KAUFMAN & SANDOR
[2018] FCCA 2701
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUFMAN & SANDOR | [2020] FCCA 2701 |
| Catchwords: FAMILY LAW – Costs – applicant’s application against the respondent and the respondent’s former solicitor – costs awarded against the respondent and the respondent’s former solicitor. |
| Legislation: EvidenceAct 1995 (Cth), s.140 Family Law Act 1975 (Cth), s.117 Federal Circuit Court Rules 2001 (Cth), rr. 3.03(1)(c), 21.07, 22A.02 |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34 Cassidy & Murray [1995] FamCA 91; (1995) FLC 92-633; 124 FLR 267; 19 Fam LR 492 Collins & Collins [1985] FamCA 15; (1985) FLC 91-603 Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No. 5) [2014] VSC 400 Freeman & Freeman (1987) FLC 91-857; 11 Fam LR 293 Hedley & Hedley [2009] FamCAFC 179; (2009) FLC 93-413; 42 Fam LR 147 In the Marriage ofPagliarella (No.3) (1994) 122 FLR 443; FLC 92-460 In the Marriage of Pastrikos (1978) 4 Fam LR LN Nos 46, 47; [1978] 31 FLR 524 In the Marriage ofWhite (1995) 128 FLR 126; (1995) FLC 92-648; 20 Fam LR 37 Rice & Asplund (1979) FLC 90-725 Ridehalgh v Horsefield (1994) Ch 205; [1994] 3 WLR 462; [1994] 3 All ER 848 |
| Applicant: | MR KAUFMAN |
| Respondent: | MS SANDOR |
| File Number: | DGC 620 of 2013 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 21 May 2018 |
| Date of last submission: | 21 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr Nicholson |
| Solicitors for the applicant: | Davison Family Lawyers |
| Advocate for the respondent: | No appearance |
| Solicitors for the respondent: | None |
| Counsel for Ms P: | Mr Fuller |
| Solicitors for Ms P: | Lander & Rogers |
ORDERS
The mother’s application for orders pursuant to section 79 of the Family Law Act 1975 (Cth) filed on 9 October 2017 be dismissed.
The mother’s application filed on 14 December 2017 (as amended) to vary and/or discharge the final parenting orders made by consent on
25 October 2017 be dismissed.
Within 60 days of the making of these orders, the mother pay the father’s costs of and incidental to the mother’s application under section 79 of the Family Law Act 1975 (Cth) as set out in her amended response to initiating application filed on 9 October 2017 to be calculated on scale.
Within 60 days of the making of these orders, the mother pay
Mr Testart’s costs fixed in the sum of $4,400.
The mother and Ms P be jointly and severally liable for the father’s costs of and incidental to the mother’s amended response to initiating application filed on 14 December 2017 and any subsequent amendments to that application, such costs to be calculated on scale and to be paid within 60 days of the making of these orders.
The parties have liberty to apply within 28 days of the making of these orders with respect to calculating costs on scale pursuant to orders 3 and 5 herein.
AND THE COURT NOTES THAT:
(A)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Kaufman & Sandor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 620 of 2013
| MR KAUFMAN |
Applicant
And
| MS SANDOR |
Respondent
REASONS FOR JUDGMENT
Factual background
Before turning to the issues before this court, it is necessary to set out the background to these proceedings.
The mother and the father commenced cohabitation in about 2002/2003, were married on, separated in July 2011 and divorced on 1 June 2013.
There are two children of the relationship, [X] born 2005, now aged 13 years and [Y] born 2007, now aged 10 years (“the children”).
The father relied upon:
a)his amended response filed 1 February 2018;
b)his affidavit in support affirmed and filed 1 February 2018;
c)the affidavit of Ms Melanie Davison affirmed and filed 1 February 2018;
d)the affidavit of Ms H filed 2 February 2018;
e)the family report of Dr B annexed to his affidavit filed 17 October 2017; and
f)affidavit of Dr T filed 27 July 2017.
For the reasons set out below, the mother did not appear at the final hearing.
The mother’s former solicitor, Ms P against whom the father brought a costs application personally, was separately represented at the hearing and relied upon an affidavit of Mr S affirmed 21 May 2018, which was filed on the day of the hearing with leave of the court.
Procedural background
The father initiated parenting proceedings in this court on 3 February 2017 seeking, amongst other things that:
a)the children live with him;
b)the mother undergo a psychiatric assessment; and
c)the parties attend upon a private family consultant for the purpose of obtaining a family report to assist the court in determining to future parenting arrangements.
In his affidavit in support of this application, the father refers to a deterioration in the mother’s wellbeing since about 2015/2016.
The father also filed a notice of risk in which he raised concerns about the wellbeing of the children in the mother’s care, particularly the youngest child who suffers from Type 1 Diabetes.
Not long after this on 17 February 2017, the father filed an urgent application seeking recovery of the children. In the father’s affidavit in support of this urgent application, the father stated that after the mother had been served with his initiating application, she had taken steps to remove the children from their primary school without telling him and without his consent.
A recovery order was issued by her Honour Judge Riley on 20 February 2017. An order was also made on that day for the children to live with the father. When the matter returned to the court on 22 February 2017, her Honour Judge Riley made further orders:
a)appointing an Independent Children’s Lawyer (“ICL”);
b)for the children to remain at their primary school; and
c)that the children be at liberty to communicate with their mother by telephone at any reasonable time.
When the matter returned before Judge Riley on 23 February 2017 various further interim orders were made by her Honour, including that the father have sole parental responsibility for the children and that they live with the father.
A further order was made by his Honour Judge McNab on 3 March 2017 that the mother be restrained from attending the children’s school and extra-curricular activities other than with the written consent of the father.
Without repeating the detail verbatim, the father’s affidavit material contained concerns about the mother’s abuse of alcohol and its impact on her ability to care for the children.
On 7 April 2017, the mother filed a response. For reasons which will become apparent, it is important to note that the mother’s response was filed on her behalf by her former solicitor, Ms P of (firm). The mother filed a lengthy affidavit in support of her response. She also filed an application in a case on 12 April 2017 in which, in effect, sought orders that the children return to live with her.
When the matter was again before Judge McNab on 20 April 2017, his Honour made various further interim orders, including orders for the mother to spend supervised time with the children for up to two hours per week. Relevantly, the matter was listed for a final hearing on
25 October 2017 with an estimated hearing time of 3 days. Procedural orders and directions were made for the parties to file and serve trial material, including orders requiring the father to file and serve his material by 4 October 2017, being 21 days prior to the scheduled hearing date.
