Harry and Trenton

[2010] FamCA 845

FAMILY COURT OF AUSTRALIA

HARRY & TRENTON [2010] FamCA 845

FAMILY LAW – COSTS – Between solicitor and client – Extension of time

APPLICANT: Ms Harry

RESPONDENT:  Ms Trenton

FILE NUMBER: SYC 1928 of 2007

DATE DELIVERED: 10 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 10 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Black

SOLICITOR FOR THE APPLICANT: Autore & Associates

SOLICITOR FOR THE RESPONDENT:

Ms Kovacevic,

Dribbus Kovacevic Lawyers

Orders

1. That the orders of the Deputy Registrar dated 29 July 2010 are hereby discharged.

IT IS NOTED that publication of this judgment under the pseudonym Harry & Trenton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1928 of 2007

MS HARRY

Applicant

And

MS TRENTON

Respondent

REASONS FOR JUDGMENT

1. The wife wished to seek to challenge costs she had paid to her former solicitor, Ms Trenton.  To do that, she needed to request an itemised account.  She was out of time pursuant to the rules for doing that.  She needed to file an Application with a Case for an order for extension of time to make the request.  On 21 January 2010, the matter came before a deputy registrar and the wife was ordered to file and serve her application for extension of time to request the itemised account within seven days; that is, by 28 January 2010.  She failed to comply with that order.  On 19 March, she filed an application but she failed to serve it until 20 April.  Therefore, she was about three months out of time in relation to the order that was made on 21 January. 

2. The matter came before a Deputy Registrar again on 19 March but, of course, nothing had happened.  It was adjourned until 31 May.  On that occasion, those instructed by the wife informed the Deputy Registrar that the wife was considering, or actually had decided to, I am not sure which but it does not matter, put on further evidence; that is, by way of affidavit in the proceedings.  As a result, the Deputy Registrar made some directions about the further conduct of the proceedings.  Those directions were that the wife was to file her additional affidavit material by 28 June 2010, Ms Trenton was to file her affidavit material by 12 July 2010 and that the parties were to, thereafter, file submissions, respectively, on 19 and 26 July, the submissions of the wife to be received first.  The matter was then adjourned to 20 August, according to the document that I have.

3. However, on 28 July, the Deputy Registrar telephoned each party to ascertain to what extent they had complied with his orders.  The wife’s lawyer was telephoned first. She indicated that she had not filed any further affidavit.  Ms Trenton was then phoned by the Deputy Registrar. She indicated that she had not filed any further affidavit. The Registrar then told Ms Trenton that, because neither party had complied with the orders, he proposed to dismiss the application that the wife had made and filed on 19 March.  He did that on 29 July. 

4. It seems to me that Ms Trenton rightly assumed that she could wait until the wife had filed her material before having to file her own, in accordance with the type of orders the Registrar made.  The wife’s lawyers probably assumed that if the wife failed to file any further documents by 28 June, Ms Trenton would still need to file an affidavit she wished to rely on by 12 July. Of course this affidavit was to be an answer to one which was not filed so was not necessary.

5. The wife’s solicitor failed to do what was sensible. It is a matter about which I have to habitually complain to lawyers who appear before me.  They fail to communicate with one another in a reasonable fashion to avoid this type of misunderstanding and difficulty.  I can’t understand why they do not have the commonsense or courtesy to communicate, rather than to simply make assumptions or act without speaking to the other side.  Having failed to tell Ms Trenton that the wife was not intending to file any further affidavit, Ms Trenton was led to believe that she had failed to file, rather than did not intend to file, and Ms Trenton, rightly in my view, came to the conclusion that she would continue to wait to file her affidavit in reply to the one the wife proposed.

6. The dismissal by the Deputy Registrar suffers from the same problems of failure to communicate and use common sense. He telephoned the solicitor. He did not ask and the solicitor for the wife did not think to tell him that she didn’t comply with his orders because she intended to file no further affidavit.  That is what led the Deputy Registrar into assuming she had failed to comply with his orders and into assuming that Ms Trenton had failed to comply with his orders.  Neither the Registrar, nor the wife’s solicitor, nor Ms Trenton did what, I would have thought, any ordinarily competent, professional person would do and that is ask the obvious questions and convey the obvious information, both out of a sense of a professional duty and competence, as well as simple courtesy.

7. Had the solicitor, the Deputy Registrar and Ms Trenton, that is, the solicitor for the wife, done these things, the waste of costs and Court time involved in today would have been avoided, or at least, should have been.  In the circumstances, it was essentially the failure by the wife’s solicitor to inform both the Deputy Registrar and Ms Trenton that she did not intend to file an additional affidavit.  The Deputy Registrar’s failure to inquire before simply dismissing the matter, including dismissing Ms Trenton’s right to file a further affidavit and right to seek costs, was a misjudgement, but the dismissal of the wife’s application because he thought that she had failed to comply with his directions and did not consider the possibility, which was the fact, that she had decided not to file an additional affidavit and was not in breach of his directions was an error of law and as such needs correction.

8. In the circumstances and in my view, overall, the only conclusion I can reach is, even if there has been a technical breach caused by discourtesy and legal incompetence, that such breaches should not be brought home to the wife;  that she should not, therefore lose her right to be heard to seek to extend time to seek an itemised bill for costs and that I should, therefore, uphold the appeal against the Registrar’s orders.  That is the order that I make.  I shall make an order discharging the orders of the Deputy Registrar of 29 July 2010.  Although I intend to reserve costs, I wish to make it very clear that in the event that there is an application for costs by the wife, on the basis that she has been successful, I will seriously consider the real cause of the problem to be mainly at her lawyer’s feet. I would think that that would be an important aspect of my decision on any application for costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 10 September 2010.

Associate:     

Date:              24 September 2010