Medlon & Medlon (No 3)
[2015] FamCAFC 37
•13 March 2015
FAMILY COURT OF AUSTRALIA
| MEDLON & MEDLON (NO. 3) | [2015] FamCAFC 37 |
| FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where the wife seeks that the husband’s senior counsel be restrained from further acting in this matter – Where the wife faces insurmountable hurdles – Where there is insufficient evidence to establish that a conflict of interest exists – Where issuing subpoenae to establish that a telephone call was made to and from chambers or to and from a solicitor’s office would not demonstrate who made the call, who received it or the content of any conversation – Where the wife seeks that the husband’s solicitor be restrained from further acting in this matter – Where the allegations made by the wife are serious but as they have not been established they do not provide a basis for granting the order sought – Where the wife was estopped from pursuing the application as a result of an email sent to the appeal registrar and the husband’s solicitor in which she advised that she would not pursue her application against the husband’s solicitor and instead would address her concerns with her directly – Where the wife accepted that she could not pursue the application and it should be dismissed – Where the wife seeks an order preventing publication of all judgments previously delivered in this matter – Where there is nothing in the wife’s affidavit or in her oral submissions which brings the circumstances of this matter within any of the grounds set out in s 102PF of the Family Law Act 1975 (Cth) – Where there is nothing set out in any of the judgments delivered which could provide the basis for an order for suppression or non-publication - Applications dismissed. |
| Family Law Act 1975 (Cth) – ss 102PD, 102PE, and 102PF |
| Family Law Rules (2004) (Cth) – r 5.19 |
| APPLICANT: | Ms Medlon |
| RESPONDENT: | Mr Medlon |
| FILE NUMBER: | ADC | 491 | of | 2010 |
| APPEAL NUMBER: | SOA | 88 | of | 2012 |
| DATE DELIVERED: | 13 March 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 February 2015 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 October 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1479 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Nelson QC with Mr Grant |
| SOLICITOR FOR THE RESPONDENT: | Adelaide Family Law |
Orders made 12 February 2015
Paragraph 2 in the application in an appeal filed by the wife on 5 July 2013 seeking an order that the husband’s counsel, Ms Frances Nelson QC, be restrained and an injunction be granted restraining her from further acting in this matter be dismissed.
Paragraph 3 in the application in an appeal filed by the wife on 5 July 2013 seeking an order that the husband’s solicitor, Ms Joanne Collie, be restrained and an injunction be granted restraining her from further acting in this matter be dismissed.
Judgment be reserved in relation to paragraphs 2 and 3 in the application in an appeal filed by the wife on 14 August 2013 wherein the wife seeks orders for the suppression of publication of this matter until further order and that all published material to date be uplifted from the Family Court of Australia website.
Judgment be reserved in relation to the oral application made on behalf of the husband today seeking an order for costs against the wife on an indemnity basis.
The application in an appeal filed by the wife on 25 March 2013 seeking an order reinstating her appeal, together with all outstanding costs applications in this matter, be listed for hearing before the Honourable Justice Strickland commencing at 2:15pm (ACDST) on Friday 27 March 2015 with a time estimate of half a day.
In the event that the wife is unable to attend the hearing on 27 March 2015 in person then leave is granted for her to attend that hearing by way of telephone link.
If the wife determines to file a further affidavit in support of her application in an appeal filed on 25 March 2013 then such affidavit is to be filed and served by the close of business on Friday 13 March 2015.
In the event that the husband wishes to file an affidavit in response either to the affidavit filed by the wife in support of her application in an appeal filed on
25 March 2013, or in response to any further affidavit the wife files, then such affidavit in response is to be filed and served by the close of business on Wednesday 25 March 2015, such service to be effected by way of email to the wife’s email address.
Order made 13 March 2015
The application in an appeal filed on 14 August 2013 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Medlon & Medlon (No. 3) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 88 of 2012
File Number: ADC 491 of 2010
| Ms Medlon |
Applicant
And
| Mr Medlon |
Respondent
REASONS FOR JUDGMENT
Introduction
On 12 February 2015 I heard and determined that part of the application in an appeal filed by Ms Medlon (“the wife”) on 5 July 2013 seeking orders that Ms Frances Nelson QC, the senior counsel for Mr Medlon (“the husband”) and Ms Joanne Collie, the solicitor for the husband, “be restrained and an injunction granted restraining [them] from acting in this family law matter”.
I made orders dismissing those applications and I indicated that in relation to the application to restrain Ms Nelson, I would deliver my reasons subsequently. Those reasons appear shortly.
In relation to the application to restrain Ms Collie, during the hearing the wife conceded that she was not able to pursue that application as a matter of law and agreed that I could dismiss the application. Thus, I made that order. I need though to elaborate on how that arose and I will do so later in these reasons.
