Naillon & Naillon - [2022] FedCFamC2F 140

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Naillon & Naillon [2022] FedCFamC2F 140

File number: ADC 3408 of 2021

Judgment of: JUDGE JENKINS

Date of judgment: 18 February 2022

Catchwords: FAMILY LAW – Practitioners conflict of interest –

Legislation:
Family Law Act 1975 (Cth)

Partnership Act 1891 (SA)

Wills Act 1936 (SA)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Asia Pacific Telecommunications Ltd v Optus Networks Pty Limited [2007] NSWSC 350

B Pty Ltd v K (2008) 219 FLR 107

Billington & Billington (No 2) [2008] FamCA 409

Bransdon and Davis and Gilbert (2007) FLC 93 - 328

Dalton & Dalton (2017) FLC 93-773

Giannarelli v Wraith (1988) 165 CLR 543

Kallinicos v Hunt [2005] NSWSC 1181

Mann v Carnell (1999) 201 CLR 1

Holborow v Rudder [2002] WASC 265

Osferatu & Osferatu (2015) FLC 93-666

Division: Division 2 Family Law

Number of paragraphs: 66

Date of hearing: 25 January 2022

Place: Adelaide

Counsel for the Applicant: Mr Heinrich

Counsel for the Respondents: Ms James

Solicitor for the Applicant: Mildwaters Lawyers

Solicitor for the Respondents: Bambrick Legal
ORDERS

ADC 3408 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS NAILLON

Applicant

AND:
MR NAILLON

First Respondent

MR B NAILLON

Second Respondent

MS C NAILLON (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

18 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The applicant be restrained and an injunction granted restraining the applicant from instructing Ms Mildwaters and Mildwaters Lawyers from acting for the applicant in these proceedings.
2.Ms Mildwaters and Mildwaters Lawyers be restrained and an injunction granted restraining Ms Mildwaters and Mildwaters Lawyers from providing any information confidential to the respondents to the applicant or to any solicitors who may accept instructions to represent the applicant in the future.
3.The first, second, third and fourth respondents be restrained and an injunction granted restraining them from instructing any of Suzi Cengarle, Bambrick Legal and Bambrick Legal Pty Ltd as their lawyers in these proceedings.
4.That an injunction be granted restraining the first respondent on the one part and the second, third and fourth respondents on the other part from jointly instructing the same lawyer or law practice as their lawyers in these proceedings.
5.Within 45 days the applicant make, file and serve a statement of claim with respect to any equitable interest she has in the farm property situate at and known as lot … and described in Certificate of Title Register book Volume … Folio … .
6.The matter be otherwise transferred to the Federal Circuit and Family Court of Australia Division One.
7.The costs of all parties is reserved.
8.The operation of these orders is stayed until 5 pm this day.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b)

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 Naillon & Naillon

Details

AGLC: Naillon & Naillon [2022] FedCFamC2F 140
Case: [2022] FedCFamC2F 140
Decision Date

CaseChat Overview and Summary

The parties to the proceedings were Ms Naillon and three respondents, being Mr Naillon, Mr B Naillon, and Ms C Naillon. The applicant sought relief restraining her solicitors from acting for her, and the respondents sought relief restraining their solicitors from acting for them. The respondents also sought to be removed as parties to the proceedings. The legal issues were whether the applicant's solicitors should be restrained from acting for her, whether the respondents' solicitors should be restrained from acting for them, and whether the respondents should be removed as parties to the proceedings. The court found that the applicant's solicitors should be restrained from acting for her due to the risk of confidential information being disclosed or misused. The court also found that the respondents' solicitors should be restrained from acting for them to avoid a conflict of interest. The court deferred the respondents' application to be removed as parties until the applicant filed a statement of claim setting out the basis for the equitable relief that she seeks.

The court made orders restraining the applicant's solicitors from acting for her and from providing any information confidential to the respondents to the applicant or to any solicitors who may accept instructions to represent her. The court also made orders restraining the respondents' solicitors from acting for them or jointly instructing the same lawyer as the applicant's solicitors. The court deferred the respondents' application to be removed as parties until the applicant filed a statement of claim setting out the basis for the equitable relief that she seeks and transferred the matter to Division One of the Court. The costs of all parties were reserved.

Orders