Catchwords: FAMILY LAW – Injunction to restrain respondent’s solicitor from continuing to act – respondent’s home suffers storm damage necessitating that she secure alternative accommodation – respondent has limited financial means – applicant bears costs of alternative accommodation – respondent’s solicitor acts for respondent in claim for indemnity against home insurer – offer received from insurer – offer confines indemnity for alternative accommodation to the costs of a further four weeks accommodation – applicant told that insurer’s offer has resulted in return of settlement cheque and alternative dispute resolution with insurer – applicant not told of limit placed on indemnity – applicant continues to bear accommodation costs for extended period – respondent compromises issues in dispute with insurer and accepts lesser sum than that necessary to reimburse accommodation costs to the applicant – respondent settles insurance claim without consulting applicant – insurer pays settlement monies to respondent’s solicitor – part of settlement monies applied by respondent in discharge of liability for legal costs – balance of monies transferred to respondent’s family law file – where, despite repeated request, communications with insurer not disclosed or not sufficiently disclosed – whether solicitor should be restrained from continuing to act – applicable principles to claim for injunction based upon whether conflict of interest, threatened disclosure of confidential information and supervisory jurisdiction over officers of court – post-hearing submission not to be considered – application dismissed – costs – case management required.
[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 SHEEHAN & SHEEHAN
Sign in free to access the full text
Details
AGLC
SHEEHAN & SHEEHAN [2019] FCCA 1085
Case
[2019] FCCA 1085
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, Judge A Kelly considered an application by the applicant to restrain the respondent's solicitor from continuing to act in family law proceedings. The dispute arose from storm damage to the respondent's home, necessitating alternative accommodation. The applicant bore the costs of this accommodation. The respondent's solicitor acted for her in a claim against her home insurer. An offer from the insurer limited indemnity for alternative accommodation to four weeks. The applicant was not informed of this limitation, despite continuing to fund accommodation for an extended period. The respondent subsequently settled her insurance claim for a sum insufficient to reimburse the applicant for these costs, and part of the settlement monies were applied by the respondent to her legal costs.
The primary legal issue before the court was whether the respondent's solicitor should be restrained from acting, based on principles relating to conflicts of interest, the threatened disclosure of confidential information, and the court's supervisory jurisdiction over officers of the court. The applicant contended that communications with the insurer had not been sufficiently disclosed, despite repeated requests.
The court applied the established principles governing applications for injunctions to restrain solicitors from acting. It considered the potential for conflict of interest and the duty to protect confidential information. After reviewing the evidence and submissions, the court determined that the threshold for granting such an injunction had not been met.
Consequently, the application to restrain the respondent's solicitor was dismissed. The applicant's costs of the application were reserved. The court also issued case management orders, including directions for the exchange of financial information and listing the property adjustment proceedings for hearing before Judge Blake on 28 October 2019.
Orders
Orders of the court
1.
The Application in a Case filed on 5 March 2019 be dismissed.
2.
The applicant’s costs of and incidental to this application, the costs of the mention hearing on 26 October 2018 and the costs of the trial adjourned on 1 November 2018 be reserved.
3.
The mention listed for 10.00 am on Monday, 6 May 2019 be vacated.
4.
By 4.00pm on Friday, 10 May 2019, the applicant serve in electronic format, a document which itemises each asset, liability, superannuation or other interest in any property which he contends comprise the Asset Pool the subject of the application for an adjustment of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (Itemised List).
5.
By 4.00pm on Friday, 31 May 2019, the respondent serve in electronic format, a document which addresses and annotates each entry in the applicant’s Itemised List as necessary indicating whether:
(a) she agrees or disagrees with each item in that list and why;
(b) she contends there are any further assets, liabilities, superannuation or other interests in any property which she contends comprise the Asset Pool the subject of this proceeding.
6.
By 4.00pm on Friday, 14 June 2019, the applicant file and serve in electronic format, a consolidated Itemised List indicating where he agrees or disagrees with each item in the respondent’s annotated list served pursuant to paragraph (5) of this Order.
7.
The proceeding is listed for hearing at 10.00 am on 28 October 2019, before Judge Blake.