B v J

[2006] FamCA 256

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE Appeal No. SA27 OF 2005

File No. MLF8858 OF 1992

IN THE MATTER OF: B

Appellant

AND: J

Respondent

CORAM: HOLDEN, WARNICK AND BOLAND JJ

DATE OF HEARING: 4 OCTOBER 2005

DATE OF JUDGMENT: 5 APRIL 2006

JUDGMENT OF THE FULL COURT

Appearances: Mr G Uren of Queens Counsel, with Mr Levine of Counsel, instructed by Isaac Brott & Co Solicitors, Level 2, 493-495 Little Bourke Street, Melbourne, VIC, 3000 appeared for the appellant husband

Ms C Molyneax of Queens Counsel instructed by Pearce Webster Dugdales Solicitors, 4^th Floor, 379 Collins Street, Melbourne, VIC, 3000 appeared for the respondent wife

Name of Appeal	B and J
Appeal Number	SA27 of 2005
Date of Appeal Hearing	4 October 2005
Date of Judgment	5 April 2006
Coram	Holden, Warnick and Boland JJ

Catchwords: APPEALS – FROM DECISION OF FAMILY COURT JUDGE – COSTS – BETWEEN SOLICITOR AND CLIENT – The solicitor acted for the client in property settlement proceedings – An application filed by the client to set aside the costs agreement with the solicitor (“the substantive proceedings”), was dismissed – The solicitor was awarded only part of the costs associated with the substantive proceedings because of a finding by the trial Judge that the solicitor had acted in concert with the client in misleading the court in the property settlement proceedings– The solicitor argued that the trial Judge’s finding was only relevant towards credit in the property settlement proceedings and not in relation to costs of the substantive proceedings– There were insufficient reasons provided by the trial Judge to demonstrate a nexus between the credit finding in the property settlement proceedings and the costs of the substantive proceedings.

Donald Campbell & Co Ltd v Pollack[1927] AC 732
Minister for Immigration & Multicultural Affairs v Vardalis (No 2) (2001) 188 ALR 143
Russo v Resource Development International Pty Ltd (No 2) [2003] NSWSC 446

Symonds v Rafael (1998) 24 FamLR 20
That the appeal be allowed. That order 1 of the orders of Brown J made 13 April 2005 be set aside. That the respondent pay 80% of the costs of the appellant of and incidental to the proceedings before Brown J. That the respondent pay to the appellant within 28 days the costs of the appeal.

On 24 June 2004 her Honour Brown J made orders and delivered reasons for them in respect of a dispute between a solicitor and a former client of the solicitor. In her reasons her Honour identified the questions to be answered as:
“1. Is there a costs agreement between the firm of solicitors…and its erstwhile client…, and if there is, should it be set aside?”
By her orders, her Honour dismissed the application to set aside the costs agreement and made consequential orders designed to finalise the amount of the costs to be paid. There has been no appeal against those orders. Her Honour also made orders permitting each party liberty to make an application by way of written submissions for costs of the proceedings she had determined. Each of the client and the solicitor sought costs. On 13 April 2005, Brown J dismissed the client’s application and made orders that the client pay, towards the costs of the solicitor, the costs of certain nominated events and actions. Against these costs orders the solicitor has appealed and these reasons relate to the disposition of that appeal.
Initially, as well as the appeal, an application for extension of time to appeal other orders, made much earlier in the same proceedings, was listed before us, but that application was withdrawn.
On the appeal, essentially, the solicitor argues that there was only one reason given for not awarding him all his costs and that that reason was irrelevant, relating as it did to his conduct prior to the commencement of the proceedings to which the costs related.
We will return to the points raised on appeal, and any consequential matters, such as remission or re-exercise, after a short background and review of the reasons of the trial Judge.

Background and the judgment of the trial Judge

Proceedings for property settlement between the client and her former husband commenced in the Family Court in 1992. There was a trial, the orders were appealed and the matter was remitted for a fresh hearing. The client first met the solicitor in March 1997. They discussed the property settlement case, but he was not then retained. The client again consulted the solicitor in May of 1997. He became at that stage the last of a line of solicitors retained by the client since the property settlement proceedings commenced in 1992.
As to the extent of the litigation between the client and the solicitor, her Honour noted (in her reasons for the orders appealed) that the substantive proceedings commenced in October 1999 and that:
“26. A number of interlocutory applications were subsequently determined by Carter J and other judges, and orders made directed at getting the matter to trial. The trial finally commenced before me on 28 January 2003. For reasons unrelated to the parties it was subsequently adjourned part-heard, twice, and concluded on 15 May 2003, which was the eleventh day of hearing.”
Her Honour’s reasons for the disposition of the substantive proceedings were delivered in June 2004 and are of 126 pages. There, in the course of her Honour’s discussion of the evidence, her Honour referred to a letter written by the solicitor to the client, dated 3 November 1997, which read as follows:
“Per the many oral advices to you, I advise you that unless moneys are made available to place this office in funds for a trial, we are still unable to prepare for a trial nor act on your behalf in respect to the trial.
Whilst we are prepared, as a matter of professional duty and concern, to continue to act for you in the appeal process arising from last week’s failed applications for adjournment, we do not have the resources to support preparation and conduct of the trial.
The consequence of the above is that you will be unrepresented at your trial.”
Her Honour recorded that:
“224. It was [the solicitor’s] evidence that he wrote this letter at [the client’s] request. She had asked for a letter to use in court to obtain an adjournment when the matter resumed on 5 November 1997.…”
and later:
“234. Senior counsel for [the solicitor] did his best not to put his case in terms as bold as those I use, but the effect of the evidence in his submissions was that this letter, created and signed by a legal practitioner, was an act done in the course of a conspiracy (between [the solicitor] and his client) to mislead the court or, to use the words of the criminal law, a conspiracy to pervert the course of justice.…
“235.In this case I am satisfied the parties acted in concert to mislead the court.…”
In her reasons in respect of the orders appealed, Brown J, after recounting the procedural history relating to the submissions on costs, noted section 117 of the Family Law Act 1975 (Cth) containing the general rule that each party to proceedings under that Act bears his or her own costs; the terms of subsection (2) of that section, permitting (subject to certain other subsections) a costs order to be made if the Court finds circumstances justifying an order, and the matters as set out in section 117(2A) to which the Court shall have regard in considering what order (if any) to make.
Her Honour then turned to consider the application by the client and in the course of so doing, summarised:
“…numerous findings which could be relevant to conduct.”
Her Honour made substantial criticism of the conduct of each party. Her Honour noted:
“12. Most of my findings referable to conduct relate to conduct of the parties prior to the institution of the proceedings before me, conduct which was relevant to the question of whether a binding costs agreement was signed, but was not conduct in the proceedings commenced…”
Her Honour then reviewed other arguments and factors pertinent to the paragraphs of subsection 2A of section 117, noting that the client had been wholly unsuccessful in the proceedings to which the costs applications related and concluded:
“17. There certainly can be circumstances in which the successful party may be ordered to pay all or part of an unsuccessful party’s costs.…However, nothing in the submission made by [the client] satisfies me that this is such a case. Her application for costs is dismissed.”
Brown J then turned to the solicitor’s application, and said:
“18. [The solicitor’s] application that [the client] pay his costs met with no answering in submissions. That does not mean it must automatically succeed. It is a matter for the Court as to whether the discretion given by section 117(2) should be exercised.”
Her Honour then turned to consider the matters mentioned in section 117(2A). She addressed the financial circumstances of each of the parties to the proceedings; the conduct of the parties to the proceedings, about which she had made earlier findings, but also that an allegation of fraud had been foreshadowed in the course of the trial but then abandoned by the client and that the client had submitted that the solicitor be precluded from charging any costs whatsoever, a position found to be untenable; and that her Honour had made critical findings about one of the client’s witnesses.
Her Honour repeated findings that a failure by the solicitor to deliver a bill of costs in compliance with Order 38 of the Family Law Rules 1984 within 45 days was one of the reasons for the initiation of proceedings by the client. However, the client had been wholly unsuccessful.
Finally, her Honour came to the question of such other matters as the Court considered relevant. She noted the submission of the solicitor that there were no such other matters and said she did not find that to be the case. Her Honour then referred to her findings in the substantive proceedings that the solicitor, in the wife’s property settlement proceedings, had acted in concert with the client to mislead the Court. She considered that to be a relevant “other matter” and said:
“25. In paragraphs 234 and 235 of my judgment I found that [the solicitor] created and signed a letter to be used as part of a conspiracy between him and his client, … to mislead the Court or, to use the words of the criminal law, a conspiracy to pervert the course of justice. I was not satisfied the Court could turn a blind eye to such a flagrant breach of professional obligations and the criminal law. A finding that a solicitor acted in concert with a party to mislead the Court is a most significant finding. I referred the relevant papers to the Law Institute of Victoria and the Attorney-General’s Department and it is for those bodies to take whatever steps they deem appropriate. However, I find this to be a relevant ‘other matter’. Both were parties to the conspiracy but it was [the solicitor] who had significant obligations to his client and to the Court, obligations he was prepared to forego.
26. The Court’s discretion is one that must be exercised judicially, and on the evidence before it. I am satisfied it would be just and equitable to order that [the client] pay some of the costs of [the solicitor] of the trial before me, those costs being limited to the following :
(a)the costs of reading the affidavits referred to in paragraph 49 of my reasons for judgment of 24 June, 2004, and of obtaining instructions in response to their contents;
(b)the costs of preparing and filing the affidavits referred to in paragraph 50 of my reasons for judgment of 24 June, 2004 (excluding inadmissible material);
(c)all costs associated with instructing and obtaining the report from [GS] and the affidavit sworn by him on 14 March, 2003;
(d)the costs of briefing counsel for the trial, including senior counsel; and
(e)counsel’s fees for preparation and appearing, including senior counsel’s fees. [The client] briefed senior counsel; it was reasonable for the respondent to do likewise.”

The grounds of appeal - overview

An Amended Notice of Appeal filed 1 September 2005 contained four grounds. The first ground was broadly framed:
“The Honourable Court erred in law in failing to order that the Respondent pay all the costs of the Appellant.”
In effect, the particulars of this ground were set out in grounds 2 and 4. Ground 2 asserted failures to take into account a number of considerations, summarised as:
· The dispute was a commercial dispute between a solicitor and client and the considerations in section 117 of the Act should have been less strictly applied.
· The client by her conduct unduly prolonged the trial by arguing matters that were inadmissible, frivolous, untenable and/or without any proper legal foundation.
The fourth ground asserted error in taking into account the findings “erroneously made” in relation to the “conspiracy” to mislead the Court.
The third ground, which is quite a discrete point, asserted error by way of a failure to consider reserved costs.
We intend to deal with the fourth ground at the outset.

Ground 4

The ground reads:
“4. the Honourable Court erred in taking into account the findings erroneously made in relation to the letter dated 3 October 1997.”
As seen from what we have set out of the trial Judge’s discussion of factors pursuant to the terms of section 117(2A), under paragraph (g) “such other matters as the court considers relevant”, her Honour undoubtedly took account of her findings in the substantive application about the role of both solicitor and client, but more particularly the solicitor, in the “conspiracy”.
In his oral argument, senior counsel for the solicitor stated, on more than one occasion, that the only significance of the “conspiracy” in the substantive proceedings, was as to the credit. In support of this contention he also took us to passages in the cross-examination of the solicitor and submissions on behalf of the client about the costs agreement, during the substantive proceedings.
Though senior counsel for the client also took us to the history of the matter, to show that the question of the letter written by the solicitor had, as an issue between the parties, been raised well before the cross-examination of the solicitor, both in the substantive proceedings before Brown J and, much earlier, in proceedings before Carter J, when Carter J had raised the question of the content of the letter as not being consistent with a term of the costs agreement, we did not understand senior counsel for the client to suggest that, in the substantive proceedings before Brown J, the conspiracy was relevant to any issue other than credit.
Nonetheless, had Brown J disallowed the solicitor costs, to the extent that the issue of the conspiracy had taken up Court time, the relevance of the issue to the question of costs would have been obvious. However, it seems clear to us from her Honour’s reasons that that is not what her Honour did. Rather, as a condemnation of the solicitor’s involvement in the conspiracy, she set off that factor (but not - contrary to arguments on behalf of the solicitor - as the only factor against the solicitor) against other factors favouring an award for costs to the solicitor.
Thus the question squarely arises: Was the solicitor’s involvement in the conspiracy a matter relevant to the question of costs of the substantive proceedings?
On behalf of the solicitor, it was contended that the conduct of the solicitor in the conspiracy, being conduct in relation to the property settlement proceedings between client and spouse, could not be conduct in “the proceedings”, as that term was used in paragraph (c) of section 117(2A). It seems unnecessary to consider this argument because, as seen, the trial Judge brought the conduct into account pursuant to paragraph (g).
Though potential distinctions arising from the statutory provisions of this Court in respect of costs must be recognised when examining the decisions on costs of courts of general jurisdiction, such decisions can be helpful guides on the question of relevance. In this regard, we consider discussion in the following cases of assistance.
In Russo v Resource Development International Pty Ltd (No.2) [2003] NSWSC 446, Young CJ considered a claim by a defendant, against whom the plaintiff had wholly failed, that the plaintiff pay the defendant’s costs. Young CJ referred to a finding that he had made in the course of the hearing, that he could not believe the evidence of the particular defendant and posed for himself the question:
“[8] The question of principle then is how far can a court deprive a successful litigant of his costs because, to put it at its highest, it is found that in a matter not connected with the reasons for which that person succeeded, he has fabricated a document which was deployed in evidence and has maintained that the document was not fabricated.
