Hope and Maple

[2007] FamCA 1120

FAMILY COURT OF AUSTRALIA

HOPE & MAPLE [2007] FamCA 1120

FAMILY LAW – COSTS – Application for extension of time to challenge cost assessment order

APPLICANT: Mr Hope

RESPONDENT: Maple Lawyers

FILE NUMBER: BRF 3316 of 2002

DATE DELIVERED: 31 July 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 14 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Hope appeared in person

COUNSEL FOR THE RESPONDENT: Mr Page of Senior Counsel appeared for the Respondent

SOLICITOR FOR THE RESPONDENT: Maple Lawyers

Orders

1. The application for an extension of time to challenge the cost assessment Order by filing a Form 15 Notice Disputing Itemised Cost Account is dismissed.

2. The Applicant’s amended application filed on 5 February 2007 is otherwise dismissed.

3. The stays imposed by Orders of 14 December 2006 and 19 January 2007 are removed.

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: BRF  3316  of  2002

MR HOPE

Applicant

And

MAPLE LAWYERS

Respondent

REASONS FOR JUDGMENT

1. On the 5 February 2007 Mr Hope filed an amended application seeking orders in the following terms:

   “1.The Order of Deputy Registrar Gassner dated 30 March 2005 be set aside.

   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 Cost Account.

   3.Any other order as this honourable Court deems meet.”

2. Mr Hope was a litigant in this Court with his wife involving both children’s issues and property settlement issues.  Mr Maple, a solicitor, for a period of time, acted for Mr Hope in those proceedings.

3. On 30 March 2005 on the application of Mr Maple Registrar Gassner issued a cost assessment Order (the Order) in the following terms:

“Pursuant to Rule 19.37 of the Family Law Rules it is ordered that the

amount payable by [Mr Hope] to [Maple] Lawyers is $44,673.93 less

the amount already paid of $8,700 leaving a net balance due of $35,973.”

1. Mr Hope previously filed an application in a case on 11 September 2006 seeking orders in terms not greatly dissimilar to those sought in the current application namely that he have the right to challenge the costs Order. 

2. In support of the earlier application of September 2006 he filed an affidavit.  In paragraph 3 thereof he deposes:

“3.I have only become aware of the Order of Registrar Gassner quite recently through being served with an affidavit from [Mr Maple] solicitor in the matter of a cost dispute regarding this cost Order.  I have never been advised of the issuance of the Order and I believe the Order to be false on the face of it.”

1. There was no elaboration by Mr Hope for this belief.

2. In this affidavit he deposes to the fact that Mr Maple ceased to act for him “in the end of 2003”.  At paragraph 6 he deposes:

   “6.I have paid Mr [Maple] an amount of $25,676 for work carried out on my family law matter up to this point.”

3. The matter has had a chequered history at almost all stages of the litigation process.  It is a textbook example of the old adage that on certain files everything that could possibly go wrong will go wrong.

4. I do not propose to canvass the history of events which at times almost amounted to a comedy of errors.  The history is not relevant to this current determination.

5. In paragraphs 9 and 10 of the September 2006 affidavit Mr Hope deposes:

“9.I crave leave to read and rely on the affidavit of [Mr Maple] dated 16 May 2006 and filed in the Brisbane Magistrates Court and say the following.

10.On or about 22 January 2004 I did receive a document from [Mr Maple] a copy of the accompanying letter is exhibited.”

1. At paragraphs 11 and 12 of the same affidavit he notes:

“11.The letter (Mr [Maple’s] letter of 22 January 2004) starts with the words:

“We enclose by way of service our invoice in taxable form in relation to the abovementioned matter.  There was no “cost notice” included with the correspondence served on 22 January 2003 (2004?) nor was it is alluded to in the correspondence.”

12.I have been advised that, before a solicitor can issue a bill dealing with a matter in the Family Court of Australia he/she must ensure a cost notice pursuant to Part 19.03 of the Family Law Rules be served on the client.  My association with Mr [Maple] commenced in December 2002 and informed that I should have received a notice of rights under the old Order 38.”

