Chin and S Law Firm

[2010] FamCA 370

FAMILY COURT OF AUSTRALIA

CHIN & S LAW FIRM [2010] FamCA 370

FAMILY LAW – COSTS – Between solicitor and client
FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Consideration of referral to Law Society of NSW

APPLICANT: Mr Chin

RESPONDENT: S Law Firm

FILE NUMBER: PAF 1129 of 2005

DATE DELIVERED: 29 March 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE:

28 November 2008

29 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: S Law Firm

Orders

1. That the application of Mr Chin being an application in a case filed on 23 November 2007 be and is hereby dismissed.

2. That the said Mr Chin pay to S Law Firm the amount of $29,700 being a rounded sum of the amount assessed by a Registrar of this Court on 27 March 2007.  Such amount is to be paid to the respondent solicitors within three months of this date.

3. That in addition to the sum of $29,700 the said Mr Chin pay to the said solicitors for costs of 28 November 2008 the sum of $6,600 and for costs of this date a further sum of $6,600 for a total of $13,200.  Such amount is to be paid within six months of this date.

4. That the said Mr Chin have liberty to relist the matter within twenty-eight days of these Orders upon giving seven days’ notice to the Court to explain his nonattendance at Court today and to put forward such reasons as he considers reasonable as to why the Court should not refer his behaviour to either the Law Society of NSW or the Legal Services Commissioner for NSW.

5. That a copy of these Orders be served upon the said Mr Chin at both his disclosed address for service care of P.O. Box … and care of H Firm, Sydney.  Such letter is to be placed in an envelope marked “Private and Confidential” by the Court.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:   PAF 1125 of 2009

MR CHIN

And

S LAW FIRM

REASONS FOR JUDGMENT

Introduction

1. The matter before me today concerns an issue of costs and a costs agreement.  The matter has been listed for some time.  The matter was notified or rather the hearing of the matter was notified to the parties by letter and in the case of the applicant, Mr Chin, letters addressed to him at his address for service, which is Post Office Box …, and to him in a private and confidential envelope at a firm of solicitors at which he is currently employed.  That firm of solicitors is H Firm (the solicitors), with their offices in Sydney.

2. This morning there have been a number of telephone conversations with, firstly, I accept, Mr Chin himself at that firm and subsequently with a principal of that firm.  The first occasion of contact was instituted by my associate, who rang the number and spoke to a person who identified himself as Mr Chin.  I accept that during that telephone conversation, Mr Chin was made fully aware that the matter was, indeed, about to commence before me.  He appeared to be unable to deal with the matter in any fashion.  

3. Subsequently phone calls were made and responded to by a principal of that firm, Mr N, in which he indicated that he could not locate Mr Chin within the office.  He delivered a number of telephone numbers, some of which were already in the possession of the court, and a telephone call was made to each of the numbers so provided.  Two of those were mobile phone numbers, one of them was a landline and none of them were successful.  I subsequently invited the principal of the firm to indicate to Mr Chin that the matter would proceed unless we heard from him by telephone as a matter of urgency.  I have not so heard from him. 

4. In the matter there have been tendered to me letters from S Law Firm of 16 March, addressed to Mr Chin at the post office box notice of address for service, and 23 March, similarly to the address for service, enclosing a minute of the order sought. 

5. There is also a letter dispatched by my associate to Mr Chin at both the address for service, that is, the post office box, and care of the solicitors, which will form part of the record of communication with him in this matter. 

6. This is a somewhat difficult situation in which the court finds itself.  It is made particularly difficult by the fact that the applicant is now himself a legal practitioner in New South Wales.  He was admitted to practice, admittedly, only in December of last year, but nonetheless I am satisfied that he is indeed a practitioner, with all of the obligations, as well as the benefits, that that imposes. 

7. I am satisfied that on the material in relation to attempts to contact him, that he has chosen to make himself unavailable today, either in person or by telephone to participate in these proceedings, which are proceedings brought by him.

8. Accordingly, and in the interests of justice, I propose to deal with the matter today.  I propose to make orders and I propose that any orders that I make will be served upon him by mail to both his address for service and care of his firm.  I do not propose to stay the operation of any orders.  If, however, Mr Chin wishes to take the matter further then that, of course, is a matter for him. 

Brief Procedural Background

1. A history of the matter, so as to understand its context, is as follows.  The applicant first attended upon Ms G, a member of the respondent firm of solicitors in June 2005 in relation to proceedings in which Mr Chin was a party.  There were certain things attended to.  An amount of money was paid by Mr Chin to the solicitors, who by notice of 22 December 2005, ceased to act on his behalf. 

2. On 17 October 2006 an application was made to extend the time to serve an itemised account in accordance with the rules of court. 

3. On 20 November, as I understand it, Mr Chin filed a response and the registrar subsequently granted an application and made directions as to what was to be done. 

4. On 6 February 2007 a request was made in writing for the registrar to proceed to an assessment of costs. 

5. On 23 March 2007 a cost assessment order was issued for Mr Chin to pay the solicitor’s costs in the sum of $29,700.63.  

6. On 24 April 2007 Mr Chin filed an application seeking, among other orders, an order that the cost assessment of the registrar be set aside. 

7. On 1 May 2007 the solicitors, by letter, consented to the costs order being set aside in order that the issue which seemed to underlie the matter, that is whether or not a costs agreement was binding, might be agitated and determined. 

8. On 12 June 2007 the Registrar set aside the cost assessment order by consent and made further orders for the matter to proceed in an orderly fashion.  Mr Chin was ordered to file a notice disputing costs within six weeks.

