Riso & Koning
[2024] FedCFamC2F 1252
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Riso & Koning [2024] FedCFamC2F 1252
File number(s): MLC 10892 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 30 August 2024 Catchwords: FAMILY LAW – Property – Priority Property Pool case – Application to restrain a solicitor from acting – Where respondent defacto husband claims to have contacted community legal service representing defacto wife – Decision not to restrain legal service from acting for de facto wife – Not in interests of justice to delay proceedings further – Application for extension of time to apply for property orders due to hardship pursuant to section 44(6) accepted – Orders to divide chattels between parties. Legislation: Family Law Act 1975 (Cth) sections 4AA, 44(6) Cases cited: Bansal & Mathai [2023] FedCFamC2F 307 Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 30 August 2024 Place: Melbourne Counsel for the Applicant: Ms McCreadie Solicitor for the Applicant: Brimbank Melton Community Legal Centre Solicitor for the Respondent: In Person ORDERS
MLC 10892 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RISO
Applicant
AND: MR KONING
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
Property the Applicant is to retain
1.The Respondent, Mr Koning (‘the Respondent’) forthwith make thorough and diligent search of his premises, (including inside Vehicle 6 situated thereon) and attempt to locate any personal items that belong to the Applicant, Ms Riso (‘the Applicant’), including but not limited to:
(a)ornaments;
(b)photographs of her children B and C;
(c)photographs of the parties’ children, X and Y; and
(d)any other personal item of the Applicants,
and carefully pack and store any such items as located and advise the Applicant (by her solicitors) of what any such items are (‘the Applicants personal items’).
2.The Applicant retain for her exclusive use and ownership the following:
(a)Motor Vehicle 1;
(b)Vehicle 6;
(c)all funds contained in bank accounts and liabilities under her name;
(d)the Applicant’s personal belongings (as described above) and antique furniture; and
(e)her superannuation entitlements (if any).
3.Within 28 days of these orders and on a date that does not coincide with the Children Court proceeding between the parties, the Applicant and/or her agents attend upon the property of the Respondent, at a time and day nominated by the Applicant’s Solicitors in writing by email no less than 3 days in advance, attend and remove the items described at Order 2(a) ‘Motor Vehicle 1’, Order 2(b) ‘Vehicle 6’ and Order 2(d) ‘the Applicant’s personal belongings and antique furniture.
4.Alternatively to the proceeding order, in regard to Motor Vehicle 1, the Applicant’s personal belongings and the Antique Furniture, in the event of the Applicant elects and requests (from her Solicitors by email to the Respondent), that instead of her collecting Motor Vehicle 1, the Applicant’s personal belongings (if any have been located) and the Antique Furniture, that the Respondent deliver to the Applicant’s premises at a time and day nominated no less than 3 days in advance by the Applicant in writing (by her solicitors) and on a date a time that does not coincide with the Children Court proceedings, then the Respondent deliver those items to the Applicant instead of the Applicant collecting same as provided in these orders.
5.In the event the Applicant and/or her agents do not collect the items as described at Orders 3 and 4 herein within 28 days of these orders (provided it is not on a date that coincides with the Children’s Court proceedings), the Respondent is at liberty to deal with the items as he wishes and at his expense.
6.The Applicant and/or her agents must not attend the property of the Respondent without the company of a Victorian Police Officer.
7.Save as provided in these orders, the Respondent be and is restrained from damaging or interfering with the items listed in Orders 1 and 2 herein.
8.The Applicant and/or her agents be restrained by injunction from;
(a)entering or attempting to enter the home of the Respondent; and
(b)approaching and/or speaking to the Respondent.
Property the Respondent is to retain
9.The Respondent is to retain for his exclusive use and ownership;
(a)Motor Vehicle 2.
10.The Applicant is to do all acts and things to permit Motor Vehicle 2 to be available for collection by the Respondent at a time and day nominated by the Respondent to the Applicant’s Solicitor which is no less than 3 days in advance on a date that does not coincide with the Children Court proceeding between the parties and no less than 7 days after the Applicant has collected the item described at paragraph 2 OR no less than 7 days after the Applicant has given notice to the Respondent and he has delivered the items described in Order 3 or by the alternative arrangement described in Order 4.
