Burns and Caldwell and Anor (Costs)

[2011] FamCAFC 84

FAMILY COURT OF AUSTRALIA

BURNS & CALDWELL AND ANOR (COSTS) [2011] FamCAFC 84

FAMILY LAW - APPEAL – COSTS – Whether to make a personal costs order against the mother’s solicitors in relation to the mother’s unsuccessful application to expedite her appeal against interlocutory orders in parenting proceedings – Whilst the expedition application had little prospect of success, the Court is not persuaded that filing, or prosecuting, the application could fairly be held to fall within the kind of conduct discussed by Goldberg J in White Industries.

Family Law Act 1975 (Cth) s 117

Allesch v Maunz (2000) 203 CLR 172
Ridehalgh v Horsfield [1994] 3 All ER 848
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169

APPELLANT: Ms Burns

FIRST RESPONDENT: Mr Caldwell

SECOND RESPONDENT: Ms Atkins

INDEPENDENT CHILDREN’S LAWYER: Mr Ridge

FILE NUMBER: CAC 689 of 2008

APPEAL NUMBER: EAA 106 of 2010

DATE DELIVERED: 8 April 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: By written submissions

JUDGMENT OF: Coleman J

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 6 August 2010

LOWER COURT MNC: [2010] FMCAfam 940

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Lyndon

SOLICITOR FOR THE APPELLANT: Watts McCray McGuiness Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Ms Tonkin

SOLICITOR FOR THE FIRST

RESPONDENT:

Strong Law Pty Ltd

COUNSEL FOR THE SECOND RESPONDENT: Ms Lyndon by consent

SOLICITOR FOR THE SECOND RESPONDENT: Pappas J Attorney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barker & Barker

Orders

1. That there be no order for costs of and incidental to the mother’s application filed 24 August 2010 for expedited hearing of the appeal against interim parenting orders made in the Federal Magistrates Court on 6 August 2010.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA 106 of 2010
File Number: CAC 689 of 2008

Ms Burns

Appellant

And

Mr Caldwell

First Respondent

And

Ms Atkins
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Costs

1. For reasons which the Court articulated when dismissing the application to expedite the mother’s appeal against interlocutory orders in parenting proceedings between herself, the father and the maternal grandmother, the Court directed that the mother’s solicitors file any submissions upon which they wished to rely in opposition to an order for costs of the application for expedition being made against them. Counsel for the maternal grandmother had sought such an order at the conclusion of the determination of the mother’s application for expedition of her appeal. It was common ground that any order for costs made against the mother would be unlikely to be able to be satisfied by the mother.

2. On 3 December 2010 the mother’s solicitors filed submissions in opposition to an order for costs being made against them in favour of the maternal grandmother. For reasons which will become apparent, it is unnecessary, and unhelpful, to refer to most of the submissions which were made by the mother’s solicitors. Some of the submissions (such as paragraph 19), appear to ignore, or fail to understand, the basis upon which the Court rejected the mother’s application to expedite the hearing of her appeal against the interlocutory parenting orders of the Federal Magistrates Court. Others have no relevance to the present application. It was, however, ultimately, and relevantly for present purposes, submitted by the mother’s solicitors that “at all times, my firm has acted on instructions from the mother, who has received appropriate advice in respect of all stages of the proceedings”.

3. In determining whether to make a personal costs order against a solicitor the Court must balance certain public interests. As was said in Ridehalgh v Horsfield [1994] 3 All ER 848 at 855 – 856:

   … [L]awyers should not be deterred from pursuing their client’s interests by fear of incurring a personal liability to their client’s opponents; that they should not be penalised by orders to pay costs without a fair opportunity to defend themselves; that wasted costs order should not become a back-door means of recovering costs not otherwise recoverable by a legally-aided or impoverished litigant; and that the remedy should not grow unchecked to become more damaging than the disease.  The other public interest, recently and clearly affirmed by Act of Parliament, is that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponent’s lawyers.  The reconciliation of these public interests is our task in these appeals.  Full weight must be given to the first of these public interests, but the wasted costs jurisdiction must not be emasculated.

4. Goldberg J said in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 239 (approved by the Full Court of the Federal Court in Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155):

   This analysis of the cases makes it clear that the jurisdiction to order costs against an unsuccessful party’s solicitors is enlivened when they have unreasonably initiated or continued an action when it had no or substantially no prospects of success but such unreasonableness must relate to reasons unconnected with success in the litigation or to an otherwise ulterior purpose or to a serious dereliction of duty or serious misconduct in promoting the cause of and the proper administration of justice.  Further, the cases establish the proposition that it is a relevant serious dereliction of duty or misconduct not to give reasonable or proper attention to the relevant law and facts in circumstances where if such attention had been given it would have been apparent that there were no worthwhile prospects of success.

5. Notwithstanding the submissions which were put to this Court on the hearing of the mother’s expedition application, which would raise some doubt as to whether the mother had “received appropriate advice” with respect to that application, and the reiteration (see paragraph 19) in the costs submissions of the assertion that it was “reasonable to seek expedition” of the hearing against the interim parenting orders of the Federal Magistrates Court, in the absence of any evidence to the contrary, and there is none, the Court accepts that the mother’s solicitors have at all times acted on instructions from her, and that such instructions were given after the mother’s solicitors advised her appropriately with respect to the utility or otherwise of persisting with an application to expedite the hearing of an appeal against interim parenting orders in circumstances where any such appeal could have no practical efficacy.

6. The absence of practical efficacy was in part due to the reality that the final hearing of the proceedings was part-heard in the Federal Magistrates Court. It was also in part due to the impact of the High Court’s decision in Allesch v Maunz (2000) 203 CLR 172. Although, as the Court’s earlier judgment confirms, the expedition application had little prospect of success for those reasons, the Court is not persuaded that filing, or prosecuting the application could fairly be held to fall within the kind of conduct discussed by Goldberg J in White Industries.

7. In the circumstances, it would not be fair, or reasonable, to make an order for costs against the solicitors personally. Perhaps expressing the Court’s conclusion in terms more consistent with the provisions of Section 117 of the Family Law Act 1975 (Cth), the Court is not of “the opinion” that the circumstances of the case justify such an order. There will accordingly be no order for costs against the mother’s solicitors.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 8 April 2011.

Associate:

Date: 08.04.11