9. On 27 August 2007 the matter came before the court and was adjourned until 8 October 2007. 

10. On 8 October the matter came before Stevenson J, who had heard the trial between Mr Chin and his wife.  Her Honour referred the matter to Registrar Kimmorley. 

11. On 4 February 2008 the matter was listed for hearing on 28 March 2008. 

12. On that occasion the matter came before me when some orders were made in accordance with a document prepared by the parties’ legal representatives and the matter was stood over to 14 May 2008.  I ordered an interpreter to be present on that occasion.

13. On 14 May the matter was briefly before me again, on which occasion, and after some argument, I ordered that the parties approach the listing director to obtain a hearing date for two days.  That hearing date was allocated as 28 November 2008 and on that occasion the matter was before me for the entire day.  At the commencement of that hearing, the husband, Mr Chin, produced documents in relation to his case, both as to the orders that he sought and the material that he asserted would supported that application. 

14. A transcript of that day will indicate that there were extraordinary difficulties in focusing Mr Chin on the issues that required determination in order to dispose of this matter.  At the conclusion of that day the matter was stood over for a further three days.  True, it has been, the matter has taken a long time to come back before the court and whilst that is, I concede, undesirable, it was unavoidable.  The resources of this registry have been stretched and this was a matter involving costs.  It was not a matter that garnered any high priority but it did, indeed, obtain the three day hearing and today is the first day of that hearing. 

15. As I have indicated, notification was sought to be given to the husband, Mr Chin, by virtue of his notice of address for service and, subsequently, upon becoming aware of his place of employment, as I have already set out, by communication with him there.  As I have already found, Mr Chin is (a) aware of the proceedings and (b) for whatever reason has chosen not to participate in them and, indeed, to put himself beyond the ability to be contacted so as to in any way further participate in these proceedings.

What is to be done?

1. The issue is what am I to do today?  I am particularly loathe to allow this matter to continue any further than is absolutely necessary from this point.  This is a matter where the firm of solicitors obtained an order for costs and an assessment which was issued a very considerable period of time ago.  Since that time, I am satisfied that the respondent solicitors have acted both correctly and, if I might say so, so as to give the husband, Mr Chin, every opportunity to mount his case.  The respondent solicitors have agreed to the costs order being set aside.  They have endeavoured to act properly and fairly to a person then an unrepresented litigant but who is now admitted as a lawyer in this state.

2. To my mind, to send this matter back for a further application for costs to be filed, for the process of dispute to be gone through, for the husband, Mr Chin, to file again some form of document which would indicate that he sought to attack the validity of the agreement is to waste the time of the solicitors and particularly this court.  I am in the fortunate position of knowing that a senior - and I say that in terms of service rather than awarding her a designation - a senior deputy registrar of this court has carried out and assessment and issued an assessment in the sum of $29,700.63. 

3. In the circumstances of this case, I propose to dismiss Mr Chin’s application to set aside the costs agreement.  I will order that, in accordance with the costs assessment, the husband is to pay to the solicitors the sum of $29,700.63, which I round to $29,700, within three months of this day.  I make it clear that in approaching the matter in that fashion, I am cognisant that the husband could be seen to have been denied an opportunity to take steps that would have been open to him otherwise.  However, I am satisfied for the reasons I have endeavoured to give, and having regard to the chronology I have set out, that that is an appropriate course in this case. 

4. To my mind, Mr Chin was given every opportunity by telephone calls made today (leaving every other attempt to have him attend to one side) to indicate that he wished to attend and be heard.  I concede I am setting the bar higher for him than I might for others but I set that bar, having regard to the fact that he, unlike most litigants in person, is himself a qualified legal practitioner. 

5. There are the costs in relation to the two days of substantial hearing in this matter and by that I mean the hearing on 28 November, which occupied a full day, not that Mr Sanson said very much on that day, and the costs of today.  To my mind it is once again to the credit of Mr Sanson and those instructing him that, notwithstanding the matter was listed for three days, no claim is sought for costs either by solicitor or counsel beyond today.  The amount that is sought in respect of each of those days is, as I understand it is $6,600, which is an amount which is a combined amount, certainly, for counsel and instructing solicitor.  Instructing solicitors have been in attendance on both the dates - that is 28 November and today. 

6. I am not prepared to allow the process to be undertaken again of requiring those solicitors to seek an assessment of costs for those days by an appropriate person.

7. In any event, I do not propose to go down that track and require any assessment.  I am satisfied and I record that the amount of $6600 sought in respect of each of those days for a senior/junior and a vastly experienced solicitor are completely proper and within range. 

8. I understand that by dismissing any application by Mr Chin, any attack on the validity of the costs agreement is, by operation of that order, in effect dismissed, and accordingly there is no suggestion that the costs agreement was otherwise than properly entered into. 

9. I propose to order that a copy of these orders is served on Mr Chin at both his notice of address for service and his current place of employment. 

10. I am concerned at the way in which Mr Chin has conducted himself in this matter.  Particularly I am concerned as to his actions today.  I am of the view that his behaviour falls far short of the conduct one would expect of a member of the legal profession, albeit very recently admitted, in dealing with a matter which involved himself as a litigant.  Whilst, to his credit, Mr Sanson has said that I should leave well enough alone, I am not prepared to do so.  I propose to include in the orders an order that Mr Chin have 28 days in which to relist the matter before me to put before me any reasons why I should not refer this matter to the Law Society or the Legal Services Commissioner - I think it would have to go to the Legal Services Commissioner first - but I will leave my options open, to explain why the matter should not be, as I say, referred.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: 

Date:  17 May 2010