G (A SOLICITOR) & MONAGHAN - [2013] FamCAFC 63

FAMILY COURT OF AUSTRALIA

G (A SOLICITOR) & MONAGHAN

[2013] FamCAFC 63

FAMILY LAW – APPEAL – COSTS – Where a former solicitor for a respondent mother in parenting proceedings appeals against an order for costs made personally against him – Where the order against the solicitor was made in the context of an application for costs by the applicant father against the solicitor’s client (the respondent mother) – Where the costs sought by the father were significant – Where no material on behalf of the mother was formally filed in response to the application, though the solicitor remained on the record and directions had been made for the filing of submissions – Where the Federal Magistrate called the matter on out of concern for the mother not being heard in the application, and the solicitor’s conduct in not filing any material – Where the Federal Magistrate ordered the mother file and serve any evidence and submissions on costs and adjourned the matter – Where though no order was made, it is apparent from the transcript of proceedings the Federal Magistrate required the solicitor to file an affidavit explaining his conduct, and from the reasons for judgment that he was put on notice of the Federal Magistrate’s consideration of a referral to the Legal Services Commission – Where the solicitor subsequently filed submissions, not sworn affidavit evidence, on behalf of both himself and the mother – Where the solicitor then filed a Notice of Withdrawal as a lawyer and did not attend at the adjourned hearing – Where the solicitor’s argument on appeal that client privilege and conflict prevented him from filing material explaining his conduct is disingenuous in the circumstances – Where the Federal Magistrate gave the solicitor proper notice of his intention to consider making an order for costs against him personally, afforded him an opportunity to file material and to appear, and carefully explained in reasons for judgment why the order was made – Appeal dismissed.

FAMILY LAW – COSTS – Where the appellant solicitor did not resist the respondent father’s application for costs – Where an order for costs is justified by the appellant being wholly unsuccessfully – Costs ordered as agreed or failing agreement as assessed.

Family Law Act 1975 (Cth) ss 94AAA(3), 117
Federal Magistrates Court Rules 2001 r 21.07

Cassidy & Murray (1995) FLC 92-633
Hitch & Hitch (2012) 47 Fam LR 603
Z (A Solicitor) & Limousin (2010) FLC 93-433

APPELLANT:

Mr G (A Solicitor)

RESPONDENT:

Mr Monaghan

FILE NUMBER:

BRC 497 of 2010

APPEAL NUMBER:

NA 106 of 2012

DATE DELIVERED:

20 March 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

19 March 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

3 December 2012

LOWER COURT MNC:

[2012] FMCAfam 1273

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Burrow
SOLICITOR FOR THE APPELLANT:	Firm G

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

Parker Family Law

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of the appeal, as agreed or failing agreement as assessed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 106 of 2012
File Number: BRC 497 of 2010

Mr G (A Solicitor)

Appellant

And

Mr Monaghan

Respondent

REASONS FOR JUDGMENT

This is an appeal by Mr G, formerly the solicitor for the mother in parenting proceedings against the respondent father Mr Monaghan. The appeal is from an order for costs made against the solicitor personally by Federal Magistrate Coates on 3 December 2012.
By amended notice of appeal filed on 5 February 2013, the solicitor appeals the following order:
(3)That pursuant to r.21.07 of the Federal Magistrates Court Rules 2001, the firm [Mr G] Solicitor pay the applicant’s costs thrown away from 24 July 2012 in the sum of $1,400.50 within

28 days.
The solicitor appeals on the basis that the Federal Magistrate failed to take into account the relevant principles in making a personal costs order against a solicitor. He also complains that the Federal Magistrate erred in making a finding as to the reliability of email correspondence as evidence.
The solicitor filed a written outline of argument authored by him on

28 February 2013. At the hearing he was represented by Mr Burrow of counsel, who provided further written submissions and case materials.
The appeal is resisted by the respondent father. Mr Linklater-Steel of counsel appeared on his behalf at the hearing before me, a written summary of argument was prepared by his solicitor. The appeal is resisted on the basis that the Federal Magistrate correctly identified the source of power under the Federal Magistrates Court Rules to make such an order, and correctly applied the relevant principles in the exercise of his discretion, on the basis on the solicitor’s actions.
I am determining the appeal as a single judge pursuant to a direction from the Chief Justice under the provisions of subsection 94AAA(3).
As the order made by the Federal Magistrate turned on the solicitor’s conduct in the context of the father’s original application for costs against the mother and later a consideration of an order for costs against the solicitor himself, it is necessary to set out the relevant chronology of the proceedings.

