Murdoch and Brown - [2013] FamCA 586

FAMILY COURT OF AUSTRALIA

MURDOCH & BROWN

[2013] FamCA 586

FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest – restraint on acting.

Family Law Act 1975 (Cth)

Grimwade v Meagher [1995] 1 VR 446
Holborow v Rudder [2001] WASCA 91
Macmillan and Macmillan (2000) FLC 93-048
Pond & Thurga (No 2) [2007] FamCA 587
Spincode Pty v Look Software [2001] VSCA 248
Thevenaz (1986) FLC 91-748

APPLICANT:

Ms Murdoch

RESPONDENT:

Mr Savva And Mr Gould As Executors of the Estate of the Late Mr Brown

FILE NUMBER:

MLC

9886

2010

DATE DELIVERED:

9 August 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

18, 22, 25, July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Testart

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Nicholson

SOLICITOR FOR THE RESPONDENT:

Schetzer Constantinou

Orders

That Mr Savva and Mr Gould as Executors of the Estate of the Late Mr Brown be restrained from engaging the firm of Firm X and Mr M, Solicitor of that firm, from acting on behalf of the Estate in proceedings in the Supreme Court of Victoria in its probate jurisdiction.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 30 August 2013 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 13 September 2013 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
That all extant applications for final orders are listed to a FIRST DAY before the Honourable Justice Cronin at 10 am on 2 October 2013 for the purposes of listing the matter for final hearing.
That the parties and if represented, their legal practitioners, attend the first day of hearing.
That at the first day of hearing, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.
That the application in a case filed 16 July 2013 is dismissed save as to the matters referred to in the notation below which part is struck out with a right to reinstate on appropriate notice.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

AND THE COURT NOTES:

A.It is noted that the applicant wife by her amended application in a case filed 16 July 2013 sought orders in terms of paragraph 5.2, 7, 8 and 9 in the application filed 16 July 2013 and counsel for…

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 Murdoch and Brown

Details

AGLC: Murdoch and Brown [2013] FamCA 586
Case: [2013] FamCA 586
Decision Date

CaseChat Overview and Summary

In *Murdoch & Brown* [2013] FamCA 586, Ms Murdoch (the applicant wife) sought an order restraining Mr Savva and Mr Gould, as executors of the estate of the late Mr Brown (the respondent executors), from engaging a specific solicitor, Mr M, and his firm to act on behalf of the estate in Supreme Court of Victoria probate proceedings. The application was opposed by the respondent executors.

The primary legal issue before the Family Court of Australia was whether Mr M should be restrained from acting for the estate, given his prior involvement in conveyancing matters for both the deceased and the applicant wife, and his subsequent role in advising the executors. The court was required to determine if a conflict of interest existed or was likely to arise, which would undermine the proper administration of justice and public confidence in the legal profession. This involved considering the application of Rule 8.03 of the *Family Law Rules 2004* and the court's inherent jurisdiction to control its processes and officers.

Justice Cronin reasoned that while Mr M's retainer for the deceased had terminated upon his death, and he stated he was no longer acting for the wife due to a potential conflict, the circumstances warranted intervention. The court found that Mr M had acted for both the wife and the deceased in conveyancing matters, creating a situation where confidential information of a client might be at risk of misuse or disclosure. Applying an objective test, the court determined that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required Mr M to be prevented from acting for the estate, particularly given the potential for blurring boundaries between the family law proceedings and the probate application. The court emphasised that even a theoretical risk of conflict, coupled with a concern about a lawyer's capacity for independent judgment, justified intervention to maintain public confidence in the legal system.

The court ordered that Mr Savva and Mr Gould, as Executors of the Estate of the Late Mr Brown, be restrained from engaging Firm X and Mr M from acting on behalf of the Estate in proceedings in the Supreme Court of Victoria in its probate jurisdiction. The court also made orders regarding the process for any applications for costs and listed the extant applications for final orders for a hearing.

Orders