Montague and Montague

FEDERAL CIRCUIT COURT OF AUSTRALIA

MONTAGUE & MONTAGUE [2017] FCCA 2747

Catchwords:
FAMILY LAW – Whether solicitor should be restrained from representing a party.

Cases cited:

Osferatu & Osferatu (2015) FamCAFC 177

Applicant: MS MONTAGUE

Respondent: MR MONTAGUE

File Number: WOC 1118 of 2015

Judgment of: Judge Altobelli

Hearing date: Written submissions

Date of Last Submission: 24 August 2017

Delivered at: Wollongong

Delivered on: 26 October 2017

REPRESENTATION

Solicitors for the Applicant:	Ms Mitchell
Solicitors for the Respondent:	Mr Williamson

ORDERS

1. The Application in a Case filed 2 December 2016 be dismissed.

2. The matter be adjourned to 1 March 2018 at 9:30am for Mention.

3. By no later than 23 November 2017, the Wife file any submission in relation to costs and such submission shall not exceed 500 words. Where any party submits that his or her financial circumstances is relevant, a sworn Financial Statement must also be filed and served.  

4. By no later than 21 December 2017, the Husband file any submission in relation to costs and such submission shall not exceed 500 words. Where any party submits that his or her financial circumstances is relevant, a sworn Financial Statement must also be filed and served.  

THE COURT NOTES THAT:

(A)The purpose of the adjourned date is to make trial directions and to adjudicate on any costs application.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1118 of 2015

MS MONTAGUE

Applicant

And

MR MONTAGUE

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an Application in a Case filed 2 December 2016 filed by the Respondent Husband in the substantive proceedings (he is the Applicant in the Application in a Case) seeks orders the effect of which would be that the Wife be restrained from instructing or continuing to instruct Hansons Lawyers during the currency of the proceedings.  The Wife opposes the said application and asks that it be dismissed.

2. Each application was supported by affidavits and written submissions as to the substantive issue, which was whether or not there was a conflict of interest and whether the Wife’s solicitors should cease to act. 

The applicable law

1. The applicable law is found in the Full Court’s decision of Osferatu & Osferatu (2015) FamCAFC 177, with the relevant paragraphs being 20 to 41. The relevant passages which state the test to be applied in a case like the present one are found specifically at paragraphs 34 to 41:

   34. We agree with Goldberg J in PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905 where he said at [50] and [51]:

   50.         It is apparent from Lord Millett's judgment that there are three stages which need to be considered:

   •    whether the firm is in possession of information which is confidential to the former client;

   •    whether that information is, or may be, relevant to a matter in which the firm is proposing…