The other application that was before me on 12 February 2015 was the wife’s application in an appeal filed on 14 August 2013 seeking the following orders:
…
2. That the publication of this matter be suppressed until further Order;
3.That all published material to date in the name of [Medlon & Medlon] be uplifted from this Honourable Court’s website;
…
In relation to that application I reserved my decision. I have determined to dismiss that application and I provide my reasons for that decision hereafter.
The final matter to record at this stage is that as a result of my dismissal of the applications to restrain Ms Nelson and Ms Collie, Ms Nelson made an application for costs. That was opposed by the wife and after hearing submissions I reserved my decision. I did that primarily because during the lengthy history of these proceedings there have been various applications for costs made, and I was not confident that all those applications had been dealt with. In those circumstances it was my position that the issue of costs should not be decided on a piecemeal basis, and on the next hearing date I would want to address any outstanding costs applications, and I would determine them together with the application made on 12 February 2015.
Procedural background
On 25 March 2013 the wife filed an application in an appeal seeking an order reinstating her Notice of Appeal (filed on 27 November 2012) against orders made by Federal Magistrate Kelly (as her Honour then was) on 30 October 2012. That Notice of Appeal had been deemed to be abandoned because of the failure by the wife to file her draft appeal index in the time prescribed by the Family Law Rules 2004 (Cth) (“the Rules”).
That application was listed for hearing on 8 May 2013, but on that day the wife made an oral application to restrain Ms Nelson from acting for the husband on the ground of an alleged conflict of interest.
As for the detail of what occurred at that hearing in relation to that application, I refer generally to my ex tempore reasons for judgment delivered on 8 May 2013 (see Medlon & Medlon [2013] FamCAFC 77) when I adjourned the proceedings for the wife to file a formal application in an appeal and a supporting affidavit, and to enable the wife to locate and present to the court the material on which she sought to rely (she not having filed any affidavit in support of the oral application). I also ordered the wife to pay the costs of the adjournment.
In addition to my ex tempore reasons for judgment delivered on 8 May 2013, I also refer to my reasons for judgment delivered on 9 September 2013 (see Medlon & Medlon (No. 4) [2013] FamCAFC 137) in relation to the wife’s application for leave to issue certain subpoenas. Those reasons were delivered having had the advantage of perusing the transcript of the hearing on 8 May 2013. The relevant paragraphs of those reasons for this purpose are as follows:
66.The wife alleges that she had a telephone conversation with
Ms Nelson, or a member of her staff, during which she conveyed confidential information to Ms Nelson or that staff member.67.This issue was apparently raised with Ms Nelson’s instructing solicitor in about April 2013, and it was then raised at the commencement of the hearing before the court on 8 May 2013.
68.The wife put to the court that this year she had come across a file note that reminded her that she had telephoned Ms Nelson “in very early 2011 to take over the matter from Mrs West”, and spoke either to Ms Nelson or her “personal assistant”. She further said that there was “a discussion on what was happening at the time”, that she said she was involved in “a very nasty property settlement matter”, that she spoke of what had been happening in the DVRO matter, and she explained her financial circumstances and enquired about the availability of Ms Nelson on 25 January 2011. The wife also recalled that there was a return telephone call or email advising that Ms Nelson was not available.
69.The wife said on 8 May 2013 that she was unable to recall the specifics of the conversation, but there was then some discussion between bench and bar in an attempt to pinpoint when the conversation may have taken place. The wife indicated that it would be between 3 January 2011 and 14 January 2011 given that by the latter date she had briefed Ms Pyke QC as her counsel. In response to that Ms Nelson indicated that she was on leave for more or less the whole of January 2011, as was her clerk. Indeed, Ms Nelson only returned from leave on 19 January 2011, and her diary indicated that she was available to take a brief on 25 January 2011.
70.Upon hearing that, the wife insisted that it was in January 2011 that the conversation took place, but agreed that it could not be after
14 January 2011. However, she then suggested that it could be late December 2010, but Ms Nelson indicated that her chambers closed on 22 December 2010 and she left for overseas on
26 December 2010. Further, she identified a letter which clearly recorded that Mrs West was still counsel for the wife as at
23 December 2010. The wife then reverted to saying that the conversation occurred in January 2011.71.I should record at this stage that Ms Nelson does not recall any conversation with the wife as she suggests in late 2010 or in early 2011, and the husband’s solicitors filed an affidavit on 19 July 2013 confirming the detail provided by Ms Nelson and annexing the relevant pages of her passport, her pocket diary, her chamber diary, and the pay records of her clerk.