11.The Respondent and/or his agents are restrained by injunction from;
(a)entering or attempting to enter the home of the Applicant; and
(b)approaching and/or speaking to the Applicant.
12.The Applicant and/or her agents be restrained by injunction from damaging and/or interfering with Motor Vehicle 2, and/or any of the property of the Respondent if and when she attends the Respondents property pursuant to these orders.
13.The Respondent and/or his agents must not attend the property of the Applicant without the company of a Victoria Police Officer.
Further orders
14.The parties be at liberty to provide a copy of these sealed orders to any Victorian Police Officer, and/or other Court of the state of Victoria or the Commonwealth of Australia and the collection of these items from the parties’ properties would not be a breach of the current or any Intervention Order.
15.There is to be no contemporaneous changeover of chattels between the parties.
16.In the event Victoria Police are unable to assist the parties as the parties are directed to request by these orders, there be liberty to apply on short notice by email to the Chambers of Judge O’Shannessy at […@…].
17.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Alleged conflict of interest issue
In the matter of Riso and Koning, the respondent defacto husband, Mr Koning (‘the Respondent’), comes before me where he complains of a conflict of interest where he had consulted a legal service, and that legal service are the current solicitors for the applicant de facto wife, Ms Riso (‘the Applicant’).
As a result, the Respondent had raised this issue with the Court as a litigant-in-person a number of times, and I am satisfied raised it at the earliest opportunity he could. Being a litigant-in-person, he did not actually make an application to have the solicitors restrained from acting. But I have treated the complaint that he made to me when the matter was for mention last Tuesday as, in substance, an application that the solicitors (Brimbank Legal Service who will now be referred to as ‘BLS’) be restrained from acting on the basis of a potential conflict of interest arising from the Court's inherent jurisdiction to restrain solicitors from acting where it is in the interest of justice.
Sensibly, counsel for the Applicant did not take the potential point or argument that the application was not in the usual form prescribed by the rules. I determined that I would proceed with the matter on the basis of my characterisation of what the Respondent was complaining about.
With the assistance of the impugned lawyers and their diligence in their work and examination of the material that the Respondent has provided, they are able to assist me by saying that not only did the Respondent contact the BLS on 5 January 2024, but he did so on 5 January, on 9 January and again on 5 April 2022. That concession of evidence arising from the business records that the Respondent has put in evidence is entirely consistent with the Respondent’s long-made assertion that he consulted the solicitors, and they assisted him retain a barrister pro bono, and he communicated with that barrister.
I refer to my decision in Bansal & Mathai [2023] FedCFamC2F 307 (‘Bansal’), and I will cite that decision as a matter of convenience to me today.
105Amongst a multitude of authorities, some often cited authorities stand out as beacons lighting the path through the multitude. A convenient and authoritative first beacon for present purposes is the often cited Kallinicos where at [76] Brereton J, after a detailed examination of authority, set out a broad statement of applicable principles as follows:
76 The foregoing authorities establish the following:-
•During the subsistence of a retainer, where the court's intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court's jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests [Prince Jefri].
•Once the retainer is at an end, however, the court's jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure) [Prince Jefri].
•After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court's intervention, such duty having come to an end with the retainer [Prince Jefri; Belan v Casey; Photocure; British American Tobacco; Asia Pacific Telecommunications; contra Spincode; McVeigh; Sent].
•However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v Pattern Holdings; Spincode; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt]. Prince Jefri does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications appears to acknowledge its continued existence.
•The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications].
•The jurisdiction is to be regarded as exceptional and is to be exercised with caution [Black v Taylor; Grimwade v Meagher; Bowen v Stott].
•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 [Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott].
•The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief [Black v Taylor; Bowen v Stott].
[Bold emphasis added]
106The use of the words “would conclude” had been applied over and over from at least 1995 until very recently. As addressed later in these reasons, by the process of refinement of principle, the phrase “would conclude” is now, at least in this Court and the Federal Court of Australia, “might conclude”.
107Kallinicos can be regarded as a tree of authority with three significant main limbs. Other authorities can then be regarded as the many necessary branches of authority that relate to each of the separate limbs of principle. Some “branches” overlap.
