Childs and Watts McCray Law Firm

[2010] FamCA 141

FAMILY COURT OF AUSTRALIA

CHILDS & WATTS MCCRAY LAW FIRM [2010] FamCA 141

FAMILY LAW – COSTS – Between solicitor and client
FAMILY LAW – COSTS – Extension of time within which to file notice disputing costs

Penfolds (1980) 144 CLR 311

Family Law Act 1975 (Cth)
Family Court Rules 2004

APPLICANT: Mr Childs

RESPONDENT: Watts McCray Law Firm

FILE NUMBER: PAF 1555 of 2006

DATE DELIVERED: 19 January 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 29 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Edwards

SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

1. That the time for Mr Childs to file a Notice Disputing Itemised Cost Account be extended until 4pm on Friday, 5 February 2010.

2. That the applicant pay to the respondent law firm the sum of $772.

3. That such payment is to be made within three months of today’s date.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1555 of 2006

MR CHILDS

Applicant

And

WATTS McCRAY LAW FIRM

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me today in respect of an application in a case filed on 22 October 2009 by Mr Childs.  In that application he seeks the following orders:

   (1)The hearing of 22 October 2009 all the orders to be reviewed of Registrar McNamara’s decision to dismiss the case.

   (2)I was not served with Watts McCray affidavit submitted to the Court on the hearing dated 22 October 2009.

   (3)All the invoices from Watts McCray to me were queried at time they were issued to me.

   (4)It was Watts McCray that delayed the review of each invoice.

   (5)They did not address the problems and eventually got worse.

2. Clearly in that application, Mr Childs makes reference to events which occurred on 22 October 2009.  

The Parties’ Applications and Responses

1. The applicant filed an application on 2 September 2009.  In that application he sought “to extend the time so I can have my costs assessed”.  It was that application which came before a Deputy Registrar on 22 October 2009 on which date it was dismissed. 

2. The respondents had filed a response to that first application in a case seeking that it be dismissed, together with an application for costs.

3. The applicant thereafter filed the present application on 22 October 2009.

The Parties’ Affidavits

1. The applicant relied upon affidavits sworn by him on 14 July 2009 and filed on 2 September 2009 and further affidavit sworn and filed by him on 18 December 2009.

2. The respondent solicitors relied upon the affidavits of Morris Edwards sworn 22 October 2009 and apparently filed in court on that day; and a further affidavit of Morris Edwards sworn and filed on 22 December 2009.

Applicable Rules of Court

1. The time limits for filing a notice disputing an account are the same in Sch 6 (Sch 6.24) as in the current Pt 19 of the Family Court Rules (Pt 19.23). The requirement is that such a notice be served within twenty-eight days after the account to which it refers was served. 

History of the Matter

1. There has been a long and acrimonious dispute between Mr Childs and the firm of Watts McCray Solicitors in respect of costs which that firm charged Mr Childs for acting on his behalf in relation to proceedings in this Court.  Mr Childs has paid substantial amounts of money to Watts McCray.  He is seeking a refund of part of those monies.  Mr Childs believes he is entitled to a refund of monies paid.  His application before me today seeks to overturn the decision of Deputy Registrar McNamara made on 22 October 2009 and thus allow him an extension of time in which to file a notice disputing the solicitor’s costs.

2. I am satisfied that by the end of March, Mr Dowd, a principal of that firm, had made it abundantly clear to Mr Childs that there was to be no further discussion and no further negotiations in relation to any refund of costs paid by Mr Childs to the firm.  I am satisfied that in the circumstances of this case I should treat 30 March 2009 as the time from which any period of time for the filing of a notice disputing facts should have run.  This course was not objected to by the solicitor representing the solicitors.  Accordingly Mr Childs should have filed a notice disputing costs by 29 April 2009. 

3. I am satisfied that following his conversation with Mr Dowd, Mr Childs made a number of enquiries in relation to the matter.  He contacted the Legal Services Commission, mainly in respect of allegations he made of what might be described as professional misconduct by Watts McCray.  However the issue of solicitors’ fees was clearly discussed at some stage. 

4. It is clear, in my view, that with the greatest of respect to the Legal Services Commissioner, he gave incorrect information to Mr Childs by directing him to the Supreme Court so that a cost assessor of that court might be engaged to deal with the costs dispute.  However, these proceedings were commenced before 1 July 2008 in this Court.  Accordingly the costs issue is governed by Sch 6 to the Family Court Rules.  The issue of costs remains one for this Court. 