Chronology

Final orders in the parenting proceedings were made on 8 March 2012. Those orders provided that the child live with the father and spend time with the mother. The father was the applicant in the proceedings, and the central issue was whether the child (born May 2005) should be allowed to relocate with the mother from Brisbane to remote South Australia.
Additional orders were made that day by consent, providing for any application for costs and supporting material to be filed and served by 22 March 2012. The orders did not require any response and supporting material to be filed, however liberty to file such material by 5 April 2012 was granted. Both parties were to file and serve written submissions as to the issue of costs by

5 April 2012. It was ordered, by consent, that the issue of costs would be thereafter determined in chambers. These orders were designed to minimise further costs to the parties.
On 22 March 2012 the father filed an application for costs and a supporting affidavit, in accordance with the consent order. The father asked that the mother pay his costs of and incidental to the proceedings on an indemnity basis, or alternatively in accordance with Schedule 1 of Part 1 of the Federal Magistrates Court Rules, pursuant to r 21.10. The total costs sought were

$42, 237.58, with a reduction by reference to other orders, such that the amount claimed was $32, 637.58.
The basis of the application was that the father had been wholly successful in obtaining orders he sought on each occasion of the proceedings, and obtaining final orders significantly reflective of those he had sought from the outset.
It was said on behalf of father that the mother’s conduct had caused delay, conjecture, and additional and unnecessary legal expense resulting in Court hearings and costs, which were not necessary for the economical and efficient finalising of the proceedings. Reference was also made to five offers of settlement, rejected by the mother, who proceeded to a contested hearing and was ultimately wholly unsuccessful.
A lengthy affidavit of the husband’s solicitor, outlining in detail a chronology of the litigation, the father and the mother’s conduct, and attaching various communications between the parties, was also filed in support of the application for costs.
No material was filed by or on behalf of the mother.
On 5 April 2012, the day the mother’s material was due, a fax was sent to the Court, addressed to the Registrar, stating that a response and submissions were included, as electronic filing was not available. The response, signed by