108In Mitchell v Burrell, Brereton J examined the authorities that dealt with the “branch” or situation where the solicitor acting may be or would be a material witness. At [20] his Honour observed as follows:
[20]That said, I do not accept that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor from continuing to act. As Windeyer J pointed out in Scallan v Scallan [2001] NSWSC 1078, it is, for example, not unusual for instructing solicitors in contested probate proceedings to give evidence of facts relevant to instructions for and execution of a Will. Similarly, in contested conveyancing proceedings, it is not unusual for solicitors who have acted on the conveyance to continue to act in the proceedings for specific performance or rescission and to give evidence in those proceedings. Accordingly, despite r 19 of The Law Society of New South Wales Professional Conduct and Practice Rules, which imposes a professional obligation (as distinct from a private right), I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. Although some observations of Campbell CJ in Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542 at 545, may go somewhat further, the cases indicate - as Campbell CJ did in that case itself - that the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice - which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests - require the lawyer to be restrained from continuing to act.
[Emphasis added]
109In Grieves and Tully [2011] FamCA 617 (‘Grieves’) Young J examined the authorities as they then were and restrained a solicitor from acting. His Honour described three broad categories as follows:
[72]Although as stated in McGillivray the decision to restrain a practitioner from acting is a discretionary decision, there are three grounds upon which the injunction may be sought, as set out by Brereton J in the decision of Kallinicos v Hunt (2005) 64 NSWLR 561. The first basis relates to a breach of confidence arising from the law of contract and equity, the second as derived from a solicitor's fiduciary duties in accordance with equitable principles, and the third due to a superior court’s inherent supervisory jurisdiction over its officers (see also Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501).
[Emphasis added]
110In Grieves the solicitor had been a long-term friend of one of the parties and was found to have “entered into the fray” as evidenced in the use of emotive language in his affidavit filed in the proceedings. His Honour recited the by then seminal paragraph [76] of Kallinicos and recited the also well-known passage from Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 (‘Kooky Garments’) at 590 as follows:
[85]In Kooky Garments Ltd v Charlton (supra), Thomas J held that the court's inherent jurisdiction to supervise the conduct of counsel included the ability to intervene to restrain a practitioner from acting and at 590 stated that:
The court is entitled to assume that solicitors and counsel appearing before it possess that independence. Solicitors not only owe a duty to their clients to do the best for them but also owe an overriding duty to the court … As part of their professional responsibility, therefore, solicitors and counsel must ensure that they do not appear in a matter in which they have an actual or potential conflict of interest or where, by reason of their relationship with their client, their professional independence can be called in question. (My emphasis)
111 In Grieves his Honour emphasised the issue of the appearance as well as the reality of the independence of the solicitor as follows:
[86]This issue was discussed by Austin J in the decision of Oceanic Life Ltd v HIH Casualty and General Insurance Ltd [1999] NSWSC 292, at para 48, where his Honour observed that solicitors acting in litigation owe a duty to the court in addition to their duties to the client and that:
… a solicitor who acts in litigation owes a relevant legal duty to the court, as well as an ethical duty. The duty to the court arises from the court's concern that it should have the assistance of independent legal representation for the litigating parties: see D A Ipp, "Lawyers' Duties to the court" (1998) 114 LQR 63, 93. In the realm of conflicts of interest and conflicts of duty, the solicitor's duty to the court may not be much different from his or her fiduciary duties to former and present clients. However, the duty to the court tends to be expressed in such a way as to emphasise the public interest in preserving confidence in the administration of justice, and therefore in the appearance as well as the reality of independence, and the court's practical approach to its supervisory discretions: Freuhauf Finance Corporation Pty Ltd v Feez Ruthning (1991) 1 Qd R 558; Murray v Macquarie Bank Ltd (1991) 33 FCR 46; Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307; Macquarie Bank Ltd v Myer [1994] VR 350; Kooky Garments Ltd v Charlton [1994] 1 NZLR 587; Watson v Watson (Supreme Court of New South Wales, Equity Div (Santow J), unreported, 25 May 1998). (My emphasis)
112 In Grieves, the solicitor had “placed himself potentially in the position of a witness”…[1]
[1] In Bansal
113I adopt and apply the principles of Grieves including the reference to Kooky Garments. Kooky Garments had been relied upon by Mandie J in Grimwade v Meagher [1995] 1 VR 446 (Grimwade) at 452 and Grimwade was a foundational authority relied upon in Kallinicos.
