F Solicitors Pty Ltd and Spence

[2007] FamCA 1173

FAMILY COURT OF AUSTRALIA

F SOLICITORS PTY LTD & SPENCE [2007] FamCA 1173

FAMILY LAW – PRACTICE AND PROCEDURE – Respondent’s application to adjourn to allow the filing of further documents – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: F Solicitors Pty Ltd

RESPONDENT: Ms Spence

FILE NUMBER: ADF 3013 of 1999

DATE DELIVERED: 4 September 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 4 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Holland

SOLICITOR FOR THE APPLICANT: F Solicitors Pty Ltd

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That the respondent’s oral application to adjourn these proceedings be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym F Solicitors Pty Ltd and Spence is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3013 of 1999

F SOLICITORS PTY LTD   

Applicant

And

MS SPENCE  

Respondent

EX TEMPORE REASONS

1. In this continuing matter I now have an application before me from Ms Spence seeking to adjourn these proceedings to enable her to make an application for an extension of time to file a review of the decision of the Registrar in the form of the certificate of taxation dated 14 August 2003. 

2. I note that that certificate of taxation was made under the previous Rules of the Court.  I do not have them currently in front of me but I do not think that matters.

3. Looking at the current Rules, they provide for an application for review, and my understanding is that there was a similar provision in the previous Rules.  Ms Spence has put to me that the timeframe for review under the old Rules was 28 days.  That may be correct, I have not had a chance to check it and it does not matter for the purpose of this application.  I note that the timeframe for a review under the current rules is 14 days after the costs assessment order is made.

4. In any event the long and the short of it is that the Rules of Court did provide and continue to provide for a review of a registrar's decision in the form of a certificate of taxation, now called a costs assessment order, and the Rules provide for a time period for such an application to be made.  Separate to that, under both the previous Rules and the current Rules an application for an extension of time can be made.

5. Ms Spence has indicated that she was told by her legal adviser, or advisers, at the time the certificate was issued that once the 28-day period had expired nothing whatsoever could be done about disputing that certificate by way of review or otherwise.  She says that she has operated under that misconception to the present day, and it is on that basis that she now makes this application to adjourn.

6. It is quite apparent from the file that Ms Spence has issues with the certificate of taxation.  She has filed affidavits where she has alleged, for example, that the solicitor involved did not do the work that was claimed, and she raises various matters about her representation by that solicitor. 

7. I note also that the certificate of taxation followed upon a notice filed by Ms Spence disputing the bill of costs in the first place and the certificate of taxation is the result of the hearing before the registrar of that notice disputing the bill.  It is quite apparent, when one looks at the costs file, the Registrar was very careful in dealing with the matter and looked very closely at the bill of the solicitor.  I also assume that Ms Spence made submissions to the Registrar about the bill at the time.

8. The certificate of taxation was made, as I say, on 14 August 2003, and the fact of the matter is that Ms Spence has not filed any application to review that certificate and she has not sought an extension of time to do so until now, some four years later.  What Ms Spence has done though, is that since about 2005 she has been agitating her position in relation to the solicitor's account and the work that the solicitor did for her.  She even went to the extent of filing a counterclaim in the Adelaide Magistrates Court when the solicitor incorrectly filed an application in that court to enforce the certificate of taxation.  I have not seen the documents but it seems common ground that the issues that Ms Spence raised in that counterclaim are much the same as she has raised today, and raised on other occasions and in her affidavits in this court, challenging the solicitor's bill in terms of the work done and the like.

9. I note that that counterclaim was dismissed on 11 July 2007.  That concluded the Magistrates Court proceedings, given that the application by the solicitor was withdrawn after it was realised that the proceedings could not continue in that court.

10. I note that Ms Spence has now filed an application in the Adelaide Magistrates Court seeking to reinstate her counterclaim and that is listed some time later this month.

11. In any event, to get back to the application that is before me, Mr Holland who appears for the applicant in these proceedings opposes the application made by Ms Spence and he, quite properly, referred me briefly to the history of the matter, some of which I have just made reference to. 

12. Ms Spence has had certainly one solicitor acting for her on the record and that is Mr Pertl.  I do not know which other solicitors Ms Spence has consulted along the way but she has had ample opportunity in my view to properly challenge the certificate of taxation, either by way of filing an application for review within the timeframe allowed under the rules as they then were or to seek an extension of time to make that application.

13. These proceedings are now four years old.  In that time the applicant has diligently pursued an order for payment of the costs the subject of the certificate of taxation.  I accept that that solicitor has been put to enormous expense in pursuing that application, and there have been delays and adjournments of the matter, none of which were as a result of any conduct by that solicitor.  On the other hand, it has been Ms Spence who has in my view caused delays and adjournments in the finalisation of this matter and thereby created the enormous cost to the applicant in these proceedings, as outlined by Mr Holland in his submissions to me.

14. The proceedings have gone on for far too long.  In my view it would be unjust to delay them any further.  As I say, to repeat, in my view Ms Spence has had ample opportunity to pursue an application like the one she is making now.  She has been before this court on countless occasions and this particular issue has been before the court on a number of occasions.  However, at the eleventh hour, when Ms Spence is facing finality in terms of this application, she makes an application to adjourn.  In my view it is too late.

I certify that the preceding 14 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

4 September 2007