72.Ultimately the wife indicated that she still wished to pursue her claim that Ms Nelson should be restrained from acting for the husband, but she needed an adjournment to file an application seeking that order, and a supporting affidavit, and time to locate the “file note”, and obtain and check the telephone records of [her former employer], given that the alleged telephone call was made from their offices. That adjournment was granted, with the hearing listed for 31 July 2013.
On 24 June 2013 the wife filed an application in an appeal seeking orders permitting the issuing of a number of subpoenas, including for the alleged purpose of demonstrating that Ms Nelson had a conflict of interest. That application came on for hearing before me on 28 June 2013 when the application was opposed primarily because there was still no application before the court seeking the injunctive relief. However, the hearing was not able to be completed because the wife, who was appearing by way of telephone link, hung up (i.e., effectively walking out on the hearing). As a result I adjourned the application, reserved the question of costs and delivered brief ex tempore reasons for judgment which I also refer to generally as providing relevant background to the applications before me on 12 February 2015 (see Medlon & Medlon (No. 2) [2013] FamCAFC 103).
On 5 July 2013 the wife filed the application in an appeal referred to above, supported by an affidavit. In that application the wife also sought my disqualification, and leave to issue certain subpoenas (effectively overtaking her earlier application in that regard, which for that reason I dismissed on
19 July 2013).
It is instructive to set out the paragraphs of the affidavit filed in support of the application relevant to the issue of the restraint of Ms Nelson. Those paragraphs are as follows:
…
4.I say on the issue of conflict of interest by the husband’s Counsel Ms Frances Nelson QC, that from discovering a note on one of my old [X Law Firm] files in this family law matter, such note of which is privileged and no longer agree to disclose because of privilege, I now recall that I contacted Ms Nelson QC and or her personal assistant at her chambers when I was working at [X Law Firm] with a view to her taking the brief in this matter.
5.Such discussion incorporated my property dispute with the husband, the family violence and its impact, the then restraining order, an overview of assets and payment of fees thereby my financial situation along with the following Court date, the latter of which was not suitable to Ms Nelson QC, all of which amounts to confidential discussion and a conflict of interest.
6.I say that I do not recall exactly what date this discussion took place, but believe it was early 2011 sometime, and nor does the handwritten file note have a date which is discernible possibly due to the holes for spiking in the file.
7.I further say that it does not matter whether or not Ms Nelson QC took over the brief from Ms West or Ms Pyke (sic), or not at all, rather there is a conflict which exists from this discussion, and an injunction is sought to restrain Ms Nelson QC from being briefed to act against a client, a potential client or a former client, namely me. A conflict check is her responsibility not mine and firms and community legal centres to my knowledge record approaches made and by whom to include for their conflict check register.
…
I heard the application seeking that I disqualify myself on 31 July 2013 and dismissed that application. The wife subsequently appealed that order but that appeal was dismissed by the Full Court on 1 September 2014 (see Medlon & Medlon [2014] FamCAFC 163).
The balance of the application in an appeal, including the applications seeking to restrain Ms Nelson and Ms Collie, and for leave to issue certain subpoenas, next came on for hearing on 12 August 2013. In relation to those applications the husband’s then solicitor, Mr Grant, filed an affidavit on 19 July 2013 in response to the affidavit of the wife filed on 5 July 2013, and that affidavit is now relied on by the husband.
On the day of that hearing the wife also sent to the appeal registrar an affidavit of hers affirmed on that day, allegedly in relation to the costs applications that were also to be heard that day. However, because of its lateness it was not filed, and at the hearing the wife indicated that in any event she would prefer to file a revised affidavit. On that basis I ordered the wife to file such further affidavit within 14 days. I will refer again though to the affidavit affirmed on 12 August 2013, and in particular an annexure thereto, later in these reasons.
On 12 August 2013 I completed the hearing in relation to the wife’s application for leave to issue certain subpoenas, subject to the wife filing a further affidavit.
The wife failed to file any further affidavit in accordance with my order, and accordingly on 9 September 2013 I delivered my reasons for judgment in relation to these matters.
To better understand and appreciate the sequence of events leading up to this I refer to [47] to [48] of the reasons delivered on 9 September 2013.
In relation to the issue of the subpoenas, it is important that I set out in full that part of the reasons for judgment delivered on 9 September 2013 addressing this topic. I have previously set out [66] to [72] of those reasons, but in order to follow the argument they need to be set out again. The relevant paragraphs are [59] to [82] as follows:
59. The wife seeks leave to issue subpoenae duces tecum to:
a) Telstra Corporation Ltd;
b) Optus Pty Ltd;
c) [X Law Firm];
d) Sir Mellis Napier Chambers; and
e) Moore Law.