In fact, the father filed his trial affidavit on 5 October 2017.
On 9 October 2017, the mother filed an amended response in which, in addition to various parenting orders, she initiated property proceedings seeking that the parties attend a conciliation conference and exchange financial documents (“the 9 October 2017 application”). The mother also filed an affidavit that day (which appears to have been sworn on
5 October 2017) in which she attests to various property issues (“the 9 October 2017 affidavit”).
The following day on 10 October 2017, the mother filed a further affidavit, which also appears to have been sworn on 9 October 2017, which purports to be her trial affidavit. Insofar as it deals with property matters, it refers to the 9 October 2017 affidavit.
The mother did not file a financial statement and has not done so at any stage in these proceedings.
On 13 October 2017, the mother filed a further amended response.
Each of the parties filed case outline documents in anticipation of the final hearing scheduled on 25 October 2017.
Hearing on 25 October 2017
When the matter was called on for hearing on 25 October 2017, counsel for the parties requested to be stood down to have settlement discussions. All parties were represented on that occasion by experienced and senior counsel.
The court raised the question of the property proceedings which were referred to in the mother’s amended response. Counsel for the mother, Mr Testart indicated that that aspect of the case could not be dealt with given that property issues were only raised some few weeks prior to the final hearing. Mr Testart suggested that the appropriate course would be to adjourn that part of the proceedings for a directions hearing at some point in the future for further programming.
Parenting aspects of the case were resolved by way of a proposed minute of final consent orders which were handed up (“the October 2017 final orders”). Counsel for each of the parties commended the orders to the court. Relevantly, Mr Testart commented that the concessions made by the mother in signing the consent orders had come at a great emotional cost to her, but were reflective of her capacity to behave protectively for the children and in their interests with a view to having a meaningful relationship with them in the future.
In relation to the outstanding property issues, it was submitted on behalf of the mother that the appropriate course was to adjourn the matter for future programming. No orders were sought in relation to the filing of any material on the basis that each of the parties were represented and would take the necessary steps to file the required information.
Further applications post 25 October 2017
Notwithstanding these orders which, as stated, were made by consent of all parties, with the benefit of representation, the mother filed an amended initiating application on 14 December 2017 in which she sought that orders 7(c), (d) and (e) of the October 2017 final orders be discharged (“14 December 2017 application”). The mother also sought permission to send her agent to pick up the children at changeover. At that time, she also filed a notice of risk in which she alleged that the children were exposed to abuse at the hands of the father.
Importantly, the mother also filed an affidavit in support of her 14 December 2017 application, in which she claimed that the October 2017 final orders were not workable, that she had signed them under duress and that they imposed an onerous burden on her.[1]
[1] See affidavit of the mother filed 14 December 2017.
Relevantly at paragraph 8 of that affidavit, the mother deposed:
I did not want to agree to these provisions and I was extremely distressed on the day and I was crying. I told my barrister I didn’t want to agree to the interlock provisions and he told me I had to agree, and said if I didn’t I would be on my own the next day. My lawyer was overseas and I felt I had no other choice as I knew I wouldn’t cope on my own. In circumstances of extreme distress, I signed the orders.[2]
[2] Paragraph 8 of the affidavit of the mother filed 14 December 2017.
The mother then filed a further amended response on 28 January 2018,[3] in which she sought:
a)that paragraphs 7(c), (d) and (e) of the October 2017 final orders be discharged;
b)the entirety of the October 2017 final orders be discharged; and
c)the matter be listed for a final hearing.[4]
[3] The document filed on behalf of the mother was incorrectly labelled ‘initiating application’ and handwritten changes were made to the document to reflect the correct title, being ‘further amended response’.
[4] Further amended response filed on behalf of the mother on 28 January 2018.
In support of her application, the mother’s now husband, Mr A swore an affidavit also filed in these proceedings on 28 January 2018, in which he discussed the interactions between the mother’s counsel, Mr Testart and the mother, during the negotiations which occurred on 25 October 2017.
On 1 February 2018, the father filed an amended response to the mother’s amended initiating application in which, among other things, the father sought orders that:
a)the mother’s further amended response filed 28 January 2018 be dismissed;
b)
the mother’s solicitor pay the costs of and associated with the
14 December 2017 application fixed in the sum of $5,000; and
c)
the mother’s application for a financial settlement pursuant to section 79 of the Family Law Act 1975 (Cth) as contained in the
9 October 2017 application, be dismissed on the basis of the principles in Stanford v Stanford [2012] HCA 52; 247 CLR 108; 87 ALJR 74; 293 ALR 70 (“Stanford”); and
d)the mother pay the father’s costs of and associated with his amended response on an indemnity basis.[5]
[5] Amended response filed on behalf of the father on 1 February 2018.
The father also sought a security for costs order.
On 5 February 2018, the matter came before me. On that day, I made the following orders:
a)all extant applications were adjourned to 21 May 2018;
b)that the parties file and serve any affidavit on which they intended to rely at least 21 days prior to the hearing; and
c)that the parties file a list of documents on which the parties would seek to rely, a brief chronology and an outline of contentions.
On 1 May 2018, the mother filed a further amended response in which she sought the following orders:
That the Amended Response of the Father filed 1 February 2018 shall be dismissed.
That the father and his lawyer, Melanie Davison of Davison Family Lawyers shall jointly and severally pay the legal costs incurred by the Mother’s solicitor, Ms P and the Mother with respect to the Father’s Amended Response filed 1 February 2018 and the costs of Mr Pierre Testart, Barrister.[6]
[6] Further amended response filed on behalf of the mother on 1 May 2018.
On 2 May 2018, the mother also filed a notice of discontinuance in respect of the notice of risk filed on 14 December 2017.[7]
[7] Notice of discontinuance filed 2 May 2018.
On 15 May 2018, the father filed written submissions in relation to the various proceedings listed for hearing on 21 May 2018.[8] On 16 May 2018, the mother filed an address for service notifying the court that she had appointed new solicitors.[9]
[8] Father’s written submissions filed 15 May 2018.
[9] Notice of address for service filed 16 May 2018.
Until on or about 16 May 2018, the mother had at all times been represented by Ms P and the documents referred to above which were filed on behalf of the mother in these proceedings were filed on her behalf by Ms P.