Mr G, asked that no order as to costs be made. The submission of seven paragraphs included a number of assertions of fact, including that the mother was no longer employed.
The material was not accepted by the Court, formal filing at the Court being required for such material. The fax is Exhibit 1 in the appeal.
According to the reasons of the Federal Magistrate (paragraphs 7-8), a handwritten note dated 10 April 2012 was recorded on the cover of the faxed letter the Court received, stating a phone call had been made advising the respondent’s legal representative, the appellant solicitor, that an original was required for filing. The solicitor did not subsequently file the material as directed.
No material having been filed subsequently, the Federal Magistrate listed the matter before him on 17 April 2012. There appear to have been no appearances that day. The matter was listed again on 24 July 2012. Solicitors for both parties appeared on that occasion. It is the costs of this appearance which concern the solicitor.
In view of the significant costs which were sought against the mother on an indemnity basis, the Federal Magistrate appears to have called the matter on two bases of concern. First, the mother not being heard in the application. Second the mother’s solicitor’s conduct in circumstances where the application significantly against the interests of his client had been filed and served, and where the solicitor remained on the record however nothing had been filed.
On 24 July 2012 his Honour provided the mother with a further opportunity, making orders that she file and serve any evidence and submissions on costs within 14 days, and that the matter be adjourned to 20 September 2012 for mention. As will be seen, though not expressed in the order, his Honour made clear that the adjournment was also for the purpose of determining costs against the solicitor.
In written reasons for judgment his Honour explained:
10.The purpose of the orders I made [on 8 March 2012] was to determine a costs issue, to ensure both parties fully appreciated the case AND to allow proper submissions to be made.
…
13.It should have been apparent to Mr [G] that should his client not respond and oppose the costs being sought, that I may well make an order that she pay to the father the sum of $42,237.58, on an indemnity basis.
14.I need to stress a point, one which seems to have been missed by the mother’s solicitor - in the final judgment I had cause to comment on aspects of how the trial was run and the solicitor for the mother should not misunderstand that failure to comply with directions on costs puts his client in jeopardy of having an indemnity costs order made against her.
15.While the solicitor purports to state a case in his unfiled faxed letter, the “submissions” made do not and could not be considered to be proper submissions on this issue. He has also failed to supply sworn evidence from the mother that she has lost her job and that her financial position has changed from that presented at trial.
16.Because of the wording of s.117 I am affording the mother procedural fairness now and putting her on notice that:
a)I require proper submissions on costs and evidence of her financial position if she in fact opposes the making of the cost orders now being sought by the father;
b)I am putting the solicitor, Mr [G], on notice that I am considering referring him to the Legal Services Commission on the basis of unsatisfactory professional conduct within the meaning of s.418 of the Legal Profession Act 2007.
As was pointed out by counsel for the father before me, there could have been significant prejudice to the father if the Federal Magistrate simply accepted unsworn evidence of the mother contained in a fax from her solicitor.
Specifically relevant to the order which the solicitor now seeks to appeal, the Federal Magistrate indicated that he would consider making an order for costs against the solicitor for the hearing that day:
20.As to the cause for mentioning this matter, I will take submissions as to whether I should be making a costs order against the solicitor for today’s appearance.
As the solicitor made some issue about the lack of a specific order requiring him to file an affidavit in the proceedings, it is instructive to set out the following excerpt from the transcript of 24 July 2012. It appears that his Honour’s reasons were delivered first, and then some discussion as to whether the mother was ready to proceed with the costs issue, and, as she was not, whether the costs of the day would be attributable to her solicitor:
HIS HONOUR: You both have read [the judgment]. I should ask is the matter ready to proceed on a costs issue today or, Mr [C], do you seek an adjournment on that particular matter?
MR [C]:Your Honour, I just spoke to the principal Mr [G] and I have following instructions to relay to the court since the judgment the mother has refused to take calls and has refused to communicate with us. She has also refused to pay the outstanding fees and barrister’s fees, and in light of our coming to court we have been appearing and representing her.
HIS HONOUR: Well, you’re on the record…So apart from a duty to the court you still have got a duty to her because whether she is giving you instructions or not you are still representing her. You haven’t filed a notice of discontinuance [coming off the record]. So you say you’re going to be saying that, all right, well, look, someone from your office had better put – they had better put that in affidavit form. I’m not going to take this from the bar table…
(Emphasis added.)
The mother appeared by telephone and denied Mr C’s assertion that she had not paid fees. This dispute is important. In the appeal counsel for the solicitor claimed that his obligation to the mother precluded him from explaining, via evidence, why material had not been filed (owing to the mother’s conduct) leading to the costs thrown away on 24 July 2012. In particular that it would have violated his obligation of client privilege and required him to act against her interests, therefore putting him in a position of conflict.
Certainly in the faxed document no such difficulty was revealed, and it is apparent that as soon as the question arose as to whether the solicitor should pay costs, this disability seems to have evaporated.
It is clear from the oral submissions made by Mr C before his Honour, and as will be seen, later by Mr G in the written submissions filed by him, the firm did in fact share information with the Court about the mother’s conduct and failure to respond or participate in the costs issue. It is therefore disingenuous to claim in the appeal that client conflict or breach of client privilege was a basis of the solicitor’s failure to comply with his obligation to file an affidavit.
Returning to the transcript of 24 July 2012, leaving the dispute between the solicitor and his client aside, his Honour was careful to explain to the mother (and to Mr C of Mr G’s firm) the difference between the application for costs made on behalf of the father against her, and the issue of costs against the solicitor for that day. His Honour said:
HIS HONOUR: …I have given certain orders for proper submissions to be made and for you to file an affidavit of your circumstances within 14 days…That will take care of the costs application which Mr Parker has made on behalf of the father. Now, Mr [G’s] office has another issue which I want an explanation of, and it’s very clear in that decision [the reasons for judgment dated 24 July 2012] why I want that explanation.
So that matter I will adjourn. I will adjourn the matter regarding the solicitors until 20 September, and your solicitor, your principal will take whatever action your principal deems necessary in filing whatever material they deem necessary because I’m not going to tell you how to conduct the practice. Your principal is an officer of the court. Your principal practice is in this area. Your principal should know what is required.
(Emphasis added.)
The solicitor remained on the record, however no affidavit evidence on behalf of the wife as ordered was filed, nor did the solicitor file an affidavit.

