Redden and Pennington - [2017] FCCA 194

FEDERAL CIRCUIT COURT OF AUSTRALIA

REDDEN & PENNINGTON

[2017] FCCA 194

Catchwords:
FAMILY LAW – Parenting proceedings – application to restrain firm of solicitors from acting for one party – parties previously engaged in acrimonious and lengthy proceedings in the Family Court regarding property and children – proceedings finalised in early 2013 by judgment – wife recommences children’s proceedings in late 2015 – wife’s former solicitor has joined firm which husband’s solicitor has also joined – does wife’s former solicitor have confidential information relevant to wife – what is risk of prejudice to wife inherent jurisdiction of the court to manage its processes – interests of the administration of justice – matters to be considered.

Legislation:

Family Law Act 1975, ss.4(1)(e), 11F, 114(1), 117(1), 117(2)

Federal Circuit Court Rules 2001, rr.1.05(2), 21.02(2)
Family Law Rules 2004, r.8.03

Cases cited:
Kalinicos v Hunt (2005) 64 NSWLR 561
Osferatu & Osferatu [2015] FAmCAFC 177
Mintel International v Mintel (Aust) (2000) 181 ALR 78
Mallesons Stephen Jacques v KPMG Peat Marwick (1990) 4 WAR 357
Grant v Downs (1976) 135 CLR 674
Baker v Campbell (1983) 153 CLR 52
Carindale Country Club Estate v Astill (1993) 42 FCR 307
Mintel International v Mintel (Aust) (2000) 181 ALR 78
Magro & Magro (1989) FLC 92-005
Mancini v Mancini [1999] NSWSC 800
Prince Jeffri Bolkiah v KPMG (A Firm) [1999] 2 AC 222
Naczek & Dowler [2011] FamCA 179
D & J Constructions Pty Ltd v Head & Ors trading as Clayton Utz (1987) 9 NSWLR 119
Thevenaz & Thevenaz (1986) FLC 91-749
Kossatz & Kossatz (1993) FLC 92,386
In re A firm of Solicitors [1991] 1 QB 959
McMillan & McMillan (2000) FLC 93,048
Holborrow v McDonald Rudder [2002] WASC 265

Applicant:

MS REDDEN

Respondent:

MR PENNINGTON

File Number:

ADC 1511 of 2011

Judgment of:

Judge Brown

Hearing date:

31 January 2017

Date of Last Submission:

31 January 2017

Delivered at:

Adelaide

Delivered on:

16 February 2017

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Jacqui Ion Lawyers Pty Ltd

Counsel for the Respondent:

Mr Hemsley

Solicitors for the Respondent:

Norman Waterhouse Lawyers

ORDERS

The application filed 9 August 2016 be dismissed.
The wife pay the husband’s costs fixed in the sum of $2,000.00.
Further consideration of this matter is adjourned to 28 March 2017 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Redden & Pennington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1511 of 2011

MS REDDEN

Applicant

And

MR PENNINGTON

Respondent

REASONS FOR JUDGMENT

Introduction

Like everything else, in this day and age, members of the legal profession are in a state of flux and constant change. Careers are advanced and opportunities sought. Partnerships are formed and dissolved. Over time, junior members of the profession become seasoned veterans of it. Older members seek well deserved retirement and pass their practices on to others.
In this way, the legal…

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 Redden and Pennington

Details

AGLC: Redden and Pennington [2017] FCCA 194
Case: [2017] FCCA 194
Decision Date: 16 February 2017

CaseChat Overview and Summary

In the matter of *Redden and Pennington*, heard by Judge Brown, the wife sought to have an application filed on 9 August 2016 dismissed. The court also made orders regarding costs and adjourned further consideration of the matter.

The central legal issue before the court was the wife's application to dismiss her own prior application. The court was required to determine whether to grant this dismissal and, consequently, to make orders concerning the costs incurred by the husband in relation to the dismissed application.

Judge Brown dismissed the wife's application. The reasoning for this dismissal is not detailed in the provided text, but the court ordered that the wife pay the husband's costs fixed at $2,000.00. Further consideration of the broader matter was adjourned to a future date.

Orders

Orders of the court

The application filed 9 August 2016 be dismissed.

The wife pay the husband’s costs fixed in the sum of $2,000.00.

Further consideration of this matter is adjourned to 28 March 2017 at 9:30am.

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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