MILLHOUSE & MULLENS

[2015] FamCA 754

FAMILY COURT OF AUSTRALIA

MILLHOUSE & MULLENS [2015] FamCA 754

FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest – Where the wife seeks an order that the husband be restrained from continuing to instruct his solicitor and his solicitor’s firm to represent him in the proceedings – application dismissed.

FAMILY LAW – PROPERTY – Interim – Where the wife seeks other injunctive relief and orders for disclosure, spousal maintenance and interim litigation costs funding – Where it is inappropriate to seek such other orders before the application to restrain the husband from continuing to instruct his solicitors from representing him is determined. 

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561
Naczek v Dowler [2011] FamCAFC 179
Stanford v Stanford (2012) FLC 93-518

APPLICANT: Ms Millhouse

RESPONDENT: Mr Mullens

FILE NUMBER: BRC 10196 of 2013

DATE DELIVERED: 11 September 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hackett

SOLICITOR FOR THE APPLICANT: Hirst & Co Family Solicitors

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Barry.Nilsson. Lawyers

Orders

1. That the wife’s application for the husband to be restrained from continuing to instruct Mr Geoff Sinclair and Barry.Nilsson. Lawyers to represent him in these proceedings is dismissed.

2. That the balance of the wife’s application for interim orders contained in her Amended Application in a Case filed 4 August 2015 is adjourned for hearing before her Honour Justice Hogan in the Judicial Duty List commencing at 10.00 am on Monday, 26 October 2015.

3. That the husband shall file and serve any Response and affidavit evidence upon which he intends to rely at the hearing of the wife’s application on 26 October 2015 on or before Friday, 16 October 2015.

4. That the husband shall file and serve any written submissions in support of his application for costs of and incidental to the wife’s dismissed application for restraint, on or before Friday, 2 October 2015.

5. That the wife shall file and serve any written submissions in response to any written submissions in support of the husband’s application for costs, on or before Friday, 23 October 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Millhouse & Mullens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10196 of 2013

Ms Millhouse

Applicant

And

Mr Mullens

Respondent

REASONS FOR JUDGMENT

1. This application for interim orders in property adjustment proceedings that are pending in the Court came before me in the Judicial Duty List on Monday, 24 August 2015.  I reserved my judgment that day.

2. In the substantive proceedings, the wife seeks property adjustment orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Those proceedings were commenced by her in 2014.

3. By Amended Application in a Case filed on 4 August 2015 the wife seeks:

   (i)An injunction restraining the husband from continuing to instruct Barry.Nilsson Lawyers and Mr Geoff Sinclair to represent him in the proceedings;

   (ii)An injunction restraining the husband from:

   (a)disposing of the sale proceeds of the property known as B Street, A Town other than by means specified in the application;

   (b) disposing of or further encumbering other property interests without first giving the wife 21 days written notice of his intention to do so;

   (c)altering his interests in four (4) corporations without first giving the wife 21 days written notice of his intention to do so;

   (iii) Specific disclosure in relation to trusts associated with properties acquired by the husband and which have not been disclosed by the husband;

   (iv)     Spousal maintenance in the sum of $1,300 per week;

   (v)An interim litigation costs funding order in the amount of $150,000 or, in the alternative, a dollar for dollar interim litigation costs funding order.

Some Brief Background facts

1. The husband, who had been previously married, and the wife, who had been twice previously married, commenced to live together as a couple in 2008. They married in 2010 and separated in August 2013.

2. The wife was a widow with three children when she commenced living with the husband. Her daughter of her first marriage is now an adult living and studying interstate. Her two teenage sons of her second marriage still live with her. The husband has a daughter of his previous marriage who lives with her mother and spends time with him on weekends.

3. The husband owns and runs his own business. The wife works in part-time employment for her new partner’s business and has done since August 2014. She was not employed during the marriage to the husband, having closed a business she owned sometime after they commenced cohabitation.

4. The wife asserts that at cohabitation she had assets and liabilities with a net value of $2,096,000 and that the husband had assets, superannuation and liabilities with a net value of $3,815,000. She asserts that she now has assets, superannuation and liabilities with a net value of $285,092 and that the husband has assets, superannuation and liabilities with a net value of $7,735,500.

