Geels & Lukeson
[2024] FedCFamC1A 119
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Geels & Lukeson [2024] FedCFamC1A 119
Appeal from: Lukeson & Lukeson [2024] FedCFamC2F 598 Appeal number: NAA 119 of 2024 File number: BRC 5220 of 2022 Judgment of: AUSTIN J Date of judgment: 18 July 2024 Catchwords: FAMILY LAW – APPEAL – Where the second respondent’s solicitor appeals from the making of two personal costs orders – Where the first respondent and the Independent Children’s Lawyer concede the appeal – Where the appeal succeeds for the want of procedural fairness – Appeal allowed – Re-exercise of discretion – Costs certificates ordered. Legislation: Evidence Act 1995 (Cth) s 122
Family Law Act 1975 (Cth) Pt VII, VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 10.27, 12.15
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Beamish & Coburn (dec’d) (2021) FLC 94-005; [2021] FamCAFC 20
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Hill & Weston [2022] FedCFamC1A 98
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HA 29
RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47
Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54
Z (a solicitor) & Limousin (2010) FLC 93-433; [2010] FamCAFC 59
Number of paragraphs: 55 Date of hearing: 18 July 2024 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Mr Leneham Solicitor for the Appellant: C Lawyers Solicitor for the First Respondent: Lander & Rogers Solicitor for the Second Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Newman Solicitor for the Independent Children's Lawyer: Rhonda Sheehy and Associates ORDERS
NAA 119 of 2024
BRC 5220 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GEELS
Appellant
AND: MR LUKESON
First Respondent
MS LUKESON
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 3 July 2024 is dismissed.
2.The appeal is allowed.
3.Orders 1 and 2 made on 15 May 2024 are set aside.
4.The first respondent’s oral application against the appellant for his costs thrown away in respect of the original hearing before the primary judge is dismissed.
5.The Independent Children’s Lawyer’s oral application against the appellant for her costs thrown away in respect of the original hearing before the primary judge is dismissed.
6.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
7.The first respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
8.The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs incurred by her in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Geels & Lukeson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
By an Amended Notice of Appeal filed on 27 June 2024, the appellant solicitor (“the solicitor”) appeals from two personal costs orders made against him by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 15 May 2024.
The appeal must succeed for the want of procedural fairness, in which event the costs orders are necessarily set aside. In the re-exercise of discretion, the underlying applications for costs made by the father and the Independent Children’s Lawyer (“the ICL”) against the solicitor are both dismissed.
Background
The trial of proceedings between the spouses in respect of their children and their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) was fixed to start before the primary judge on 8 May 2024. Both parties were legally represented, as was the ICL. The solicitor represented the mother and had briefed counsel to appear at the trial for her.
At the start of the trial, the primary judge identified the mother’s failure to file any affidavit or case outline document in accordance with procedural directions. Her counsel said he had been briefed the week before, he had no explanation for why the mother had not filed her affidavit on time, and that “there had been some difficulty getting instructions from the [mother]”. Nor it seems had the mother filed a financial statement since November 2022. Her counsel also foreshadowed intended reliance upon an expert report, which had not been served and was not the subject of any application for permission to adduce.
After hearing from the parties, the primary judge ordered that the trial would “proceed by way of default hearing”, for which ex tempore reasons were given. Such reasons disclose that, in reliance upon r 1.33 and r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), his Honour expected the trial would proceed without any evidence being adduced by the mother, though she would not be excluded from participation. The proceeding was then adjourned to the next day.
At the commencement of the second day, the father’s counsel raised with the primary judge what it actually meant for the parties to conduct a “default hearing”. He submitted it should be construed to mean the mother’s counsel could not cross-examine the father, though she would be free to tender documents and make submissions. The primary judge agreed that was the way in which the order should be construed. It is unclear why the mother’s counsel should have been precluded from cross-examining the father, given counsel may have been able to extract concessions from him, but there is no need to dwell on that point. The trial then proceeded.
After the father and the ICL identified and tendered the material upon which they relied in evidence, the mother’s counsel tried to tender affidavits sworn by the mother and her expert. The affidavits were rejected in line with the objections of the father and the ICL. With the evidence then closed and no cross-examination of the father permitted, the primary judge took submissions from both parties.