60.With the subpoena to Moore Law that sought the production from 2009 to current of, “[a]ll trust and office accounts including any disbursements paid or owing or incurred to date as work in progress for the client, [Mr Medlon] born [in] 1955”.
61.The purpose of that was apparently to challenge the statement made by Ms Nelson at the hearing on 8 May 2013 that the husband had paid approximately $250,000 in legal costs. That arose in the context of an application for costs by the husband as a result of the wife seeking and obtaining an adjournment of the proceedings. I made an order for costs, and thus that matter is finalised and there is no basis for this subpoena to issue. Accordingly I propose to dismiss the wife’s application to that extent.
62.The subpoenae to Telstra and Optus each seek production of the following:
A listing of all telephone calls both incoming and outgoing for the period from 1st December 2010 to 31st March 2011 inclusive for the telephone landline numbers (area code ..) …. …. including for any additional landlines associated with that telephone number, and a listing of all telephone calls both incoming and outgoing for the period from 1st December 2010 to 31st March 2011 inclusive for the telephone landline numbers (area code ..) …. …. including for any additional landlines associated with that telephone number.
63.The subpoena to [X Law Firm] seeks production of “[a] listing of all VOIP telephone calls for both incoming and outgoing calls at [X Law Firm] for the period from 1st December 2010 to 31st March 2011”.
64.Although the subpoena to Sir Mellis Napier Chambers as drawn seeks production of more documents, the wife indicated that she seeks production of all telephone message books and all telephone records of incoming or outgoing telephone calls including any calls through VOIP, for the period from 1 December 2010 to 31 March 2011 for Ms Nelson and her staff members.
65.These four subpoenae are sought to be issued in relation to the wife’s application to restrain Ms Nelson “from acting for the husband” because of a conflict of interest.
66.The wife alleges that she had a telephone conversation with
Ms Nelson, or a member of her staff, during which she conveyed confidential information to Ms Nelson or that staff member.67.This issue was apparently raised with Ms Nelson’s instructing solicitor in about April 2013, and it was then raised at the commencement of the hearing before the court on 8 May 2013.
68.The wife put to the court that this year she had come across a file note that reminded her that she had telephoned Ms Nelson “in very early 2011 to take over the matter from Mrs West”, and spoke either to Ms Nelson or her “personal assistant”. She further said that there was “a discussion on what was happening at the time”, that she said she was involved in “a very nasty property settlement matter”, that she spoke of what had been happening in the DVRO matter, and she explained her financial circumstances and enquired about the availability of Ms Nelson on 25 January 2011. The wife also recalled that there was a return telephone call or email advising that Ms Nelson was not available.
69.The wife said on 8 May 2013 that she was unable to recall the specifics of the conversation, but there was then some discussion between bench and bar in an attempt to pinpoint when the conversation may have taken place. The wife indicated that it would be between 3 January 2011 and 14 January 2011 given that by the latter date she had briefed Ms Pyke QC as her counsel. In response to that Ms Nelson indicated that she was on leave for more or less the whole of January 2011, as was her clerk. Indeed, Ms Nelson only returned from leave on 19 January 2011, and her diary indicated that she was available to take a brief on 25 January 2011.
70.Upon hearing that, the wife insisted that it was in January 2011 that the conversation took place, but agreed that it could not be after 14 January 2011. However, she then suggested that it could be late December 2010, but Ms Nelson indicated that her chambers closed on 22 December 2010 and she left for overseas on 26 December 2010. Further, she identified a letter which clearly recorded that Mrs West was still counsel for the wife as at 23 December 2010. The wife then reverted to saying that the conversation occurred in January 2011.
71.I should record at this stage that Ms Nelson does not recall any conversation with the wife as she suggests in late 2010 or in early 2011, and the husband’s solicitors filed an affidavit on 19 July 2013 confirming the detail provided by Ms Nelson and annexing the relevant pages of her passport, her pocket diary, her chamber diary, and the pay records of her clerk.
72.Ultimately the wife indicated that she still wished to pursue her claim that Ms Nelson should be restrained from acting for the husband, but she needed an adjournment to file an application seeking that order, and a supporting affidavit, and time to locate the “file note”, and obtain and check the telephone records of [X Law Firm], given that the alleged telephone call was made from their offices. That adjournment was granted, with the hearing listed for 31 July 2013.
73.For some time after the hearing on 8 May 2013 the wife refused all requests to produce the “file note” claiming legal professional privilege, however, she has now indicated that she is prepared to produce it and it was to be an annexure to the affidavit to be filed by 26 August 2013, and which affidavit has not been filed. Thus the document is still not before the court, but the wife has indicated that the date is not clearly discernible because of the spike in the file on which it had been placed, and that she has hidden the detail of the alleged conversation because she still claims legal professional privilege.