On 18 May 2018, Lander & Rogers wrote to the father’s lawyers advising that the firm had been appointed to act for Ms P in respect of the costs application made against her personally.[10] As stated above, Ms P was represented at the hearing on 21 May 2018 by counsel.
[10] Affidavit of Mr S sworn and filed 21 May 2018.
Hearing on 21 May 2018
When the matter was called on 21 May 2018, the mother’s representative sought leave to withdraw. The mother’s representative indicated that she did not have instructions to run the matter that day. She also stated:
I can’t advise the court as to whether or not (my client) will be here today. I have advised her on the likely outcome if she does not attend today.[11]
[11] Transcript page 3 at lines 18 to 19.
Counsel for the husband further advised the court that he had been provided with the mother’s phone number, but there was no connection when that number was called.[12]
[12] Transcript page 3 at lines 28 to 29.
In those circumstances, leave was granted to the mother’s solicitor to withdraw.[13] The mother was called outside of court, but there was no response to the call.[14]
[13] Transcript page 3 at lines 36 to 37.
[14] Transcript page 7 at lines 17 to 19.
The matter proceeded in the absence of the mother.
Current applications before the court
Given the history to this proceeding, it is appropriate to set out the applications which are before this court for determination:
a)the mother’s application for some or all of the October 2017 final orders to be set aside and for parenting issues to be listed for a final hearing;[15]
b)the mother’s application for property orders under section 79;
c)the father’s application that the mother’s further amended initiating application filed 28 January 2018 (as variously amended) be dismissed;
d)the father’s application that the mother’s solicitor at the time, Ms P, pay the father’s costs of and associated with the 14 December 2017 application fixed in the sum of $15,000;
e)the father’s application that the mother’s amended response, specifically her application for a financial settlement pursuant to section 79 of the Act be dismissed for reasons set out in Stanford;
f)the father’s application that the mother pay the father’s costs of and associated with this amended response, and that such costs be paid on an indemnity basis. Ultimately the father did not pursue indemnity costs but rather sought costs fixed in the sum of $15,000;
g)the father’s application in the alternative, for security for costs, should the court not dismiss the mother’s applications in respect of both parenting and property issues – this application was not pursued in light of the mother’s non-appearance; and
h)if successful in defending the order sought against her personally, Ms P also sought a costs order against the father fixed in the sum of $5,500.[16]
[15] The exact nature of the mother’s application varied over the period from 14 December 2017 to 1 May 2018.
[16] Exhibit E.
I will deal with each of these applications before me in turn.
The mother’s application for costs against the father’s lawyers as set out in the further amended response filed on 1 May 2018 was formally withdrawn by the wife’s new solicitors by letter dated 17 May 2018.[17]
The parties’ applications in relation to the October 2017 final orders
[17] Exhibit A.
The mother’s application in relation to parenting orders
I first turn to consider the mother’s application in relation to the October 2017 final orders. There is some confusion on the basis of the documents filed on the mother’s behalf exactly what orders the mother is seeking in this regard, and I will make further reference to that in due course. In essence, the mother claims that the consent orders ought to be amended because:
a)they are unworkable;
b)she was subjected to duress in signing them; and
c)they impose an onerous burden upon her.
As stated above, the mother was represented by counsel at the hearing on 25 October 2017. After a day of negotiations, the mother signed the proposed minute of final consent orders (“the consent orders”). Having regard to the comments made by Mr Testart on the mother’s behalf when the orders were commended to the court by consent of the parties, I have no doubt that the day had been highly emotional for her. Unfortunately, that is not an unusual situation in this court.
Whether the proposed orders were workable or imposed an onerous burden on the mother were matters which she was able to give consideration to prior to signing the consent orders. There was no change in circumstance after the hearing which changed the workability of the consent orders or the nature of the burden imposed on the mother. To that extent, these grounds are little more than an indication of regret by the mother for having agreed to the consent orders and an impermissible attempt to reopen the proceedings.
However, the mother’s allegation that she was subjected to duress by her counsel on the day was of a very serious nature. If made out, it could provide a proper basis for the orders to be set aside and the substantive proceedings re-agitated. Given the seriousness of this allegation, the father, through his lawyers, gave notice that Mr Testart would need to give evidence about the alleged duress and a claim for his costs would be made against the mother.[18]
[18] This is confirmed in Exhibit C.
In the course of the hearing, I found that the mother waived privilege over the discussions which had occurred in the course of the settlement negotiations on 25 October 2017 by reference to those discussions in her affidavit filed 14 December 2017.[19] On that basis, Mr Testart was called to give evidence.
[19] Transcript page 17 at lines 23 to 30.
Mr Testart gave evidence about some preliminary discussions that he had had with Ms P prior to being briefed in the matter. He stated that she approached him one day at court and asked if he would have a discussion with the mother “on the basis that she was in early recovery, and how was she going to go about maintaining her sobriety and achieving some kind of rehabilitation in her life.”[20]
[20] Transcript page 18 at lines 38 to 40.
Mr Testart gave evidence that he spent about an hour with the mother in Ms P’s presence having this general discussion although he had not yet been briefed.[21]
[21] Transcript page 19 at lines 5 to 6.
Mr Testart then stated that he heard nothing further in respect of this matter until Ms P emailed him about the report prepared by Dr T and asked for some comments.[22] Mr Testart stated that he still did not consider himself to be retained in this matter at this stage.[23]
[22] Transcript page 19 at lines 6 to 8.
[23] Transcript page 19 at lines 30 to 31.
Mr Testart stated that he subsequently received an email from Ms P asking if he was available for a hearing in October. Mr Testart then gave the following evidence:
I responded to Ms P with an email that indicated that I was concerned about a number of things, and I wanted some assurances from the client about the basis upon which I would take the brief… and the third condition of my acting pro bono was that the client would abide by my advice, and would abide by the recommendations of both Dr T and the family report writer who I think was Dr B. I received written confirmation that that was to be the case. And it was on that basis that I received the brief.[24]
[24] Transcript page 19 at line 38 to page 20 at line 1.
Mr Testart then gave evidence about the nature of his discussions with the mother over the course of the day, his assessment of the mother’s prospects on the basis of the information available from the subpoenaed material and his assessment of the mother as a witness. I do not propose to set out this evidence out in full, but I have had regard to it in coming to my decision in this matter.