114In Osferatu & Osferatu (2015) FLC 93-666 (Osferatu) at [20] the Full Court of the Family Court of Australia conveniently described and summarised the three limbs or “established categories” as follows:
20. There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. They are: breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its officers and to control its process. Each category has its own principles which guide its operation. The third category may be involved in conjunction with either of the first two so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different (Kallinicos v Hunt [2005] NSWSC 1181).
115In Osferatu the controversy fell to be determined within the first “breach of confidence” limb and the Full Court adopted the further analysis of that limb or category of Goldberg J in the Federal Court of Australia as follows:
34. We agree with Goldberg J in PhotoCure ASA v Queen's University at Kingston [2002] FCA 905 where he said at [50] and [51]:
50. It is apparent from Lord Millett's judgment that there are three stages which need to be considered:
·whether the firm is in possession of information which is confidential to the former client;
·whether that information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
·whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.
51. The burden of establishing the first two propositions is upon the former client but the burden of establishing the third proposition moves to the firm proposing to act once the first two propositions are satisfied …
116 The Full Court discussed the necessary degree of risk at [39] in Osferatu as follows:
39. Before leaving this discussion we wish to refer to the statement in McMillan that even "a theoretical risk of the misuse of the confidential information" is sufficient to found relief. The phase "a theoretical risk" was echoed in Prince Jeffri in the passage quoted earlier. For our part, we find the word "theoretical" unhelpful. There is indeed a continuum of risk from obvious to remote. In Asia Pacific, Bergin J described the risk of disclosure or misuse as "probably real and not fanciful" (at [41]). In Billington Coleman J referred to "any real risk" (at [37]). That phrase was also used by Goldberg J in PhotoCure (at [78]). This is a more meaningful phrase. The consideration should be whether there is a real risk of misuse as opposed to one which is merely fanciful. To the extent that what we have said may be seen to represent a departure from McMillan (which we do not necessarily accept), it is to accord with more recent authority and provides a clearer test.
117The Full Court concluded this discussion of a breach of confidence situation with the following observations at [41]:
41. It follows from the above discussion that the law requires that an applicant seeking to restrain a solicitor from acting must adduce evidence that establishes the confidential information and the risk of the misuse of that information in the circumstances. The weight and persuasiveness of any evidence adduced depends, of course, on the precision of the evidence called, the nature of the confidential information and the nature of the risk of disclosure.
…
127In this case, as in Sellers, the party with the impugned solicitor has announced that he did not intend to call his own solicitor as a witness. In Sellers, the Full Court at [97] relied upon [76] of Kallinicos and recited the test to be applied as including "whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting" (my emphasis in bold).
128Sellers was delivered on 15 July 2019. On 21 June 2019 Anderson J delivered Nash v Timbercorp Pty Ltd(in liq) [2019] FCA 957 (‘Nash’). In determining to restrain some solicitors, but not others, Anderson J had described the test for restraint of a solicitor where misuse of confidential information was concerned (the first category of Osferatu) as different to the test for restraint of a solicitor in the due administration of justice category (the third category of Osferatu)…
…
130On 14 April 2020 Griffiths J at [39] of Mumbin v Northern (No 1) [2020] FCA 475 (‘Mumbin’) at [39] observed he preferred a “might conclude” test rather than the “would conclude” test.
131 On 27 May 2021 Thawley J decided Dyer v Chrysathou (No2) (Injunction) [2012] FCA 641 (‘Dyer No 2’). His Honour applied Nash at [62-64] and also referred to and applied Griffiths J at [38] of Mumbin v Northern (No 1) [2020] FCA 475 (‘Mumbin’), but did not (at least in the reported version) go on to adopt Griffiths J at [39]. At noted above Griffith J at [39] had expressly preferred the “might conclude” expression to the “would conclude” version of the due administration of justice test.
132The Thawley J decision was affirmed on appeal by the Full Court of the Federal Court in Porter v Dyer and Anor (2022) 402 ALR 659, Lee J, with whom Besanko and Abraham JJ agreed on this point, (‘Porter v Dyer’), delivered 14 July 2022. In Porter v Dyer at [113-115], Lee J recited Griffiths J at [39] in Mumbin and observed as follows;
[113]The primary judge correctly identified the relevant principles. They have been comprehensively summarised by Brereton J in Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 (at [76]) and Griffiths J in Mumbin v Northern Territory (No 1) [2020] FCA 475 (at [39]). Justice Griffiths' summary was as follows:
The relevant principles which guide the exercise of the Court's separate discretion are broadly as follows:
(a)The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252; 318 ALR 507; 108 IPR 26; [2014] FCA 1065 at [37] per Beach J).