[9] There is no doubt at all that there are some circumstances where the court may deprive a successful party of his or her costs of the action.…”
His Honour then reviewed various decisions, commencing with that of the House of Lords in Donald Campbell & Co Ltd v Pollack [1927] AC 732. He quoted what Viscount Cave (at 812) said with regard to the exercise of discretion:
“the Judge ought not to exercise it against the successful party except for some reason connected with the case. Thus, if – to put a hypothesis which in our Courts would never in fact be realized – a judge were to refuse to give a party his costs on the ground of some misconduct wholly unconnected with the cause of action or of some prejudice due to his race or religion or…to the colour of his hair, then a Court of Appeal might well feel itself compelled to intervene. But when a judge, deliberately intending to exercise his discretionary powers, has acted on facts connected with or leading up to the litigation which have been proved before him or which he has himself observed during the progress of the case, then it seems to me that the Court of Appeal…is prohibited by the statute from entertaining an appeal from it.”
Young CJ continued:
“[11] The law lords said it would be quite wrong to lay down any definite rules as to how the discretion was to be exercised. However, with reference to previously decided cases, they gave some guidelines. They indicated that Atkin CJ had gone too far by saying in Ritter v Godfrey [1920] 2 KB 47, that there were three situations where the Judge could deprive a defendant of costs on the basis that the statement was too prescriptive. However, they endorsed the general sentiment as guidelines. The three circumstances were:
(1)     Where the defendant brought about the litigation,
(2)     Where the defendant has done something connected with the institution or the conduct of the litigation calculated to occasion unnecessary litigation and expense; or
(3)     Where the defendant has done some wrongful act in the course of the transaction of which the plaintiff complains.”
After discussing other decisions, his Honour said:
“[17] It should be noted that in the present case the conduct of the fifth defendant in fabricating the documents did not induce the plaintiff to believe that there was a good case when there was not one, nor did it goad the plaintiff into litigation in which he would never have embarked but for the misconduct…Nor was the case one where the act of the defendant occasioned unnecessary litigation or expense in the way in which the trial was conducted. The material was material which would have affected Mr Costa’s credit in any event. Accordingly, it would only be if the matter came within the class mapped out by Atkin LJ as ‘some wrongful act in the course of the transaction of which the plaintiff complains.’ This category has never been fully explored. However, the Court looks for something which is close to the cause of action sued upon or the transaction flowing from which the cause of action arises. General amoral behaviour of a party is no reason to deprive that party of costs. Indeed, even if the facts on which the cause of action are based show that the defendant is not ‘a decent chap’, this again is no reason to deprive a successful defendant of his costs. The conduct must be intimately connected with the reason why the litigation was brought or lasted as long as it did or as one might colloquially say, ‘in that ball park’.
[18] Although I have generally resisted looking at earlier cases, it is probably of value to note King & Co v Gillard & Co [1905] 2 Ch 7, where, in a passing off suit, Kekewich J gave judgment for the defendant, but refused to order the plaintiffs to pay the defendants' costs on the ground that the defendants had indicated that their goods had obtained certain medals and awards at exhibitions which were false. This matter was not connected with the issue between the plaintiffs and the defendants. The Court of Appeal held that the improper conduct, assuming it to be so, was not connected with the issue between the plaintiff and the defendant and was not material which could be used to exercise the Judge's discretion to deprive the successful party of costs.
[19] I am not at all happy that a solicitor of this Court would fabricate a document in the sense of dating it a date it could not bear, and then persisting with evidence that it must have been prepared on the date it bore. Clearly, one document could not have been prepared on the date it carried. This conduct was exacerbated by the continued assertion of the document's validity and also, to a lesser extent, by the continued assertion that the solicitor and Mr Rafidi had independently prepared identical affidavits.
[20] However, it does seem to me that, bearing in mind the general guidelines outlined in the cases which I have digested, the conduct is too collateral to the cause of action between the plaintiff and the fifth defendant.”

