Naczek & Dowler

Case [2011] FamCAFC 179

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER [2011] FamCAFC 179

FAMILY LAW – APPEAL - LEGAL PRACTITIONERS - Conflict of interest – Where husband seeks an order that the wife’s solicitors be restrained from acting for her in the appeal - Where conflict alleged is a lien over a cost order under appeal and the wife is otherwise impecunious   - Existence of the lien in favour of the solicitors over the costs for their unpaid fees does not of itself create a conflict.

FAMILY LAW – APPEAL – PROCEDURE – Interlocutory application in an appeal -Where husband filed a Notice of Discontinuance in relation to the Appeals - Substantive Appeals never proceeded to hearing – Reasons still published.
Family Law Act 1975 (Cth)
Family Law Rules 2004
Afkos Industries Pty Ltd v Pullinger Stewart (2001) WASCA 372
Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307
Clay v Karlson (1997) 17 WAR 493
Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467
Fruehauf Finance Corp Pty Ltd v Feez Ruthning [1991] 1 QdR 558
Garrey & Crosby (2007) FamCA 696
Holborow v McDonald Rudder [2002] WASC 265
Kallinicos & Anor  v Hunt  & ors (2005) 64 NSWLR 561
Kooky Garments Limited v Charlton [1994] 1 NZLR 587
Macquarie Bank Ltd v Myer [1994] VR 350
Mallesons Stephen Jacques v KPMG Peat Marwick (1991) 4 WAR 357
Murray v Macquarie Bank Ltd (1991) 33 FCR 46
Newman v Phillips Fox (1999) 21 WAR 309
Oceanic Life Limited v HIH Casualty and General Insurance Limited [1999] NSWSC 272
APPELLANT: Mr Naczek
RESPONDENT: Ms Dowler
FILE NUMBER: MLF 1222 of 2006
APPEAL NUMBER: SA 90 of 2009
DATE OF ORDER: 7 June 2010
PLACE DELIVERED:

Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Bryant CJ, Thackray and Bennett JJ
HEARING DATE: 7 May 2010
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 28 November 2008
LOWER COURT MNC: [2008] FamCA

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr J. St. John SC
SOLICITOR FOR THE APPELLANT: Westminster Lawyers
COUNSEL FOR THE RESPONDENT: Mr T. North SC
SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

  1. The husband’s application in the appeal filed on 27 April 2010 be dismissed.

  2. That within 14 days of the publication of the Full Court’s reasons for judgment any party who seeks an order for costs file and serve their submissions on costs in relation to the application.

  3. That within 14 days of service upon them of submissions in support of an application for costs, the party receiving same file and serve submissions in response.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 90 of 2009
File Number: MLF 1222 of 2006

Mr Naczek

Appellant

And

Ms Dowler

Respondent

REASONS FOR JUDGMENT

Bryant cj & Bennett J

introduction

  1. The matter before us was…

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Naczek & Dowler [2011] FamCAFC 179
Case
[2011] FamCAFC 179
Decision Date

CaseChat Overview and Summary

The appeal before the court involved a husband who sought to restrain his wife's solicitors from representing her in the appeal proceedings. The husband alleged a conflict of interest, specifically that the wife's solicitors held a lien over a cost order that was under appeal. Additionally, the wife was deemed impecunious, meaning she had insufficient funds to pay her own legal fees. The court was tasked with determining whether the existence of this lien over the unpaid legal fees created a conflict of interest sufficient to disqualify the solicitors from acting for the wife.

The court considered the nature of the conflict of interest as raised by the husband. It concluded that the mere existence of a lien over the unpaid fees for legal services did not, in itself, create a conflict of interest that would necessitate the disqualification of the wife's solicitors. The court examined the procedural aspect of the husband's application for an interlocutory order in the appeal context, especially since the substantive appeals were discontinued and never proceeded to a hearing, yet the reasons for judgment were still published.

The husband's application to restrain the wife's solicitors was dismissed by the court. The court ruled that the lien over the unpaid fees did not constitute a disqualifying conflict of interest. Additionally, the court mandated that any party seeking an order for costs must file and serve their submissions on costs within 14 days of the publication of the Full Court's reasons for judgment. The responding party was also required to file and serve submissions in response within 14 days of being served with submissions in support of a costs application.

Orders

Orders of the court

1. The husband’s application in the appeal filed on 27 April 2010 be dismissed.

2. That within 14 days of the publication of the Full Court’s reasons for judgment any party who seeks an order for costs file and serve their submissions on costs in relation to the application.

3. That within 14 days of service upon them of submissions in support of an application for costs, the party receiving same file and serve submissions in response.

Background

Background to the litigation

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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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