74.I pause to indicate that lack of clarity and detail in the file note is a major hurdle for the wife in pursuing not only leave to issue subpoenas, but also the application itself. The wife has yet to detail the specific information that she says she conveyed to Ms Nelson or her clerk, and which she says is confidential. I have explained to the wife on at least two occasions that if she wants this court to find that she has conveyed confidential information to Ms Nelson she has to tell the court what she said. To date the wife has done nothing more than speak in vague generalities.
75.Given that background there are significant difficulties with the subpoenas that the wife wishes to issue.
76.First, they are far too wide and thus they are oppressive. Given what emerged as to when the wife allegedly made the telephone call, the relevant time can only be from 23 December 2010 until 14 January 2011.
77.Secondly, it is unnecessary to seek the telephone records of Ms Nelson’s chambers given that if the call was made it was made from [X Law Firm].
78.Thirdly, to establish that a telephone call was made to the telephone number of Ms Nelson’s chambers does not demonstrate at all who made it, who received it, or the content of the conversation if there was one.
79.Fourthly, there is the overriding issue that the wife has still not revealed the specifics of her alleged conversation such that it can be seen (or not) that confidential information was conveyed.
80.As a result of these considerations it is argued on behalf of the husband that leave should not be granted to issue the subpoenas and I am attracted to that argument. However, as was put by the wife on 8 May 2013, and not challenged by the husband, she sought time not only to locate the “file note” but also to look at the phone records of [X Law Firm]. Thus, I would be prepared to give leave to the wife to issue a subpoena to Telstra and a subpoena to Optus to each produce a listing of outgoing telephone calls for the period from 23 December 2010 to 14 January 2011, for the telephone number .. …. …., and for any landlines associated with that telephone number, and a subpoena to [X Law Firm] seeking production of a list of all VOIP outgoing telephone calls for the period from 23 December 2010 to 14 January 2011.
81.These subpoenae are to be issued by 13 September 2013 and they are to be returnable on or before 27 September 2013.
82.I will further make an order that any documents produced pursuant to these subpoenas be forwarded by the Regional Appeals Registrar of this Court in Melbourne to the Registry of the Family Court of Western Australia to permit inspection and copying of the same by the wife in that Registry.
As to the applications to restrain Ms Nelson and Ms Collie, on 12 August 2013 they were listed for hearing on 3 October 2013, but that hearing was vacated as a result of the filing by the wife of the Notice of Appeal against my refusal to disqualify myself.
Once that appeal had been finalised the outstanding applications, including the application in an appeal filed on 14 August 2013, were listed for mention initially on 21 October 2014, but then adjourned to 23 October 2014. On that date it was not possible to finally fix a date for the hearing of the outstanding applications, and that issue was adjourned to 20 January 2015. It was recognised though, that because the wife had not yet issued the subpoenas in accordance with my order of 9 September 2013, it was necessary to vary that order to update the time for filing and for responding, and that was attended to. I note that no issue was raised by the wife in relation to those orders at that time.
On 20 January 2015 the outstanding applications were listed for hearing on
12 February 2015. The wife submitted, though, that any hearing in relation to the application to restrain Ms Nelson could not proceed, because she wanted to be able to issue subpoenas covering different periods of time than were identified in my order of 9 September 2013, and to also issue a further subpoena. In short, she wanted to issue subpoenas to Telstra, Optus and X Law Firm to cover the period of December 2010, January 2011, and February 2011, and to issue a subpoena to the chambers of Ms Nelson covering the same period. However, as I pointed out to the wife, save and except that her previous application sought that the month of March 2011 be included, I had decided on 9 September 2013 that there was no basis for such subpoenas to be issued and I dismissed her application to issue the subpoena to the chambers of Ms Nelson. As is apparent from my order, I limited the time period that the subpoenas could cover to the period 23 December 2010 to 14 January 2011, on the basis of the evidence contained in the wife’s affidavit, and her submissions.
It was common ground that the wife had not filed an appeal against my orders of 9 September 2013, and thus they remained in place (as varied by the order of 23 October 2014). At the hearing on 20 January 2015 the wife indicated that she had sought to apply to vary the order of 9 September 2013, but that application had been rejected. I understand that the appeal registrar did reject that application on the basis that the orders sought were in effect the same as the orders sought previously, and which had then been dealt with by me on
9 September 2013. In my view the appeal registrar was correct in that regard, and the appropriate course for the wife was to seek an extension of time to appeal the orders of 9 September 2013. I note that there has been no application to review the exercise of power by the registrar in refusing to file the wife’s application.