In Minister for Immigration & Multicultural Affairs v Vadarlis (No.2) (2001) 188 ALR 143, the Full Court of the Federal Court, in respect of the power to award costs, referred with approval to the decision of Bray CJ in Cretazzo v Lombardi (1975) 13 SASR 4 (at 11) where Bray CJ said:
“I think the guiding principle still stands as it left the House of Lords in the famous case of Donald Campbell & Co v Pollak, that the general discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation.”
The Full Court then said:
“[12] The award of costs to a successful party is principally by way of perceived restorative justice. The general rule assumes that where an applicant succeeds it will have incurred costs because the respondent’s conduct made it necessary for the applicant to bring the proceedings.…The order made in such cases is compensatory:
‘If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Chilli v Abbott (1981) 53 FLR 108 at 111.’
“(Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45 per Mason CJ at CLR 543; ALR 50; see to similar effect McHugh J at CLR 567; ALR 68.)”
In this case, though expressing the view that the solicitor’s involvement in the conspiracy was a relevant “other matter”, Brown J did not further discuss any nexus between that conduct and the costs in issue.
Compounding the absence of reasons showing any nexus between the conspiracy and the substantive proceedings before Brown J, is a comparison between her Honour’s acceptance of the solicitor’s involvement in the conspiracy as relevant to his application for costs, and her rejection of that conduct as relevant to the client’s application for costs. In her submissions seeking the client’s costs of the substantive proceedings, senior counsel for the client said:
“44. A relevant fact in the conduct of this application is that [the solicitor] is a legal practitioner and Her Honour has found his conduct to be “…a flagrant breach of professional obligations and the criminal law” (paragraph 234 of the Judgment).”
In response to these submissions, it was said on behalf of the solicitor:
“20. Paragraphs 44 to 46 deal with the findings of the Court as to the letter of 3 November 2004, see paragraph 235 of the Judgment.
22. The matters found at paragraph 235 do not bear on the conduct of the litigation by the solicitor in response to the central allegation about the costs agreement, whether as set out in paragraph 117(2A)(c) or Verna Trading. The only relevance is that [the client’s] contentions of fact were entirely unsuccessful. The solicitor’s response in the litigation is summarised at paragraph 35 and 328 of the Judgment. That response was entirely successful.
23. However those submissions, although not bearing on the relevant issue, do not have regard to the findings of the Judgment in a number of significant aspects including the following.”
As earlier seen, in the last paragraph of her reasons, in respect of the application by the client for costs, her Honour said:
“17. There certainly can be circumstances in which a successful party may be ordered to pay all or part of an unsuccessful party’s costs. Very often the matters relevant will come within the ambit of s.117(2A)(c), being matters referrable to the conduct of the proceedings, as was the case in MLC v. FAI (1994) 49 FCR 23 at 26. However, nothing in the submission made by [the client] satisfies me that this is such a case. Her application for costs is dismissed.”
In the above paragraph, the trial Judge referred to matters referable to the conduct of the proceedings pursuant to paragraph (c) of section 117(2A). Accordingly that reference may not sit at odds with her Honour’s treatment of the conspiracy, as a matter relevant under paragraph (g). However, the issue of the conspiracy had been, as indicated, squarely raised by the client and responded to by the solicitor. If its relevance to the client’s application for costs is not dealt with in paragraph 17, it is not dealt with elsewhere.
At the very least, we perceive there to be an absence of reasons showing the nexus between the conspiracy and the issue of costs of the substantive application. We do not suggest that in relation to an application for costs, extensive reasons are necessary. Abbreviated reasons may well be sufficient but nonetheless, conclusions must be explained.
Moreso, we are satisfied that the solicitor’s involvement in the conspiracy during the period in which he acted for the client in her property settlement proceedings was too remote from the substantive issues in the proceedings to set aside the costs agreement to be relevant to the issue of the costs of those proceedings.
Accordingly, we are satisfied that this ground of appeal must succeed.
In view of our conclusion about the use of the findings about the “conspiracy”, even on the basis that those findings were without error, it is not necessary to consider the contention on behalf of the solicitor that the findings themselves were erroneous nor to consider a possible question about the capacity of the solicitor to challenge the validity of those findings in these proceedings, when there is no appeal against the orders made in the substantive proceedings.
It is also unnecessary to consider whether, in circumstances where the client did not respond to the application of the solicitor for costs, the solicitor ought to have been given an opportunity to be heard about the relevance to his applications of the conspiracy or whether he had already had that opportunity because the client had raised it in her application.