On 7 August 2012 submissions were filed both for the respondent mother in relation to the father’s application for costs against her, and for the solicitor. Both sets of submissions were signed by Mr G.
The submissions for the mother, in response to the father’s application for costs on an indemnity basis, were limited to seven paragraphs. When comparing the submissions to those faxed by Mr G to the Court on 5 April 2012 approximately four months earlier, the submissions are the same.
It was submitted that her financial circumstances had changed such that she could not afford to pay, having lost a highly paid job, having no assets and working casually two to three days per week. It was also submitted that the father had not been wholly successful, and the evidence of the family report writer indicated the case was finely balanced, such that it could not be said the mother was unjustified in seeking relief. It was said that the discretion to order costs should not be exercised at all.
Mr G’s own submissions addressed whether there should be a costs order made against him (for the costs of the father’s representative’s appearance on

24 July 2012). Mr G set out in submission format his attempts at contacting the mother once the hearing of the parenting issues had concluded in

October 2011. He said he received no response to his phone calls or emails, expressing the view this was because the mother owed fees to him and to counsel.
On an unspecified date after the final parenting orders were delivered, the solicitor said he spoke with the mother and informed her she needed to swear an affidavit, swearing to her changed employment circumstances. He said he sent a draft affidavit and outline of submissions to her for instructions. It is said the mother agreed with the submissions but wanted to make some changes to the affidavit. No sworn affidavit was subsequently received by the mother, and the solicitor says he could not contact her. As the mother had agreed to the submissions, the solicitor faxed them to the Court. He does not, in his affidavit, provide any explanation for the failure to subsequently file formally, as he was told was required.
The solicitor deposes that he emailed to the mother his Honour’s reasons and orders of 24 July 2012, and on 3 August 2012 called her to inform her of the deadline for filing material, however had not received any instructions or material from her. He submitted he had tried to assist the mother, and had fulfilled his duty to the Court, appearing without remuneration on two occasions because he was still on the record, such that no order for costs should be made against him personally.
These submissions were to the same effect as those Mr C had made before his Honour at the hearing on 24 July 2012, in response to which his Honour

re-emphasised that he required a proper explanation, with evidence, in affidavit format, of Mr G’s actions/inaction.
On 4 September 2012 Mr G filed a Notice of Intention to Withdraw as a Lawyer. Then on 17 September 2012 Mr G filed a Notice of Withdrawal as a Lawyer.
The matter was listed again for hearing on 20 September 2012. As is apparent from the excerpt of the transcript above, the purpose of that mention was to hear the matter of the solicitor paying the costs of 24 July 2012. There was no appearance by or on behalf of the mother, nor did Mr G appear. Mr G had filed no material other than the submissions on 7 August 2012. The father’s solicitor, however, was present.

On 3 December 2012, the Federal Magistrate made orders and delivered reasons for judgment allowing the application for costs on an indemnity basis, ordering the mother to pay costs in the sum of $42,237.50, to be offset as sought, within 28 days. His Honour also ordered Mr G to pay the father’s costs thrown away in the sum of $1,400.50 within 28 days, for the appearance on

