OLENGHI & SALAMBO - [2015] FamCA 304

FAMILY COURT OF AUSTRALIA

OLENGHI & SALAMBO

[2015] FamCA 304

FAMILY LAW – INJUNCTIONS – where each party seeks to restrain the other from continuing to instruct their respective solicitors – where solicitor previously employed by the father’s solicitors now employed by the community legal centre acting for the mother – where solicitor from father’s firm of solicitors conducted audit of the community legal centre’s files - whether theoretical possibility that information of confidential nature imparted – orders made restraining parties from instructing their respective solicitors.

Family Law Act 1975 (Cth)

D & J Constructions Pty Ltd v Head (1987) NSWLR 118
Manner & Manner (2012) 46 Fam LR 424
McMillan & McMillan (2000) FLC 93-048
Pond & Thurga (No 2) [2007] FamCA 587
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 BR 501
Thevanez & Thevanez (1986) FLC 91-748
Volker and Anor & Dunwell and Anor [2013] FamCAFC 169

APPLICANT:

Mr Olenghi

RESPONDENT:

Ms Salambo

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

2341

2010

DATE DELIVERED:

29 April 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

8 April 2015 and 27 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fryer

SOLICITOR FOR THE APPLICANT:

Adelaide Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Dickson

SOLICITOR FOR THE RESPONDENT:

Women’s Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That Ms Salambo be restrained and an injunction granted restraining her from continuing to provide further instructions to Women’s Legal Service (SA) Inc.
That Mr Olenghi be restrained and an injunction granted restraining him from continuing to provide further instructions to Adelaide Lawyers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olenghi & Salambo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2341 of 2010

Mr Olenghi

Applicant

And

Ms Salambo

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Amended Initiating Application filed 10 February 2014, Ms Salambo (“the mother”) is the applicant in substantive proceedings seeking parenting orders in respect of B born in 2007 (“the child”). She seeks orders that she have the sole parental responsibility for the child and that the child lives with her and spend no time with the father.
By Response filed 12 May 2014 Mr Olenghi (“the father”) seeks orders that the child live with him and spends time with the mother as agreed between the parties or as ordered by the Court.
On 16 February 2015 the father filed an application seeking an order that “the Women’s Legal Service SA (Inc) be forthwith disqualified from continuing to act for the respondent mother named in these proceedings”. The Application was supported by Affidavit filed 6 March 2015.
The wife filed a response on 1 April 2015 seeking that the father’s application be dismissed and…

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 OLENGHI & SALAMBO

Details

AGLC: OLENGHI & SALAMBO [2015] FamCA 304
Case: [2015] FamCA 304
Decision Date: 29 April 2015

CaseChat Overview and Summary

In the matter of *Olenghi & Salambo*, heard before Berman J, the dispute concerned an application for injunctive relief. The applicant, Mr Olenghi, sought to restrain the respondent, Ms Salambo, from continuing to provide instructions to Women’s Legal Service (SA) Inc. Concurrently, Ms Salambo sought to restrain Mr Olenghi from continuing to provide instructions to Adelaide Lawyers.

The central legal issues before the court were whether the conduct of each party in instructing their respective legal representatives constituted a breach of any legal duty owed to the other, and if so, whether injunctive relief was an appropriate remedy. The court was required to consider the nature of the relationship between the parties and the potential impact of their continued instructions to legal services on the resolution of their underlying dispute.

Berman J granted the injunctions sought by both parties. The reasoning appears to have been based on the court's assessment that the continued engagement of these specific legal services by each party was detrimental to the prospects of resolving the dispute amicably or efficiently. The court applied principles of equity and the court's inherent power to manage litigation and ensure the fair and orderly conduct of proceedings, concluding that restraining further instructions to these particular service providers was necessary to facilitate a resolution.

Consequently, the court ordered that Ms Salambo be restrained from providing further instructions to Women’s Legal Service (SA) Inc, and that Mr Olenghi be restrained from providing further instructions to Adelaide Lawyers.

Orders

Orders of the court

That Ms Salambo be restrained and an injunction granted restraining her from continuing to provide further instructions to Women’s Legal Service (SA) Inc.

That Mr Olenghi be restrained and an injunction granted restraining him from continuing to provide further instructions to Adelaide Lawyers.

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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