PICKARD & INGLE - [2019] FCCA 2125

FEDERAL CIRCUIT COURT OF AUSTRALIA

PICKARD & INGLE

[2019] FCCA 2125

Catchwords:
FAMILY LAW – Application for orders to restrain solicitors from continuing to act on behalf of the Respondent in property proceedings between the parties – where it is asserted the solicitors hold confidential information in relation to the Applicant that is relevant to those proceedings and could be misused against the Applicant – application opposed on the basis the Applicant has waived his entitlement to bring the application and that the prejudice that would be occasioned to the Applicant by dismissing the application is outweighed by the prejudice that would be occasioned to the Respondent should she be required to obtain new solicitors.

HELD – Application seeking to restrain solicitors from acting be dismissed – waiver found – confidential information held to not be relevant to the property proceedings between the parties.

Cases cited:

McGillivray & Mitchell [1998] FamCA 96
Mancini v Mancini [1999] NSWSC 800
Sent and Primelife Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429
PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905
Karapataki & Karapataki [2011] FMCAFam 6
Osferatu & Osferatu (2015) FLC 93-966
Dalton & Dalton (2017) FLC 93-773
Gillam & Gillam [2017] FCCA 64

Applicant:

MR PICKARD

Respondent:

MS INGLE

File Number:

MLC 2017 of 2016

Judgment of:

Judge Bender

Hearing date:

10 May 2019

Date of Last Submission:

10 May 2019

Delivered at:

Melbourne

Delivered on:

6 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Johnson

Solicitors for the Applicant:

Altona Legal

Counsel for the Respondent:

Ms Metherell

Solicitors for the Respondent:

L N Christie & Co

ORDERS

The Application in a Case filed by Mr Pickard on 11 April 2019 be dismissed.
The matter be adjourned to 22 April 2020 at 10.00am for hearing in relation to Mr Pickard’s application there be a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) that a de facto relationship never existed between the Applicant and the Respondent (with an estimated hearing time of 3 days) with priority.
The Applicant file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with rule 15.28 of the Federal Circuit Court Rules 2001 (Cth) by 4.00pm on 25 March 2020.
The Respondent file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with rule 15.28 of the Federal Circuit Court Rules 2001 (Cth) by 4.00pm on 8 April 2020.
Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at the final hearing without the leave of the Court.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as…

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 & INGLE

Details

AGLC: PICKARD & INGLE [2019] FCCA 2125
Case: [2019] FCCA 2125
Decision Date: 6 August 2019

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Bender considered an application by Mr Pickard seeking to restrain solicitors from continuing to act for the Respondent in property proceedings. Mr Pickard asserted that the solicitors held confidential information relevant to the proceedings which could be misused against him. The Respondent opposed the application, arguing that Mr Pickard had waived his entitlement to bring the application and that the prejudice to the Respondent in obtaining new solicitors would outweigh any prejudice to Mr Pickard if the application were dismissed.

The court was required to determine whether the solicitors should be restrained from acting for the Respondent, and in doing so, to consider the issues of waiver and the relevance of any confidential information held by the solicitors to the property proceedings. The court also had to weigh the potential prejudice to each party in its determination.

Judge Bender found that Mr Pickard had waived his entitlement to bring the application. Furthermore, the court determined that the confidential information held by the solicitors was not relevant to the property proceedings between the parties. Consequently, the application to restrain the solicitors from acting was dismissed.

Orders

Orders of the court

The Application in a Case filed by Mr Pickard on 11 April 2019 be dismissed.

The matter be adjourned to 22 April 2020 at 10.00am for hearing in relation to Mr Pickard’s application there be a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) that a de facto relationship never existed between the Applicant and the Respondent (with an estimated hearing time of 3 days) with priority.

The Applicant file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with rule 15.28 of the Federal Circuit Court Rules 2001 (Cth) by 4.00pm on 25 March 2020.

The Respondent file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with rule 15.28 of the Federal Circuit Court Rules 2001 (Cth) by 4.00pm on 8 April 2020.

Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at the final hearing without the leave of the Court.

The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012 (Cth).

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.