24 July 2012.

Federal Magistrate’s Reasons for Judgment

The majority of the Federal Magistrate’s reasons addressed the father’s application for costs against the mother. The mother has not subsequently appealed the order against her, and it is therefore unnecessary to set out that part of the reasons.
As foreshadowed, his Honour considered an order for costs against Mr G, personally, for the father’s costs thrown away on 24 July 2012. His Honour first outlined the conduct of the solicitor.
53.The solicitor had filed a submission on 7 August 2012 as to why there should be no costs order against him or the firm, which was to the effect that they did not receive instructions and the wife had not paid her bill. The solicitor, Mr [G], said the wife had not responded to his email correspondence. He did not file an affidavit to this effect, attaching the correspondence which would show he was not getting instructions and showing that he had fully informed the wife of what the possible legal consequences. Further, email correspondence is not reliable in my view, and since it apparently appeared that no answer was forthcoming, a prudent solicitor would have posted the material, relying then on the postal rule as to the mother receiving the material.
54.While the solicitor stayed on the record, all the duties which fall to lawyers representing parties have to be discharged. What should have occurred is that the solicitor should have withdrawn from the matter earlier and given a full account, sworn in an affidavit, of what occurred.
(Emphasis added.)
His Honour then referred to the rule which directed his consideration of an order against Mr G as a lawyer:
55.I also indicated that I would consider a costs order against the solicitors, as allowed for in r.21.07, which states:
“r.21.07 Order for costs against lawyer
(1)The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a)to be incurred by a party or another person; or
(b)to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
(2)A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a)to attend, or send another person to attend, the hearing; or
(b)to file, lodge or deliver a document as required; or
(c)to prepare any proper evidence or information; or
(d)to do any other act necessary for the hearing to proceed.
(3)An order for costs against a lawyer may be made on the motion of the Court or Registrar, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.
(4)The order may provide:
(a)that the costs, or part of the costs, as between the lawyer and party be disallowed; or
(b)that the lawyer pay the costs, or part of the costs incurred by the other person; or
(c)that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.
(5)Before making an order for costs, the Court or Registrar:
(a)must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and
(b)may order that notice of the order, or of any proceeding against the lawyer be given to a party for whom the lawyer may be acting or any other person.”
His Honour then discussed how he considered the solicitor’s actions in handling the mother’s response to the father’s application for costs fell within the provisions of the rule:
56.Apart from appearing to not properly representing their client, the firm failed to make representations, with relevant sworn evidence, on its own behalf.
57.The power to make a costs order against a solicitor is a power which arises under the rules of this court.
58.Mr Parker, solicitor for the father, claims $1450.50 pursuant to the schedule of costs, being a half day hearing fee of $880, travel of $495 and parking of $40.95.
59.Mr Parker sought costs for 24 July 2012 because the attendance was necessitated by the court which was wholly dissatisfied with the extent the solicitors had acted on the wife’s behalf. I agree with that submission, having stated such in reasons given that the seeking of $40,000 costs against the wife was a significant amount of money.
60.I accept Mr Parker’s submissions that the failure to properly present a case against costs or for reduced costs caused me significant concern because of the impost which could be visited on the mother, because I had stated as much in my reasons of 24 July 2012.
61.He also said the wife had given instructions to her solicitor and barrister in the running of the trial, a matter I commented upon in the final judgment.
62.While s.117 of the Family Law Act 1975 governs the making of a costs order in a family law matter, this particular costs order is considered pursuant to my powers under this court’s rules and the behaviour of the solicitor is separate from the family law matter. I therefore do not have to consider s.117.
63.Representation is a serious undertaking and is a right conferred by admission to practice. It is a right to be treated seriously, especially when non-lawyers are relying on legal advice and expecting their case to be properly and fully put.
64.The solicitors have failed in this matter. They have not given an explanation of the mother’s circumstances in relation to costs.
65.I intend making the costs order against them for the appearance on 24 July 2012 in the sum of $1,450.50, to be paid to the solicitor for the husband within 14 days.
(Original emphasis.)

The Appeal

The amended notice of appeal lists the following two grounds:
1.1 The Court erred in law in failing to take into account the principles applicable to the making of an award of costs against a solicitor, in particular:
a) that such orders are exceptional;
b) that such orders must be made sparingly and with care;
c) that such orders of [sic] compensatory and not punitive;
d) that such orders are not to be made on the basis of the conduct of the client;
e) that the court must consider the exigencies of acting in the relevant environment;
f) that the solicitor was under a duty of confidence to the client and that this limited the ability to respond and provide material to the court]
1.2The learned magistrate erred in law and fact in determining that email correspondence is not reliable.

Relevant Principles

The principles relating to jurisdiction and power of Courts to make orders for costs directly and personally against lawyers are well settled.
It is well established that a specific power to make such orders exists under

s 117(2) of the Family Law Act 1975 (Cth). Cassidy & Murray (1995) FLC 92-633 was cited, correctly, in the submissions on behalf of the father, as authority for the principles relevant to the exercise of the jurisdiction under the section. The Full Court (Fogarty, Kay and Hase JJ), referring with approval to the decision of the Master of the Rolls, Sir Thomas Bingham in Ridehalgh v Horsefield (1994) 3 All ER 848 at 855, said (at p 82,365):
1.Pursuant to s 117(2) Family Law Act, the court has jurisdiction to make an order for costs against a solicitor or a non-party.
2.The court should not make such an order without giving the person to be affected by the order an opportunity to be heard.
3.The court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of serious professional misconduct.
4.The solicitor has a duty to the court to promote the interests of justice whilst at the same time attending to the needs of the solicitors clients.
5.A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default of negligence, any of which are found by a court to be or a serious nature, maybe sufficient to justify an order.
6.The jurisdiction is compensatory.
The Full Court in that case also acknowledged specific provisions in the Family Law Rules at that time, similar to the current Federal Magistrates Court Rules

r 21.07 (set out at paragraph 28 above).
Of interest, the current Family Law Rules 2004 r 19.10 provides:
(1)A person may apply for an order under subrule (2) against a lawyer for costs thrown away during a case, for a reason including:
(a)the lawyer’s failure to comply with these Rules or an order;
(b)the lawyer’s failure to comply with a pre action procedure;
(c) the lawyer’s improper or unreasonable conduct; and
(d)undue delay or default by the lawyer.
(2)The court may make an order, including an order that the lawyer:
(a)not charge the client for work specified in the order;
(b)repay money that the client has already paid towards those costs;
(c)repay to the client any costs that the client has been ordered to pay to another party;
(d)pay the costs of a party; or
(e)repay another person’s costs found to be incurred or wasted.
As to the relationship between the power in s 117 and specific provisions in the Rules of Court, their Honours said in Cassidy & Murray (at p 82, 363-4):
This Rule addresses a particular set of circumstances in which it is appropriate to make costs orders against parties' legal representatives. However, in no way should it be seen as circumscribing the general power to make orders for costs. The fact that Judges of this Court, in exercising their rule-making powers under the Act, have chosen to highlight a particular instance in which such orders might be made does not curtail the ambit of the statutory provision, or the discretion which it creates.
…
Once the discretion provided by s. 117(2) is acknowledged to be as broad as we have indicated, the existence of Order 38 Rule 39 is seen as simply an example of its exercise contemplated by the Judges of this Court, and enacted into Rule form for sound case-management reasons. The Rule does not confine the operation of the section — the power to make costs orders against solicitors exists in circumstances which do not fall within the Rule.
The Federal Magistrate’s decision to order costs was in the exercise of a discretion conferred by the Act, informed by the Rules. To the extent that in paragraphs 57 and 62 of the reasons of 3 December 2012 his Honour may have given the impression that the source of power was the Rules or that the provisions of s 117 were irrelevant, that would have been an error. However, his Honour did set out the relevant considerations in his reasons.
There is no doubt that in addition to the general constraints in appealing from discretionary judgments, it is all the more difficult to successfully appeal from discretionary judgments for costs (see the Full Court’s discussion in Hitch & Hitch (2012) 47 Fam LR 603 at paragraphs 57-58, 117-118).

