Oram & Lambert and Ors (No. 2) - [2018] FamCAFC 161

FAMILY COURT OF AUSTRALIA

ORAM & LAMBERT AND ORS (NO 2)

[2018] FamCAFC 161

FAMILY LAW – APPLICATION IN AN APPEAL – Restraint of solicitors from acting – Where the first respondent’s law firm previously represented the appellant’s sister in care and protection proceedings – Where the solicitor for the first respondent started working at the firm after it stopped acting for the appellant’s sister – Where the sister’s file was destroyed in 2017 – Whether the circumstances give rise to a breach of confidence – Where the issue was not raised at first instance – Lack of evidence as to the nature and materiality of the confidential information sought to be protected – Application dismissed.

Family Law Act 1975 (Cth)

Dalton & Dalton (2017) FLC 93-773; [2017] FamCAFC 78
Mancini v Mancini [1999] NSWSC 800
Osferatu & Osferatu (2015) FLC 93-666; [2015] FamCAFC 177

APPELLANT:

Ms Oram

FIRST RESPONDENT:

Mr Lambert

SECOND RESPONDENT:

Ms McCready

INDEPENDENT CHILDREN’S LAWYER:

Emalene Gemmell Solicitor

FILE NUMBER:

NCC

2354

2016

APPEAL NUMBER:

2018

DATE DELIVERED:

22 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Watts JJ

HEARING DATE:

22 August 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 April 2018

LOWER COURT MNC:

[2018] FCCA 1214

REPRESENTATION

THE APPELLANT:

In person (by telephone)

COUNSEL FOR THE FIRST RESPONDENT:

Ms Schaefer solicitor (by telephone)

SOLICITOR FOR THE FIRST RESPONDENT:

Moin Morris Schaefer Pty Ltd

THE SECOND RESPONDENT:

In person (by telephone)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gemmell solicitor (by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Emalene Gemmell Solicitor

Orders

The Application in an Appeal filed on 3 July 2018 seeking to restrain the solicitors from continuing to act and other orders be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oram & Lambert and Ors (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 67 of 2018
File Number: NCC 2354 of 2016

Ms Oram

Appellant

And

Mr Lambert

First Respondent

And

Ms McCready

Second Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

By an Application in an Appeal filed on 3 July 2018, Ms Oram (“the appellant”) seeks the following orders:
1.That Ms Chelsea Schaefer be restrained from continuing to represent Mr [Lambert] in any proceedings concerning Ms [Oram], [the child X], [the child Y], Ms [McCready] or Ms [B Oram].
2.That Moin 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 Oram & Lambert and Ors (No. 2)

Details

AGLC: Oram & Lambert and Ors (No. 2) [2018] FamCAFC 161
Case: [2018] FamCAFC 161
Decision Date: 22 August 2018

CaseChat Overview and Summary

The case of Oram & Lambert and Ors (No. 2) involved an appeal regarding the restraint of solicitors from acting in certain legal matters. The appellants sought to restrain the first respondent's law firm from continuing to act in proceedings due to a perceived breach of confidence. The first respondent's law firm had previously represented the appellant's sister in care and protection proceedings. The solicitor for the first respondent began working at the firm after it ceased to represent the appellant's sister, and the sister’s file was destroyed in 2017. The core issue was whether these circumstances constituted a breach of confidence.

The court needed to determine if the destruction of the file and the subsequent employment of the solicitor amounted to a breach of confidence, especially since this issue was not raised at first instance. Furthermore, the court had to consider the lack of evidence regarding the nature and materiality of the confidential information sought to be protected. Given the absence of evidence and the procedural history, the court had to decide if these factors warranted the restraint of the solicitors from acting.

The court dismissed the application in the appeal, finding that there was insufficient evidence to substantiate the claim of a breach of confidence. The destruction of the file and the timing of the solicitor’s employment did not, in the court’s view, sufficiently establish a breach of confidence. The court also noted that the issue had not been raised at the first instance, which further undermined the validity of the claim. Consequently, the application seeking to restrain the solicitors from continuing to act and any other related orders was dismissed.

Orders

Orders of the court

The Application in an Appeal filed on 3 July 2018 seeking to restrain the solicitors from continuing to act and other orders be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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