During the hearing on 20 January 2015 the wife, seemingly not accepting of the position as just expressed, asked me to disqualify myself. I refused to do so saying that there was no basis for me to do that, and I duly dismissed her oral application.
The hearing on 12 February 2015
First, to clarify an issue that arose at the commencement of this hearing. When I identified the applications before the court the wife said:
… my understanding from the last court date was that we were dealing with the Ms Collie matter today and the suppression orders.
Then, in response to me indicating that the application to restrain Ms Nelson was also listed, the wife said this:
I was not aware of that … because I have said on the last two occasions I can’t continue with that until the subpoena matter is sorted out … and an appeal has gone in today in relation to all of that.
In response to me indicating that I was not aware of any appeal that had been filed, and that I was in no doubt that the application to restrain Ms Nelson was listed that day and would be proceeding, the wife said that I indicated it would be a “brief hearing today” and that we would be dealing with the application for a suppression order, and the application to restrain Ms Collie. I then indicated that I did not say that the hearing that day would be a brief hearing. The wife then suggested that the orders made on 20 January 2015 did not refer to the application to restrain Ms Nelson. However, after looking at the orders the wife apologised and confirmed that the order did provide for the application to restrain Ms Nelson to be heard on 12 February 2015.
I then explored with the wife the appeal that she indicated she had filed that day. She said that the appeal was against my order refusing to disqualify myself. On the basis of that, and particularly given that it did not seek to appeal the orders made on 9 September 2013 (which would have required an extension of time in any event) I indicated that there was no reason why the hearing of the applications listed that day could not proceed.
For completeness, I indicate that on 20 January 2015 I did say that depending on what the wife did in relation to an appeal, or rather an extension of time to appeal against the orders of 9 September 2013, that the hearing on 12 February 2015 may be brief. In other words, if there was such an appeal (or a successful extension of time to appeal) against those orders then clearly I would have had to consider whether the hearing of the application to restrain Ms Nelson still proceeded, and that may have affected the length of the hearing. Importantly, what I in fact said on 20 January 2015, was not accurately portrayed by the wife on 12 February 2015.
The application to restrain Ms Nelson QC
I attempted to have the wife indicate the documents on which she relied in relation to this application, but the wife continued to insist that without the documents she wanted to subpoena there was no point in proceeding with the hearing. She said that the reason for this was that it had been “established” that Ms Nelson was overseas at the relevant time and the lawyer’s office (X Law Firm) where she worked was closed for the holiday period. She later claimed that she was not prepared for the hearing and could not identify the affidavits on which she relied. However, despite this the wife indicated that she still pursued the application.
Although the wife failed to identify the affidavits relied upon, I take into account, insofar as it is relevant, her affidavit filed on 5 July 2013 in support of the application. I also take into account the wife’s submissions on 8 May 2013, and 12 August 2013, in presenting her case on this issue.
As for the husband, Ms Nelson relied on the affidavit of Mr Grant filed on 19 July 2013, and the three letters tendered to the court and marked Exhibits H1, H2 and H3.
It is beyond doubt that the wife’s case was that in early 2011 she had a telephone conversation with either Ms Nelson, or her clerk, with a view to Ms Nelson taking over from her then counsel Mrs West, and appearing for her on 25 January 2011. However, as it transpired there is no factual basis for this allegation. The evidence is that:
a)as at 23 December 2010 Mrs West was still briefed as counsel for the wife (Exhibit H1);
b)by 14 January 2011 the wife had briefed Ms Pyke to take over from Mrs West, and Ms Pyke appeared for the wife on 25 January 2011 (Exhibit H3);
c)
Ms Nelson’s chambers closed for the Christmas break on
22 December 2010;
d)On 26 December 2010 Ms Nelson departed Australia and returned on 10 January 2011;
e)Ms Nelson did not return to work at her chambers until 19 January 2011;
f)
Ms Nelson’s clerk was on leave from 22 December 2010 until
24 January 2011;
g)Ms Nelson could have appeared for the wife on 25 January 2011; and
h)Ms Nelson has no recollection whatsoever of any conversation with the wife during the relevant period, or indeed at any time, on the topic of appearing for the wife as counsel.
However, unlike how the wife had presented her case previously, at the hearing on 12 February 2015 she attempted to suggest that the conversation may have occurred after Ms Pyke took over as counsel, and thus perhaps in the month of February 2011. She said that this was a reason for her wanting to issue subpoenas covering that month as well. It is apparent though that that claim is inconsistent with all that she said on 8 May 2013, and clearly was now being put because it seems she had finally realised that the alleged conversation could not have taken place at the time she claimed.
In oral submissions before the court the wife suggested that she had raised this issue (namely that the conversation may have taken place in February 2011) in her affidavit affirmed on 12 August 2013, and which affidavit was not accepted for filing. However, I took her to the relevant paragraphs of that affidavit (paragraphs 4, 5, and 6) and it became readily apparent that that was not the case.