The father’s counsel made submissions first. Part way through the following submissions of the mother’s counsel, the primary judge became so concerned about the counsel’s state of preparation that his Honour proposed adjourning the proceeding to the following day to ensure counsel had sufficient time to read the evidence adduced in the trial. As that was being mooted, the primary judge acceded to the mother’s counsel’s request for his Honour to meet all counsel privately in chambers.
Immediately upon resumption of the hearing about one hour later, this exchange occurred in open court:
HIS HONOUR: Yes
[Counsel for the mother]: Yes, your Honour, I’ve been in communication with the instructing solicitor. He says he’s still [in City B], that he doesn’t want to attend, but if there is an order he can come.
HIS HONOUR: Wow. I will make an order that [the mother’s solicitor] attend court by no later than 4 pm today. I want him here at 2:15 pm.
[Counsel for the mother]: Yes, your Honour.
HIS HONOUR: In the meantime, where to from here, folks? My view is this, I need to adjourn the case away for fairness to this family, in its entirety. I need to re-list the matter, the final hearing of the matter within a month of today’s date, and I’m told I can do that. The specific dates, I can’t tell you right now, but I’m told I can do that. I’ve spoken to the case manager, so that will happen. …
…
[Counsel for the father]: My learned friend – is my learned friend withdrawing. He needs to ---
HIS HONOUR: I’m not sure.
[Counsel for the mother]: Not yet, but I think perhaps at the end of the day would be the appropriate time to withdraw, your Honour.
HIS HONOUR: You want to rethink that? Based upon what you’ve told me in court and in chambers, I think it’s appropriate that you withdraw.
[Counsel for the mother]: Okay. I will withdraw now, your Honour.
HIS HONOUR: Yes. And I will give you that leave to withdraw.
[Counsel for the mother]: Thank you.
HIS HONOUR: That then leaves the mother without representation. So as I say, I want [the mother’s solicitor] her at 2:15 pm. It’s vitally important that he be here at 2:15 pm.
(Transcript 9 May 2024 p.45 lines 30–45; p.46 line 40 to p.47 lines 11)
What transpired in privacy in judicial chambers remains unknown, but it was obviously such as to cause both the primary judge and the father’s counsel to consider it was appropriate for the mother’s counsel to withdraw forthwith. The only insight into the nature of such undisclosed communications is gleaned from this paragraph within the reasons for judgment later published for the costs orders made against the solicitor:
15.At 2:15pm counsel for the respondent sought leave to withdraw in circumstances where he advised the court that he simply had no instructions from [the mother’s solicitor] and he could not proceed to represent the [mother]. I gave him leave to withdraw.
It is as well to note that the mother’s counsel was not granted such leave to withdraw at 2.15 pm, but rather earlier at about 12.39 pm, because the proceeding was adjourned at 12.44 pm to await the solicitor’s anticipated arrival at 2.15 pm. At that point in time, in the solicitor’s absence, personal costs orders against him were expressly foreshadowed by the primary judge, in relation to which the father’s counsel then announced:
[Counsel for the father]: Your Honour, we are preparing an affidavit about our costs thrown away, which will include a copy of my instructor’s fee agreement. And I’m going to settle my fee agreement, that will be on there as well.
(Transcript 9 May 2024 p.47 lines 30–32)
Court resumed at 2.31 pm when the solicitor was present. He confirmed he was the solicitor on the record for the mother. He confirmed he had been in Court the day before and believed the primary judge had then entered “default judgment” for the father. For clarity, the primary judge certainly did not enter judgment for the father against the mother the day before, either summarily or by default, but the solicitor’s misunderstanding most probably sprang from mistaken advice given to him by the mother’s counsel, who made submissions in Court earlier that day repeatedly referring to his belief that the primary judge had entered “default judgment” in lieu of ordering a “default hearing”. The solicitor said he did not think he was needed in Court on the second day because he believed only submissions would then be made to conclude the proceeding.
