G AND G (A LAW FIRM) & MCMURPHY - [2010] FamCAFC 213

FAMILY COURT OF AUSTRALIA

G AND G (A LAW FIRM) & MCMURPHY

[2010] FamCAFC 213

FAMILY LAW - APPEAL – COSTS – costs between solicitors and former client in relation to an abandoned appeal – where the Full Court ordered that the appellants pay the respondent’s costs in relation to the abandoned appeal, such costs to be assessed by a Registrar.

FAMILY LAW - COSTS – the respondent to pay the appellants’ costs of the hearing of the costs application.

Family Law Rules 2004

APPELLANTS:

G AND G (A LAW FIRM)

RESPONDENT:

MS McMURPHY

FILE NUMBER:

MLC

4782

2010

APPEAL NUMBER:

2010

DATE DELIVERED:

13 October 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Finn, Coleman and Thackray JJ

HEARING DATE:

13 October 2010

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ham

SOLICITOR FOR THE APPELLANT:

G and G Legal Practitioners

COUNSEL FOR THE RESPONDENT:

Mr Nicholson

SOLICITOR FOR THE RESPONDENT:

Schetzer Constantinou

Orders

The appellants pay the respondent’s costs thrown away as a consequence of the appeal (filed on 14 April 2010) being abandoned, such costs to be assessed by a Registrar of this Court in accordance with the Family Law Rules 2004.
The respondent pay the appellants’ costs of this day, but otherwise there being no order for costs in relation to the application filed on 6 September 2010.

IT IS NOTED that publication of this judgment under the pseudonym G and G (a Law Firm) & McMurphy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: No. SA 23 of 2010
File Number: No. MLC 4782 of 2010

G and G (a Law Firm)

Appellants

And

Ms McMurphy

Respondent

REASONS FOR JUDGMENT

Finn J

The matter which we have had before us this morning relates in broad terms, to the costs of an abandoned appeal. The chronology of events leading up to the matter being before us this morning is as follows.
On 14 April this year (2010), the appellant solicitors – and I will continue to refer to them throughout these reasons as “the appellants” – filed a notice of appeal against orders made by Cronin J on 24 March this year in proceedings between the appellants and a former client, Ms McMurphy, who was the respondent to the appeal, and to whom I will continue to refer as “the respondent”.
On 25 August this year, the Appeal Registrar wrote to both parties advising them that the appeal had been taken to be abandoned under rule 22.21 of the Family Law Rules 2004 (“the Rules”) because of the appellants’ failure to file the appeal books as had earlier been directed by the Registrar.
It is relevant to mention at this point that rule 22.43 of the Rules provides that if an appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all other parties, and that an application for the costs of an abandoned appeal must be filed within 28 days after the appeal became abandoned.
On 6 September – and I here depart a little from the chronology to explain the application before us – the respondent filed an application in an appeal seeking that the appellants pay the respondent’s costs of the appeal, and that that be done on an indemnity basis. The affidavit of the respondent’s solicitor filed in support of the application for costs provides the following chronology of correspondence up to the filing of the application for costs (on 6 September) and it appears to be uncontroversial - indeed, we have all the correspondence before us. Briefly, that correspondence is as follows.
On 30 August, the respondent’s solicitors wrote to the appellants seeking consent to the payment by the appellants of the respondent’s costs thrown away in the sum of $1,326.42 together with GST, which lead to a total of $1,459.06 enclosed with that letter there was what I would describe as a partly itemised bill, being a bill which did not show any amounts, only items of work.
On 31 August, the appellants responded and agreed to pay the respondent’s costs thrown away in respect of the appeal on the basis that those costs would be agreed or “in default of agreement on scale”. The appellants also asked for a properly itemised bill.
On the same day (31 August) the respondent responded sending an itemised bill and a Costs Notice (under Chapter 19 of the Rules), and also saying that the offer (contained in their letter of 30 August 2010) remained open until 1 September.
On 1 September, the appellants wrote to the respondent enclosing a Notice Disputing the Itemised Costs Account and offering in that Notice to pay the sum of only $332.44 with respect to the thrown away costs.
On 2 September, the respondent wrote again to the appellants, saying that the offer to settle in the sum of $1428.00 remained open until the end of that day, but also saying that if not accepted an application would be filed seeking costs on an indemnity basis. (We have been told today that to that time the costs had been drawn on a scale basis.)
Later on that day (2 September), the appellants wrote to the respondent’s solicitors reminding them that they had already agreed on 31 August to pay costs as agreed or as assessed in default of agreement; they also said that liability to pay the costs was not in dispute, but only quantum. In that letter, it was also stated that an application to the court would be “a fruitless, cost‑building exercise”, but there would be no alternative but for them (the appellants) “to file the Notice Disputing Itemised Cost Account” and to ask the court for an assessment of costs under the Rules.
The application by the respondent for costs was then duly filed on 6 September.
I here depart slightly from the chronology to explain in relation to the source of the material on which I will now rely that on 1 October the appellants filed a response seeking orders that they (the appellants) should pay the respondent’s costs of the abandoned appeal as assessed under the Rules. They also sought an order which would require them (the appellants) to file a Notice Disputing Itemised Account”, and a further order that the respondent should pay the appellants’ costs of and incidental to the application filed on 6 September. In the affidavit filed in support of that response (also on 1 October) the further history of the matter after 6 September is recorded as follows.
The appellants had sent a Notice Disputing the Itemised Costs Account to the Appeal Registrar on 14 September. On 16 September, the Appeal Registrar had returned that Notice, saying it could not be accepted for filing because no costs order had been made.
On 23 September, the appellants wrote to the respondent, enclosing consent orders which were drawn on the basis that the appellants should pay the costs thrown away (as a consequence of the appeal being abandoned), with such costs to be assessed under the Rules, and that there would be no order for costs in relation to the costs application filed on 6 September (and which is now before us), and that today’s hearing date should be vacated.
On 24 September, the respondent rejected that offer, and sought costs in the sum of $3000.00. We do not have that particular piece of correspondence written on 24 September, but we have been told that that fact is not controversial.
The matter having not been settled, the hearing proceeded before us today. Counsel for the respondent, who was, of course, in a position of the applicant today, explained at the outset that what was sought was indemnity costs. However, he had to concede after some discussion that that aspect of the case could not be pursued because it depended on the transcript of a hearing before Cronin J (which, as I understand it, gave rise to the appeal now abandoned).
That transcript had not been provided to the Full Court, and nor did Counsel appearing for the appellants today have that transcript. In those circumstances, we considered it would be unfair for us to receive the transcript at this stage, even though one was apparently available on the court file. Without that transcript, Counsel for the respondent conceded that he could not pursue the indemnity costs argument, and so that matter need not be considered further.
It will be clear from what I have said so far, particularly in tracing the chain of correspondence, that the appellants do not dispute that they have to pay the costs of the abandoned appeal, and an order can be made – and will be made – to that effect today. Given the way in which events have transpired that order will have to be in terms, unfortunately, that there be an assessment of costs by a Registrar and the other procedures provided for in the costs rules will have to take their course. One can only hope, given the relatively small amounts involved and the small differences, that there may still be some capacity for compromise once our order is made, but that matter has to be left to the parties.
What becomes the principal issue then today is who should pay the costs of the application filed on 6 September, and now before us today.
It is not entirely clear to me that the respondent did need to file that application on 6 September, but the matter being not entirely free from doubt, I would be prepared to accept that that application was properly filed.
However, any doubts I might have about the course that thereafter followed, are resolved by the letter that I have referred to written by the appellant solicitors on 23 September, enclosing a set of minutes of consent orders. Those consent orders, as I said earlier, provided not only for the appellants to pay the costs of the abandoned appeal, but those orders would have provided there be no costs in relation to the application filed on 6 September, and perhaps more importantly, given that Counsel have become involved and there are no doubt consequent costs, that the hearing today be vacated.
In my view, given the offer of those consent orders which it is common ground was rejected, I consider that the respondent should pay the appellants’ costs of the hearing today, and that otherwise, in relation to any costs which flow from the filing of the application on 6 September, that there should be no order for costs. It is only the costs of today which should be paid by the respondent.

Coleman J

I agree with the orders proposed by the learned presiding Judge and do so for the reasons articulated by Her Honour. I have nothing to add.

Thackray J

I also agree.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 13 October 2010.

Associate:

Date: 29 October 2010