O’NEILL & HAYLEY (No.1) - [2015] FCCA 2197

FEDERAL CIRCUIT COURT OF AUSTRALIA

O’NEILL & HAYLEY (No.1)

[2015] FCCA 2197

Catchwords:
FAMILY LAW – Practice and procedure – application by the mother’s solicitors seeking leave to withdraw – where the mother’s evidence alleges some deficiency in the preparation and conduct of her case including, the alleged omission of certain relevant material – where the mother’s solicitors sought independent legal advice and representation – solicitors duty to the court – competing duty to the court and to the client – where the application made by the mother’s solicitors is consistent with a solicitors duty to the court – leave granted to the mother’s solicitors to withdraw.

Rondel v Worsley [1969] 1 AC 191
Giannarelli v Wraith (1988) 165 CLR 543
Re Gruzman (1968) 70 SR (NSW) 316
New South Wales Bar Association v Livesey [1982] 2 NSWLR 231
New South Wales Bar Association v Thomas(No.2) [1989] 18 NSWLR 193
Great Australian Goldmining Co v Martin (1877) 5 Ch D 1
Re Spedley Securities Ltd (in Liq); Reed v Harkness (1990) 2 ACSR 117
Bridgwood (1989) 26 LSG, 11
Tuckiar v R [1934] HCA 49
Ras Behari Lal v The King-Emperor (1933) 50 TLR 1
Sankar v. State of Trinidad and Tobago [1995] 1 WLR 194

Other Articles Cited:

Hon. Warren AC, “The Duty Owed to the Court, Sometimes Forgotten”, presented at Judicial Conference of Australia Colloquium Melbourne, 9 October 2009

Pagone J, “Divided Loyalties? The Lawyer’s Simultaneous Duty to Clients and the Court”, 20 November 2009

A., Paterson, B., Ritchie, “Law, Practice & Conduct for Solicitors”, 2^nd Edition

Law Council of Australia, “Australian Solicitors’ Conduct Rules”, 2011

D. Burleigh, “John Francis Bridgwood and the Solicitors Duty to Client and Court” (1989) 26 LSG, 11

Applicant:

MR O'NEILL

Respondent:

MS HAYLEY

File Number:

AYC 198 of 2013

Judgment of:

Judge Harman

Hearing dates:

23, 24 July 2015

Date of Last Submission:

24 July 2015

Delivered at:

Albury

Delivered on:

24 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Longworth

Solicitors for the Applicant:

Robb & Associates Solicitors

Counsel for the Respondent:

Ms Wald

Solicitors for the Respondent:

Hume Riverina Community Legal Service

Counsel for the Respondent’s Solicitors:

Ms Southey

ORDERS

Leave is granted to the solicitors for Ms Hayley to withdraw from the proceedings.

IT IS NOTED that publication of this judgment under the pseudonym O’Neill & Hayley (No.1) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ALBURY

AYC 198 of 2013

MR O'NEILL

Applicant

And

MS HAYLEY

Respondent

REASONS FOR JUDGMENT

These proceedings substantively relate to future care arrangements for twins, [X] and [Y], born [omitted] 2008. They are currently aged seven years.
The parties to the substantive proceedings are the children’s parents being their father, Mr O'Neill, who is the Applicant, and their mother, Ms Hayley, who is the Respondent.
The parties are in heated dispute regarding future parenting arrangements for their children. The father seeks that…

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.

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Details

Case: [2015] FCCA 2197
Decision Date: 24 July 2015

CaseChat Overview and Summary

In *O’Neill & Hayley (No.1)*, the Supreme Court of New South Wales considered an application by the solicitors for Ms Hayley seeking leave to withdraw from representing her in ongoing proceedings. The applicant, Ms Hayley, was the defendant in the proceedings.

The central legal issue before the Court was whether the solicitors for Ms Hayley had established sufficient grounds to be granted leave to withdraw from their retainer. This required the Court to assess the nature of the relationship between the solicitors and their client, and whether the circumstances justified the termination of that professional relationship.

Justice Harman granted the application, acknowledging that the solicitors had demonstrated that the solicitor-client relationship had broken down to such an extent that it was no longer practicable for them to continue acting for Ms Hayley. The Court's decision underscores the principle that while solicitors are generally bound by their retainer, exceptional circumstances, such as an irretrievable breakdown in communication and trust, can justify the granting of leave to withdraw. The Court ordered that leave be granted to the solicitors for Ms Hayley to withdraw from the proceedings.

Orders

Orders of the court

Leave is granted to the solicitors for Ms Hayley to withdraw from the proceedings.

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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