Ebrahim & Lamsaard (No 2)
[2023] FedCFamC1F 209
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ebrahim & Lamsaard (No 2) [2023] FedCFamC1F 209
File number(s): PAC 3622 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 29 March 2023 Catchwords: FAMILY LAW – COSTS – Where the mother’s application has been struck out for want of prosecution – Father seeks costs, including costs against the mother’s solicitor – Where neither the mother nor her solicitor have engaged in proceedings since 30 November 2022 – Non-appearance on five separate occasions – Mother’s solicitor engaged in unreasonable conduct and was in default of obligations to the Court – Mother to pay father’s costs up until 29 November 2022 – Personal costs order against the mother’s solicitor for period subsequent to 30 November 2022. Legislation: Family Law Act 1975 (Cth) s 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.15
Federal Circuit Court Rules 2001 (Cth)
Cases cited: AXX18 v Minister for Home Affairs and Anor [2019] FCCA 1399
Ebrahim & Lamsaard [2023] FedCFamC1F 28
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 29 March 2023 Place: Sydney (via videolink) Solicitor for the Applicant: No appearance Solicitor for the Respondent: Ms Brake, Joshua Blom Lawyers Solicitor for the Independent Children's Lawyer: No appearance required ORDERS
PAC 3622 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS EBRAHIM
Applicant
AND: MR LAMSAARD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
29 MARCH 2023
THE COURT ORDERS THAT:
1.Within 28 days of the costs being assessed or agreed, the applicant is to pay the costs of the respondent incurred up to and until 29 November 2022.
2.Within 28 days of the costs being assessed or agreed, the solicitor for the applicant, Mr BB of DD Pty Ltd, is responsible for meeting the costs of the respondent on a party-party basis in respect to costs incurred as and from 30 November 2022 and to avoid doubt, includes legal work for and in connection to appearances on:
(a)30 November 2022;
(b)14 December 2022;
(c)31 January 2022;
(d)6 March 2023;
(e)29 March 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ebrahim & Lamsaard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter considers an application for costs brought by the respondent father consequent to the proceedings being dismissed for want of prosecution on 31 January 2023. The background to that occurring is set out in my judgment of that date: Ebrahim & Lamsaard [2023] FedCFamC1F 28. In that judgment, I noted at [6] that the last appearance recorded on behalf of the applicant mother was mentioned on her behalf by the solicitor for the Independent Children’s Lawyer in proceedings before a registrar of the Court on 3 June 2022. On that date, the registrar made directions for the further progression of the matter. Regrettably, for the reasons I set out in my decision of 31 January 2023, there was no further engagement in the proceedings by either the mother or her legal representatives after 3 June 2022.
In those circumstances, the solicitor for the father has sought an order for costs personally against the solicitor for the mother for reasons as set out in her written submissions provided 2 March 2023.
Rule 12.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) empowers the Court, on the application of a party or, indeed, on its own motion, to make a costs order against a lawyer. In this case, the application is made by a party, namely, the father.
Sub-rules 12.15(1) and (2) of the Rules set out the criteria that may be considered by the Court in determining that an order against a lawyer is appropriate. Such criteria includes, in sub-rules (1)(c) and (1)(d), improper or unreasonable conduct or undue delay or default. Subrule (2) defines default to include circumstances where a hearing may not proceed conveniently because a lawyer has unreasonably failed to: attend or send another person to attend, file, lodge or deliver a document as required, prepare any proper evidence or information or do any other act necessary for the hearing to proceed.
The solicitor for the father contends that the failure on the part of the mother’s solicitor to either appear in proceedings subsequent to 3 June 2022 or, alternatively, file a Notice of Discontinuance has resulted in three additional appearances occurring that were unnecessary.
I accept that if it was the case that the mother’s solicitor was without instructions, those appearances could have been avoided if the solicitor for the mother had filed a Notice of Discontinuance, in which case service of documentation and notification of hearings would have been directed to the mother, rather than the solicitor’s address for service that remained on the record of the Court.
Alternatively, if the mother’s solicitor continued to be retained and was with instructions from the mother, he was, pursuant to the Rules, obliged to attend or send another person to attend Court on his behalf.
In considering this matter I have had regard to a decision of Judge Humphreys, a judge of Division 2 of this Court, in the matter of AXX18 v Minister for Home Affairs and Anor [2019] FCCA 1399. In that case, his Honour held, under the equivalent provision of the previous Federal Circuit Court Rules 2001 (Cth), that the conduct of a lawyer in failing to either appear in proceedings or, alternatively, file a Notice of Discontinuance amounted to what his Honour found to be negligent conduct or conduct in default of the solicitor’s obligation to the Court in accordance with the requirements of the relevant rules. On that basis, his Honour ordered that the solicitor pay the costs incurred by the first respondent in the proceedings as and from the time that the solicitor should have either appeared or filed a Notice of Discontinuance.