5. I am satisfied that Mr Childs acted upon advice given him by the Legal Services Commissioner as to the steps he should take.  I further accept that at some point of time in early June 2009 he sought to make an application, but not to this Court, to have the solicitors’ account reviewed. 

6. However it was not until 2 September 2009 that he filed an application in this Court for an extension of time.  Further, on the day the matter came before the Court (22 October 2009) on the return date of his application, he was not available when the matter was called and dealt with by the Deputy Registrar in a busy duty list.  The Deputy Registrar dealt with his application by dismissing it.  Mr Childs says he was in the toilet at the time the matter was dealt with. 

7. Having listened to Mr Childs I am satisfied he is confused.  He tells me he is in ill health.  He tells me he has tried to attend to a number of matters.  The fact however remains, as I have said, that he did not commence proceedings for an extension of time until 2 September 2009. 

8. To my mind there is a bare explanation for delay up to 2 September 2009 having regard to the matters I have set out.  Further there is an explanation, albeit a poor one, for his nonappearance before the Deputy Registrar on 22 October 2009.   

9. Combined with those matters, a further matter that to my mind tips the scales slightly in favour of the applicant is that this is not a case where Watts McCray are pursing him for unpaid costs.  Rather he is seeking a refund of monies from Watts McCray of monies paid to them.  That, to my mind minimises, at least in the short term, any prejudice to the solicitors.

10. I am not satisfied that Mr Childs, even now, fully understands his responsibilities.  However in the circumstances of this case I am satisfied, just, that it would be proper and appropriate to extend for seven days the time for Mr Childs to lodge, in appropriate form, a notice disputing itemised costs accounts.  That document is referred to as, The Notice Disputing Itemised Cost Accounts.

Costs of the Application for Leave to Extend Time

1. By the order I will make, Mr Childs has succeeded in obtaining an indulgence from the Court.  There remains to be determined the issue of costs in respect of his application. 

2. Mr Childs, on two occasions, has sought that the Court make orders permitting him to do something that he could not otherwise have done.  He says, ingeniously, that it was not necessary for Watts McCray to attend either before Registrar McNamara or today.  As the firm were of the view that the time for him to file should not be extended that argument, with great respect, is ridiculous. 

3. I accept that the general rule in this Court, following section 117(1) of the Family Law Act 1975, is that each party should bear their own costs.  However, it is clear from Penfolds[1] case in the High Court, that, if there are circumstances that justify it in so doing, a court may make an order for costs. 

   [1] (1980) 144 CLR 311

4. The matters to be considered are set out in subsection 117(2)(A).  The first of those subsections makes reference to the financial circumstances of the parties. The husband tells me that he is in dire financial circumstances, but it is trite to say that impecuniosity is not, of itself, a reason for an order not being made against a party.  It may have some affect in enforcement, or even in quantum, but it is not a threshold issue preventing an order being made.

5. I am not told that the husband is in receipt of legal aid. 

6. The matter in this case which is to my mind important is the conduct of the applicant.  The applicant clearly knew, as from 30 March 2009, that there was no further ground for discussion, compromise or negotiation.  Thereafter he did nothing to file the appropriate notice disputing costs within the period of twenty-eight days allowed. 

7. I acknowledge that he had spoken with the Legal Services Commissioner.  I accept that some time in early June he tried to commence proceedings to dispute the costs.  However it was not until 2 September that he brought an appropriate application in the correct jurisdiction, seeking an extension of time.  Then, as I have said, on the day the matter was before the Court he was simply unavailable when the matter was called on. 

8. In my mind, the husband’s confusion and lack of concerted effort in dealing with his obligations in order to enable him to dispute the solicitor’s accounts required the matter to be litigated today.  No blame can attach to the legal firm involved for endeavouring to prevent the extension of time being granted. 

9. The applicant has sought and obtained an indulgence from the Court.  For the reasons I have endeavoured to set out, I have found he should have an extension of time in which to file his notice.  However, I am firmly of the view that there is an inevitable consequence in costs.  I propose to order that he pay the solicitor’s costs in the sum of $772, being an assessment made on four hours at the current scale, rounded to the next dollar.  I will make an order for a time in which those costs are to be paid.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: 

Date:  2 March 2010