Freye & Gingko & Anor

[2012] FamCA 942

FAMILY COURT OF AUSTRALIA

FREYE & GINGKO AND ANOR	[2012] FamCA 942
FAMILY LAW – COSTS – Indemnity Costs – Conduct of Solicitor – Where the Solicitor has failed to give proper and reasonable attention to the relevant law in seeking the application for costs – Where costs have been incurred as a result of such failure – Circumstances justifying an Order for costs on an indemnity basis against Solicitor

APPLICANT: Ms Freye

RESPONDENT: Mr Gingko

INTERVENER: Ms B

INDEPENDENT CHILDREN’S LAWYER: Dixie Ann Middleton & Associates

FILE NUMBER: BRC 11600 of 2008

DATE DELIVERED: 14 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 19 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Andrew of Counsel appearing for the Applicant

SOLICITOR FOR THE APPLICANT: Ms Dart, Solicitor of Legal Aid Queensland appearing for the Applicant

COUNSEL FOR THE RESPONDENT: No appearance required

SOLICITOR FOR THE INTERVENER: Mr Rozario, Solicitor of Delta Law appearing for the Intervener

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance required

Orders

It is ordered

1. The Intervener’s oral application made on 8 October 2012 for costs of the trial is dismissed.

2. The legal representative for the Intervener, Mr Rozario of Delta Law, personally pay the Applicant’s (Ms Freye) costs of and incidental to the adjournment of the application for costs on an indemnity basis, as agreed within twenty-four (24) days from today’s date or in default of such agreement as assessed under the Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Freye & Gingko has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11600  of 2008

Ms Freye

Applicant

And

Mr Gingko 

Respondent

And

Ms B

Intervener

REASONS FOR JUDGMENT

Introduction

1. This is in relation to an application for costs sought by the Intervener, Ms B, against the Applicant, Ms Freye, and/or her legal representatives, Legal Aid Queensland. It also concerns an oral application for an award of costs, on an indemnity basis, sought by Counsel for the Applicant, Mr Andrew, against the solicitor for the Intervener, Mr Rozario personally for the costs of the adjournment of the costs application.

2. The substantive proceedings were for parenting orders for the children of the Respondent Father, Mr Gingko. The Intervener is the Father’s adult child and the children’s half-sister. The Applicant was caring for the children at the commencement of the proceedings.

3. The matter was settled by consent orders made on 8 October 2012. On this day, Mr Rozario made an oral application for costs and requested he be allowed seven days to file written submissions. Mr Andrew was ready to proceed on the application for costs but Mr Rozario advised he was at a disadvantage and would need time to prepare. Mr Andrew submitted that there was no reason for Mr Rozario to be at a disadvantage as to the issue…