1. In paragraphs 21 and following of his affidavit, Mr Hope refers to certain areas where he asserts he was overcharged.

2. Mr Hope filed a further affidavit on 5 February 2007.  In that document filed in support of the current application he correctly delineates the factors relevant in an application such as this:

   ·The length of the delay.

   ·The reasons for the delay.

   ·Hardship to the applicant.

   ·Prejudice to the respondent.

1. He does not add issues such as the bona fides of the applicant and the prospects of success in the event he be given the opportunity to contest the assessment.

2. Under the heading ‘length of the delay’ Mr Hope says that he instructed Edwards Solicitors to file the application challenging the bill in July 2006 but the documents were lost in the Registry.  They surfaced in September 2006 but the documents were not backdated so far as the filing date was concerned.

3. The delay is a period of some fifteen months from the date of Registrar Gassner’s Order until the date he says he instructed his then solicitors to challenge.  The explanation for the delay in this period is his assertion that his solicitor at the time, Graham Isles (Mr Isles) never forwarded a copy of the cost assessment Order to him.  It does not appear to be disputed but that Mr Maple had forwarded the cost assessment Order to Mr Isles at the time.

4. Under the heading ‘reasons for the delay’ Mr Hope asserts three relevant factors:

(1)He was not aware of the terms of the Order and thus could not do anything about it.

(2)There was confusion over whether he owed anything at all.  He had paid $25,000.

(3)He was diagnosed with severe depression by a Doctor Unwan.

1. I find it difficult to accept Mr Hope could have any understanding that there was no claim for fees by Mr Maple.  Clearly Mr Maple had sent a detailed bill of costs in January 2004, some two and a half years earlier.  He was aware that Magistrates Court proceedings had been issued in relation to the claim and he had instructed Mr Isles in early 2005 to contest the proceedings.

2. In relation to the assertion he suffered severe depression at the relevant time he does not append any medical certificate to corroborate his evidence.  Having regard to the numerous allegations and claims made by Mr Hope I am not inclined to accept his evidence unless it is corroborated in some material way.  Mr Maple for his part says that shortly after the separation in about the year 2000 Mr Hope had been admitted to Belmont Hospital.  Apparently a report was obtained from Dr Unwan in about 2001 to be used in relation to the breach of domestic violence orders proceeding in the State Magistrates Court.

3. Certainly in the appearances before me in January, May and June of this year I am satisfied that Mr Hope was able to prepare his material in a very detailed informed fashion and was able to present his case quite aggressively.  I am not prepared to have any regard to his assertion that any depression as claimed by him was somehow a justification for the delay which has arisen. 

4. Under the heading ‘hardship’ Mr Hope asserts that he has not been given proper credit for payments and he challenges the accuracy of many parts of the bill. 

5. Under the heading of ‘prejudice to the respondent’ he concedes that there would be prejudice but it is not outweighed by the hardship caused to him. 

History of the Proceedings

1. On 14 September 2006 the matter came before Justice Mushin in the Family Court in Brisbane.  His Honour ordered a stay in the following terms:

   “Until further Order the operation and execution of the cost assessment

   Order made on 30 March 2005 in the sum of $44,673.93 be and is hereby

   stayed.”

2. His Honour thereafter adjourned the matter to the 19 January 2007 with directions as to the filing of material.

3. On 19 January 2007 the matter came before me.  It was informed that Mr Maple was not well enough to appear and an adjournment was sought.  I acceded to the request and the matter was adjourned to 11 May 2007.

4. On 11 May 2007 Mr Page of Senior Counsel appeared for Mr Maple and sought to read two affidavits, one filed on 8 May and the other he sought to file by leave on the day of hearing.  Mr Hope objected strenuously to the late delivery of the material.  I allowed the material to be read but acceded to a request for an adjournment by Mr Hope to allow him the opportunity to peruse Mr Maple’s affidavits and file material in reply if he so wished.