Other questions and other grounds of appeal

As indicated, the solicitor is obviously aggrieved by the finding of Brown J about the conspiracy. Given the implications for the solicitor of the findings of the trial Judge, if we thought that a mistake of fact had clearly been made, we might give consideration to the argument, notwithstanding it is strictly unnecessary to do so.
In this regard, it was submitted for the solicitor that the only relevant evidence was that of the solicitor in cross-examination, that the point was one which went only to credit, that the solicitor’s evidence was not disbelieved and therefore, his explanation ought have been accepted.
However, we point out that the terms of the letter in question were in evidence and the terms do not sit comfortably with the explanation given by the solicitor for the production of the letter. In those circumstances, observation of the witness takes on a particular value and renders it less likely that this Court is in as good a position as the trial Judge to assess the evidence of the solicitor on the point. In those circumstances we say no more about this argument.
As to the argument that the trial Judge failed to give weight to the commercial nature of the transaction between the parties and the corresponding distinction between the position of these parties and parties to a marriage litigating property or parenting issues, such a difference was referred to in Symonds v Rafael (1998) 24 FamLR 20 at 44. There, dealing with an appeal of a trial Judge’s determination regarding whether a costs agreement ought be set aside or not, Baker and Burton JJ said:
“…Section 117 and, in particular, s 117(2A) have more relevance to proceedings between parties who are not strangers in relation to disputes over settlement of property, maintenance, residence and contact than to disputes as to costs between solicitor and client.
The present dispute was one in relation to costs as between the wife and her former solicitor. In our opinion, costs made in relation to the trial and in relation to the appeal should follow the event and indeed, in the course of their submissions to us at the conclusion of the hearing of the appeal, both counsel more or less conceded that whatever happened and whatever order this court may ultimately make, that costs both in relation to the trial and in relation to the appeal should follow the event and there will be orders accordingly.”
There were of course no similar concessions in the case before Brown J, but it is true, as is submitted on behalf of the solicitor, that the trial Judge makes no mention in her reasons for judgment of the distinction referred to in the above passage.
In view of our conclusion in respect of the fourth ground it is unnecessary to deal further with the other grounds of appeal.

