Legal Research
Cases
Seidler and Seidler

Seidler and Seidler

Case [2010] FMCAfam 1394 16 December 2010

Conflict of Interest

Confidential Information

Restraint of Solicitor

Family Law

Type to search within this case.

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

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

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

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 Seidler and Seidler

Details

AGLC: Seidler and Seidler [2010] FMCAfam 1394
Case: [2010] FMCAfam 1394
Decision Date

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