5. For the wife, it is said that the dramatic decline in her financial position has come about by the post-separation sale of a property formerly owned by her for $950,000 when it had previously been valued at $1.8 million; as well as the disposition of almost all of the proceeds of sale of that property on the discharge of two mortgages and on the support of the wife and her children since separation.

6. The wife asserts that the parties agreed in or around January 2010 to be married and later set the wedding for later that year. She also asserts that about three weeks out from the wedding date the husband informed her that he was going to organise a “pre-nup” and that she needed to find herself a solicitor.

7. It is not disputed that three days before the wedding, Mr Geoffrey Sinclair of Barry.Nilsson gave advice to the husband with respect to the terms of a draft document that was described as a financial agreement between the husband and the wife. On that same day, by email from Barry.Nilsson to Jones Mitchell Lawyers the husband offered to enter into a financial agreement with the wife in the terms of a draft document attached to that email. It is unclear whether the draft attached to the email was the same as the document about which Mr Sinclair gave the husband advice.

8. Two days before the wedding the wife says she met with Mr Warwick Jones of Jones Mitchell Lawyers and saw the draft financial agreement sent by Barry.Nilsson the day before for the first time. The wife asserts that the terms of the draft agreement caused her distress as did the husband’s insistence that she sign it.

9. On the day before the wedding the wife says another draft of a proposed agreement was sent to Jones Mitchell from Barry.Nilsson. The wife asserts that draft was materially different to the first draft and that yet further amendments to that draft were made over the course of that day, including some by the wife. She asserts that she was advised by Mr Jones not to sign the financial agreement but that she did so contrary to that advice.

10. Indeed, Mr Jones has deposed to that day having advised the wife not to sign the agreement as he held the opinion that:

    (i)She was overwhelmed by events;

    (ii)She was clearly distressed and cried a number of times;

    (iii)She did not understand all of the agreement;

    (iv)There were parts of the agreement she did not agree with;

    (v)She was telling him she was feeling pressured to sign the agreement because of the significance of the wedding event the following day;

    (vi)It was clear to him that she was not exercising clear and calm judgment;

    (vii)He did not consider the agreement would necessarily provide for her to receive a just and equitable outcome in the event of future separation; and

    (viii)He did not consider it was to her advantage to sign the agreement in all the circumstances.

11. The wife says she delivered the signed document to the husband that same night and he signed it on the following day, without having received further advice from Mr Sinclair. Accordingly, the wife asserts that the financial agreement signed by the husband and the wife was not in the terms of the document about which Mr Sinclair gave advice on three days previously.

12. The wife further asserts that on 14 May 2010 Mr Sinclair signed a document headed “Certification by [husband’s] solicitor” which said:

    That in relation to an agreement in writing proposed to be entered into between [the husband] and [the wife] (called “the parties”), I advised [the husband] (called “my client”) independently of [the wife] and before the time at which my client signed the Agreement as to the following matter:

    (i)the effect of the Agreement on the rights of the parties, particularly my client;

    (ii)the advantages and disadvantages to my client at the time that the advice was provided, of making the Agreement.

13. The wife further asserts that during the marriage she received an inheritance of $500,000 in 2011 and contributed that entirely to the marriage.

14. After separation in August 2013, the wife was again represented by Jones Mitchell in negotiations with Barry.Nilsson representing the husband where financial issues were discussed. Through Jones Mitchell, the wife was asserting that the financial agreement would be determined not to be binding and that the husband should concede that. Through Barry.Nilsson, the husband would not concede that.

15. Mr Jones apparently determined that he would be a witness in any Court proceedings that would consider the enforceability of the financial agreement and the wife appropriately retained a different firm of solicitors to act for her.

