Tobias and Tobias

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FEDERAL CIRCUIT COURT OF AUSTRALIA

TOBIAS & TOBIAS [2017] FCCA 654
Catchwords:
FAMILY LAW – Procedural – restraint on solicitor acting – whether there is a real risk of disclosure of any confidential information – inherent jurisdiction of the Court to manage its processes.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.1.05

Family Law Rules 2004 (Cth), r.8.03

Cases cited:

Osferatu & Osferatu [2015] FamCAFC 177

Grieves & Tully [2011] FamCA 617
Webb & Salter [2016] FCCA 1087
Kallinicos & Hunt [2005] NSWSC 1181
Lakey & Lakey [2008] FMCAfam 827
Malleson Stephen Jaques v KMPG v Peat Marwick (1990) 4 WAR 357
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (a firm) (1997) 17 WAR 98
Prince Jefri Bolkiah v KPMG (a firm) (1999) 2 AC 222
Naczek & Dowler [2011] FamCAFC 179

Applicant: MR TOBIAS
Respondent: MS TOBIAS
File Number: SYC 3773 of 2016
Judgment of: Judge Kemp
Hearing date: 20 March 2017
Date of Last Submission: 24 March 2017
Delivered at: Sydney
Delivered on: 6 April 2017

REPRESENTATION

Solicitors for the Applicant: Harris Freidman Lawyers
Counsel for the Respondent: Mr Millar
Solicitors for the Respondent: Diamond Conway

THE COURT ORDERS THAT:

  1. The wife be restrained from using the legal services of Mr Tom Doumanis and the firm Diamond Conway Lawyers further in these proceedings.

  2. The matter be listed for Conciliation Conference on 30 June 2017 at 11.00am.

  3. The directions of 11 October 2016 in relation to the Conciliation Conference stand.

  4. The matter be listed on 28 July 2017 at 9.30am for mention.

  5. The parties’ competing costs applications be reserved for mention on the adjourned date.

  6. Liberty to apply on 7 days written notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3773 of 2016

MR TOBIAS

Applicant

And

MS TOBIAS

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an application in an case brought by the applicant husband on 1 December 2016, seeking orders as follows:

    (1)That the solicitor for the wife, Mr Tom Doumanis, and the firm Diamond Conway Lawyers, be and are hereby restrained from continuing to act on behalf of the wife in these proceedings;

    (2)That the wife pay the husband’s costs of and incidental to this application;

    (3)Such further orders as the court sees fit.

  2. The husband was represented by Mr Leslie Stubbs, solicitor (“Mr Stubbs”).

  3. The husband relied on his affidavit sworn and filed on 30 November 2016. 

  4. The respondent wife seeks in her response filed 2 December 2016, orders that the husband’s said application in a case be dismissed and that the husband pay her costs of and incidental to the application.

  5. The wife was represented by Mr Millar of Counsel.

  6. The wife relied on:

    a)Her affidavit sworn and filed on 2 December 2016;

    b)Her affidavit, in the substantive proceedings, sworn on 10 June 2016 and filed on 16 June 2016;

    c)The affidavit of…

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Details
Case
[2017] FCCA 654
Decision Date

CaseChat Overview and Summary

In the matter of *Tobias and Tobias*, heard before Judge Kemp, the wife sought to continue her legal representation by Mr Tom Doumanis and the firm Diamond Conway Lawyers. The husband objected to this continued representation.

The central legal issue before the court was whether the wife should be restrained from continuing to use the services of Mr Doumanis and Diamond Conway Lawyers in the proceedings.

Judge Kemp found that the wife's continued engagement of Mr Doumanis and Diamond Conway Lawyers would create a conflict of interest. The court reasoned that this conflict arose from the prior involvement of Mr Doumanis and the firm with the husband's financial affairs, which were central to the property settlement dispute. The court applied principles relating to the avoidance of conflicts of interest in legal representation to prevent any potential prejudice to the husband's case.

Consequently, the court ordered that the wife be restrained from using the legal services of Mr Tom Doumanis and Diamond Conway Lawyers further in these proceedings. The matter was then adjourned for a conciliation conference, with competing costs applications reserved for a later mention.

Orders

Orders of the court

1.

The wife be restrained from using the legal services of Mr Tom Doumanis and the firm Diamond Conway Lawyers further in these proceedings.

2.

The matter be listed for Conciliation Conference on 30 June 2017 at 11.00am.

3.

The directions of 11 October 2016 in relation to the Conciliation Conference stand.

4.

The matter be listed on 28 July 2017 at 9.30am for mention.

5.

The parties’ competing costs applications be reserved for mention on the adjourned date.

6.

Liberty to apply on 7 days written notice.

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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