(b)The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).
(c)Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).
(d)This basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information (Dealer Support Services at [96] per Beach J).
(e)This basis for disqualification is an “exceptional one” and is “to be exercised with appropriate caution” (Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612; [2006] FCA 1404 at [35] per Young J).
(f)A legal practitioner may be restrained from acting in a matter not only where the practitioner has a conflict of interest viz a viz a former client, but also viz a viz a person who is “as good as” a client (Macquarie Bank Ltd v Myer [1994] VR 350 at 359 per J D Phillips J).
…
134In Charisteas 2022 the Full Court of the Federal Circuit and Family Court of Australia dealt with an appeal concerning restraint of a solicitor. Mumbin had been decided on 14 April 2022. Five days later, on 19 April 2022, the primary Judge had dealt with an application to restrain a solicitor from acting. The primary Judge had not restrained the solicitor and had applied the Kallinicos “would conclude” test. The Full Court found error in that approach and observed as follows:
…
Disposition
36. Regrettably, it appears that the primary judge was led into error by the parties in these proceedings, who contended that the relevant principle to be applied in determining whether a legal practitioner should be prevented from acting for a party, in the interests of the protection of the integrity of the judicial process, is the principle set out above.
37. The correct test that should have been applied by the primary judge, in determining whether a legal practitioner should be restrained from acting on behalf of a party, is that which is adumbrated by the Full Court of the Federal Court of Australia (Besanko, Lee and Abraham JJ) in Porter v Dyer (2022) 402 ALR 659 who applied, with approval, the following statement of principle by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475:
39. The relevant principles which guide the exercise of the Court's separate discretion are broadly as follows:
(a) The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).
(b) The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).
…
(Emphasis in the original)
…
135 Hence the law has moved on from the administration of justice or third limb test as stated and applied in Sellers. I must apply the test as set out in Charisteas 2022, set out above, the “might conclude” test, and also have regard to Kooky Garments and [20] of Brereton J in Mitchell v Burrell (including the second half of that passage), along with all of the cautions and considerations or qualifications of the still extant authorities, including the extant observations in Kallinicos. These include that litigants should not be deprived of their choice of representation without good cause and that the power of the Court should be exercised cautiously. In Charisteas 2022 the Full Court identified an actual and potential conflict of interest between the lawyers acting and their client. In Charisteas 2022 the Full Court of the Federal Circuit and Family Court of Australia has adopted the acknowledgment that the previous “would conclude” test was a higher standard than the now applicable “might conclude” test. However, although the previous “would conclude” test was a higher standard, there is nothing in Charisteas 2022 that would mean that the other observations and qualifications of the authorities do not continue to apply. Charisteas 2022 does not mean open slather or that the time honoured and often reported cautions no longer apply. Charisteas 2022 is a refinement not a revolution.
…
The long and the short of it is that the burden of removing a solicitor remains, and the burden of satisfaction remains on the applicant. It is not sufficient that there merely is the potential for a miscarriage of justice.
In this case, I am assisted by the affidavit of an officer of BLS, Ms D, who has sworn and prepared a very detailed affidavit demonstrating how seriously the legal service took the Respondent’s allegation and the efforts they went to track down, and see if they had contained in their records, any record of the communications with the Respondent.
An unusual informal procedure was adopted whereby the Respondent was sworn and then addressed me from the bar table on the basis that what he told me from the bar table was evidence under oath. In the circumstances where his account was corroborated by his own phone records showing those telephone calls to the legal service and the concession and, indeed, assistance by careful examination of those records that the Respondent had telephoned the service, I have proceeded on the basis that what the Respondent has told me about what he did, in fact happened and, in fact, there is no longer any dispute about that.