5. The affidavit of 8 May 2007 purports to have been sworn by Mr Maple on 18 January 2007.  The affidavit refers to numerous annexures, some thirty-eight in total.  It appears that whether they were annexed directly to the affidavit or in a separate document they exceeded two and a half centimetres in thickness and on that basis were rejected by the Registry for filing. 

6. At no stage have those annexures been tendered in the proceedings.  It appears that Counsel for Mr Maple settled the affidavit filed by leave on 11 May although it too purports to have been sworn on 18 January 2007.

7. It makes no reference to any annexures but simply asserts Mr Maple’s claim that he has at all times complied with the requirements of the Rules.

The Respondent’s Case

1. It is apparent that in order to take over the file Mr Maple paid out Mr Hope’s former solicitors, Jones & Associates, a sum of approximately $7,000.  That firm refused to hand over the file until they were paid in full.  I find it highly unlikely a solicitor would have paid this amount on behalf of a client unless he had an assurance from the client he would be reimbursed for same. 

2. The respondent notes that he acted in proceedings for domestic violence orders brought by the wife in the State Magistrates Court.  He also acted as solicitor for the Husband as vendor in relation to four conveyances of real estate pursuant to the property settlement arrangements.  Mr Maple was entitled to charge costs pursuant to the scale of fees appropriate to proceedings in the State Magistrates Court. He was entitled to charge fees for acting in the  conveyancing work and in addition fees in accordance with the Family Court Scale of Fees.  It appears that moneys paid by Mr Hope were credited against accounts for work in the State Magistrates Court and for the conveyancing.  Absent any specific direction by a client that moneys tendered are to be used in extinguishment of a particular account, the view I take is that Mr Maple was entitled to use moneys received to pay off any of the outstanding accounts.  I am satisfied this is what he has done.

3. In January 2004 Mr Hope was served with Mr Maple’s first bill of costs.  Unfortunately this bill of costs was prepared by the professional costs assessors on the basis that there was a cost agreement in existence.  I am satisfied on Mr Maple’s evidence that a cost agreement was produced to Mr Hope as part of the package he received when the solicitor first received instructions.  Mr Maple, as I understand the position, commenced proceedings in the Magistrates Court based on this bill of costs only to realise that the cost agreement had not been executed and a fresh bill of costs had to be prepared.  When he instituted proceedings on the second occasion he was not aware that it was first necessary for him to obtain a cost assessment Order from this Court.  The matter was at that stage adjourned to enable him to do so.  At this particular point in time (February 2005) the solicitor acting for Mr Hope was Mr Isles.  I am satisfied that after obtaining the cost assessment Order from Registrar Gassner on 30 March 2005, on the 4 April 2005 Mr Maple forwarded a copy of that Order to Mr Isles.

4. Mr Maple makes the point in his affidavit that he was the fourth solicitor engaged by Mr Hope.  He says Mr Hope was at all times a very difficult, demanding, aggressive and threatening client.  He notes that Mr Hope is now acting for himself although he has had seven solicitors in total in this and associated proceedings.  I digress to observe presumably Mr Hope had been given a costs notice by his three previous solicitors.

5. At paragraphs 76 and 77 of his affidavit of 8 May 2007 he makes references to the admission to the Belmont Private Hospital immediately following the separation.  He states:

   “There is no doubt that [Hope] was in a fit and proper state to provide

   instructions, to understand and resolve issues, to assert to the point of

   dictating his requirements.”

1. In paragraph 81 he confirms that to his knowledge Mr Isles was acting for Mr Hope in January 2005.  It was at that stage that the issue of the client agreement was first raised.  In paragraph 81 Mr Maple points out that the original bill of costs which had been received as early as January 2004 referred as an item of costs to the costs notice.  I accept Mr Maple’s evidence in relation to this aspect namely a costs notice had been served on his client. 

2. Mr Isles acted for the husband in relation to a section 79(A) application brought in the Federal Magistrates Court.  Material was filed in that Court by Mr Isles in both May and June of 2005.  At paragraph 83 Mr Maple deposes:

“83.With respect to paragraph 18 an amended bill of costs based on the Family Court Scale was served on Graham Isles (solicitor for the applicant) on 22 February 2005 following the raising by him in the Magistrates Court summary hearing the issue of there being no client agreement and there being no costs order.  There was a further amended bill for breaches of domestic violence orders also served on Mr Isles also for the same reason.”

