Hope and Maple

[2009] FamCA 196

FAMILY COURT OF AUSTRALIA

HOPE & MAPLE [2009] FamCA 196

FAMILY LAW – COSTS – Application for leave to dispute bill of costs out of time – no appearance

APPLICANT: Mr Hope

RESPONDENT: Maple Lawyers

FILE NUMBER: BRF 3316 of 2002

DATE DELIVERED: 3 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 3 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Applicant appears on his own behalf

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of Respondent

ORDERS

IT IS ORDERED

1. That the Order of Deputy Registrar Gassner dated the 30^th of March 2005 be set aside.

1. That an extension of time until twenty-eight (28) days following the date of this Order be granted for the Applicant to file and serve a Form 15 Notice Disputing Itemised Cost Account.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF3316 of 2002

MR HOPE

Applicant

And

MAPLE LAWYERS

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In this matter, by amended application filed on 5 February 2007, the applicant seeks two orders from this Court:

   (1)That the order of Gassner DR dated 30 March 2005 be set aside; and

   (2)That an extension of time until 28 days following the date of this order be granted for the applicant to file and serve a Form 15 notice disputing itemised costs account.

2. The matter was first heard by his Honour Barry J, when he made orders on 31 July 2007 dismissing the applicant's application.  The applicant filed a notice of appeal on 28 August 2007 and on 26 August 2008 the Full Court made orders upholding the appeal and remitting the determination of his application for rehearing.

3. On 29 October 2008, Mr Page of senior counsel appeared for the respondent and the applicant appeared in person.  I made orders for the further hearing of this matter which required, firstly, the applicant to file and serve his affidavits of evidence-in-chief by 4 pm on 15 January 2009 and the respondent to file any affidavits in reply by 30 January 2009.

4. The applicant duly filed his affidavit by 12 January 2009.  The respondent failed to file any affidavits in reply on or before 30 January 2009 and has failed to file any material subsequent to that date.

5. By order dated 29 October 2008, I listed this matter for mention prior to the trial at 9.45 am on 24 February 2009, with the express purpose of that mention being to ensure that all material had been filed. 

6. The applicant appeared at that mention at 9.45.  The respondent failed to appear at that mention.  The respondent has failed to appear today.

7. In his affidavit in support of his application, the applicant raises a number of concerns about aspects of Mr Maple’s representation and stated an intention to challenge aspects of his costs if allowed to do so and sets out the reasons for those challenges.

8. I also read in this case the affidavit of Mr Hope filed on 11 September 2006, which was no doubt in support of the application filed prior to the amended application and his affidavit filed on 5 February 2007 at the time of the filing of his amended application.  In that affidavit, the applicant explains his delay by reference to the fact that he did not receive a copy of the order of Gassner R until almost 15 months after the order was made and that he immediately engaged a solicitor and issued instructions to prepare an application, which was filed on 19 July.

9. He also endeavours to further explain the reasons for the delay relating to such service, his ignorance of his rights and the fact that he believed he had been up-to-date in his payments.  He also referred to the fact that the respondent failed to file an O 38 costs notice and did not provide any notice of rights.

10. In his affidavit filed on 12 January 2009, the applicant sets out the terms and conditions of Mr Maple’s engagement and suggests that Mr Maple either breached or exceeded his duties and that, in other respects, the solicitor and counsel engaged on the applicant's behalf proceeded against the direct and reasonable instructions of the applicant and that agreements and orders issued were starkly different to those agreed to by the applicant.  He contends that, in those circumstances, the respondent should not be entitled to charge fees and he otherwise disputes the relevance and necessity of many of the steps taken by Mr Maple and otherwise says that Mr Maple’s conduct compromised his case and that he should not be entitled to charge for work done in such a way.

11. Of course, it is not my task today to determine the merits of the individual disputes in relation to individual costs items.  My task is to determine whether I should exercise my discretion in favour of the applicant.  I take account of the material filed by the applicant which comes before me as uncontested evidence.  I take account of the failure of the respondent to file any material and to appear and to prosecute or defend this application.

    ORDER DELIVERED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: