Seidler and Seidler

Case [2010] FMCAfam 1394


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEIDLER & SEIDLER [2010] FMCAfam 1394
FAMILY LAW – Legal representation – application to restrain a party’s lawyer from continuing to act for that party – conflict of interest – test to be applied.
Family Law Act 1975, s.79
Legal Profession (Solicitors) Rule 2000
McMillan and McMillan (2000) FLC93-048;
Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404;
Price Jefri Bolkiah v KPMG [1998] UKHL 52 [1999] 2 AC 222;
Mills  v Day Dawn Block Gold Mining Company Ltd [1082] QLJ 62;
In the marriage of Thevanaz (1986) 11 Fam LR 95, FLC 91-478;
Magro and Magro (1989) FLC 92-005;
Griffis and Griffis (1991) FLC 92-233;
Qihua Zhao v Sheng Yu Zhang and Anor [2007] NSWSC 891;
Royston & Royston [2010] FMCAfam9;
Lakey and Lakey [2008] FMCAfam 827;
Billington and Billington (No 2) [2008] FamCA 409;
Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181;
Pond and Thurga (No 2) [2007] FamCA 587
Applicant: MR SEIDLER
Respondent: MS SEIDLER
File Number: TVC 1240 of 2007
Judgment of: Willis FM
Hearing date: 14 September 2010
Date of Last Submission: 14 September 2010
Delivered at: Cairns
Delivered on: 16 December 2010

REPRESENTATION

Counsel for the Applicant: Mr Page SC
Solicitors for the Applicant: Family Law Doyle Keyworth & Harris
Counsel for the Respondent: Mr Fellows
Solicitors for the Respondent: SR Wallace and Wallace

ORDERS

  1. That SR Wallace and Wallace Lawyers of 60 Sydney Street, Mackay, Queensland and any partner and employee of that firm are restrained from acting further for the wife in these proceedings, and the wife is restrained from continuing to retain the firm known as SR Wallace and Wallace Lawyers, or any partner or employee of that firm as her legal representative. 

  2. This matter be listed on 22 February 2011 at 2:15pm in the Federal Magistrates Court of Australia in Cairns in relation to costs.

  3. A written outline from each party to be filed and served no later than two days prior to the hearing, namely 22 February 2011.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MACKAY

TVC 1240 of 2007

MR SEIDLER

Applicant

And

MS SEIDLER

Respondent

REASONS FOR JUDGMENT

  1. This is an application by the husband to have the solicitors for the wife disqualified from continuing to act for her in Family Law proceedings currently on foot.

  2. The applicant asks the Court restrain the wife from continuing to retain her lawyers SR Wallace & Wallace of Mackay as her legal representatives.  Costs are also sought on an indemnity basis.

  3. The solicitors for the wife oppose the application and ask that it be dismissed, with costs reserved.

  4. The application arises from these circumstances: The firm Kelly Legal acted for the husband from September 2006 until 16 October 2008.
    Ms Esme Elms who then worked with Kelly Legal had the…

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Seidler and Seidler [2010] FMCAfam 1394
Case
[2010] FMCAfam 1394
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CaseChat Overview and Summary

This matter is an application by the husband to have the wife's solicitors disqualified from continuing to act for her in Family Law proceedings currently on foot. The applicant asks the Court restrain the wife from continuing to retain her lawyers SR Wallace & Wallace of Mackay as her legal representatives. The application arises from the circumstances that the husband's former solicitor Ms Esme Elms left his firm Kelly Legal and commenced employment as a Family Lawyer with SR Wallace and Wallace, the solicitors for the wife. The wife had already expended just over $184,000.00 in legal fees with SR Wallace and Wallace. The husband paid approximately $170,000.00 to Kelly Legal for his legal representation for two years. The husband contends that Ms Elms had ample time to observe his demeanour, attitudes, strengths and weaknesses and to discuss all aspects of his long marriage of 42 years, both personal and in relation to the relevant aspects of s.79. The husband contends that Ms Elms had a significant involvement with the matter and her involvement in obtaining instructions and giving advice to the husband was at a much deeper and more professional level than the senior law clerk in McMillan. The husband contends that Ms Elms had a significant involvement with the matter and her involvement in obtaining instructions and giving advice to the husband was at a much deeper and more professional level than the senior law clerk in McMillan. The husband contends that Ms Elms had a significant involvement with the matter and her involvement in obtaining instructions and giving advice to the husband was at a much deeper and more professional level than the senior law clerk in McMillan.The solicitors for the wife oppose the application and ask that it be dismissed, with costs reserved. The Court found that it was appropriate in this matter to accede to the applicants request to issue a restraint on the wife’s solicitors from continuing to act for and on behalf of the wife, and made Orders as set out in the application.

Orders

Orders of the court

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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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