Mr Testart also gave evidence about the discussions which occurred regarding the proposed interlock device and the steps he took throughout the day to assist her to locate a device at a reasonable price.
Mr Testart confirmed that the mother was upset during the day and that over the course of the day, he did become increasingly blunt and direct with her about her prospects of success. He said that he felt an obligation to the court not to run arguments which he felt had no merit. Moreover, he stated that he did not feel that there was any merit to the mother’s resistance to the interlock device which the father was insisting upon, through his counsel.
Mr Testart stated that he “told her that if she didn’t instruct me to do that I would regretfully have to return the brief, because I had taken it on a particular basis.”[25]
[25] Transcript page 20 at lines 23 to 24.
He said that ultimately, late in the day, she made the decision to sign the orders.
Mr Testart also gave evidence that in December 2017, he received an email from Ms P thanking him for acting on behalf of the mother.[26]
[26] Exhibit D.
Finally, Mr Testart stated that he was surprised to hear of the allegations that the mother had felt that she had been subjected to duress. Relevantly he said:
I agree that (the mother) was emotional, at times upset, at times tearful. But I’ve been coming here since 1976… and that’s not unusual. And one has to deal with people who are emotional and upset, and remain, somehow, detached and capable to letting them know what’s in their best interests in a frank and direct way. And that’s what I thought I did. I have never received a complaint from (the mother) or Ms P about my actions in this matter. The first I heard of it was when I received the subpoena.[27]
[27] Transcript page 20 at lines 34 to 41.
The subpoena referred to was a subpoena issued by the father requiring Mr Testart’s appearance at the hearing on 21 May 2018.
Mr Testart also gave evidence that his costs for the day were $4,400, being his daily brief fee. He also stated that he had refused a brief for today.
As stated, the mother did not attend the hearing and therefore this evidence is unchallenged.
On the basis of the evidence given by Mr Testart, I find that there is no evidence of duress such that the consent orders ought to be set aside or otherwise varied.
It goes without saying that in proceedings in this court, parties will often become emotional and may be required to make concessions or agree to things which, in an ideal world from their perspective, are not desirable or even bearable. This is particularly so in parenting cases such as this one. That is the very nature of a compromise.
The evidence before the court such as it is, noting the mother’s absence at the hearing, is that the parties were generally able to negotiate the care of their children for a number of years post-separation. It is also clear that this situation deteriorated in about 2016 and that following a unilateral change of school by the mother, the father sought and obtained a recovery order which resulted in a change in primary residence for the children. This change in circumstances was clearly distressing to the mother and she wanted things to revert to how they had been previously.
However, the mother conceded in her own affidavit material that she has had issues with alcohol. At paragraph 45 of her trial affidavit, she stated:
I did not cope with the Father’s on going (sic) denigrating behaviour towards me and with the problems which lingered following a relationship break down, and for a for a time (sic) in 2016 I admit I drank too much alcohol… I now realise was a very poor choice and something I took steps to rectify at the end of 2016.[28]
[28] Paragraph 45 of the trial affidavit of the mother filed 10 October 2017.
The mother further acknowledged that her drinking had an impact on the children, that she had taken steps to become healthy and that she no longer drank at all. She then went on to outline the steps she had taken to deal with this issue.[29]
[29] Paragraphs 50 to 52 of the trial affidavit of the mother filed 10 October 2017.
In light of the above, and in circumstances where the father appears to have maintained as a term of settlement that the mother agree to implement an interlock device on her car, it is not surprising that the mother would have been emotional in the course of settlement discussions. That of itself however, does not amount to duress.
The parties did not refer to any case law on the meaning of the term ‘duress’. The Macquarie dictionary however, defines duress to mean “constraint; compulsion, forcible restraint of liberty.”
Similarly, the Oxford English Dictionary defines duress as:
Threats, violence, constraints or other action used to coerce someone into doing something against their will or better judgement.
Whilst involved in the present litigation, the mother sought certain orders in relation to the parenting arrangements of her children. She was represented throughout those proceedings, including at the final hearing before this court in October 2017. In those circumstances, whilst I accept that she was confronted with a difficult decision, she was provided with advice and had the option of accepting that advice or proceeding to a final hearing and leaving the issue in the hands of the court. That does not constitute duress.
I should say something about the evidence given by Mr Testart, not only about the frank manner in which he gave advice to the mother, but also his comment that if the mother did not accept his advice, he would have to return the brief. This does not in my view constitute duress. Nor does it provide any other basis on which to re-open the orders made by consent of the parties on 25 October 2017. Not only is it consistent with the basis on which he accepted the brief in the first place, but it is consistent with his duties as a practitioner in this jurisdiction.
It is well established that legal practitioners owe a duty to the court as well as a duty to their client. In determining how this duty manifests itself in proceedings in this court, some guidance can be obtained from the comments of the Full Court of the Family Court in In the Marriage ofWhite (1995) 128 FLR 126; (1995) FLC 92-648; 20 Fam LR 37 which noted with approval the following comments by Muirhead J in
In the Marriage of Pastrikos (1978) 4 Fam LR LN Nos 46, 47; [1978] 31 FLR 524 at FLR 526 (“Pastrikos”):
May I stress the responsibilities of legal practitioners in acting for clients in this important jurisdiction … The philosophies of the Act are clear and should be borne in mind not only by judges but by counsel and solicitors. It is true the adversary system remains in the processes of determining contested issues. But the legal profession act as advisers, they are more than mouth pieces, more than puppets reacting to instructions. In this jurisdiction the functions of this Court are not often understood by parties in dispute. A bit of sound common sense and dispassionate legal advice will often go a long way in solving the issues confronted by people who have temporarily lost their sense of proportion…[30]
[30] In the Marriage ofWhite (1995) 128 FLR 126; (1995) FLC 92-648; 20 Fam LR 37 at [40].
As stated, the mother did not appear at the hearing and therefore the court does not have the benefit of her oral evidence on this issue. Having heard from Mr Testart, I am satisfied that on 25 October 2017, he did no more than provide ‘sound common sense and dispassionate legal advice’. I also accept Mr Testart’s evidence which was uncontested, that he refused a brief fee in order to appear in response to the subpoena.
In these circumstances and as the mother did not attend the hearing, I order that the mother’s application filed on 14 December 2017, as amended, be dismissed.
I also order that the mother pay the costs of Mr Testart fixed in the sum of $4,400.
