Tobias and Tobias

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…