16. The husband initially defended the wife’s proceedings by asserting the binding nature of the financial agreement entered into prior to their marriage. The wife asserted that the said financial agreement would be set aside by the Court and sought orders accordingly. A few weeks after a Statement of Claim, settled by Senior Counsel, was filed in September 2014 by the wife, the husband’s solicitors communicated to the wife’s solicitors that the husband would no longer be asserting that the financial agreement was binding on the parties. Nevertheless, the husband maintained the position that the wife’s application for property adjustment orders pursuant to s 79 should be dismissed.

17. Early this year, one of the solicitors formerly in the employ of Barry.Nilsson who had some involvement with the drafting of the financial agreement in May 2010, left the firm and went to work for the firm of solicitors then acting for the wife. Unsurprisingly, that firm then ceased acting for the wife because of that.

18. The wife then retained her current solicitors and they immediately wrote to the husband’s solicitors demanding that they withdraw and cease acting for the husband in the matter. They wrote:

    Our client has instructed us to require Mr Sinclair and your firm to immediately cease representing [the husband]. This demand is made in circumstances where Mr Sinclair and your firm have a personal interest in the conduct of the proceedings beyond merely an expectation of payment of your fees.

    That interest arises as:

    ·    It is in the interest of Mr Sinclair and your firm to ensure that in the circumstances the property settlement entitlement of our client is minimised. We note that currently your client seeks that there be no property adjustment order.

    ·    There is an unresolved issue of the costs arising from the position adopted by [the husband] as to the binding nature of the Financial Agreement and the likelihood of those costs being paid by your firm.

    Self-evidently, should our client ultimately succeed in obtaining a property settlement order in her favour greater than any amount to which she would have been entitled pursuant to the flawed Financial Agreement, [the husband] would be entitled to commence legal proceedings against Mr Sinclair and Barry.Nilsson for the amount and his costs.

    We are instructed to permit you to have a period of seven days to respond to this demand following which our client will commence an application for an order restraining Mr Sinclair and your firm from continuing to represent [the husband] and for costs.

    In the circumstances, our client does not propose that any further matter be advanced in the proceedings until this issue is resolved by agreement or order.

19. Mr Sinclair immediately wrote back, asserting:

    That position [the husband’s no longer seeking to enforce the financial agreement] is not evidence of there having been negligence on the part of the writer or this firm in the terms described by your correspondence, or at all. The negligence asserted has neither been admitted nor proved.
    The assertion made in your correspondence is made without knowledge of all facts and is wrong.

    The only issue of negligence asserted and relied upon by your client which is uncontroversial, it would seem, is that contained within paragraph 56 of your client’s Statement of Claim [an allegation that Mr Jones did not give the wife advice that was “advice with respect to the effect of the agreement upon the rights” of the wife within the meaning of those words in s 90G(1)(b) of the Act].

    With respect to the issue of costs, your client has not brought an application for costs against the writer or this firm. Any assertions made with respect to a future costs order against our client are purely speculation.

20. The wife’s solicitors wrote back:

    We note your position in relation to costs. Our instructions are that our client will ultimately be seeking costs and a direct order against your firm, however, as you are well aware, the appropriate time to bring such an application is at the conclusion of the proceedings.

    We are instructed to file our client’s foreshadowed application and will serve sealed copies when they are received from the Court.

21. The wife filed an application seeking restraint of the husband from continuing to instruct his solicitors on 21 May 2015. It was listed before a Registrar in July and then listed in the Judicial Duty List for hearing on 24 August.  Although the wife’s solicitors had informed the husband’s solicitors that the wife did not propose that any further issue be advanced in the proceedings until that issue was resolved, she filed an amended Application in a Case on 4 August 2015 seeking the further interim orders.

22. At the outset of the hearing, although there was some initial disagreement about the proposed wording, the parties agreed for the Court to make a declaration that the financial agreement dated 7 May 2010 is not binding on the parties. That was done.

Should the husband be restrained from continuing to instruct Mr Sinclair and Barry.Nilsson. Lawyers to represent him in the proceedings?

1. For the wife, it was submitted, effectively, that Mr Sinclair signed a false certificate in relation to giving advice concerning the agreement as “he did not in fact give advice concerning the agreement but an earlier draft version of the agreement”.

