Rizk & Mahfouz - [2023] FedCFamC2F 139

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Rizk & Mahfouz [2023] FedCFamC2F 139

File number(s):	MLC 9999 of 2022
Judgment of:	JUDGE BLAKE
Date of judgment:	15 February 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – application to restrain wife’s solicitor from acting - where husband had conversation with the solicitor prior to the wife engaging her – where husband disclosed various matters including plans for his properties and issues he had refinancing – whether information imparted to solicitor was confidential information – content of information and ‘getting to know you’ factors considered - whether the Court should exercise its supervisory jurisdiction to prevent the solicitor from acting – HELD that confidential information was imparted by the husband to the solicitor – HELD that the Court should exercise its supervisory jurisdiction because a fair minded member of the public might conclude that the proper administration of justice requires the restraints - order made restraining the solicitor from acting.
Legislation:	Family Law Act 1975 (Cth) ss 75, 79 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 6.06(3), 6.1
Cases cited:	Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd [2015] VSC 453 Charisteas v Charisteas [2022] FedCFamC1A 160 Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065 DJL v Central Authority [2000] 201 CLR 226 Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1 Grimwade v Meagher [1995] 1 VR 446 Ismail-Zai v The State of Western Australia [2007] WASCA 150 Karapataki & Karapataki [2011] FMCAfam 6 Li v Wu [2012] FCA 164 Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42 Mintel International Group Ltd v Mintel Australia Pty Ltd [2000] FCA 1410 Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 Nash v Timbercorp Finance Pty Ltd (in liq), in the matter of the bankrupt estate of Nash (2019) 137 ASCR 189 Sent v John Fairfax Publications Pty Ltd [2002] VSC 429 Yunghanns v Elfic Pty Ltd [1998] VicSC 347
Division:	Division 2 Family Law
Number of paragraphs:	60
Date of last submission/s:	20 December 2022
Date of hearing:	21 November 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Ford
Solicitor for the Applicant:	C Lawyers
Counsel for the Respondent:	Mr Wheelahan
Solicitor for the Respondent:	Starnet Legal

ORDERS

MLC 9999 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MAHFOUZ Applicant
AND:	MS RIZK Respondent

order made by:	JUDGE BLAKE
DATE OF ORDER:	15 FEBRUARY 2023

THE COURT ORDERS THAT:

The wife must not, in these proceedings, instruct Ms D of C Lawyers to act for her.
Ms D must not, in these proceedings, represent or act for the wife.

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…

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 Rizk & Mahfouz

Details

AGLC: Rizk & Mahfouz [2023] FedCFamC2F 139
Case: [2023] FedCFamC2F 139
Decision Date

CaseChat Overview and Summary

Rizk & Mahfouz [2023] FedCFamC2F 139 was an application by the husband for an order restraining the wife’s solicitors from continuing to act for the wife in these proceedings. The husband contended that the wife’s solicitor, Ms D, should be restrained from acting for the wife on the following bases. First, that a reasonable person informed of the facts might reasonably anticipate a danger of misuse of confidential information of a former client. Second, the jurisdiction of the Court to restrain a legal practitioner from acting in a particular case in order to ensure the administration of justice and to protect the integrity of the judicial process. The Court found that confidential information was imparted by the husband to Ms D and that the Court should exercise its supervisory jurisdiction because a fair minded member of the public might conclude that the proper administration of justice requires the restraints. The Court ordered that Ms D must not, in these proceedings, represent or act for the wife.

Orders