018 he filed an Amended Application. On the 29th of March 2018 he filed a Further Amended Application where at interim order 20, he sought the following… “that Mills Oakley be prohibited and forthwith injuncted from acting for the de facto wife/mother based on a conflict of interest.”

  2. The Respondent de facto mother opposes such an injunction.

Background

  1. In his affidavit affirmed and filed on the 29th March 2018, the Applicant details that on the 14th March 2018, he received an email from a Ms R, the solicitor acting for the de facto Respondent informing him…

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Details
AGLC
McKay and Forrest [2018] FCCA 2287
Case
[2018] FCCA 2287
Decision Date

CaseChat Overview and Summary

In *McKay and Forrest*, heard by Judge Curtain, the applicant sought orders against the respondent, Ms R, and her legal representatives, Mills Oakley Lawyers. The core of the dispute concerned the respondent's legal team's access to a file belonging to Ms F, a non-party to the proceedings. The applicant sought to prevent this access.

The primary legal issue before the Court was whether the respondent's legal representatives should be restrained from accessing Ms F's file. This involved considering the principles governing the disclosure and use of documents belonging to third parties in litigation, particularly where those documents might be relevant to the proceedings.

Judge Curtain reasoned that the applicant had not established a sufficient basis to justify the broad restraint sought in Order 20 of the Further Amended Application, leading to its dismissal. However, the Court did grant an order restraining Ms R, her servants, and agents, including members and employees of Mills Oakley Lawyers, from accessing Ms F's file without a further court order while the proceedings were ongoing. This order aimed to protect Ms F's interests and ensure that any access to her file was properly authorised. Liberty was reserved for the parties to seek relevant undertakings regarding this matter.

Orders

Orders of the court

1.

That Order 20 sought in the Applicant’s Further Amended Application filed 29 March 2018 be dismissed.

2.

That Ms R, her servants and agents being members of, employees of or servants of the firm known as Mills Oakley Lawyers be and are hereby restrained from accessing physically, electronically or otherwise, the file or any part of the file of Ms F without first obtaining an order from this Court whilst these proceedings are still on foot.

3.

Liberty be reserved to the Applicant and the Respondent to seek any relevant undertaking in relation to this matter on the interim return date 23rd August, 2018.

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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