2. Counsel for the wife went on to submit that the question that arises on the application is whether there is a concern about Barry.Nilsson continuing to act for the husband in circumstances where the husband seeks the dismissal of the proceedings even though he has now agreed that the financial agreement is not binding.

3. Counsel submitted that “it could not seriously be contended that [the wife] is not entitled to any property adjustment order” yet the husband continues to seek the dismissal of the proceedings. That was coupled with the submission that as the husband would be entitled to commence legal proceedings against Mr Sinclair and Barry.Nilsson to recover the difference between any amount the wife is awarded in s 79 property adjustment proceedings and any amount she would have been entitled to pursuant to the financial agreement now agreed not to be binding, that Mr Sinclair and Barry.Nilsson have an interest in ensuring that the property settlement entitlement of the wife is minimised.

4. It was then submitted that a fair minded observer would form the view that “the duty of Barry.Nilsson and its staff to the Court and to [the husband] may be impacted by its own interest in seeing an outcome in the proceedings equivalent to or better than those provided in the financial agreement”, justifying the restraint sought.

5. Counsel for the husband referred to the Family Law Rules 2004 (Cth) (“the Rules”), in particular Rules 1.04, 1.05, 1.06 and Rule 1.08, as relevant in the consideration of whether or not the duty of Mr Sinclair and his firm are somehow compromised in respect of their duties to the Court and their client. Those Rules provide as follows:

   1.04 Main purpose of Rules

   The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

   Note: Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.

   1.05 Pre‑action procedure

   (1) Before starting a case, each prospective party to the case must comply with the pre‑action procedures, the text of which is set out in Schedule 1.

   (2)      Compliance with subrule (1) is not necessary if:

   (a) for a parenting case—the case involves allegations of child abuse or family violence, or the risk of child abuse or family violence;

   (b) for a property case—the case involves allegations of family violence, or the risk of family violence, or fraud;

   (c)      the application is urgent;

   (d)      the applicant would be unduly prejudiced;

   (e)there has been a previous application in the same cause of action in the 12 months immediately before the start of the case;

   (f)      the case is an application for divorce;

   (g)      the case is a child support application or appeal; or

   (h) the case involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.

   Note 1: The court publishes a brochure setting out the pre‑action procedures for financial cases and parenting cases.

   Note 2: The court may take into account a party’s failure to comply with a pre‑action procedure when considering whether to order costs (see paragraph 1.10(2)(d)).

   Note 3: Subsections 60I(7) to (12) provide for attendance at family dispute resolution before applying for an order under Part VII of the Act in relation to a child.

   1.06 Promoting the main purpose

   The court must apply these Rules to promote the main purpose, and actively manage each case by:

   (a) encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;

   (b) having regard to unresolved risks or other concerns about the welfare of a child involved;

   (c) identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;

   (d) at an early stage, identifying and matching types of cases to the most appropriate case management procedure;

   (e) setting realistic timetables, and monitoring and controlling the progress of each case;

   (f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;

   (g) considering whether the likely benefits of taking a step justify the cost of that step;

   (h) dealing with as many aspects of the case as possible on the same occasion;

   (i) minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and

   (j) having regard to any barriers to a party’s understanding of anything relevant to the case.

   …

   1.08 Responsibility of parties and lawyers in achieving the main purpose

   (1) Each party has a responsibility to promote and achieve the main purpose, including:

   (a)ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;

   (b)      complying with the duty of disclosure (see rule 13.01);

   (c)      ensuring readiness for court events;

   (d) providing realistic estimates of the length of hearings or trials;

   (e)      complying with time limits;

   (f) giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;

   (g)      assisting the just, timely and cost‑effective disposal of cases;

   (h)      identifying the issues genuinely in dispute in a case;

   (i) being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;

   (j) limiting evidence, including cross‑examination, to that which is relevant and necessary;

   (k) being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and

   (l) complying with these Rules and any orders.

   (2) A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).

   Note: The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.

   (3)      A lawyer attending a court event for a party must:

   (a)      be familiar with the case; and

   (b)      be authorised to deal with any issue likely to arise.