Re-exercise or remission

We think it highly desirable that this saga of litigation be concluded and to that end to re-exercise the discretion if at all possible, which we believe it is.
In so doing, we consider that there is validity in the proposition put for the solicitor that while the orders of Brown J disclose the costs allowed, they do not disclose the costs disallowed. In other words, the degree to which the solicitor has been compensated is not discernible.
We consider that, having regard to the fact that he was wholly successful and to the nature of the litigation, namely between solicitor and client about costs, as well as to the findings about the wife’s conduct, including allegations of fraud abandoned and the pursuit of untenable argument, that there are strong arguments for an award to the solicitor of all his costs. However, leaving aside the matter of the conspiracy, of which we take no account, we consider it clear from paragraph 21 of her Honour’s reasons for the costs orders, that she intended to take into account the conduct of each party in the proceedings and in that regard, made significant findings against the solicitor. We consider we also ought give weight to those findings.
More can be gauged of the extent of inadmissible material to which her Honour referred from findings expressed in her reasons for judgment in respect of the substantive issues. Her Honour said:
“52. Most of the affidavits containing the evidence-in-chief of each of the parties are deplorable. They are a swamp of opinion, comment, insult, hearsay, rhetorical questions, conclusionary statements and argument, with an occasional island of admissible material. Those who drew them paid as little heed to grammar and syntax as they did to the most basic rules governing the admission of evidence. In those sworn by [the solicitor] malapropisms abound. Literally hundreds of copy documents are referred to and annexed to these various affidavits. For example, there are 224 documents in the annexures to the affidavit sworn by [the solicitor] on 20 August 2001. The correspondence, files notes and other documents referred to in this judgment constitute only a small part of the whole.
53. A few paragraphs from the affidavits of each party will illustrate their tone and content; the most cursory reading will demonstrate these are not isolated examples. So riddled are they with grammatical and spelling errors that I have not adopted the convention of acknowledging these by the addition of the notation “sic”.…”
In addition to conduct of the solicitor in relation to presentation of material, as indicated earlier, the trial Judge also found that a failure by the solicitor to render a bill in accordance with an order made 3 June 1999 immediately predated the filing by the client of her application initiating the substantive proceedings.
We consider that these factors support reduction in the extent of the award to the solicitor.
We bear in mind that, to any extent that the solicitor may be not awarded costs, there is an element of reward to the client against whom a number of findings relevant to the issue of costs generally, were made by the trial Judge.
Taking these matters into consideration, we consider that the client should pay 80% of the costs of the solicitor, of and incidental to the applications determined in the substantive proceedings.
As to reserved costs, the submissions of the solicitor put before Brown J as to costs read in part:
“A.          The costs and consequential orders sought
The respondent seeks an order in the following terms:
1.   That save as provided at paragraph 2 herein the applicant pay the respondent’s costs of the proceedings initiated by the applicants form 8 filed 28 July 1999 and responded to in the respondents form 8A filed 21 October 1999 (the costs agreement proceedings) as agreed between the parties and in default of agreement as taxed (the costs of the cost agreement proceedings).
2.   That any extant order as to costs made in the costs agreement proceedings remain in full force and effect.”
If these paragraphs amount to a request for reserved costs they do so rather obliquely.
There is nothing in her Honour’s reasons to indicate that she considered reserved costs. We are not apprised of what reservations of costs were made or of any relevant circumstances.
In our view such claim as there may have been for reserved costs and/or which it is sought be made or renewed ought, subject to any argument about timeliness, be agitated before Brown J.

Costs of the appeal

The solicitor sought that the client pay costs if, as it has, the appeal succeeded.
The client sought, in the circumstances, a certificate under the Federal Proceedings (Costs) Act 1981.
The client argued the relevance to her application for costs of the substantive proceedings, of the conduct which we consider was irrelevant.
We consider the client should pay the solicitor’s costs of the appeal.

ORDERS

That the appeal be allowed.
That order 1 of the orders of Brown J made 13 April 2005, be set aside.
That the respondent to the appeal pay 80% of the costs of the appellant of and incidental to the proceedings before Brown J determined by orders made by Brown J on 24 June 2004, as agreed and in default of agreement, as assessed under Division 19.6.2 of Chapter 19 of the Family Law Rules 2004.
That the respondent pay to the appellant within 28 days the costs of the appeal as agreed, and failing agreement as assessed under Division 19.6.2 of the Family Law Rules 2004.

I certify that the preceding 68
paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd: ………………

Associate

[2006] FamCA 256

5 April 2006