The father’s counsel proceeded to make an application for costs against the solicitor for costs thrown away on an indemnity basis by reason of the aborted hearing. The ICL also sought costs against the solicitor. The alternate costs applications made by the father and the ICL against the mother were never determined by the primary judge.
The solicitor applied for an adjournment to “get legal advice”, not least in respect of his alleged misconduct which would warrant personal indemnity costs orders against him, as he was still then ignorant of the precise nature of such allegations. The adjournment application was refused. His Honour summarised the asserted misconduct to be this: his failure to ensure the mother’s compliance with the procedural trial directions; his failure to ensure the mother’s compliance with her obligation of financial disclosure; and his failure to attend Court that day in the company of counsel.
As to the last point, the solicitor said he thought it was permissible to send a law clerk to instruct counsel, as he had done and about which he was quite correct. No legal or professional duty obliged the solicitor to be personally present at Court that day when counsel was briefed to appear for the mother when he understood only submissions would be made.
As to the first two points, no lawyer can force an unwilling litigant to file documents on time or to give comprehensive disclosure. The solicitor asserted the non-compliance with trial directions was not his fault and he would need to file an affidavit explaining so, though he was alternatively willing to submit to cross-examination by the father’s counsel about his alleged misconduct. He was conscious of preserving his professional obligation of confidentiality to the mother, but intimated his indolence was not the cause of the non-compliance with the trial directions. It will be remembered the mother’s counsel told the Court at the start of the trial on the previous day that there “had been some difficulty getting instructions from the [mother]”. The solicitor alleged he had briefed counsel with all relevant documents about two weeks before trial and had been assured by counsel he would be ready for the trial.
In submissions with respect to costs, the father’s counsel expressly acknowledged how the mother’s counsel and the solicitor had given the Court incompatible versions about the state of readiness of the mother’s case. The primary judge made the same point in the reasons for judgment, saying this:
18.I was left in the position where two officers of the court, namely [the mother’s counsel] and [the solicitor], were telling me two different things on the record. I simply did not know where the truth lay.
…
38.I simply cannot make a determination as to whether [the solicitor] properly briefed counsel in preparation for the trial having regard to the two diametrically opposed submissions made by he and counsel in relation to the preparation to brief.
The same observation may be made about the conflicting versions of events given to the Court by the solicitor and the mother. When she was permitted to address the Court directly, she absolved herself and blamed the solicitor, to which allegations the solicitor said he would not respond off the cuff. The primary judge similarly referred to those exchanges in the reasons for judgment (at [19]–[21]).
In all probability, after having openly blamed the solicitor for her default, the mother thereby voluntarily waived the privilege she enjoyed in her former communications with the solicitor over the issue of her compliance with the Court’s procedural directions (s 122(2) and s 122(3) of the Evidence Act 1995 (Cth)).
The incompatible versions of past events given to the Court in the unverified submissions made by the mother, her counsel, and the solicitor is precisely why the solicitor ought have been given the chance to file an affidavit deposing to his version of events. In the absence of such evidence, given a lawyer is usually hampered by the duty of confidentiality owed to a client, the lawyer should be given the benefit of the doubt (Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at [1], [12] and [92] (“Lemoto”)).
The solicitor’s subjection to the personal costs orders depended upon the primary judge’s satisfaction that his professional conduct was so derelict as to warrant such an unusual outcome under r 12.15(1) of the Rules. Generally speaking, that rule is only meant to capture clear cases of delinquent conduct which is incompatible with satisfactory professional performance (Beamish & Coburn (dec’d) (2021) FLC 94-005 at [7]; Z (a solicitor) & Limousin (2010) FLC 93-433 at [45]–[62]; Lemoto at [92]). It is unlikely the rule could have been properly invoked in this instance if the unreadiness of the mother’s case was more probably due, for example, to inaction by her and/or her counsel rather than by the solicitor. Absent any admissions made by the solicitor against his interests (of which there was none) or by resort to tested evidence (of which there was none), any supposed findings of derelict professional conduct made against the solicitor to justify the costs orders could really be no more than mere speculation.
In any event, judgment on the costs applications was reserved and pronounced several days later. The primary judge ordered the solicitor to pay the father’s costs thrown away in the sum of $60,268.99 (Order 1) and the ICL’s costs thrown away in the sum of $6,754.74 (Order 2).
The solicitor appealed from both orders.
Significantly, the father and the ICL both conceded the appeal, though both submitted for the remitter of their costs applications for re-hearing within the original jurisdiction rather than the re-exercise of discretion in the appellate jurisdiction.
On 15 July 2024, the mother irregularly filed a Response to an Application in an Appeal, but which was accepted and filed by the appeal registrar as a putative Summary of Argument. She sought the dismissal of the appeal, but could not reasonably articulate why.
The appeal
The four amended grounds of appeal complain of the denial of procedural fairness (Ground 1), findings not supported by the evidence (Ground 2), the orders are manifestly unreasonable (Ground 3), and legal error (Ground 4).
The solicitor filed an Application in an Appeal on 3 July 2024 seeking leave to adduce further evidence in the appeal pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), but the application is dismissed because such further evidence is not needed to demonstrate legal error, which is the fundamental purpose of further evidence in the appeal (CDJ v VAJ (1998) 197 CLR 172). Instead, a selection of the evidence upon which the solicitor wanted to rely is accepted for the purpose of re-exercising discretion (Allesch v Maunz (2000) 203 CLR 172 at 183 and 191-192), as is later explained.
Denial of procedural fairness
It is not in doubt that procedural fairness is an essential characteristic of any judicial proceeding (RCB v Forrest & Ors (2012) 247 CLR 304 at 309 and 321).
The doctrine of procedural fairness does not have immutably fixed content though, as a general rule, parties need to know what case the opposing party seeks to make, how that party seeks to make it, and be given the reasonable chance to meet and refute the opposing party’s case (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99–100; Kioa v West (1985) 159 CLR 550 at 582; National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312).
The solicitor was denied that minimum standard of fairness in this instance on several levels.
The solicitor was not served with the material upon which the father and the ICL relied to prosecute their costs applications until he arrived at Court, shortly prior to the resumption of the hearing, when he was expected to respond to it immediately.
Even though it was generically alleged the solicitor’s professional performance as the mother’s solicitor was so deficient that it might justify large personal costs orders against him:
(a)he was not given any precise particulars of his allegedly unsatisfactory professional conduct, including the nature of any allegations made against him by the mother’s counsel during the private meeting in the primary judge’s chambers;
(b)the short summary of unsatisfactory professional performance given to him in open Court by the primary judge was neither factually nor legally accurate, because solicitors cannot force litigants’ compliance with procedural directions and need not be in Court when counsel has been briefed;
(c)he was not given any time to consider how he might usefully respond to the generic allegations made orally in his presence in open Court by the primary judge, the father’s counsel, or the mother;
(d)he was denied an adjournment to enable him to take legal advice about his position;
(e)he was denied the chance to file an affidavit in rebuttal of any allegations made against him, even though he forecast that he could and would depose to his lack of blame for the mother’s predicament, which it is likely he could have lawfully done in view of her probable waiver of her right to confidentiality in communications with him when she told the Court he was at fault;
(f)he was not afforded the chance to give any exculpatory oral evidence that day, even though he volunteered to submit to cross-examination by the father’s counsel; and
(g)he was given insufficient time within which to consider and mount any challenge to the quantum of the costs orders sought by the father and the ICL, which is particularly significant in view of the father’s very generous assessment of his costs.
By the combination of those facts and circumstances, the solicitor was denied complete knowledge of the cases made against him by both the father and the ICL for their costs and, additionally, he was denied a reasonable chance to meet and refute their applications.
Curiously, the solicitor was both denied an adjournment and additionally ordered to pay the costs thrown away by the father and the ICL when, in ordinary circumstances, orders to pay costs thrown away by the necessary adjournment of a proceeding follow upon the grant (not the refusal) of an adjournment application. The primary judge did not even grant the solicitor an adjournment to the following day, which day was already set aside for the trial, and the costs orders made against the solicitor incorporated the father’s and the ICL’s costs for that third day. In such circumstances, an adjournment to the following day could not possibly have caused any more financial prejudice to either the father or the ICL.
