Q and Crest and Anor - [2009] FamCA 1043

FAMILY COURT OF AUSTRALIA

Q & CREST AND ANOR

[2009] FamCA 1043

FAMILY LAW – PRACTICE AND PROCEDURE – File inspection

Family Law Act 1975 (Cth)
Family Law Rules 2004
Evidence Act 1995 (Cth)
Legal Profession Act 2004 (NSW)
Crimes (Domestic & Personal Violence) Act 2007 (NSW)

Harris v Caladine (1991) 172 CLR 84
Waind v Hill & National Employers’ Mutual General Association Limited [1978] INSWLR 372

APPLICANT:

Ms Q

HUSBAND:

Mr Crest

WIFE:

Ms Oates

FILE NUMBER:

SYF

2939

2006

DATE DELIVERED:

2 October 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cohen J

HEARING DATE:

28 August 2009

REPRESENTATION

THE APPLICANT:

In person

THE HUSBAND:

In person

THE WIFE:

In person

Orders

That the applicant, Ms Q, is hereby granted permission to search the Court record consisting of the Court file in proceedings SYC 2939 of 2007, inspect it and copy any document in it for the purpose of defending herself from the complaint made by the wife to the Legal Services Commissioner and dated 15 May 2009 and as it may be amended and any proceedings pursuant to the Legal Profession Act, 2004 (NSW) taken against the said applicant arising from the said complaint and solely for that purpose provided that she first undertakes to the Court in the usual written form not to use any information or copy of a document obtained from such search and/or inspection for any purpose other than to defend herself from the said complaint without further leave of the Court.
Costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Q & Crest and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2939 of 2006

MS Q

Applicant

And

MR CREST

Husband

And

MS OATES

Wife

REASONS FOR JUDGMENT

The proceedings before me arise because the applicant who is a solicitor, …, sought access to the file in the proceedings between the husband and wife. She did not do so in any capacity as a solicitor acting for a party in the proceedings although her purpose was related to the fact that she is a solicitor. She is acting in a personal capacity in this application. She has been in, and is apparently still in, a romantic relationship with the husband.
The proceedings between the husband and wife were for orders pursuant to s 79. The applicant gave evidence by way of affidavit or affidavits in the proceedings, including in interlocutory aspects. Later the police applied for an Apprehended Domestic Violence Order (ADVO), ostensibly to protect her from violence by the wife, .... In making that application, the police relied on a statement or statements which have the effect and implications of an affidavit by the applicant.
On 15 May 2009 the wife made a complaint to the Legal Services Commission alleging the applicant had engaged in corrupt conduct in knowingly falsely swearing an affidavit or affidavits and making false…

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 Q and Crest and Anor

Details

AGLC: Q and Crest and Anor [2009] FamCA 1043
Case: [2009] FamCA 1043
Decision Date: 2 October 2009

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Ms Q sought permission to access court records in proceedings SYC 2939 of 2007. The application was made in the context of defending herself against a complaint lodged by the wife with the Legal Services Commissioner on 15 May 2009, and any subsequent proceedings under the *Legal Profession Act 2004* (NSW) arising from that complaint.

The central legal issue before Cohen J was whether Ms Q should be granted leave to search, inspect, and copy documents from the specified court file. This was to be considered solely for the purpose of her defence against the complaint and any related disciplinary proceedings.

Cohen J granted Ms Q permission to access the court record, subject to a crucial condition. She was required to provide a written undertaking to the Court, agreeing not to use any information or copied documents for any purpose other than her defence against the complaint, unless further leave of the Court was obtained. Costs in relation to this application were reserved.

Orders

Orders of the court

That the applicant, Ms Q, is hereby granted permission to search the Court record consisting of the Court file in proceedings SYC 2939 of 2007, inspect it and copy any document in it for the purpose of defending herself from the complaint made by the wife to the Legal Services Commissioner and dated 15 May 2009 and as it may be amended and any proceedings pursuant to the Legal Profession Act, 2004 (NSW) taken against the said applicant arising from the said complaint and solely for that purpose provided that she first undertakes to the Court in the usual written form not to use any information or copy of a document obtained from such search and/or inspection for any purpose other than to defend herself from the said complaint without further leave of the Court.

Costs are reserved.

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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