The mother’s application in relation to property orders under section 79
The father seeks to have this application dismissed. As the mother did not attend the hearing, I order that her application for property orders be dismissed pursuant to rule 13.03(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
The father’s costs application against the mother
In his amended response, the father sought orders that the mother pay his costs on scale and taxed in default of agreement.
The mother did not attend and therefore no submissions were made in opposition to this order.
The father put the mother on notice that he would be seeking orders dismissing her application and that she pay his costs of and associated with his amended response.[31]
[31] See the amended response filed on behalf of the father on 1 February 2018.
Costs applications in family law proceedings are governed by section 117 of the Act. Relevantly, section 117(1), (2) and (2A) of the Act provides that:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
Turning to the requirements of section 117(2A):
a)there is very little evidence of the financial circumstances of each of the parties;
b)both parties have been legally represented throughout the proceedings and there is no evidence that either of them has been assisted by legal aid; and
c)the mother’s conduct in this matter is of concern.
The mother first canvassed property issues before the court a matter of days before the final hearing in circumstances where she and the father had been divorced and living separately for some years, and despite the parenting proceedings being on foot since February 2017.
The mother then sought to reopen the parenting proceedings less than two months after the making of the October 2017 final orders, which were by consent. Moreover and most importantly, in seeking to re-agitate these proceedings, the mother made a very serious allegation of having been subjected to duress by her counsel in the course of the settlement discussions which resulted in the making of the October 2017 final orders.
When put on notice that the father would be calling Mr Testart of counsel to give evidence on the question of duress, the mother did not seek to amend that aspect of her application, but rather chose to press that aspect.
Of greatest concern to the court is that against this background, the mother did not attend the hearing, notwithstanding the fact that she was advised by her new lawyer of the consequences of her non-attendance knowing that her new lawyer would be seeking leave to withdraw from the record. In any event, even if leave had not been granted, the mother’s absence would have made it impossible for her lawyer to conduct the litigation on her behalf.
I am satisfied that taken as a whole, those circumstances justify the making of an order that the mother pay the father’s costs of and relating to the 9 October 2017 application and the 14 December 2017 application, such costs to be calculated on scale.
The father did not press his application for costs on an indemnity basis.
In light of my decision to dismiss the mother’s applications, it is not necessary for me to consider the father’s security for costs application.
The father’s costs application against Ms P
In essence, the father’s application for costs against Ms P rests on the following arguments:
a)the mother’s application to revisit the October 2017 final orders was doomed to fail for the following reasons:
i)even if there was duress by Mr Testart as alleged, the appropriate course would have been to appeal the orders rather than file a fresh application seeking to reopen the matter;
ii)there was no proper basis for the allegations contained in the notice of risk filed on 14 December 2017;
iii)Ms P failed to withdraw from the record even after she was put on notice that an application for costs was going to be made against her personally[32], and indeed continued to fail to withdraw until one week before the hearing in this matter;
iv)the form of some of the applications filed by Ms P on behalf of the mother were inappropriate; and
v)there is nothing in any of the material filed by the mother which would support the principles enunciated in Rice & Asplund, which is necessary for the court to exercise any jurisdiction;[33] and
b)the mother’s application regarding property issues was also problematic for the following reasons:
i)it was not brought in a manner consistent with the mother’s obligations to identify issues in dispute in a proper and timely manner;[34] and
ii)the facts in this case are distinguishable from the Full Court’s reasoning in Hedley & Hedley [2009] FamCAFC 179; (2009) FLC 93-413; 42 Fam LR 147 which qualifies section 44(3) of the Act requiring leave to file a property law claim more than 12 months after the parties have divorced.[35]
[32] Correspondence from the father’s solicitors to Ms P on 18 January 2018 put Ms P on notice of the father’s intentions.
[33] Rice and Asplund (1979) FLC 90-725; Freeman & Freeman (1987) FLC 91-857; 11 Fam LR 293.
[34] Pages 30 to 42 of the father’s written submissions filed 15 May 2018.
[35] Pages 42 to 45 of the father’s written submissions filed 15 May 2018.
As Ms P had been acting for the mother since April 2017 and she was the solicitor on the record who had engaged Mr Testart to appear at the hearing on 25 October 2017, she was or should have been aware that there was no proper basis for the allegation that Mr Testart had subjected the mother to duress during the settlement discussions.
In addition, counsel for the father pointed to the fact that the 14 December 2017 application sought the discharge of orders relating to the interlock device and the inclusion of a further order that the mother be at liberty to send her agent to changeovers.
In this context, it was argued that the information contained in the notice of risk signed by Ms P but filed on the mother’s behalf on 14 December 2017 bore “no resemblance and is totally irrelevant to the issues before the Court arising from the Wife’s Application”.[36] It was further submitted that in the context of that application, the notice of risk was not only irrelevant but scandalous.
[36] Page 58 of the father’s written submissions filed 15 May 2018.
As stated above, the law in relation to costs in this jurisdiction is not in dispute. Section 117 of the Act relevantly provides that the starting point is that each party should bear their own costs. However, where the court is of the opinion that there are circumstances which justify doing so, it may make such order as to costs as it deems appropriate.
Insofar as orders for costs against a lawyer personally, rule 21.07 relevantly provides:
(1)The Court… may make an order for costs against a lawyer if the lawyer… has caused costs:
(a) to be incurred by a party or another person; or
(b) to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
(2)A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a)…
(b)…
(c)to prepare proper evidence or information; or
(d)to do any other act necessary for the hearing to proceed.
(3)An order for costs against a lawyer may be made on the motion of the Court… or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.
(4)The order may provide:
(a)…
(b)that the lawyer pay the costs, or part of the costs incurred by the other person; or
(c)that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.
(5)Before making an order for costs, the Court…
(a)must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and
(b)…
The father conceded that an order for costs against a non-party; in this case the mother’s former solicitor, is the exception not the rule.
The court’s power to make an order for costs directly against a solicitor arises at common law from the court’s inherent jurisdiction over lawyers in their capacity as officers of the court.[37]
[37] Collins & Collins [1985] FamCA 15; (1985) FLC 91-603.