1. In paragraph 88 and following he gives his explanation in relation to allegations of overcharging.  I note both the earlier bill of costs and the current bill of costs had been prepared by professional costs assessors.  I accept Mr Maple’s explanation in relation to the claims of overcharging.

2. I propose to dismiss the application for an extension of time to challenge the cost assessment Order by filing a Form 15 Notice Disputing Itemised Cost Account.

3. The applicant has demonstrated a capacity to be particularly litigious.  He has been non-compliant with procedural orders in his litigation, non-compliant with arrangements made with the wife’s solicitors, has failed in an application under section 79(A) before Federal Magistrate Baumann and has been charged with a number of breaches of domestic violence orders.  He presents as someone only too ready to criticise others and someone who has difficulty accepting responsibility for his own conduct.  The material also reveals a high level of procrastination by Mr Hope.

The Issue of Service

1. Mr Maple, as noted, erroneously issued proceedings in the State Magistrates Court prior to obtaining a cost assessment Order.  Those proceedings were contested with Mr Isles acting for Mr Hope.  This was in January/February 2005.  There was no dispute other than that Mr Isles was Mr Hope’s solicitor at the time.  The file had been transferred to the Federal Magistrates Court and I am unable to refer to Mr Isles having filed a notice of address for service in this jurisdiction but this point was never argued by Mr Hope.  Clearly Registrar Gassner was satisfied as to service.  Where Mr Isles was acting for Mr Hope in the State Magistrates Court for the months immediately prior to 30 March 2005 and he also continued to act for him in the Federal Magistrates Court in May and June of 2005, I find it highly likely that Mr Isles would have on forwarded a cost assessment order to his client.  There was no evidence that Mr Hope has approached Mr Isles to confirm he did not serve his client.  There is no evidence that he has complained to the Queensland Law Society or the Legal Services Commissioner about Mr Isles’ failure to serve the cost assessment order.

   If Mr Isles has failed to serve his client, Mr Hope’s answer may well lie in a claim against Mr Isles’ professional indemnity insurer.  That is a matter for another Court at another time.

2. I note Mr Hope had notice of the unpaid claim for costs as early as 2003 and had been served with the detailed bill of costs in January 2004.  He engaged in correspondence and phone calls with Mr Maple around that time. 

3. In paragraph 14 of Mr Hope’s affidavit of 5 February he deposes:

“14.The conversation referred to in paragraph 11 hereof did not resolve matters and the next thing I heard from Mr [Maple] was service by registered post of a bill in taxable form in a document entitled “Summary of outstanding accounts as at January 2004”.  Despite the fact the letter enclosing the documents is dated 22 January 2004 I believe I may have actually received it 12 months later.  I would need to cite (sic) the postal receipt for registration of proof of it when I picked up the letter from the post office.”

1. I find it likely that the correct date was 2004.  It accords with the dates on the corresponding accounts which were enclosed with the correspondence.  It is obvious that Mr Hope had knowledge of the claim for costs.  He would also have had detailed knowledge of the claim for costs in January/February 2005 when he was contesting Mr Maple’s claim in the Magistrates Court when he was attempting to sue for such costs.  At no stage did Mr Hope take the opportunity to file a Form 15 Notice Disputing Itemised Cost Account.

2. I find it more likely than not that Mr Hope’s solicitor was served and he in turn would have served Mr Hope.  Having made that finding to my mind that is the end of the matter.  Mr Hope was served twenty-eight days prior to the 30 March 2005 and failed to take any reasonable steps to issue a Form 15 Notice Disputing Itemised Cost Account.  Mr Maple was perfectly entitled to conclude that Mr Hope’s solicitor would effect service on him.

3. However I will proceed with the other grounds argued on the basis that Mr Hope was not served by Mr Isles and this in turn affords Mr Hope a legitimate challenge to the cost assessment Order.