In circumstances where the last appearance by the solicitor for the mother in this matter was on 3 June 2022, that solicitor was aware, by way of notifications distributed by the Court, of further listings because he remained the solicitor on record. In those circumstances, it was incumbent upon the mother’s solicitor to either appear or, if it was the case that he was without instructions, to file a Notice of Ceasing to Act.
In identifying the solicitor on the record, I note that while the Initiating Application filed on behalf of the mother identified the lawyer acting for her as DD Pty Ltd, subsequent documentation filed indicates that the solicitor who was actually engaged by that legal practice to act on behalf of the mother was Mr BB. Accordingly, I am satisfied that the solicitor for the mother has been identified as Mr BB, who practices as a lawyer with DD Pty Ltd.
In circumstances where r 12.15 of the Rules requires a costs order against a lawyer to be made against that lawyer personally, I propose to make an order for costs against Mr BB personally, rather than DD Pty Ltd, on the basis of the reasoning of Judge Humphreys, to which I have referred.
Specifically, I am satisfied that it was, at the least, unreasonable conduct, on the part of Mr BB, to fail to notify the Court that he was without instructions and, if that situation continued, to file a Notice of Discontinuance. On the alternative scenario, if he was with instructions, it was the responsibility of Mr BB to duly attend or arrange for another person to attend Court on his behalf.
Mr BB did not undertake either of those courses of action and, in those circumstances, his conduct constituted unreasonable conduct for the purpose of r 12.15(1)(c). Additionally, in my view, Mr BB’s conduct amounted to default (r 12.15(1)(d)), as defined in in sub-rules (2)(a) and (2)(b). This is because he unreasonably failed to both attend Court and, also, lodge a document as required, that document being a Notice of Ceasing to Act.
More generally, in determining that a costs order should be made in favour of the father, I have considered the submissions of the father’s solicitor, who has identified the relevant considerations set out in s 117(2A) of the Family Law Act 1975 (Cth),. I am satisfied that the father is a man of modest means. I also note that the applicant mother has been wholly unsuccessful insofar as the proceedings have been struck out for want of prosecution. I am further satisfied that the conduct of the mother and her solicitor has resulted in unnecessary appearances that could have been avoided had the mother and/or her solicitor engaged in the proceedings.
Accordingly, in those circumstances, in my view, it would be unjust to require the father, who is tasked with the sole responsibility of raising the parties’ child and attending to all associated costs, to also be required to meet the costs he has incurred as a result of the mother filing an Application for Final Orders and not proceeding to duly and properly advance that application.
Finally, I note that r 12.16 of the Rules requires the party making an application for costs against a lawyer to ensure that the lawyer is notified of the application and that they have a reasonable opportunity to be heard. Having heard from the father’s solicitor, Ms Brake, I am satisfied that the solicitor on record as representing the mother has been notified of these proceedings and has been given an opportunity to respond to the written submissions in which the father seeks an order for costs, including an order for costs against the mother’s solicitor.
Accordingly, by way of summary, I am satisfied that Mr BB is the solicitor on record for the mother and, in accordance with r 12.16, Mr BB has been provided with appropriate notice of the father’s intention to apply for an order for costs against him. I am also satisfied that Mr BB has engaged in unreasonable conduct pursuant to r 12.15(1)(c) and is in default in terms of 12.15(2)(a) and (b). In those circumstances, applying the reasoning of Judge Humphreys to which I have referred, it is appropriate to make an order for costs against Mr BB in respect to those appearances as and from 30 November 2022 that would have been rendered unnecessary had he complied with the relevant obligations.
The father has sought costs in a lump sum amount. The Rules empower the Court to make an order for costs in a lump sum amount, however the difficulty I have is that r 12.08 requires the Court, before making an order for costs, to be satisfied that the costs are fair, reasonable and proportionate in amount. In circumstances where only a lump sum amount has been identified and there has been no breakdown provided as to the items of work that have constituted that lump sum amount, I am not in a position to determine that the lump sum amount sought by the father is fair, reasonable and proportionate in amount.
In any event, because I am not in a position to assess the items of work that resulted in those costs being incurred and, further, in circumstances where the lump sum clearly has not differentiated between work up to and including 29 November 2022, which is payable by the mother, and costs subsequent to 30 November 2022 that are payable by Mr BB, the information provided is not such that I can differentiate as to what proportion should be paid by either of them.
Accordingly, the order I make is that the applicant mother is to pay the costs of the respondent father incurred up until 29 November 2022 within 28 days of those costs being assessed or agreed.
Mr BB of DD Pty Ltd is responsible for meeting the costs of the respondent on a party/party basis in respect to costs incurred as and from 30 November 2022. To avoid doubt this includes the legal work in connection with the appearances on 30 November 2022, 14 December 2022, 31 January 2023, 6 March 2023 and 29 March 2023.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 31 March 2023
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