The removal of solicitors acting is an unusual event, and the exercise of the jurisdiction is regarded as exceptional and should be exercised with caution. In this case, I am actually grateful that the Respondent raised this issue as early as he did. That assisted the legal service go to a lot of trouble to investigate their records. I am satisfied that the legal service has no record of the substance of the conversation that the Respondent had with the legal service. I am satisfied that the legal service does not retain or have access to any information of the substance of what the Respondent told the solicitor, or told the barrister when he spoke to them as he said he did. Were I to accede to the application, it would be necessary to adjourn this final hearing so that the applicant could retain other solicitors.
I am not satisfied that there is an actual conflict of interest. I am satisfied it was not unreasonable for the Respondent to be concerned that there may be.[2] I am satisfied that it is not in the interests of justice that I accept the application of the Respondent and order that the solicitors be restrained from acting.
PROCEED UNDEFENDED
[2] I am not satisfied, that a reasonable observer knowing all the circumstances, might conclude the removal of the solicitor was required in all the circumstances.
Filing and service issue
Next, there is a second question in the matter of Riso and Koning that I will determine before getting to the substance of the case. The Applicant seeks an undefended hearing. It is undisputed that the Respondent has not provided and filed and served documents in writing with the Court in the usual proper form. The Respondent tells me on oath that he has the disability of having a great difficulty with reading and writing. That is not conceded by counsel for the applicant in the case, and the Applicant points to the lack of documents in the appropriate form having not been received from the person who says he has the difficulty with reading and writing (which is why they cannot provide the documents). Yossarian in the well-known Heller novel, Catch-22, comes to mind. The irritation, or at least inconvenience to the other side when being presented with this circumstance can be understood.
Satisfied Respondent has a disability
I am satisfied that the Respondent does have a disability of reading and writing, and I am so satisfied largely because he has, and does, at every turn have a lot to say and is actually bursting to tell his side of the story about any and all points. For the Respondent to demonstrate such a preparedness and, indeed, even a compulsion, to tell his side of the story and to do so at every opportunity that he gets (demonstrated last Tuesday and in the hearing today) yet choose not to put it in writing, is implausible. I am satisfied that the Respondent has, at least, a disability in regard to reading and writing that has interfered with his ability or capacity to prepare and file documents in accordance with the directions of the Court.
I am satisfied that the Respondent does have that disability. And I am satisfied that that is a serious matter to be taken into account. It is also alleged that the Respondent has not made proper disclosure of his financial circumstances, and the Respondent says that he has. He has provided copies of bank records, and he has provided social service records. In all of those circumstances, I am not satisfied that it is in the interests of justice that the matter proceed undefended.
Extension of time to file application?
In the matter of Riso & Koning, the respondent to the application asserts that the defacto relationship between the parties came to an end in March 2020. The proceedings were issued on 21 September 2023. There is evidence, or an indication, of some courtesy and helping out each other between the Applicant and the Respondent after that date, and in particular, there were affectionate text messages exchanged between them. However, it is not disputed that from a point not long after March 2020, the Applicant had retained an independent residence. It is not disputed, and of course complicated by the existence of COVID-era regulations, that the Applicant spent time, at least, in the Respondent’s new, or different, or her own accommodation.
Notwithstanding that there remained some goodwill between the parties at times, and what could be called kind assistance from one to the other, the fact that the parties maintained two separate residences, to my mind, in the tumult and shouting of the apparent chaos of their personal lives at that time, does not satisfy me that they continued to live in a de facto relationship within the definition of the Family Law Act 1975 (Cth) (‘the Act’). The Act defines a de facto relationship as follows:
Section 4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
…
The Applicant has indicated before today that in the event that the Court was not satisfied that the relationship ended in December 2021, which would mean that her application was not issued within the two-year period, that an extension of that time was sought, and sought what is known as nunc pro tunc, that is, to take effect as if it had been made earlier. The settled law is that an application for an extension of time should be ordinarily made before the actual application. In this case, there is said to be hardship to the Applicant in not being able to pursue the application. That hardship is resisted by the Respondent because he says, “Well, hang on, look at the money she has got in the bank now,” and he has none or very little.
The twists and turns of the case include the denied allegation that the parties were, in fact, in a continuing relationship but contriving to deceive Child Protection whilst pretending that they were not. There is significant corroboration of the Respondent’s allegations of the end of the relationship in the Court orders made in the Children’s Court. The issue of hardship is a necessary part to obtain an extension of time pursuant to section 44(6) of the Act. Section 44(6) requires hardship as a necessary, but not sufficient, matter for the time to be extended. There must be a prima facie case that is worth pursuing. In the circumstances where I intend to hear the case and conclude it this afternoon, that would mean there is a prima facie case that makes it worth the trouble and shot to continue the case this afternoon.
