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MILTON & MILTON

Case [2016] FamCA 1065 12 December 2016

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FAMILY COURT OF AUSTRALIA

MILTON & MILTON

[2016] FamCA 1065

FAMILY LAW – PROPERTY – single expert – where the husband seeks an order appointing the single expert – where the application is opposed by the wife – where an order is made deeming the prepared report to be the single expert report pursuant to the Rules – where the balance of interim proceedings are dismissed.

FAMILY LAW – LEGAL PRACTITIONERS – conflict of interest – where the wife seeks an order restraining the husband’s solicitors from representing the husband – where the application is opposed by the husband – where the Court does not consider that there is information gained or obtained by the solicitor in question from their dealings with the wife such that the misuse of information might be such as to undermine the due administration of justice.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) Part 15.5, r 1.04

Black v Taylor [1993] 3 NZLR 403
D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118
Ismail-Jai v State of Western Australia (2007) 34 WAR 379
Kallinicos v Hunt (2005) 64 NSWLR 561
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mintel International Group Ltd v Minel (Australia) Pty Ltd & Another (2000) 181 ALR 78
Onisforou & Onisforou (2015) FLC 93-666
Pond & Thurga (No 2) [2007] FamCA 587
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222
Yunghanns v Elfic Ltd (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)

APPLICANT:

Ms Milton

RESPONDENT:

Mr Milton

FILE NUMBER:

ADC

2119

2016

DATE DELIVERED:

12 December 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

11 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan with Mr Tredrea

SOLICITOR FOR THE APPLICANT:

Legal Projects

COUNSEL FOR THE RESPONDENT:

Mr Duggan SC with Mr Bullock

SOLICITOR FOR THE RESPONDENT:

Howe Jenkin

Orders

That the report of Mr B of C Accountants dated 2 September 2016 be deemed to be a single expert report pursuant to r 15.44 of the Family Law Rules 2004 (“the Rules”) and pursuant to r 15.45 of the Rules, Mr B be deemed to be a single expert jointly instructed by the parties.
That the Application in a Case filed by the wife on 30 August 2016 be dismissed.
That by 4 pm on 1 February 2017 the wife shall file a Further Amended Initiating Application and the husband an Amended Response providing further and better particulars of the final orders sought by each of the parties.
That the balance of the interim proceedings are dismissed.
That the costs of each of the parties in respect of the interim proceedings are reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milton & Milton has been approved by the Chief Justice pursuant to s…

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 MILTON & MILTON

Details

AGLC: MILTON & MILTON [2016] FamCA 1065
Case: [2016] FamCA 1065
Decision Date: 12 December 2016

CaseChat Overview and Summary

In the matter of MILTON & MILTON, Berman J of the Family Court of Australia considered applications by both the husband and the wife. The husband sought an order appointing a single expert, which the wife opposed. Concurrently, the wife sought an order restraining the husband's solicitors from representing him, alleging a conflict of interest.

The court was required to determine whether to deem a prepared report as a single expert report and appoint the author as a single expert, despite the wife's opposition. Additionally, the court had to consider whether the husband's solicitors were subject to a conflict of interest that would necessitate their removal from the case, specifically whether information gained from dealings with the wife could be misused to undermine the administration of justice.

Berman J reasoned that the report of Mr B of C Accountants dated 2 September 2016 should be deemed a single expert report under rule 15.44 of the Family Law Rules 2004, and that Mr B should be deemed a single expert jointly instructed by the parties under rule 15.45. Regarding the conflict of interest application, the court found no information had been gained or obtained by the husband's solicitors from their dealings with the wife such that its misuse might undermine the due administration of justice.

Consequently, the court ordered that the report of Mr B be deemed a single expert report, and Mr B be deemed a single expert. The wife's application seeking to restrain the husband's solicitors was dismissed. The court also dismissed the balance of the interim proceedings, with costs reserved for each party. The parties were directed to file further amended applications and responses providing better particulars of the final orders sought by 4 pm on 1 February 2017.

Orders

Orders of the court

That the report of Mr B of C Accountants dated 2 September 2016 be deemed to be a single expert report pursuant to r 15.44 of the Family Law Rules 2004 (“the Rules”) and pursuant to r 15.45 of the Rules, Mr B be deemed to be a single expert jointly instructed by the parties.

That the Application in a Case filed by the wife on 30 August 2016 be dismissed.

That by 4 pm on 1 February 2017 the wife shall file a Further Amended Initiating Application and the husband an Amended Response providing further and better particulars of the final orders sought by each of the parties.

That the balance of the interim proceedings are dismissed.