   Note: The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10(1) and subclause 6.10(1) of Schedule 6).

1. In response, Counsel for the husband submitted that it is open on the evidence for the Court to draw an inference that Barry.Nilsson determined on Mr Jones’s evidence and the wife’s Statement of Claim that the agreement would not be held by the Court to be binding and advised the husband accordingly. He pointed out that here has been no admission of negligence and no admission of a “false” certification by Mr Sinclair or Barry.Nilsson.  He submitted it is nothing more than pure speculation to consider at this stage that the husband will have an actionable claim against the firm at the conclusion of the property adjustment proceedings arising out of the circumstances pertaining to the execution of the financial agreement and the ultimate agreement that it is not binding. Counsel also pointed to the husband’s sworn evidence that he has no intention of making a claim for negligence or otherwise against Mr Sinclair or his firm and is entirely happy with the “course of conduct” adopted by Mr Sinclair and the firm.

2. Counsel for the husband also submitted that it is impossible at this interim stage to determine with any degree of certainty whether or not the wife’s application for 40 per cent of the parties’ existing net property is itself an ambit claim by her and whether or not the husband’s position that the wife’s application be dismissed is sustainable having regard to the decision of the High Court in Stanford v Stanford (2012) FLC 93-518.

3. Counsel submitted that on the evidence the Court could not be satisfied that there is any conflict on the part of Mr Sinclair and Barry.Nilsson between their own interests and their duty to the court or their duty to their client such as would justify the restraint the wife seeks.

What are the Applicable Principles?

1. The Court has an inherent supervisory jurisdiction and may restrain a solicitor from acting in a particular case to control its process and aid in the administration of justice. The Court’s supervision of practitioners in the discharge of their duty to the Court arises out of the Court’s concern that it should have the assistance of independent legal representation for the litigating parties.  See Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561 per Brereton J and Naczek v Dowler [2011] FamCAFC 179 per Bryant CJ, Thackray and Bennett JJ at paras 60 and 61.

2. The Full Court in Naczek clearly identified the test to be applied in the exercise of this inherent jurisdiction.  It is:

   Whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

3. Relevantly, the Full Court went on after setting out that test to make some other observations in respect of the exercise of this inherent jurisdiction.  The points noted were as follows:

   a)the jurisdiction is to be regarded as exceptional and is to be exercised with caution;

   b)due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause;

   c)the timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief;

   d)it is important to identify precisely the obligation towards the former client or towards the court that may be breached or imperilled by the practitioner acting in the cause;

   e)a practitioner’s duty to the Court cannot be waived, so if the particular disqualifying feature involves a conflict between the interests of the practitioner and his duty to the Court such that could give rise to a situation where the independent administration of justice could be put in jeopardy, the Court would restrain the practitioner notwithstanding the wishes or interests of the client.

My Conclusion

1. Whilst, prima facie, the evidence adduced by the wife appears to support a submission that she could reasonably expect to obtain some form of s 79 property adjustment order in the substantive proceedings, it is speculative in the extreme to rely on the fact that the husband currently seeks dismissal of the wife’s substantive application to support a submission that his solicitors must thereby be considered not to be advising him and representing him in an ethical and disinterested manner. The confidences that have been exchanged between Mr Sinclair and his staff and the husband are not known. What instructions the husband has given are not known. The advice the husband has been given is not known. The husband’s current motivation for seeking dismissal of the wife’s application is not known.

2. Of course, tensions may sometimes emerge between duties a practitioner owes to the client and those owed to the Court in the cut and thrust of the solicitor-client relationship. I also accept that the authorities make it clear that in any conflict of fulfilment of the duties owed by a practitioner, the practitioner’s duty to the Court takes priority. However, consistent with the requirement for cautious exercise of this supervisory jurisdiction, absent a finding such as the solicitor having a clear and direct financial interest in the fruits of the litigation (other than an expectation of being paid), or a finding that a particular piece of advice or a particular action of the practitioner demonstrates a prioritising of the duty to the client over the duty to the Court, restraint should not, in my opinion, be imposed on a solicitor on purely speculative grounds. In this respect, I add that I reject the submission of counsel for the wife that a solicitor, consistent with his or duties to the Court, including those that arise pursuant to the Rules, must cease acting for a litigant simply because that litigant refuses to follow the solicitor’s advice in respect of the particular property adjustment orders to be sought.