The parties have very little property by general community standards and the matter comes before me under what is known as the ‘PPP cases model’ of the Court to try and expedite property cases. I am resistant to any suggestion that parties who have very little property should not have their property disputes determined by the Court. In my experience, the less property people have, it is often the case that the more important those few things are to them. It is very easy to judge such matters from the point of view of the better-off suburbs of the cities of Melbourne or Sydney, London or New York, whereby the measure of utility and merit is measured in dollar terms. That concept does not sit well with parties who have very little, but nonetheless say that property is very important to them.
The fundamental dispute in this case comes down to which of the parties, the Applicant or the Respondent, should retain the motor car known as ‘Motor Vehicle 2’.
Balancing all of those matters, I am satisfied that it would be a hardship to the Applicant not to let her pursue this case. I might add I think it would also be a hardship to the Respondent to be unable to ventilate his own case about why he should have Motor Vehicle 2. But balancing all of those matters, I am satisfied there is hardship and that there is a prima facie case, effectively, to say that it is worth arguing for. It is not worth arguing for in dollar terms, but to these particular people, the particular old second-hand motor car is important to them.
PROPERTY DECISION
In the matter of Riso and Koning, these are the third reasons that I have given today in regard to various disputes. By way of background, I refer to the reasons above. I have determined that the relationship did end in or about March 2020, but that the parties had an ongoing connection that did not constitute being committed to each other within the meaning of defacto relationship within the Act. However, I am satisfied that it was appropriate to extend the time to permit the Applicant to agitate her case that would enable her to, on her case, recover personal belongings and retain Motor Vehicle 2.
There are not many things the parties agree about, but they do agree that each of them has very little property. One significant matter is that, fortuitously and recently, and in the lead-up to this case, the Applicant had the benefit of Centrelink determining that they had been in error to impose upon her a penalty of approximately $21,000 which they extracted from her by deduction of her social security benefits over many years. In mid-2024, not long before this case got underway, Centrelink realised the error of its way and reimbursed the Applicant $16,345. Of those funds, she has about $9,000 left and she spent $2,900 on a second-hand motor vehicle.
I am satisfied that it is just and equitable to make orders in this matter altering the parties’ interests in property. I am satisfied that arising from the relationship (in the Baumgartner constructive trust contributions sense) both the Applicant and the Respondent have an interest, a beneficial interest, in Motor Vehicle 2.
The Respondent does not dispute the following orders sought by the Applicant:[3]
[3] Set out in her amended application for final orders filed 19 June 2024.
1. The Applicant De Facto Wife otherwise retain for her exclusive use and ownership the following:-
…
B. [Motor Vehicle 1];
C. [Vehicle 6]
D. All funds contained in bank accounts and liabilities under her name;
E.Her Personal Belongings and Effects including the Antique Furniture; and
F.Her Superannuation entitlements (if any).
The disputes of fact relate to the Applicant alleging that the Respondent has, within his home at E Street, items and belongings that were hers. The Respondent denies that they are there and he says he has searched for them. It is common ground that he does retain the substantial part of the antique furniture and he concedes that that should be returned or delivered to the Applicant.
The nature of the assets means that it is not a simple thing to collect the items and get them from one property to the other. I am not satisfied that the Applicant has thought through how she is going to get these things.
Motor Vehicle 2 dispute comes down to which of the parties should retain it. I considered whether I should order its sale and division of the proceeds. That is more difficult than it would seem at first blush because Motor Vehicle 2 remains registered in the Respondent’s name, but is not going at the moment. It will require funds to be spent on it by the Applicant, or work to be done on it by the Respondent, and it would only be able to be sold for other than scrap value with a roadworthy, and the car is not roadworthy at the moment.
It is not disputed that the market price of Motor Vehicle 2 can be gauged to some extent that it was swapped for Motor Vehicle 3 some years ago. Motor Vehicle 3 had a value as agreed between the Applicant and the Respondent of somewhere between $200 and $500. They had some years ago intended, on the Respondent’s case, to sell it. Instead of it being sold, it was swapped for Motor Vehicle 2. There is a dispute whether there was ever any damage to the motor vehicles, or not.
