Quirk and Lake

[2016] FamCA 921

FAMILY COURT OF AUSTRALIA

QUIRK & LAKE [2016] FamCA 921

FAMILY LAW – LEGAL PRACTITIONERS – Where the husband seeks an order that the wife’s solicitors be restrained from acting for her in the proceedings – Where the wife seeks, in the substantive proceedings, to set aside a Financial Agreement entered into between the parties – Where the husband seeks to cross-examine the principal of the firm acting for the wife – Where the husband’s application is dismissed.

Family Law Act 1975 (Cth)
Legal Profession Uniform Law (NSW), s 34

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules, r 27

Naczek v Dowler [2011] FamCAFC 179

APPLICANT: Ms Quirk

RESPONDENT: Mr Lake

FILE NUMBER: SYC 3702 of 2010

DATE DELIVERED: 2 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Steggall

SOLICITOR FOR THE APPLICANT: B Lawyers

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

IT IS ORDERED

1. That the Application in Case filed by the husband on 4 August 2016 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 Quirk & Lake 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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3702  of 2010

Ms Quirk

Applicant

And

Mr Lake

Respondent

REASONS FOR JUDGMENT

1. Ms Quirk (“the wife”) and Mr Lake (“the husband”) entered into a Financial Agreement (“the Agreement”) on 6 September 2010. In those proceedings, the wife was represented by B Lawyers (“the Solicitors”). Ms C (“Ms C”) of that firm acted for the wife under the general supervision of Mr D (“Mr D”) who was and is a partner of the firm.

2. On 12 November 2015, in the Federal Circuit Court, the wife raised her intention to bring proceedings to set aside the Agreement. On 1 March 2016, the solicitors for the wife gave notice to the solicitors for the husband that their application would be amended to include orders to set aside the Agreement. On 13 April 2016, the wife filed an application to set aside the agreement.

3. In an affidavit sworn 6 July 2016, the husband deposed:

   In circumstances where [the wife’s] Solicitors signed the Certificate of Independent Legal Advice confirming that she provided [the wife] with independent legal advice in relation to the Agreement … [the wife] should be restrained from further instructing [the solicitors] as I intend to call [the Solicitors] to give evidence at the final hearing in these proceedings.

4. No application to restrain the wife from instructing the Solicitors was made until 4 August 2016. No explanation was given for the delay in circumstances where counsel for the husband submitted that the husband had been aware since 11 November 2015 that, if the wife sought to set aside the Agreement, then an application would be made for the wife to be restrained from instructing the Solicitors.

5. The grounds upon which the wife relies in seeking to set aside the Agreement are set out at page 8 of the Case Outline document tendered by her counsel.

6. She specifies the following grounds:

   · Lack of full and frank disclosure by the husband - section 90K(1)(a);

   ·    Unconscionable conduct by the husband - section 90K(1)(e);

   ·    Material change in circumstances relating to the children – section 90K(1)(d);

   ·    Intimidation and harassment by the husband at the time of entering the Agreement – section 90K(1)(b).

7. At earlier times in the proceedings, the wife had deposed to another ground which may have given rise to questions about her competence to enter into the Agreement but she no longer relies on that ground.

8. As can be seen, the wife does not call into question the advice she received from her solicitor at the time she signed the Agreement. She does not dispute the accuracy and adequacy of the advice she was given at the time she signed the Agreement. She has not waived her legal professional privilege in relation to the advice given to her by the Solicitors.

9. Counsel for the husband relies on the provisions of the Legal Profession Uniform Law (NSW) (“LPUL”) and particularly s 34 which provides:

34 Responsibilities of principals

(1) Each principal of a law practice is responsible for ensuring that reasonable steps are taken to ensure that –

(a) all legal practitioner associates of the law practice comply with their obligations under this Law and the Uniform Rules and their other professional obligations; and

(b) the legal services provided by the law practice are provided in accordance with this Law, the Uniform Rules and other professional obligations.

(2) A failure to uphold that responsibility is capable of constituting unsatisfactory professional conduct or professional misconduct.

1. Thus, counsel for the husband submits that, even if Mr D, as principal of the firm, did not himself act for the wife, he had supervisory responsibility over Ms C.

2. Mr D did give advice to the wife from time to time but there is no dispute that it was Ms C who gave the relevant advice at the time the Agreement was signed and it was Ms C who signed the Certificate of Independent Legal Advice appended to the Agreement.

3. The wife was advised by Ms C not to enter into the Agreement but gave written instructions to Ms C that she wished to do so and acknowledged that she did so against Ms C’s advice.

4. Counsel for the husband also relied on section 27 of the LPUL, but perhaps intended the reference to be to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules (“the Solicitors’ Conduct Rules”) where rule 27 provides:

   27 Solicitor as material witness in client’s case

   27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.

   27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.

5. Counsel for the husband submitted that, in the course of the trial relating to the setting aside of the Agreement, a subpoena will be issued to Mr D who will be cross-examined in relation to matters surrounding the Agreement.

6. That submission has, within it, a number of difficulties.

7. Firstly, the wife does not propose that Mr D will be a witness in the proceedings.

8. Secondly, the wife has not waived her legal professional privilege, so Mr D would be entitled to decline to answer any question going to the advice she was given.

9. Thirdly, in the event that leave was given for a subpoena to issue to Mr D to give evidence, Mr D would be a witness in the husband’s case and counsel for the husband would not be entitled to cross-examine him. The court was not made aware of any facts that would suggest that Mr D would be declared a hostile witness.

10. The last, but most significant hurdle to the submission is that the wife, in civil litigation, is entitled to run her case in accordance with her legal advice. If she makes a decision not to call Mr D, and runs her case accordingly, that does not give the husband a right to call him. The wife bears the onus of proof. She must call evidence which will prove, on the balance of probabilities, the facts which underpin her contentions in relation to sections 90K(1)(a), (b), (d) and (e) of the Family Law Act 1975 (Cth). It is difficult to foresee how the evidence of Mr D could assist the wife. If there is a deficiency in the wife’s case, by virtue of her forensic decision not to call Mr D, then no doubt her case will not succeed.

11. Such a deficiency permits those representing the husband to make submissions to the effect that she has not proved her case. It does not permit them to insist that a witness, who could potentially have assisted the wife’s case, should give evidence.   

12. I am not convinced that it is likely that Mr D will be a witness in the proceedings.

13. However, even if there were a slight possibility that this would occur, that is not the only consideration, as the closing words of rule 27.2 of the Solicitors’ Conduct Rules make clear.   

14. The Full Court in Naczek v Dowler [2011] FamCAFC 179 said:

    Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause: Kallinicos & Anor v Hunt & ors (supra); Black v Taylor (supra); Grimwade v Meagher (supra); Williamson v Nilant [2002] WASC 225; Bowen v Stott (supra).
    
    

15. The Solicitors have represented the wife since 2015 in parenting proceedings. They earlier represented her in the proceedings leading to the Agreement. She has a long history of reliance upon them. She is not in employment and relies on Commonwealth benefits. She may have difficulty finding other solicitors who are prepared to act for her.

16. The husband’s application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 November 2016.

Associate:

Date:  2/11/2016