3. In respect of the husband’s solicitor’s interest in this case, as asserted by the wife, I accept the submission of counsel for the husband that it is also speculative at this point in time to conclude that the husband has an actionable claim against Mr Sinclair and his firm in respect of the circumstances surrounding the signing of the financial agreement and the concession that it would no longer be relied upon as a binding agreement. Whilst I accept, without more, the proposition put by counsel for the wife that the husband would not be bound by his expression of having no current intention to take any action against Mr Sinclair and his firm in the future, without any findings as to all of those confidences that passed between Mr Sinclair and the staff of Barry.Nilsson and the husband in respect to the financial agreement, and without knowing the outcome of the wife’s application for property adjustment Orders, I consider it simply cannot be safely determined that the husband has an actionable claim for damages against his solicitors.

4. Accordingly, I cannot make a finding that Mr Sinclair or his firm have an interest in the outcome of these proceedings that creates conflict with their duty to their client or conflict with their duty to the Court. Acting to ensure that property adjustment achieved by the wife is minimised appears, to me at least, to accord with what the husband would expect of his legal representatives in the discharge of their duty to him. Further, there is no evidence that causes me to conclude that the husband’s solicitors are inappropriately prioritising their duty to their client over their duty to the Court.

5. I do not consider that a fair minded and reasonably informed member of the public would conclude otherwise or that the husband should be restrained at this point in time from continuing to instruct Mr Sinclair and Barry.Nilsson to advise and represent him in these proceedings.

6. Additionally, although the wife’s solicitors had raised the issue in their correspondence, I did not understand counsel for the wife to ultimately rely upon the fact that it is currently proposed that she will apply for a costs order against the husband’s solicitors at the conclusion of the proceedings to be the source of some form of conflict of interest on the part of those solicitors that justifies the restraint sought at this point in time. Even if I am wrong about that, I do not consider that the evidence about that issue, particularly the solicitor’s acceptance that such a costs application is a matter for determination at the end of the proceedings, justifies restraint.

What next?

1. Counsel for the husband submitted that only the application for restraint should be determined and, whatever the outcome, the husband should then be given time to give instructions (to a new set of solicitors if necessary), take advice and prepare his response to the balance of the matters raised by the wife.

2. Notwithstanding the position advanced by the wife’s solicitors in their letter to the husband’s solicitors quoted in paragraph 21 of these reasons that nothing more should be advanced in these proceedings before determination of the restraint issue, at the hearing counsel for the wife submitted that all of the balance of the wife’s Amended Application in a Case should be heard and determined at the same time as the restraint issue. He submitted that the husband had been given appropriate notice of the balance of the applications and, on that basis, should be ready to proceed with them.

3. It is, in my judgment, inappropriate to press for an order that restrains solicitors from acting for an opposing party on the basis of alleged conflicts in the solicitors duties to their client and to the Court and, at the same time, before that application is determined, seek other quite onerous injunctive relief against the other party. Clearly, the wife’s solicitors also held that same view when they wrote the letter I have referred to. For some unexplained reason, they seemed to have changed their mind.

4. I am not persuaded that the interests of justice demand determination of the wife’s remaining applications in circumstances where the husband has not put on any Response or affidavit evidence dealing with those matters because he is waiting for the wife’s restraint application to be heard and determined.

5. The wife’s application for the husband to be restrained from instructing Mr Sinclair and Barry.Nilsson will be dismissed and the balance of her Amended Application in a Case filed 4 August 2015 adjourned for hearing at 10.00 am before Justice Hogan in the Judicial Duty List on Monday, 26 October 2015.

6. I will also make directions for the filing of written submissions in respect of any application by the husband for costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 September 2015.

Associate

Date:  11 September 2015