The significant aspect of the parties’ existing property pool is that, apart from household furniture and fittings of modest value that each party holds, the Respondent has Motor Vehicle 4 that is 15 years old. Motor Vehicle 4 is in good order. The Applicant estimates that Motor Vehicle 4 is worth $10,000, and it may be or may not be. I am satisfied it would have some significant value, but I am not satisfied that it has a value of $10,000.
Each of the parties have made different contributions. The parenting contribution the parties have made to their two children is not that clear in the circumstances where the children have been removed from the parties’ care by Child Protection. Both made some contribution to the homemaking and parenting of the children.
The Respondent alleges that he owned considerable property at the start of the relationship, and that is not accepted. It is not clear to me what property the Respondent had at the start of the relationship. I accept that, at a point, the Respondent had several motor vehicles, but I do not have any evidence of what became of them, whether he had them at the start of the relationship, nor what was their value. The Respondent’s personal circumstances have been complicated by the fact that he served a significant jail sentence, not long before the start of this relationship.
It is clear that the Applicant does not have a capacity to earn income, and she exists by reason of the Disability Support Pension. The Respondent receives the Disability Support Pension and supports himself from that. I have no evidence of the medical difficulties that he suffers, however, he has sufficient medical circumstances that he receives a Disability Support Pension. He says he cannot work because of poor health, and it is alleged that, in fact, he has an earning capacity. The Respondent is mechanically quite handy and is able to work as a tradesperson. I am not satisfied that the Respondent would be able to maintain employment with those skills, because of a combination of his own perception of his medical circumstances and his personality. I am not satisfied that he would be able to participate in paid employment – that is, turn up when he is told, do what he is told for an employer – for very long, given the personality that he has demonstrated by his participation in this court case.
In addition, the Respondent says he suffers (and I accept this to an unknown degree) a disability by reading, in terms of being unable to read and write. The Respondent has some reading ability, but I am satisfied that it is minimal. The Respondent’s lack of literacy is a substantial impediment that he has to being able to engage in paid employment. Notwithstanding that he is much more handy than the Applicant, I am simply not satisfied that he has any substantial earning capacity.
In this case, I am satisfied that it is appropriate to have regard to each item of property, rather than a global assessment. I am satisfied that the Applicant has made a greater contribution to the asset pool, as described at paragraph 9 of her affidavit,[4] and in particular to the bank account and savings which is now represented by some $9,000 and Motor Vehicle 5 valued at $2,900. In some sense, those funds have come about fortuitously by Centrelink recognising the error of the manner in which they extracted funds from the Applicant. The Respondent has Motor Vehicle 4 of some not insignificant but not very large value. It is in good order.
[4] Filed 19 June 2024.
Balancing all those matters, and primarily because of the current financial circumstances where one of the parties has a sum of funds available to her, I am satisfied that Motor Vehicle 2 should be retained by the Respondent, and the Applicant should do all acts and things to enable him to collect it.
The Respondent does not want to go to the Applicant’s home. The Applicant proposes that she attend the Respondent’s home to collect her items, and the Respondent says he does not want her to go inside. I am not prepared to permit the Applicant to enter into the Respondent’s home.
It is common ground that the Applicant can retain Vehicle 6 that she wants. The Respondent says that will be a real problem to be removed, but she is welcome to do it.
Sensibly, in her amended application, the Applicant proposes orders that in the event that she does not collect the items from the Respondent’s home, that he can do what he wants with them. He is moving home, and this will all have to happen soon.
I intend to follow the form, and will follow the form, of the final orders as proposed in the Applicant’s amended initiating application and will make all of those orders with the changes as I have indicated. The long and the short of that is that I will permit the Respondent to collect Motor Vehicle 2, provided he doesn't come into contact with the Applicant and it will permit the Applicant to make a choice to either accept the Respondent’s suggestion of him delivering the items or to collect them herself.
The Respondent asked that there be a contemporaneous changeover or exchange of the chattels, and I am not satisfied that that is practical or just and equitable. I am satisfied that the collection of the items, or the Respondent’s delivery of them to the Applicant, should happen before the Respondent obtains Motor Vehicle 2.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 September 2024
0
17
1