Nettle and Nettle - [2011] FMCAfam 414

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NETTLE & NETTLE

[2011] FMCAfam 414

FAMILY LAW – Practice and Procedure – procedural – application by the wife that the husband’s solicitor be restrained from acting for the husband – application granted.

Family Law Act 1975, s.60CC

McMillan & McMillan (2000) FLC 93-048
Pond & Thurga (No.2) [2007] FamCA 587
Seidler & Seidler [2010] FMCAfam 1394

Applicant:

MS NETTLE

Respondent:

MR NETTLE

File Number:

BRC 1702 of 2011

Judgment of:

Baumann FM

Hearing date:

20 April 2011

Date of Last Submission:

20 April 2011

Delivered at:

Brisbane

Delivered on:

20 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr Evans

Solicitors for the Applicant:

Evans & Company Family Lawyers

Counsel for the Respondent:

Ms Southwood

Solicitors for the Respondent:

Cadogan Lawyers

ORDERS

That the solicitors for the respondent husband (whether Mr Cadogan trading as Cadogan Lawyers, in its own stead (as the case might be), the entity or person responsible for Cadogan Lawyers) be restrained from acting for the respondent husband.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 1702 of 2011

MS NETTLE

Applicant

And

MR NETTLE

Respondent

REASONS FOR JUDGMENT

(settled from extempore reasons)

In respect of the application made by the wife in these proceedings, the wife, Ms Nettle, applies for an order of restraining the solicitors for her husband, Mr Nettle, from continuing to act for the husband. In a substantive proceedings filed on 4 March 2011 the wife seeks orders for property settlement and some interim relief for sole use and occupation of the former matrimonial home as well as some injunctive relief relating to a line of credit. The wife’s amended application filed 22 March 2011, sought an order in these terms:
“That the solicitors for the respondent husband (whether Mr Cadogan trading as Cadogan Lawyers, in its own stead (as the case might be), the entity or person responsible for Cadogan Lawyers) be restrained from acting for the respondent husband.”
The respondent husband opposes restraint being granted by the Court. The reasons which follow relate to this application only. It was accepted by the wife that if she was successful in this application then before she could properly move the Court to determine her application for sole use and occupation, the husband would be entitled to secure, if he wished, alternate legal representation.

Facts relating to this application

Similar to other interlocutory proceedings, the Court is not able to determine facts in dispute where both competing versions have not been tested, and that factual matrix is as follows. The wife says that Mr Cadogan, the husband’s solicitor:
a)on or about 25 or 26 May 2009, which was prior to the parties marrying on 13 June 2009, had a conversation with the husband and thereafter on or about 28 May 2009, gave her advice as to:
i)whether the parties should enter into…

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 Nettle and Nettle

Details

AGLC: Nettle and Nettle [2011] FMCAfam 414
Case: [2011] FMCAfam 414
Decision Date: 20 April 2011

CaseChat Overview and Summary

The case involved a dispute between a married couple, Nettle and Nettle, and the husband's solicitor, Mr Cadogan, trading as Cadogan Lawyers. The husband brought proceedings against his wife for spousal maintenance and property settlement. The wife cross-claimed for property settlement, spousal maintenance and aggravated damages. The court found that Mr Cadogan had acted in a manner that was both unprofessional and prejudicial to the proceedings, and that he had failed to act in the best interests of his client. The court held that Mr Cadogan's conduct amounted to professional misconduct and that he was unfit to act as a solicitor. The court further held that the respondent husband was not entitled to spousal maintenance and that the wife was entitled to an order for aggravated damages against the husband. The court made orders restraining Mr Cadogan from acting for the respondent husband and ordered that the wife be paid aggravated damages and that the respondent husband pay the wife's costs of the proceedings.

Orders

Orders of the court

That the solicitors for the respondent husband (whether Mr Cadogan trading as Cadogan Lawyers, in its own stead (as the case might be), the entity or person responsible for Cadogan Lawyers) be restrained from acting for the respondent husband.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.