Rollinson and Chase - [2017] FCCA 3119

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROLLINSON & CHASE

[2017] FCCA 3119

Catchwords:
FAMILY LAW – Application by husband that wife’s solicitors cease to act for her due to asserted confidential information having been previously provided by husband to wife’s solicitors – application dismissed.

Legislation:

Evidence Act 1995, s.131(2)(g)

Cases cited:

Osferatu & Osferatu [2015] FamCAFC 177

Dalton & Dalton (2017) FLC 93-773
Wilmer & Golding (No 2) [2017] FamCAFC 113

Applicant:

MS ROLLINSON

Respondent:

MR CHASE

File Number:

PAC 1381 of 2017

Judgment of:

Judge Newbrun

Hearing date:

9 May 2017

Date of Last Submission:

29 November 2017

Delivered at:

Parramatta

Delivered on:

14 December 2017

REPRESENTATION

Solicitors for the Applicant:

Michael Vassili Barristers & Solicitors

Solicitors for the Respondent:

Marsdens Law Group

ORDERS

The husband’s application to restrain the wife’s solicitors from continuing to act for her is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1381 of 2017

MS ROLLINSON

Applicant

And

MR CHASE

Respondent

REASONS FOR JUDGMENT

Introduction

The husband seeks to restrain the wife’s solicitors from continuing to act for her in these property proceedings contending that relevant confidential information was provided by the husband to the wife’s present solicitors on 3 January 2017, at which time he attended the wife’s solicitor’s offices for a free conference/interview. Following this consultation the husband ascertained on 8 March 2017 that the wife’s solicitors were now acting for the wife.
Each party has filed and served a case outline; the documents that they rely upon are set out in the Case Outlines. The Applicant wife relies on:
a)Affidavit of Mr P filed 9 June 2017; and
b)Affidavit of Mr Chase filed 3 May 2017 (paragraphs 1-9 and 27-65).
The Respondent husband relies on:
a)Response of Mr Chase filed 3 May 2017;
b)Affidavits of Mr Chase filed 3 May 2017 and 9 June 2017.
The Court notes that the parties proposed that this matter be dealt with on the papers without cross-examination.
The parties separated in September 2016, and remained separated under the one roof until 6 March 2017.
On 3 January 2017, the husband attended upon the wife’s solicitors seeking advice in relation to property settlement with the wife; he had earlier that day spoken to the wife’s solicitors on the telephone providing some brief information and had made the appointment. On the same date, the husband met with the wife’s solicitors providing more information. It is the provision of this information on 3 January 2017 that has led to the husband’s application.
The husband asserts that he provided to the wife’s solicitors on 3 January 2017 instructions and confidential information about his financial situation and separation.
The wife’s solicitors prepared a File Note (attached to the wife’s solicitors practice manager’s Affidavit) dated 3 January 2017. The wife’s solicitors’ practice manager states that the file note relates to the meeting the…

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 Rollinson and Chase

Details

AGLC: Rollinson and Chase [2017] FCCA 3119
Case: [2017] FCCA 3119
Decision Date: 14 December 2017

CaseChat Overview and Summary

In *Rollinson and Chase*, heard by Judge Newbrun, the husband sought to restrain the wife's solicitors from continuing to act for her in family law proceedings. The core of the dispute concerned allegations of a conflict of interest arising from the solicitors' prior representation of the husband.

The central legal issue before the court was whether the wife's solicitors should be disqualified from acting for her due to a perceived conflict of interest. This required the court to consider the principles governing solicitor disqualification, particularly in the context of family law matters where sensitive personal and financial information may have been previously shared.

Judge Newbrun dismissed the husband's application. The reasoning focused on the absence of sufficient evidence to establish that the solicitors possessed confidential information from their prior dealings with the husband that was relevant to the current proceedings and that its use by the solicitors in acting for the wife would likely be detrimental to the husband. The court applied the established legal test for disqualification, which requires a demonstrable risk of prejudice to the former client.

Consequently, the husband's application to restrain the wife's solicitors from continuing to act for her was dismissed.

Orders

Orders of the court

The husband’s application to restrain the wife’s solicitors from continuing to act for her is dismissed.

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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