The wife also submitted that she had found the file note which reminded her of the alleged conversation in a position in the file that indicated it could have been made in February 2011, or even March 2011. Further, she claimed that she only found that note as a result of me asking her to locate it and produce it to the court. However, again, that is not correct. In her oral submissions on
8 May 2013 the wife said that she was making the application to restrain
Ms Nelson as a result of her finding the file note. Further, all of the discussion on 8 May 2013 as to when the alleged conversation took place, centred around it being in relation to Ms Nelson’s availability to appear for the wife on 25 January 2011. Indeed, as I said at [68] of my reasons for judgment on 9 September 2013:
The wife put to the court that this year she had come across a file note that reminded her that she had telephoned Ms Nelson “in very early 2011 to take over the matter from Mrs West” …
Further, as I also pointed out in my reasons of 9 September 2013, apart from the lack of a factual basis as to when the alleged conversation took place, the wife faced other insurmountable hurdles. First, the wife has still failed to sufficiently detail the content of the alleged conversation to establish that what was discussed demonstrates that a conflict of interest now exists. The file note from which the wife’s claim stems is now before the court. It was annexed to the wife’s affidavit affirmed on 12 August 2013, and although that affidavit was not accepted for filing, it is common ground that I can have regard to that file note in determining this application. On this basis I have removed the file note from the affidavit and made it an Exhibit (W1).
As can be seen from the file note, given the lack of clarity, and the lack of detail in that note, it cannot assist the wife in her application.
Secondly, it needs to be emphasised that 8 May 2013 (or rather April 2013 when the issue was apparently raised by the wife with the husband’s solicitors) was not the first time that Ms Nelson had appeared as counsel for the husband. She had appeared as counsel since September 2012, and importantly, she appeared at the hearing of the wife’s s 79A application on 30 October 2012 before Federal Magistrate Kelly (as her Honour then was). However, at no stage between September 2012 and April 2013 was it suggested by the wife that Ms Nelson had a conflict of interest.
To return briefly to the issue of the subpoenae. As I emphasised in my reasons for judgment of 9 September 2013, it is not apparent what information would be forthcoming from those subpoenae that would be relevant to the application the wife was making. In other words, to establish that a telephone call was made to the chambers of Ms Nelson, or from the offices of X Law Firm, would not demonstrate who made the call, who received it, or the content of any conversation, and bearing in mind that the call would be from or to solicitors from or to a barrister’s chambers.
In any event, the application must be dismissed.
The application to restrain Ms Collie
The basis of this application is set out in the wife’s affidavit of 5 July 2013, and in particular in paragraphs 8 and 9 as follows (italics in original):
8.I say on the issue of restraining the husband’s solicitor Ms Joanne Collie from acting in this family law matter is in part due to her defamatory comments made to third parties including in writing to the Federal Circuit Court and therefore viewed by staff, copies sent to her client and barrister, in addition to being viewed by staff at Moore Law, and also to the Bank of SA staff who then passed on the information to others within the bank. Despite all this she denies in her apology letter to me that any third party whatsoever was privy to her defamatory remark of calling me a “creature.” This is clearly incorrect.
9.In addition, the husband’s solicitor Ms Collie has attended [with the husband] on the [W Business] manager Ms [MA] to offer advice on my issuing of a subpoena to the [W Business] for documented evidence on a Lease. It has now become apparent from my inspection of those documents that the [W Business] did not fully comply with the subpoena and proceedings for contravention will be necessary. Further, the husband’s solicitor Ms Collie wrote a letter to the Bank of SA offering advice to the bank [which has its own legal advisors in any event] to object to the subpoena served on them by me and urging them to seek an order for all costs against me for their producing the documents under that subpoena. This constitutes an unacceptable interference with third parties by her (on the Bank and [the W Business]) and by the husband (on his attendance on the [W Business] to discuss the subpoena). It is further noted that both disclosed their comments on my reasons as to why I was issuing subpoenas and why I was at Court. It is unacceptable to discuss matters with third parties not a party to proceedings.
In the affidavit of Mr Grant filed on 19 July 2013 the reference to the wife as a “creature” is explained, and the allegations in paragraph 9 of the wife’s affidavit are denied.
The wife informed the court on 12 February 2015 that she has complained to the relevant authorities about the alleged conduct of Ms Collie, but no determination has yet been made.
Although the allegations made by the wife are serious, I am not persuaded that they provide a basis for Ms Collie to be restrained from acting for the husband in these proceedings. Apart from anything else, the allegations are just that; they have not been established, and could never be established before this court. Further, and in any event, the matter has been placed before the relevant authorities.