Such denial of procedural fairness vitiates the judgment because neither the father nor the ICL could gainsay the chance of a different result if the solicitor had been able to factually challenge both the premise for and the quantum of the costs orders (Stead v State GIO (1986) 161 CLR 141 at 145). The re-exercise of discretion or remitter are the only options to cure the defect.
It therefore becomes unnecessary to consider the other grounds of appeal (Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8]).
Re-exercise or remitter?
The solicitor sought the re-exercise of discretion within the appeal and the consequent dismissal of the costs applications made against him by the father and the ICL.
The father and the ICL instead sought the remitter of their costs applications for re-hearing, but offered no reason why that was the preferable alternative when the solicitor was armed with the updated evidence he wished to adduce for the immediate re-exercise of discretion. In the face of established error, it is well accepted that remitter for re-hearing is the remedial order of last resort (CDJ v VAJ at 199). Discretion will be re-exercised in the appeal, as the solicitor sought and as the father and the ICL eventually conceded was appropriate.
In the re-exercise of discretion with respect to the two costs applications, the solicitor relied upon the following evidence, to which no objection was taken:
(a)his affidavit filed on 21 May 2024 (Exhibit 1);
(b)his affidavit sworn (but not filed) on 9 July 2024 (Exhibit 2); and
(c)the father’s Costs Notice dated 7 May 2024, circulated in the original proceedings, showing an estimate of his costs for the aborted hearing in the sum of $42,000, being considerably less than the sum of $60,268.99 ultimately awarded by the primary judge (Exhibit 3).
The solicitor also sought to rely upon excerpts of affidavits of other witnesses filed in the original proceedings, together with documents produced by police in answer to a subpoena, but the tender of those documents was rejected. That evidence was superfluous as the solicitor quoted selected excerpts of the affidavits and documents in his own affidavits, to which no objections were taken.
Neither the father, the mother, not the ICL required the solicitor for cross-examination on his evidence. Nor did they wish to adduce any evidence of their own.
The solicitor’s unchallenged evidence establishes the following facts and circumstances:
(a)the mother is no stranger to the breach of court orders as, in 2022, she twice contravened domestic violence orders by which she was then bound and, in 2023, she breached other procedural orders in the family law proceedings;
(b)in 2023, the expert psychiatrist reported the mother tended to engage in avoidant behaviour;
(c)the court child expert reported the mother was difficult to engage in interview, irascible and easily distracted from the topic of discussion;
(d)the solicitor furnished the mother with her draft affidavit on 15 March 2024 for review, about three weeks before it was due to be filed in readiness for the trial in accordance with the Court’s procedural directions;
(e)the solicitor’s denial of avoiding appointments sought by the mother;
(f)the solicitor engaged counsel for the hearing on 29 April 2024, more than a week before it was due to start, and counsel assured him he would be ready;
(g)the mother swore her trial affidavit on 30 April 2024, more than a week before the trial started, albeit after the due date for it to be filed;
(h)the solicitor had neither instructions nor proper grounds to seek an extension of the time within which to file the mother’s affidavit;
(i)the solicitor had neither instructions nor an ethical basis to seek an adjournment of the trial starting on 8 May 2024;
(j)the solicitor’s denial of the mother’s need for legal aid;
(k)after the hearing, the solicitor wrote to the mother’s barrister requesting him to correct misleading statements he made to the primary judge and in open court, to which the barrister replied he had not renewed his practising certificate and would not do anything more; and
(l)after numerous requests by the solicitor, the mother’s new lawyers informed him on 13 June 2024 that she would not waive the privilege she asserted she retained in her communications with the solicitor.
The costs applications were premised upon r 12.15(1) of the Rules, which provides as follows:
Costs order against lawyer
(1)The court may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs to be incurred by a party or another person, or to be thrown away, because of:
(a) a failure to comply with these Rules or an order; or
(b) a failure to comply with a pre-action procedure; or
(c) improper or unreasonable conduct; or
(d) undue delay or default.
