Chin and S Law Firm (No 2)

[2010] FamCA 749

FAMILY COURT OF AUSTRALIA

CHIN & S LAW FIRM (NO. 2) [2010] FamCA 749

FAMILY LAW – COSTS – Between solicitor and client – Circumstances justifying order
FAMILY LAW – ORDERS – Application to set aside
FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party

Taylor & Taylor 5 Fam LR 289
Allesch & Maunz Fam LR 26 237

APPLICANT: Mr Chin

RESPONDENT: S Law Firm

FILE NUMBER: PAF 1129 of 2005

DATE DELIVERED: 5 August 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 5 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gormly

SOLICITOR FOR THE APPLICANT: C/- H Firm

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: S Law Firm

Orders

1. That the application of Mr Chin to set aside Orders of this Court made 29 March 2010 be and is hereby dismissed.

2. Noted that the time for payment pursuant to Order 2 of the Orders made 29 March 2010 has elapsed.

3. That execution of Order 2 of the Orders of 29 March 2010 be stayed for thirty days from this date to allow Mr Chin to file an appeal against these Orders or any of them.

4. That Mr Chin have twenty-eight days from the date of these Orders to submit in writing to the Court reasons as to why his conduct should not be referred to the Law Society of NSW.

5. That Mr Chin pay to S Law Firm for costs of today the sum of $5,500.  Such sum is to be paid within six months from the date of these Orders.

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 1129 of 2005

MR CHIN

Applicant

And

S LAW FIRM

Respondent

REASONS FOR JUDGMENT

Introduction

1. This difficult matter arises out of a dispute concerning costs between Mr Chin and S Law Firm.  The matter came before me on 28 November 2008 for hearing.  On that day, Mr Chin was unrepresented, and declined the assistance of a Korean interpreter that had been provided.  The day was spent with exchanges between myself and Mr Chin to try and ascertain and proceed with what was the real dispute in this matter, which had been clearly identified as setting aside of a costs agreement that had been entered into between Mr Chin and the law firm, or a principal of that law firm.

2. One of the documents that has been tendered to me today is a document which sets out the submissions that Mr Chin would choose to make now, in respect of setting aside the costs agreement.  It is clear that the document was prepared by Mr Chin’s previous legal representatives.  There is clear evidence that the document was in existence when the matter was conducted before me, by Mr Chin, on 28 November 2008.  The document was not tendered or sought to be tendered on that occasion.  The only inference I can draw is that it was not tendered to me because Mr Chin wished, and was in fact determined, to ventilate other issues that were not relevant to the principal issue of setting aside the costs agreement.

The Material Before Me

1. Having said that, the application before me today is that of Mr Chin, having been filed by him on 27 April. 

2. The application was accompanied by an affidavit, sworn the 26^th and filed 27 April. 

3. In addition, Mr Chin relied upon an affidavit of 27 July in relation to the matter. 

4. There was also in evidence before me a statement by my associate, as to events that had occurred on 29 March 2010. 

Brief Background

1. It will be remembered that on 29 March the matter was listed before me for continuation of the hearing that had commenced on 28 November 2008.  Clearly, there was a lengthy interval between those dates.  The difficulty that arose in this Registry at that time was the lessening of resources - and by that I mean particularly judicial resources - which meant it was extremely difficult to relist this matter.  I made it clear to Mr Chin, on 28 November, that the matter would not be given great priority because of its subject matter - a dispute between solicitor and client for costs. 

2. Mr Chin has given evidence in chief and been cross-examined today, and particularly he was able to give evidence with the knowledge of what was contained in the statement of my associate.

Discussion

1. The relevant issue here is what happened when the matter came before the court on 29 March.  There is no doubt that letters addressed to Mr Chin gave a wrong date.  The first of those was a letter addressed to him at a post office box and sent on 5 March 2010.  That letter advised him that the hearing was set for 20 March (obviously incorrect) but also notifying him that the matter was listed for mention on 11 March 2010. 

2. There was no appearance by Mr Chin on that day and, as I understand it, Mr Chin said he did not come into possession of that information.  He said, when he received the second letter advising him of the 20^th, which he did on about 16 or 17 March.  He looked in the law lists and found there was no listing.  20 March was a Saturday.

3. One might have thought that a person with his special skills, that is, a qualified legal practitioner, albeit of very short standing, would note something strange in the fact of a listing on a Saturday.  Mr Chin makes something of what he says is the fact that in November 2008, he was ordered not to communicate with the court.  That is simply not correct.  Clearly, on that day, it was indicated to him that the matter would take some time to come back, but it was expected that he would not be in constant communication with the court, asking when his matter would be listed.  Indeed, the orders that were made in November 2008 made specific provision for the matter to be re-listed on short notice.

4. I turn then to what I make of the events of 29 March 2010.  There was no appearance by Mr Chin at 10am.  Shortly after 10am the matter was stood down, whilst my associate made inquiries.  Her statement indicates that she spoke to a male person who identified himself as Mr Chin.  My associate advised him that the matter was listed before the Court that day.  Mr Chin then replied and thereafter became inaudible. 

5. Mr Chin’s evidence in his affidavits is that he was told that the matter was finished.  However in evidence today, as I understand it, he said that he was able to say to my associate “I will get back to you.”  Later he said he had said, “I’ll ring you back.”  He then said he does not recall exactly what he had been told.

6. To my mind, what he did next, as a legal practitioner being informed a matter was before a court for hearing, is inexplicable.  At best, he panicked.  Instead of endeavouring to do something about the matter there and then, he said he needed to leave the office because he had fears that if he dealt with the matter by, for example, bringing it up on a screen, he would be in breach, in some way or other, of the non-publication provisions of the Family Law Act.  Accordingly, as I understand it, he said he went to a convenience store that he knew that had Internet access, and made his inquiries there. 

7. What has never been explained satisfactorily to me is why he did not get back to the Court, or call back as he indicated to my associate he would. 

8. He further said that he left details with the receptionist of the firm at which he worked as to where he could be contacted and that he had his mobile telephone switched on.  The transcript of 29 March 2010 will show that the receptionist said she was unable to contact him.  That transcript will further show that when attempts were made by my court officer to telephone him on the mobile number provided (and which he said was switched on) it was clearly not switched on and not available to receive calls.

9. In my view he had decided, albeit under some personal pressure, that he would not participate in the matter any further on that day. 

10. He says that he discussed the matter - this is from his affidavits - with his family, giving them certain assurances, and he did not return to work for some considerable period of time.  That is the factual background to the matter.

11. It will be remembered that the orders that I had made on 29 March 2010 were to dismiss his application to set aside the subject costs agreement and to confirm the costs assessment made by a Registrar on 27 March 2007.  I made further orders for payment of the lawyers’ costs for two days, which costs I assessed in the sum o f $6,600 for each of those days.  I made an order that Mr Chin have liberty to re-list the matter within 28 days to explain his non-attendance at court.  That causes me some concern, but I will not deal with that issue here lest it is seen to influence my ultimate decision as to the applications before the Court. 

12. Mr Gormly has submitted that Mr Chin should not be taken at the high level of a practitioner in full control and command.  He says that the situation was that Mr Chin fell in a hole, or into a funk, and was unable to deal with the matter. 

13. This matter has a lengthy history of dealing with the costs issue.  There is no doubt that there have been previous attempts to resolve this matter.  There is no doubt that the solicitors consented to setting aside the assessment at one stage so that the matter could proceed.

14. I am satisfied that I have power to deal with this matter under the rules, but I am equally satisfied that it is a discretionary matter.  I am guided by the very early case of Taylor & Taylor[1], and the far more recent case of Allesch & Maunz[2].  I am satisfied that it is necessary for someone seeking a discretionary relief, such as Mr Chin now seeks, to explain his non-appearance and later non-participation and further to demonstrate how any prejudice to the other party could be overcome if his application were successful.

    [1] 5 Fam LR 289

    [2] Fam LR 26 237

15. The amounts involved in this matter are relatively small.  I am determined to do all that I can to make sure that they grow no larger.  To my mind, that which I have read and heard, does not explain the behaviour of Mr Chin on 29 March 2010 having regard to the fact that he was at that time a qualified legal practitioner and was, or ought to have been, aware of his obligations to the Court to attend and assist in the timely disposition of the matter or in the alternative to apply for an adjournment of the matter. 

16. His explanation as to why he did not engage in the Court process on that day is absolutely inadequate. 

17. An attempt was made by the Court to contact him on the telephone so that he could explain his situation.  I am unable to say or predict what would have happened if he had been contacted in that fashion.  However that was the opportunity given him for him to point out that he had been not informed accurately when the matter was listed and for him to seek an adjournment.  The material before me, written and oral, does not explain why a practitioner would be panicked to the extent that he was unable to further participate in the Court process.  That which Mr Chin did was simply to run away and hide.  I am thus not satisfied that he has given a proper explanation as to why he did not participate on that day.  I need not thus examine the question of prejudice to the other party.

18. I am satisfied I can deal with the matter under the Rules of Court.  Having said that, I decline the application by Mr Chin to set aside the Orders made by me on 28 March 2010 and accordingly those Orders will stand. 

19. That means that the amount Mr Chin is to pay S Law Firm under order 2 - the first money order of that day - has passed.  However, what I propose to do is stay any enforcement of that order for 30 days from today to enable Mr Chin, if he so chooses, to lodge an appeal, and make any other application for stay that might be available to him, once the appeal is lodged.  I do not interfere with order 3.

20. So far as the Law Society is concerned, I propose to take this matter further.  I propose to do it, however, by way of written submissions.  Mr Chin is to have 28 days from today to provide to me in writing reasons why he asserts I should not refer this matter to the Law Society of New South Wales.  Mr Chin, Mr Gormly has done everything for you that could be done.  You have a right of appeal.  It is for you to exercise it.  But this matter must come to an end.

21. An application is now made for the costs of today.  Dealing with the matters raised in section 117, this is a case where I have no real information about the relative financial circumstances.  I do not need to know any more about the relative circumstances of the legal firm.  Mr Chin tells me that he is an employed solicitor, and I assume from that, he is in receipt of a reasonable, although probably not vast income.  Neither party is in receipt of legal aid.  This is a matter that turns, in my view, on conduct or any other circumstance.  Mr Chin brought this application because he had failed absolutely in conducting the proceedings in a proper fashion.  These proceedings today have been wholly unsuccessful.  In the circumstances of this case, I am satisfied that it is appropriate to make an order and I will do so.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 5 August 2010.

Associate: 

Date:  26 August 2010