FAMILY COURT OF AUSTRALIA
| STRAHAN & PP LAWYERS | [2017] FamCAFC 22 |
| FAMILY LAW – APPEAL – LEGAL PRACTITIONERS – Appeal against declaration that solicitors are entitled to exercise a lien over their former client’s files – Primary judge did not err in concluding the solicitors had just cause for ceasing to act and were entitled to exercise a lien – Primary judge did not err in concluding the lien was not lost because of the solicitors’ claim for ongoing storage fees of the files – Oral reasons given during submissions were formally incorporated into the reserved judgment and parties could understand basis of the decision – Reasons were therefore adequate. FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Error of law conceded in relation to conditions on which files should be made available to new solicitors for use in ongoing litigation – Appeal be allowed in part – Order made for delivery of files conditional upon undertaking from new solicitors – Former solicitors retain lien over the fruits of the litigation. FAMILY LAW – APPEAL – COSTS – First instance costs order set aside – Timetable provided for submissions concerning costs at first instance and on appeal. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Some evidence admitted by consent – Balance not received. |
| Albemarle Supply Company Ltd v Hind & Company [1928] 1 KB 307 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bonney v Compass Group (Australia) Pty Ltd [2015] WASCA 6 Chester v Cassidy Gibson Howlin (1995) FLC 92-556 Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 WLR 614 Gilgandra Marketing Co-Operative Limited v Australian Commodity & Merchandise Pty Ltd (in liquidation) & Ors (No. 3) [2011] NSWSC 69 Johnson v Johnson (2000) 201 CLR 488 Metall Market OOO v Vitorio Shipping Company Limited [2014] QB 760 R v Lennon (1984) 38 SASR 356 Rafferty v Time 2000 West Pty Limited (No 3) (2009) 257 ALR 503 Re Weedman [1996] FCA 1112 Rigoli Lawyers v Arman (2009) 40 Fam LR 676 Rollings v Rollings (2009) 230 FLR 396 Somes v British Empire Shipping Co Ltd (1860) 8 HL Cas 338 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd; Mortensen v Laing [1992] 2 NZLR 282 Stark v Dennett [2008] 2 Qd R 72 Stojkovski v Fitzgerald [1989] WAR 328 Stoker v Picken (2012) 209 FCR 132 White v Bini [2003] FCA 669 Worrell v Power & Power (1993) 46 FCR 214 |
| APPELLANT: | Ms Strahan |
| RESPONDENT: | PP Lawyers |
| FILE NUMBER: | ADC | 360 | of | 2016 |
| APPEAL NUMBER: | SOA | 15 | of | 2016 |
| DATE DELIVERED: | 20 February 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | May, Thackray & Ainslie-Wallace JJ |
| HEARING DATE: | 11 October 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17… |
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- AGLC
- STRAHAN & PP LAWYERS [2017] FamCAFC 22
- Case
- [2017] FamCAFC 22
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge erred in concluding that PP Lawyers had just cause for ceasing to act and were entitled to exercise a lien over the files. The court also had to consider whether the primary judge erred in concluding that the lien was not lost due to the solicitors’ claim for ongoing storage fees of the files. Additionally, the court had to consider whether the primary judge erred in the conditions set for the delivery of the files to new solicitors.
The court found that the primary judge did not err in concluding that PP Lawyers had just cause for ceasing to act and were entitled to exercise a lien over the files. The court also found that the primary judge did not err in concluding that the lien was not lost due to the solicitors’ claim for ongoing storage fees of the files. However, the court found that the primary judge erred in the conditions set for the delivery of the files to new solicitors. The appeal was allowed in part, and the orders made by Faulks DCJ were discharged. The court made orders for the delivery of the files conditional upon an undertaking from the new solicitors, and PP Lawyers retains a lien over the fruits of the litigation.
The final orders of the Full Court include allowing the appeal in part, discharging certain orders made by Faulks DCJ, and making orders for the delivery of the files conditional upon an undertaking from the new solicitors. Additionally, the Full Court set a timetable for submissions concerning costs at first instance and on appeal. The Full Court also granted liberty to apply for further directions and restrained the parties from publishing any account of the reasons of the Full Court in this appeal to anyone other than their legal advisors and those assisting them in the litigation without leave of a member of the Appeal Division of the Family Court of Australia.
Orders
Orders of the court
1.
By consent, Annexure DP1 to the affidavit of Ms PP sworn on 23 September 2016 be admitted as further evidence in the appeal.
2.
The Application in an Appeal filed on 23 September 2016 seeking the introduction of the further evidence in the appeal be otherwise dismissed.
3.
To the extent leave may be required, leave to appeal against the orders of Faulks DCJ made on 17 February 2016 be granted.
4.
The appeal be allowed in part.
5.
Paragraphs 2 and 3 of the orders of Faulks DCJ made on 17 February 2016 be discharged.
6.
In the event the parties cannot within 14 days agree on the other orders required to give effect to the reasons of the Full Court:
(a) Each party shall within 21 days of these orders file and serve a Minute of Orders, together with written submissions (not exceeding 10 pages) dealing with the areas of difference; and
(b) Each party may within seven days of service of the other party’s submissions file and serve submissions in reply (not exceeding five pages).
7.
Within 21 days of these orders, the appellant shall file and serve written submissions (not exceeding 10 pages) dealing with the issue of the costs of the proceedings at first instance.
8.
Within 14 days of service of the submissions referred to in Order 7, the respondent shall file and serve written submissions in response (not exceeding 10 pages).
9.
Within 7 days of service of the submissions referred to in Order 8, the appellant may file and serve submissions in reply (not exceeding five pages).
10.
Judgment is otherwise reserved pending compliance with Orders 6 to 9.
11.
Upon publication of the final orders of the Full Court:
(a) Either party be at liberty within 21 days to make an application by way of written submissions in respect of the costs incurred in relation to the appeal by filing such submissions and serving them on the other party;
(b) Within 14 days from service of the submissions, the respondent to the application for costs shall file and serve written submissions in response;
(c) Within seven days from service of the respondent’s written submissions, the applicant for costs may file and serve written submissions in reply;
(d) The submissions filed pursuant to subparagraphs (a) and (b) must not exceed 10 pages and those pursuant to subparagraph (c) must not exceed five pages; and
(e) In the event either party seeks a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), such application must be contained within the written submissions.
12.
Until further order of the court, the parties and their servants and agents are restrained and an injunction is hereby granted restraining them from publishing any account of the reasons of the Full Court in this appeal to anyone other than their legal advisors and those assisting them in the litigation without leave of a member of the Appeal Division of the Family Court of Australia.
13.
Order 12 does not prevent the parties or their legal advisors from bringing the content of these orders (and the final orders made by the Full Court) to the attention of any judicial officer who has conduct of the matter at first instance.
14.
The Judgments Publication Coordinator of the Family Court of Australia is requested to ensure that pending finalisation of the first instance proceedings involving the appellant (ADF 228 of 2005) the copy of the reasons delivered in this appeal maintained on the judgments database and any copy distributed to judicial officers or others is edited to remove reference to the content of communications between the appellant and the respondent.
15.
There be liberty to apply to the Full Court for further directions.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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