Etheringtons Solicitors and Weather and Anor

[2007] FamCA 1455

FAMILY COURT OF AUSTRALIA

ETHERINGTONS SOLICITORS & WEATHER AND ANOR [2007] FamCA 1455

FAMILY LAW – COSTS

APPLICANT: Etheringtons Solicitors

RESPONDENT WIFE: Ms Weather

RESPONDENT HUSBAND: Mr Albeniz

FILE NUMBER: SYF 4582 of 2003

DATE DELIVERED: 4 December  2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Mullane J

HEARING DATE: 4 December 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Messrs Etheringtons, Solicitors

SOLICITOR FOR THE RESPONDENT WIFE:

Messrs Armstrong Legal

Solicitors

SOLICITOR FOR THE RESPONDENT HUSBAND: Messrs Moss Krouk & Associates, Solicitors

Orders

1. The time for filing the costs application of the solicitors contained in their application of 5 July 2007 is extended to that date.

2. That the wife must pay to the applicant's solicitors a sum of $2,356 towards their costs of the wife's application to review the costs certificate and their application filed 5 July 2007. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4582 of 2003

ETHERINGTONS SOLICITORS

Applicant

And

MS WEATHER

Respondent Wife

And

MR ALBENIZ

Respondent Husband

REASONS FOR JUDGMENT

1. In these proceedings the wife made an application to set aside a Registrar's decision by way of the issue of a certificate certifying costs payable by her to the applicant, her former solicitors.  The basis of the application was that she had never received any of the series of itemised bills of costs that the solicitors claim were served on her. 

2. The outcome of the hearing was that I was satisfied, for the reasons set out in the judgment, that she had been served with one or more of the bills and possibly all of them, that she had been inadequately represented by her lawyers at the time.  It appeared they had not advised her about the procedures set out under the Family Law Rules and proceeded in ignorance of the responsibility of the wife to file the bill and a notice disputing items in the bill, or bills, that she disputed.   Of course, the result of that was that ultimately a certificate was issued because of her failure to dispute any item in the bills.  The solicitors' inadequate knowledge of the relevant rules continued at the hearing. 

3. The matter first came before me in April and I recall at that stage that I directly spoke to the wife and her daughter and indicated to them my concern that she should be properly legally represented by lawyers who understood the rules and could act to represent her interests and to protect her.  On the next occasion when the matter was heard, on 8 May, the same solicitor continued to act for the wife and conducted the proceedings in the same inept way. The arguments that were presented did not address the real issues that had confronted the wife.  Those matters have been covered in the judgment.

4. The decision was delivered on 9 May, the day after the hearing, but it was done orally in Court and there were no appearances arranged - that was partly to save the parties the expense of having someone come to sit in the Court and listen when the judgment was delivered.  But there was then a delay before the printed reasons were available.  I accept the evidence of Mr Etherington, that, although the judgment was delivered on 9 May, the written reasons were not received until 21 June. 

5. The first part of the application of the solicitors is for an extension of time to make the application for the wife to pay their costs.  It seems reasonable that the 28-day period should not run from 9 May, when the orders were made, but not commence only after the solicitors had received the reasons and had time to consider them.  That time would have commenced from after 21 June and the application was filed within 28 days of that date (on 5 July).

6. I think in the circumstances it is an appropriate situation where, in order to do justice between the parties, the time for filing the costs application should be extended to 5 July.

7. In relation to the costs issue, the relevant section under the Family Law Act is s.117. In sub-s.(1) the general rule is set out, which is subject to certain other provisions that I will refer to:

   "each party to proceedings under this Act shall bear his or her own costs."

8. One of the provisions that is subject to is sub-s.(2), which says that the Court has power to make the order for costs where it is satisfied there are circumstances to justify such an order.  It says also that that power should be exercised having regard to the matters listed in sub-s.(2A).  The first of the matters in sub-s.(2A) is the financial circumstances of the parties. 

9. The financial circumstances of the husband are not really relevant to this matter because this is an application concerning rights as between the wife and her former solicitors.  It is different to a relationship between spouses because it is a commercial relationship, and I take into account that the position of the lawyers who represent the parties in litigation is not usually one where they do it for the good of their health or their amusement but they do it for commercial gain. That is a realistic and reasonable reason for being involved in such a relationship with a party.

10. So far as I am aware neither party had legal aid in the proceedings, which is the second matter in the subsection.

11. The third matter is the conduct of the parties to proceedings in relation to proceedings.  There are several matters, I think, that arise there.  I have already referred to the inadequate legal representation the wife had received in relation to her application to set aside the Registrar's certificate.  Her application was without merit. The other matter that is relevant is the findings that I made in relation to her credit in the proceedings.  The wife's position was a very confused one and she gave evidence which was in some ways inconsistent with other evidence she gave.  On the one hand she claimed she had never received any of the itemised bills but on the other hand there was evidence before the Court that she had instructed a costs consultant to review the bills and prepare a notice disputing items in those bills, that she had informed the solicitors of this and had a letter from the costs consultants, estimating fees and also estimating the time that they would need, they said, to prepare the notice disputing costs. Those are matters are matters of credit which go to the issue of conduct.

12. Another issue that goes to conduct, which is the third issue, is the context in which the final hearing occurred on 8 May because, on the first appearance, in April, when the wife and her daughter were present, I was very concerned about what appeared to be inadequate legal representation for the wife, and I made comments directed directly at the wife and the daughter as the need for her to reassess her position and ensure that, if she was going to have legal representation, it was adequate and it was by someone who was familiar with the jurisdiction and with the relevant rules.  That was not done.  On the next occasion the wife continued with the same legal representation and the same problems that had existed when I made the comments to her.

13. The next matter under the subsection is whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court.  I do not think they were, except that the application would not have arisen if the wife had complied with the requirement of the rules to file a notice disputing costs..

14. Paragraph (e) is whether any party to the proceedings has been wholly unsuccessful.  The wife was wholly unsuccessful and the application failed.

15. The next matter is whether there has been any settlement offer.  I am no aware of any such offer.

16. Those are the relevant matters.

17. I think the wife should pay the solicitors' costs in the proceedings.  This is a dispute which she initiated by an application to the Court.  It was an application she brought which had no merit and I referred to the conduct of the proceedings and in the proceedings, not just by her solicitors but, also, by her personally.  It is not appropriate that these solicitors be responsible to meet the costs of unnecessary proceedings or proceedings that are without merit and brought before the Court, either because of conduct of a litigant or because of inadequate legal representation. 

18. I am not satisfied there is any reason why costs should be awarded on an indemnity basis but, if the parties have no objection, I would be prepared to make an order in the sum of $2,400, which would include the costs of today.

[Further submissions of parties]

1. I will take into account the concession Mr Etherington has made and also, for the reasons that I have already mentioned, I think a reasonable figure then in respect of the costs that were covered by the assessment of 18 May, excluding the item of 19 February for consideration of illegal immigrancy, domicile and jurisdictional basis and report, but including the costs of today (it is now nearly 11.30, so, including travel time, there is quite a bit of time involved today) is $2,356.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date: