PICKARD and BROWN-JONES - [2014] FCWA 12

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PICKARD and BROWN-JONES [2014] FCWA 12

CORAM: MONCRIEFF J

HEARD: 20 JANUARY 2014

DELIVERED : 21 FEBRUARY 2014

FILE NO/S: PTW 7065 of 2006

BETWEEN: PICKARD
Applicant Husband
AND
BROWN-JONES
Respondent Wife

Catchwords:

PRACTICE AND PROCEDURE - conflict of interest claimed - party represented by spouse legal practitioner - no actual conflict but potential for conflict - standard by which such conduct should be measured - injunction restraining practitioner from acting

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr M Supljeglav
Respondent: Dr A Dickey QC

Solicitors:

Applicant: DS Family Law
Respondent: Solicitors for the Respondent

Case(s) referred to in judgment(s):

Coppola & Anor v Nobile & Anor [2012] SASC 42
Holborow & Ors v Macdonald Rudder [2002] WASC 265
McGilvray & Mitchell (1998) FLC 92-818
Mitchell v Burell [2008] NSWSC 772

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

1The court is required to determine an application filed by [Mr Pickard] by way of an amended form 2 application in a case filed on 13 November 2013 wherein he seeks an order:
2.[Mr Jones] be restrained from acting for the Applicant in this matter.

2The original application was that filed by Mr Pickard in person on 18 September 2013 wherein he sought orders:
1.I seek an order that rules that there is a considerable “conflict of interest” occurring as for sometime [Mr Brown-Jones], a Lawyer specialising in Family Law, is representing his client [Mrs Brown-Jones] who he is married to. She also works part-time in his Legal Practice. In my affidavit of 12 September 2013 I attach a letter of 9 September 2013 that details the conflict of interest. [Mr Brown-Jones] will be asked to provide an affidavit in my settlement case. I ask that all of Lawyer [Mr Brown-Jones] actions, resources and subsequent consequences be taken into account and that he not be allowed to represent the wife/client/part-time employee. [sic]

3The supporting affidavit filed by Mr Pickard effectively serves only to annex the letter recited in the original unamended form 2 application.
4Mr Pickard writes as follows:
Dear Sir,
Family Court of WA PTW 7065/2006 [Brown-Jones]
Legal Profession Conduct - Conflict of Interest
In response to the conflict of interest issue discussed at the Readiness Hearing with Principal Registrar D. Monaghan on 5 September 2013. I bring to your attention that the Legal Profession Conduct Rules 2010 Part 6- Advocacy and Litigation 33 (2) states;
‘A practitioner must not act as counsel for a client in a matter; if it would be difficult for the practitioner to maintain professional independence because of the connection with the client.’
Also the Legal Profession Conduct Rules, Part 5- General Conduct of Practice 16 Maintaining Professional Integrity 1) states;
‘A practitioner must not attempt to further a client's matter by unfair or dishonest means.’
You…

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 PICKARD and BROWN-JONES

Details

AGLC: PICKARD and BROWN-JONES [2014] FCWA 12
Case: [2014] FCWA 12
Decision Date: 21 FEBRUARY 2014

CaseChat Overview and Summary

The case involved Pickard and Brown-Jones, where the latter was represented by her husband, a legal practitioner, in proceedings against the former. Pickard sought to have Brown-Jones' husband disqualified from acting in the matter, alleging a conflict of interest. The court had to determine whether there was an actual conflict of interest and, if not, the standard by which the potential conflict should be measured.

The primary legal issue was whether the representation by Brown-Jones' husband constituted a conflict of interest, actual or potential, that would warrant his disqualification. The court considered whether the risk of a conflict was sufficient to justify prohibiting the husband from acting, even in the absence of an actual conflict. It also examined the appropriate standard to apply in assessing potential conflicts of interest in such circumstances.

The court found that while there was no actual conflict of interest, the potential for such a conflict existed. It held that the standard by which such conduct should be measured was one of appearance and perception of impropriety. The potential for a conflict was sufficient to warrant disqualification, as it could undermine public confidence in the legal profession. Consequently, the court granted the injunction, restraining Brown-Jones' husband from acting in the proceedings.

The court's final orders included an injunction preventing Brown-Jones' husband from continuing to act in the matter, thereby safeguarding the integrity of the legal process and maintaining public confidence in the administration of justice.

Orders