Discussion

Dealing first with the question of whether the Federal Magistrate erred in making criticisms of the solicitor for relying on email correspondence and not attempting postal delivery of materials, I note counsel’s references to the Evidence Act 1995 (Cth) and the Electronic Transactions Act 1999 (Cth). However there was no explanation as to why the solicitor could not have filed that material in the usual way.
In any event, the more important issue for the purpose of this appeal, which was not cavilled with by counsel for the solicitor, was that he had failed to put into evidence by a sworn affidavit before the Federal Magistrate, his attempts at email correspondence with the mother.
The appellant solicitor sought to rely on the Full Court case of Z (A Solicitor) & Limousin (2010) FLC 93-433 to support his claim that the Federal Magistrate acted on wrong principles in the exercise of discretion. The submissions referred to paragraphs 38-62 of the reasons for judgment.
I am unable to see how these paragraphs assist a finding of error. With respect to him, the solicitor appears to have summarised a range of considerations which are expressed across a range of English and Australian cases, and in so doing has failed to address the relevant, undisturbed principles which govern the discretion to order costs against solicitors generally (as set out in Cassidy v Murray), and the provisions of r 21.07 which the Federal Magistrate identified.
As mentioned, in addition to those parts of Z (A Solicitor), it was submitted that his Honour ought to have had regard to the provisions of s 117(2A) before exercising his discretion to order costs against the solicitor. Counsel for the solicitor submitted that had his Honour done so, regard would have been had to the conduct of the parties, namely the mother whom, it was asserted, had avoided the solicitor’s attempts to comply with the directions as to the costs application.
Similarly, it was submitted that under r 21.07 it is necessary that the solicitor “caused” the costs and that it was clearly the fault of the mother’s conduct, not that of the solicitor, that no material was before the Court.
Based on the chronology however, it is not clear that the lack of material before the Court which necessitated the hearing on 24 July 2012 was in fact attributable to the mother. No evidence to enable a finding, or address the issue of compliance or default of either the mother or of the solicitor, was put before the Federal Magistrate, though the solicitor had been directed to do so in his personal capacity.
On the basis that the solicitor had sought to file a response and submissions in time by fax (which I can only assume he believed he had instructions to do so), the mother had complied. Instead it was the solicitor’s conduct, namely in failing to properly file the material on behalf of the mother, which caused the matter to be brought on and the father’s costs thrown away.
As explained above at paragraph 27, the submission made on behalf of the solicitor that a conflict of interest and client privilege precluded him from providing the Federal Magistrate with the evidence his Honour sought is disingenuous in these circumstances, where the firm had otherwise made representations about the mother’s conduct which were contrary to her interests.
As counsel for the father suggested, the Federal Magistrate gave the solicitor the benefit of the doubt on 24 July 2012 when submissions were made about the lack of filed material being attributed to the mother’s conduct, and gave him the opportunity to argue the matter further by putting in evidence, as was relevant to his own costs issue.
I observe also that the solicitor had an opportunity to appear before the Federal Magistrate on 20 September 2012 and raise the issues now raised on appeal against the making of an order, which he failed to do.
Counsel for the solicitor submitted that in handling the matter the solicitor was “doing his best”, in circumstances where communication with his client was sporadic and there was no express obligation to file material.
The solicitor never filed an affidavit swearing to his best efforts. While submissions were filed, his Honour had expressly sought affidavit and evidentiary material. His Honour was entitled to do so, as submissions hold no evidentiary weight. Despite the claim now raised that the solicitor may have been called to be cross-examined which would have exposed him to speaking against the best interests of his client, as counsel for the father suggested, there was no reason the solicitor could not have filed an affidavit as to information and belief, addressing the very separate issue of explaining his own actions in relation to the costs thrown away.

Conclusion

There can be no doubt about the power of the Federal Magistrate to make an order for costs against the solicitor. It is not correct that this power should only be exercised in “exceptional” circumstances, although it is obvious that such an order is only made where the Court concludes that unnecessary costs have been incurred, attributable to the action or inaction of the solicitor.
In this case the Federal Magistrate explained carefully why the order was being made, having given the solicitor proper notice of his intention and an opportunity to file material. The order was compensatory, not punitive.
The solicitor has failed to demonstrate error in the exercise of the Federal Magistrate’s discretion to order costs.

Costs

The appeal has failed. Counsel for the father sought that the solicitor pay the father’s costs and this was not resisted by counsel for the solicitor. There are a number of circumstances which justify an order for costs. The appellant has been wholly unsuccessful and it is appropriate that he pay the father’s costs, as agreed or failing agreement as assessed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on

20 March 2013.

Associate:

Date: 20 March 2013