When asked how the application of r 12.15(1) to the available evidence could reasonably result in personal costs orders being made against the solicitor, the father and the ICL both commendably conceded it could not. They admitted the primary judge aborted the trial very close to its completion due to the unreadiness of the mother’s counsel, not because of anything done or not done by the solicitor. It will be remembered the trial proceeded on a “default” basis, meaning the mother’s default in compliance with procedural directions, supposedly attributed to default by the solicitor, did not stop the trial from proceeding. It follows that the applications for costs against the solicitor made by the father and the ICL are dismissed.
The mother still argued for personal costs orders to be made against the solicitor in favour of the father and the ICL, but none of her submissions are accepted. She repeated her allegations of misconduct against the solicitor, but such allegations were not supported by any admissible evidence and were contrary to the unchallenged evidence.
Costs
In the event the appeal was allowed, the solicitor sought his costs of the appeal in the sum of $25,653.12, covering disbursements incurred, his counsel’s fees, and his own costs.
First, the solicitor is not entitled to costs for the legal work he performs for himself as a litigant (Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at [3], [39], [57], [63], [93] and [99]). The solicitor submitted the potentiality for lawyers claiming their own litigation costs was left open by the High Court in respect of incorporated legal practices (Bell Lawyers Pty Ltd v Pentelow at [50]–[53]), but the submission is rejected in so far as the possible exception is called to aid in this case. Even assuming the solicitor is self-employed within his own incorporated legal practice, the costs orders made by the primary judge were against the solicitor personally – not against the incorporated legal practice – and the solicitor rather than the legal practice is the party to this appeal. The costs in the appeal are the solicitor’s costs, not the costs of the incorporated legal practice.
Secondly, there was no basis upon which to award costs against the father or the ICL since the appealable legal error into which the primary judge fell was not induced by them, they conceded the appeal on grounds of procedural unfairness, and they ultimately conceded the costs applications should be re-determined in the appeal by the re-exercise of discretion rather than being remitted for re-hearing.
I reject the solicitor’s submission that the father and the ICL “were not innocent bystanders”. To the contrary, the father’s counsel asked the primary judge for the costs applications to be adjourned for consideration until the following day, consistent with the solicitor’s application for an adjournment – even if only a short one. The refusal of the adjournment by the primary judge was not encouraged by either the father or the ICL.
I reject the solicitor’s submission that the father and the ICL only belatedly conceded the appeal. The solicitor’s Summary of Argument was not filed until 27 June 2024 – three weeks ago – though the date of its service upon the other parties is unknown.
Just over a week ago, on 9 July 2024, the solicitor wrote to the other parties confirming their service with the Summary of Argument and offering not to seek his costs of the appeal against them if they conceded the appeal (Exhibit 4). The father filed his Summary of Argument three days later on 12 July 2024 conceding the appeal. So did the ICL on 17 July 2024, the extra few days delay being due to a complication in the grant of legal aid to the ICL for the appeal. Although both the father and the ICL held out for the remitter of their costs applications for re-hearing within original jurisdiction, they eventually conceded the point and the debate about it did not add any length to the appeal hearing, fixed for one-half of a day. The appeal still had to be heard because the mother opposed it, but even if she had not, the appeal could not have been allowed merely by the parties’ consent (Hill & Weston [2022] FedCFamC1A 98 at [6]).
An additional consideration with respect to the ICL is that she is legally-aided in the appeal.
As for the mother, she was self-represented in the appeal and her opposition to the allowance of the appeal, which was misguided, did not add to the solicitor’s burden in prosecuting the appeal within the allocated time. In addition, she is in receipt of a disability pension and is a university student. Her financial circumstances are not such as to warrant a costs order against her, even though she and the father are still engaged in dispute over the division of their assets.
Upon consideration of the salient factors prescribed by the Act (s 117(2A)), there is no justification to depart from the usual position of all parties bearing their own costs (s 117(1)) by making costs orders in the appeal in favour of the solicitor against either the father, the mother, or the ICL.
Given the appeal succeeds for legal error, the solicitor, the father and the ICL are granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) in accordance with their applications. The mother has no entitlement to a costs certificate as she was self-represented and incurred no disbursements.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 19 July 2024
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