What does concern me though is the manner in which the wife addressed these allegations before this court, and also why she proceeded with the application.
As to the former, the wife, despite being a legal practitioner, herself made outrageous allegations against Ms Collie including allegations not contained in her documents, and she spoke to them without any acknowledgement that there was a denial by Ms Collie of what was being alleged. As Ms Nelson said, in making her submissions, not only in relation to this topic, but generally, the wife consistently behaved in a manner unbecoming of a legal practitioner and without regard for how proceedings should be conducted in court. Indeed, I was obliged to adjourn the court on two occasions during the hearing because of the conduct of the wife.
As to the latter issue, apart from there being no basis to bring the application, the wife was clearly estopped from pursuing it as a result of the email she sent to the appeal registrar and to Ms Collie on 31 October 2014, (annexure “JKC1” to the affidavit of Ms Collie filed on 9 February 2015), advising that she was “willing to forgo seeking [the injunction against Ms Collie] and instead address my concerns with her directly”.
This email was raised by Ms Nelson during the hearing on 12 February 2015 and the wife accepted that she could not pursue the application and that it should be dismissed.
The application seeking orders for non-publication
The application filed by the wife on 14 August 2013 is supported by an affidavit filed on the same date. That affidavit is brief, and reads as follows:
1.I am the Applicant and the Appellant in these proceedings before this Honourable Court.
2.I seek this matter of a suppression order be heard on an ex-parte basis.
3.This matter of [Medlon & Medlon] is very contentious and long running due to alleged non-disclosure.
4.The published case of [Medlon & Medlon] is identifiable as being this matter and is therefore not private.
5.The judgements (sic) to date are harmful, hurtful and offensive to myself, my family, friends and colleagues.
6.The judgements (sic) are easily identified by the File Numbers being accurately published on the Court website.
7.The judgements (sic) are also easily identified by the facts of the case and by the Applicant’s occupation.
8.The judgements (sic) are not necessarily agreed to as being accurate by myself and may yet be appealed.
9.The legal profession is reasonably small in the region and in the state.
10.My personal matter is likely to be identificable (sic) and therefore any publication highly embarrassing.
11.There are many confidential issues concerning my matter which includes and involves my children.
12.My children are all adults. There are three children who work in and hold a public profile and reputation.
13.I also work in the public and have a good reputation as a hard working professional with few complaints, if any.
14.My youngest daughter [A] has been traumatised and in receipt of weekly psychologist counselling.
15.My youngest daughter [A] has been assessed in early 2013 as being at risk of suicide.
16.I have offered as much emotional and financial support as possible to [A] to care and support her.
17.I have also been in receipt of psychologist counselling over the years due to the husband’s behaviour.
18.Due to the nature of the husband’s behaviour, in 2010 and 2011 I was assessed as close to a stroke.
19.I have overcome much of the stress and anxiety but I do remain still on anti-depressants daily after 3 years.
20.It is extremely damaging for us to publish anything regarding this matter with such trauma still experienced.
21.I have yet to disclose more confidences which will show I suffer from a post traumatic stress disorder.
22.I say it should never be this Honourable Court’s intention to cause harm or hurt to any party or family.
23.I further say to do so would be unethical to ignore such risk of harm, damage and hurt to my family.
24.I respectfully seek my suppression order as filed and as this my Affidavit supports.
Apart from relying on this affidavit the only submission made by the wife was to the effect that a number of her adult children work in the public arena, as does she.
The application is governed by ss 102PE and 102PF of the Family Law Act 1975 (Cth) (“the Act”). Section 102PE provides the power to make a suppression or non-publication order, and s 102PF sets out the grounds on which an order may be made. Those grounds are as follows:
(1)The court may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
` (c) the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency).
…
I record that the husband did not necessarily oppose the application but
Ms Nelson appropriately submitted that whether the application is granted or not is a matter for the court.
I also observe that the wife, in the affidavit that she relied upon, failed to comply with Rule 5.19 of the Rules. However, I have overlooked that failure in order to allow the application to proceed.
I am not persuaded that anything in the wife’s affidavit or in her oral submissions brings the circumstances of this matter within any of these grounds. Indeed, I do not consider that there is anything in any of the judgments delivered which could provide the basis for an order for suppression or non-publication. Certainly I have made criticisms of the wife and her conduct in these reasons for judgment, but I consider it essential in the interests of justice for these criticisms to be in the public arena. In that regard I note
s 102PD of the Act provides that:
In deciding whether to make a suppression order or non-publication order, the court concerned must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Accordingly, I propose to dismiss the wife’s application.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
13 March 2015.
Associate:
Date: 13 March 2015
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