That the costs of each of the parties in respect of the interim proceedings are reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

MILTON & MILTON [2016] FamCA 1065

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Cases cited in this decision · 14 of 14 shown

Ismail-Zai v The State of Western Australia
[2007] WASCA 150 Para 17

…sel for the wife referred to the decision of the Court of Appeal of the Supreme Court of Western Australia in Ismail-Zai v State of Western Australia (2007) 34 WAR 379. Paragraphs 30 to 35 provide a convenient review of the relevant authorities and the principles which underpin the need for the Court to reinforce pu…
Pond & Thurga (No 2)
[2007] FamCA 587 Para 15

…In Pond & Thurga (No 2) [2007] FamCA 587 O’Ryan J referred to the consideration of Young J in Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [218] quoting paragraph [31] of Young J’s judgment:- In the course of his examination of the authorities, Brereton J referred to the observations of Bergin J in Mit…
Geelong School Supplies Pty Ltd v Dean
[2006] FCA 1404 Para 15

…In Pond & Thurga (No 2) [2007] FamCA 587 O’Ryan J referred to the consideration of Young J in Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [218] quoting paragraph [31] of Young J’s judgment:- In the course of his examination of the authorities, Brereton J referred to the observations of Bergin J in Mi…
Kallinicos v Hunt
[2006] NSWSC 723 Para 16

…There is no disagreement with the following statement by Brereton J in Kallinicos v Hunt (2005) 64 NSWLR 561 at [76]:- The test to be applied to this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal p…
Kallinicos v Hunt
[2005] NSWSC 1181 Para 6

…e first two so that there is clearly an overlap: nonetheless, the basis for the exercise of the jurisdiction in each is different ( Kallinicos v Hunt [2005] NSWSC 1181).…
Holborow v MacDonald Rudder
[2002] WASC 265 Para 15

…o the observations of Bergin J in Mitchell v Paton Holdings Pty Ltd [2000] NSWSC 1015 (‘ Mitchell ’), Heenan J in Holborow v MacDonald Rudder [2002] WASC 265 ( Holborow ) and Hasluck J in Bowen v Stott . In Mitchell, Bergin J stated that, as an incident of its inherent jurisdiction, the court may decide upon the p…
Spincode Pty Ltd v Look Software Pty Ltd
[2001] VSCA 248 Para 7

…Similar consideration was given by Brooking JA in Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 at 52-58 where his Honour considered that there were three grounds for restraining a solicitor or counsel from continuing to represent a party:- ·The ability to misuse confidential information; ·The breach of…
Mitchell v Pattern Holdings Pty Ltd
[2000] NSWSC 1015 Para 15

…t:- In the course of his examination of the authorities, Brereton J referred to the observations of Bergin J in Mitchell v Paton Holdings Pty Ltd [2000] NSWSC 1015 (‘ Mitchell ’), Heenan J in Holborow v MacDonald Rudder [2002] WASC 265 ( Holborow ) and Hasluck J in Bowen v Stott . In Mitchell, Bergin J stated that,…
Mintel International Group Ltd v Mintel (Australia) Pty Ltd
[2000] FCA 1410 Para 23

…Senior counsel for the husband referred to the remarks of Heerey J in Mintel International Group Ltd v Mintel (Australia) Pty Ltd & Another (2000) 181 ALR 78.…
[1999] 2 AC 222
[1999] 2 AC 222 Para 19

…idered the treatment of information that could not be considered as confidential in the manner as referred to in Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222. That case involved a solicitor who had information arising from a previous retainer.…
[1993] 3 NZLR 403
[1993] 3 NZLR 403 Para 19

…The Court of Appeal referred to the decision of Black v Taylor [1993] 3 NZLR 403 which considered the treatment of information that could not be considered as confidential in the manner as referred to in Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222. That case involved a solicitor who had information arising…
[2003] 1 WLR 912
[2003] 1 WLR 912 Para 22

…; Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 at [34] per Bergin J; Kallinicos at [76] per Brereton J; Geveran Trading Co Ltd v Skjevesland [2003] 1 WLR 912……
Pty Ltd v Sprowles
636 F Supp 1419 Para 3

…Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 provided an analysis of the authorities in respect of expert evidence as follows:- In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”, there mu…
D & J Constructions Pty Ltd v Head
67 ER 242 Para 24

…d J, 3 July 1978) where his Honour referred to the “getting to know you factors”. His Honour referred with approval to the remarks of Bryson J in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 at [123] that:- … the spectacle or the appearance that a lawyer can readily change sides is very subversive of the appearance that justice is…

Legislation cited in this decision · 3

Corporations Act 2001 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention (from Para 1)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)