Reasons for the Delay

1. I find it difficult to believe Mr Hope could possibly be of the view he did not owe Mr Maple anything.  For the reasons previously given I do not propose to place any weight on Mr Hope’s assertion that he was suffering severe depression at the time.

2. Having regard to the terms of the property settlement I do not accept that hardship would be a factor given the significant assets Mr Hope possesses.  I do not accept his assertion he has not been given proper credit for payments.  The more likely explanation is payments have been credited to an account for work done in other areas of law.

Law to be Applied

1. In the recent decision of the Full Court, Brott v Abeles, the Full Court (Faulks DCJ, Kay and Boland JJ) in making observations as to the nature of a costs assessment concluded:

   “Having reviewed the authorities it appears to us that the process in Chapter 19 of the Rules for a review of an assessment is a distinct procedure enabling a review of a decision of practice and procedure by a Registrar acting as an assessing officer and is not analogous to a Registrar exercising delegated judicial power of the Commonwealth, which delegated power is exercised subject to a review de novo by a Judge.  Such a determination is in conformity with well established authority applied over many years in both English and Australian Courts in respect of costs. 

   As discussed above we consider the process of assessment by a Registrar is primarily a matter of practice and procedure as an incident of an administrative as distinct from a judicial function and not an “appeal” in the strict sense.”

1. In Brott’s case the Judge was being asked to review the actual assessment by the Registrar.  Here the issue is different and that is whether the assessment can be challenged by seeking leave for an extension of time in which to file a notice.

2. The Registrar needed to be satisfied of the following four matters:

   ·The intemised cost account had been served.

   ·Any amounts credited had been shown in the account.

   ·No notice had been served in Form 15 under Rule 19.23.

   ·The time after service had expired.

   Rule 19.32 determines that the Registrar is to determine the amount to be deducted from each item.

3. Rule 19.54 deals with an application for review.  It is in the following terms:

   “i.A party may apply to the Court to review the decision of a Registrar under Rule 19.3.

   ii.By filing an Application in a Case (Form 2).

   iii.A party must include in the affidavit filed with the Application:

   a.the number of each items in the itemised cost account to which the party objects to the Registrar’s decision;

   b.the reasons for objecting to the decision and;

   c.the decision sought from the Court for each objection.”

4. Rule 19.56 provides:

   “1.Hearing of application.  An application for a review must be heard by a Judge.

   2.At the hearing of the application:

   a.the Court must not receive any new evidence;

   b.the Court may:

   i.exercise all of the powers of the Registrar;

   ii.set aside or vary the Registrar’s decision;

   iii.return any item to the Registrar for reconsideration; and

   c.a party may raise an issue only if it:

   i.was identified in an itemised cost account or Notice Disputing Itemised Cost Account Form 15;

   ii.concerns the cost of assessing the itemised cost account;

   iii.concerns an alleged error of calculation in or omission from the assessment of the itemised cost account; or

   iv.concerns an alleged error of law or fact by the Registrar.”

5. I appreciate it is Mr Hope’s contention that he has not been given the opportunity to attend at the cost assessment process.

6. However, having regard to the items that he has disputed and to Mr Maple’s responses in relation thereto I am far from satisfied that there would be any likelihood of Mr Hope being successful in this application once the matter reverted to a final determination either by a Registrar or a Judge pursuant to the terms of Rule 19.56.

7. I accept the force of the submission made by Senior Counsel for Mr Maple that before setting aside the cost assessment Order there must be merit seen in the process which would ultimately unfold.

8. Mr Hope on the one hand alleges overcharging and on the other hand seemingly asserts he does not owe any moneys as he has not been properly credited.  The obvious inference from this latter assertion is that he paid the accounts without questioning any overcharging.

9. In the whole of the circumstances I see no merit whatsoever in the claim by Mr Hope and the amended application filed on 5 February 2007 is dismissed.

10. I order the removal of the stays imposed by the orders of 14 December 2006 and 19 January 2007.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  31 July 2007