In Cassidy v Murray [1995] FamCA 91; (1995) FLC 92-633; 124 FLR 267; 19 Fam LR 492 (“Cassidy”), the Full Court of the Family Court set out the relevant principles in the exercise of the court’s jurisdiction to make an order for costs against a practitioner under the Act. In doing so, it referred approvingly to the decision of Sir Thomas Bingham MR in Ridehalgh v Horsefield (1994) Ch 205; [1994] 3 WLR 462; [1994] 3 All ER 848:
Solicitors and barristers may in certain circumstances be ordered to compensate a party to litigation other than the client for whom they act for costs incurred by that party as a result of acts done or omitted by the solicitors or barristers in their conduct of the litigation.
…
The argument we have heard discloses a tension between two important public interests. One is that lawyers should not be deterred from pursuing their clients’ interests by fear of incurring a personal liability to their clients’ opponents; that they should not be penalised by orders to pay costs without a fair opportunity to defend themselves; that wasted costs orders should not become a back-door means of recovering costs not otherwise recoverable against a legally aided or impoverished litigant; and that the remedy should not grow unchecked to become more damaging than the disease. The other public interest… is that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponents’ lawyers. The reconciliation of these public interests is our task in these appeals. Full weight must be given to the first of these public interests, but the wasted costs jurisdiction must not be emasculated.[38]
[38] Ridehalgh v Horsefield (1994) Ch 205; [1994] 3 WLR 462; [1994] 3 All ER 848 at [855].
In Cassidy, the Full Court applied these principles to proceedings under the Act in holding:
1.Pursuant to s 117(2) Family Law Act, the court has jurisdiction to make an order for costs against a solicitor or a non-party.
2.The court should not make such an order without giving the person to be affected by the order an opportunity to be heard.
3.The court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of professional misconduct.
4.The solicitor has a duty to the court to promote the interests of justice whilst at the same time attending to the needs of the solicitor’s client.
5.A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default or negligence, any of which are found by a court to be of a serious nature, may be sufficient to justify an order.
6.The jurisdiction is compensatory.[39]
[39] Cassidy v Murray [1995] FamCA 91; (1995) FLC 92-633; 124 FLR 267; 19 Fam LR 492 at [492].
Given the nature of the court’s discretion to award costs against a solicitor in these circumstances and the competing public interest considerations identified above, it is a power which the court should exercise with caution.
Counsel for Ms P referred the court to Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No. 5) [2014] VSC 400 (“Dura”). Whilst that case arose in the context of an application for costs against a legal practitioner for a failure to comply with their overarching obligations under the Civil Procedure Act 2010 (Vic), it was submitted that the case provides some guidance for the court in the exercise of its powers under rule 20.07 of the Rules.
Relevantly, in Dura, the court made the following observations:
(b) ‘Negligent’ should be understood in an untechnical way to denote failure to act in a way no reasonably well-informed and competent ordinary member of the profession would have done.
…
(d) The wasted costs jurisdiction discloses a tension between two important public interests, one that the wasted costs orders should not become a back-door means of recovering costs not otherwise recoverable against a legally-aided or impoverished litigant, and that the remedy should not grow unchecked to become more damaging than the disease, and, two, that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponents’ lawyers.
e. A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence that is plainly doomed to fail.
…
g. A judge considering making a wasted costs order arising out of an advocate’s conduct of court proceedings must make full allowance for the exigencies of acting in that environment; only when, with all allowances made, an advocate’s conduct of court proceedings is quite plainly unjustifiable can it be appropriate to make a wasted costs order.
…
i. Where a legal practitioner’s ability to rebut the complaint is hampered because the client maintains client legal privilege, full allowance must be given for the practitioner’s inability to tell the full story and he or she should be given the benefit of the doubt. In such circumstances, the court should not make an order against a practitioner without satisfying itself that it is in all the circumstances fair to do so, or, put the other way, it is only when, with all allowances made, a practitioner’s conduct of proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order.[40]
[40] Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No. 5) [2014] VSC 400 at [57].
Whilst some of the principles in Dura are of assistance, care needs to be taken before simply applying it within the context of the family law jurisdiction. Dura arose in a commercial context in which it could reasonably be assumed that litigants will, after taking advice, make a decision about whether or not they are prepared to accept the risks of litigation, including analysing the strengths and weaknesses of their case. The practitioner’s role and the duty they owe to the court is framed within that context.
In the family law context however, the duty that a solicitor owes to the court is framed by reference to the task which the court is faced with, particularly so in parenting matters. The court is required to determine what is in the best interests of the child or children who are the subject of the parenting application.
Moreover, it is well recognised that ongoing litigation of itself is generally not going to be in the best interests of a child. So much underpins the principle in Rice & Asplund. The duty which practitioners owe in such matters must be viewed in that context.
Standard of proof
It was submitted on behalf of Ms P that in considering whether it would be appropriate to depart from the general costs rule in section 117 of the Act, the court is required to make a finding of fact that Ms P has breached her duty to the court.
Given the impact that such a finding might have on Ms P’s reputation and her practice, it is submitted that in applying the civil standard of proof, the court must reach a level of satisfaction consistent with the approach in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34 as codified in section 140(2) of the EvidenceAct 1995 (Cth).
I agree that this is the appropriate approach in this case.
Notice of risk
The father alleges that there was no proper evidentiary basis for the allegations made in the mother’s notice of risk filed 14 December 2017. Moreover, the matters raised in the notice of risk had no relevance to the orders the mother was seeking.
In response, counsel for Ms P stated that the mother was required to file and serve a notice of risk pursuant to rule 22A.02 of the Federal Circuit Court Rules 2001 (Cth).
Furthermore, it was said that the mother’s affidavit filed 14 December 2017 went to the discrete issue of the interlock device and could not be expected to deal with allegations of family violence or child abuse. In any event, it was argued on behalf of Ms P that the mother’s affidavit filed 14 December 2017 did in fact make reference to some of the matters dealt with in the notice of risk.
The only references in that affidavit to anything which could be said to support the claims made in the notice of risk can be found in:
a)paragraph 13 – father taking the children’s mobile telephones;
b)paragraph 14 – mother received a video message from the older child who looks like she is ‘on the verge of tears’; and
c)paragraph 15 – the father involving the children in the proceedings by referring to various texts about the court orders.
It was submitted by counsel for Ms P that in preparing the content of the notice of risk, Ms P acted on her client’s instructions and indeed was required to do so by the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
In this context, it was submitted on behalf of Ms P, that in considering what instructions she may have been given by her client prior to filing the Notice of Risk, the court should have regard to the further affidavit of the mother filed 1 May 2018, which referred to correspondence received from the eldest child disclosing the father’s behaviour towards them, including the child being pushed on the stairs.
Moreover, it was said on behalf of Ms P that given that she is unable to disclose the discussions she had with her client (as those discussions are subject to her client’s legal professional privilege and she is unable to waive that privilege), she is hamstrung in her ability to defend the allegations now levelled at her. As such, the court should be slow to form an inference that she knew that the information in the notice of risk was incorrect.
Part 22A of the Rules deals with a notice of risk. Relevantly, the rules impose an obligation on a party who makes an application for a parenting order or files a response to such an application, to file a notice of risk. To that extent, Ms P is correct, her client was required to file such a document.
However, rule 22A.02(2) provides that:
The affidavit filed with the application or response… must state the evidence relied on to support each allegation (if any) set out in the notice of risk.[41]
[41] Federal Circuit Court Rules 2001 (Cth), rule 22A.02(2).
In addition, rule 22A.04 further provides that if circumstances change after the notice of risk has been filed, the party is required to file a new notice of risk and a further affidavit stating the evidence relied upon to support each allegation set out in the notice.[42] The purpose behind this requirement is clear. The notice of risk provides vital information about risks to which the court must have regard in the context of parenting orders. It is incumbent upon parties (and their representatives) to ensure that the information contained in the notice of risk has an evidentiary basis at the time of completion and further, if the evidentiary basis changes an updated notice of risk be prepared and filed.
[42] Federal Circuit Court Rules 2001 (Cth), rule 22A.04.
There is no reference in the mother’s affidavit of 14 December 2017 to the father pushing one of the children down the stairs. Therefore, it is open to this court to infer that the only evidence relied upon at the time that the notice of risk was filed was as contained in the mother’s affidavit filed 14 December 2017.
It is not clear when the notes annexed to the mother’s affidavit of 1 May 2018, were provided to the mother or her solicitor or whether they were within the knowledge of the solicitor at the time the notice of risk was prepared. However, as stated above, if this was the case, the information should have been included in the affidavit filed on 14 December 2017 filed contemporaneously with the notice of risk.
At best, Ms P’s preparation of the Notice of Risk without setting out the relevant information in the supporting affidavit and the subsequent ‘discontinuance’ of that Notice, without any explanation, demonstrates a lack of understanding of the rules. Whilst on its own, this could be described as an ‘error’ or ‘mistake’, rather than negligence or improper conduct when viewed in the context of the litigation as a whole, it contributes in my view to the conclusion that Ms P’s conduct was such as to attract the court’s powers to award costs against her personally under rule 21.07.
Late filing of the mother’s property application
It was essentially argued on behalf of the father that the mother’s solicitor did not deal with the mother’s property application in a manner one would reasonably expect from a competent practitioner practiced in family law. In support of this, counsel for the father pointed to:
a)the delay in the mother’s filing of an application with respect to property even though the current proceedings had been on foot since February 2017 and the parties had separated some years earlier;
b)the mother’s failure to comply with the orders made by his Honour Judge McNab requiring the parties to file one trial affidavit. Instead, the mother’s trial affidavit made absolutely no reference to property matters. The mother then filed a further affidavit in which she raised very briefly, issues relating to property;
c)the mother’s failure to file a financial statement at any stage in the proceedings, including after she filed her application for property orders;
d)the mother’s failure to properly engage with the evidence put forward by the father about the arrangements reached regarding financial matters following separation as deposed to in his affidavit of 1 February 2018. It was submitted that the mother instead filed an affidavit which was intended to mislead the court; and
e)the mother’s filing of an application for costs against the father’s solicitor on 1 May 2018, which was subsequently withdrawn by the wife’s new solicitor on 17 May 2018.
It was argued on behalf of the father that collectively, this conduct falls within the meaning of “misconduct, default or negligence” referred to in Cassidy which would justify the making of an order for costs against Ms P.
Moreover, it was submitted that there is a clear causal nexus between the costs which his client has incurred and what he says is the negligence of the mother’s former solicitor. Counsel for the father submitted that the parties have attended court on numerous occasions due to the various applications filed on behalf of the mother.
In response, counsel for Ms P argued:
a)that Ms P was entitled to rely on instructions from her client; and
b)there was no evidence of the father having incurred any additional costs as a result of the late filing of the mother’s property application as this was adjourned to be dealt with at another time at which the merits or otherwise would have been addressed.
For the reasons set out below, I am not satisfied that in filing the mother’s property application late, Ms P’s conduct constituted negligence or improper conduct for the purposes of rule 21.07.
Failure to withdraw once on notice of the costs application
The father argued that once Ms P was on notice that a costs application would be made against her personally, a conflict of interest arose and Ms P should have withdrawn from the record, if not immediately, then certainly well before she did. The father submitted that rather than withdraw, Ms P continued to file further applications and material on behalf of the mother, including seeking a costs order against the father’s solicitor in circumstances where there was no proper basis for such an application. As noted earlier, this application was, properly in my view, withdrawn by the mother’s new solicitor shortly prior to the hearing on 21 May 2018.
The father argued that these actions all added to the father’s costs.
In response, it was argued that whether Ms P withdrew once she was made aware of the costs application was an ethical matter for her and not one with which this court ought to engage. Indeed, it was submitted on Ms P’s behalf that in family law proceedings, there is a need to take a balanced approach in responding to allegations such as those made by the father. It was submitted that if there was a concern about the timing of Ms P’s withdrawal, that could be referred to the Legal Services Board and is not something that should be dealt with within the context of a costs order.
Whilst I accept that a solicitor should not be too quick to respond to an application seeking costs personally against them for fear that it would be used as a tactical measure to put pressure on the other party, it is incumbent upon a solicitor to give due consideration to whether there is any proper basis for such an application.
In this instance, the question of Ms P’s exposure on costs was first raised in correspondence dated 18 January 2018. I find that Ms P’s decision to withdraw in May 2018 should have been made earlier. Her failure to do so, when viewed in the overall context of the running of this litigation, contributes in my view to the conclusion that Ms P’s conduct was such as to attract the court’s powers to award costs against her personally under rule 21.07
Form of applications filed by Ms P
It was further argued on behalf of the father that the nature of the various applications and amendments filed by Ms P is evidence of her negligence which further added to the costs incurred by the father in defending a claim which he says ought never have been commenced.
Counsel for Ms P responded by arguing that the criticisms of the mother’s applications fall within the category of ‘mere mistakes or errors’ and that the court does not have the capacity to make any other findings in that regard. Moreover, if there are any other concerns about these applications, those concerns ought to be directed to the Legal Services Board.
I do not accept this submission. Whilst it is correct that this court is not concerned with making findings that a solicitor has breached the disciplinary rules of their profession, it does have an inherent jurisdiction to oversee the conduct of the profession in so far as their actions impact the workings of the court. In this case, the wife’s former solicitor brought a series of applications, which on the face of the material before the court were at best dubious and at worst clearly without any foundation.
Rice & Asplund
To the extent that the father argues that the mother’s re-agitation of parenting matters ought not have been brought at all, it was argued on behalf of Ms P that such an application gave rise to the court’s consideration of the principles in Rice & Asplund. The ‘new issues’ giving rise to a consideration of the principles enunciated in Rice & Asplund are the letters which are annexed at S-2 of the mother’s affidavit filed on 1 May 2018. It was said that in this regard, Ms P was entitled to act on her client’s instructions.
Having said this, it should be noted that the application filed on 14 December 2017 was not brought on the basis of new facts which supported a Rice & Asplund point. Rather the basis of the application was that the mother said that the orders were unworkable, onerous and that she had only entered into them as a result of duress. The only orders sought in that application related to the interlock device and arrangements for changeover.
It was also argued that if the father felt that there was no proper basis for the mother’s parenting application to have been brought, he could have sought orders to strike out the mother’s application, have the application dismissed summarily or otherwise dismissed on its merits at the hearing.
This submission, whilst technically correct, misses the crucial complaint about Ms P’s conduct. The father’s complaint in this case arises not from the mere fact that the 14 December 2017 application lacked merit. It was that Ms P, having acted for the mother throughout the earlier proceedings knew, or ought reasonably to have known that the 14 December 2017 application lacked merit.
There is some force to this argument. Ms P, having acted for the mother since early 2017 and having engaged Mr Testart to appear at the final hearing, was in a different position when it came to receiving instructions from the mother to file a further application in December 2017. She knew, or ought reasonably to have known what the evidence was in the initial proceedings. She had access not only to the parties’ affidavit material, but also the subpoenaed material. Moreover, she knew or ought reasonably to have known what happened in the course of the settlement discussions in October 2017 and whether there was a proper basis to make a very serious allegation of duress against Mr Testart.
I accept Mr Testart’s evidence that Ms P had arranged for him to take the brief on the basis that the mother would follow his recommendations and those of the psychiatrist and family consultant. The consent orders were largely consistent with the recommendations of the family consultant and Mr Testart, having formed his view of the merits of the mother’s case and her as a witness, made a recommendation regarding the terms of settlement.
It is not in dispute that Ms P was not present during the settlement discussions which culminated in the making of the October 2017 final orders. However, I also find that Ms P did not at any stage contact Mr Testart to ask him for a report on what had occurred that day. In fact, the evidence reveals that at the same time that Ms P was preparing the 14 December 2017 application, she emailed Mr Testart a thank you note for his efforts at the final hearing. Ms P could, and should have sought a response from Mr Testart to the mother’s allegation that he had applied duress during the settlement discussions. Had she done so and notwithstanding that response, had she formed a view that her client had been subjected to duress, there may have been some proper basis for the claim made in the 14 December 2017 application.
On the basis of the evidence before me having regard to the history of her involvement in this matter, Ms P’s failure to make that simple inquiry amounts, of itself, in my view to negligence and/or improper conduct or default for the purposes of rule 21.07 of the Rules. When viewed together with the other conduct by Ms P referred to above, it certainly meets the requisite standard required for an order to be made under rule 21.07.
Conclusion
It is of course the case that practitioners in this jurisdiction need to be able to fearlessly prosecute their client’s case, but they are also required to help clients who, in the words of Muirhead J in Pastrikos may have “temporarily lost their sense of proportion”.
Looking at this case through that lens and accepting that the appropriate standard to apply is as set out in section 140 of the Evidence Act 1995 (Cth) given the serious nature of the allegations made, I am satisfied that in the present circumstances, Ms P’s conduct of the proceedings, particularly the filing of the 14 December 2017 application, as amended, constitutes conduct which could be described as negligence or default within the meaning of rule 21.07.
In coming to this view, I have had particular regard to the following:
a)the general manner in which Ms P conducted the litigation in relation to the 14 December 2017 application;
b)the fact that the 14 December 2017 application was not filed in isolation, but rather that Ms P acted for the mother from February 2017 to May 2018;
c)Ms P engaged Mr Testart to act for the mother and they agreed, in writing, the basis on which he would take the brief;
d)at no stage prior to issuing the 14 December 2017 application did Ms P seek to clarify with Mr Testart what happened during the settlement discussions to test whether there was in fact a proper basis upon which to allege that the mother’s agreement to the consent orders had been infected by duress;
e)Ms P’s failure to do so is all the more concerning, given the serious nature of the allegation made against another officer of the court, and considering the basis on which Mr Testart had initially been engaged; and
f)once Ms P was put on notice that her own conduct in this matter might give rise to a claim for costs against her personally, she continued to act and file further applications and supporting documentation, some of which were later discontinued by her or withdrawn by her successor.
I am however, not satisfied that Ms P’s conduct in relation to the late filing of the property application was improper or otherwise falls within the conditions imposed under rule 21.07. Whilst it would have been preferable for the mother’s application to have been brought earlier, the delay of itself is not evidence of improper conduct. In fact, there may well have been an arguable case regarding her application for property orders notwithstanding the delay.
Quantum of costs sought
On the question of quantum, the father sought costs fixed in the sum of $5,000. Whilst Ms P was put on notice that the amount to be sought was increased to $15,000, no formal application was made to vary the amount sought. Moreover, it was argued on behalf of Ms P that there is no evidence before the court as to how either the $5,000 or the $15,000 was calculated.
Having said that, the father’s counsel submitted that the $15,000 was calculated on the basis of his daily fee including two appearances, and the preparation of numerous affidavits and submissions. In the affidavit of Ms Davison, the father’s solicitor affirmed and filed 1 February 2018, she deposed that to date, the father had paid just under $55,000 in legal fees and disbursements. She also deposed that to date, counsel briefed in the matter had charged rates of between $1,500 and $3,000 (plus GST) per day for interim matters and $2,500 and $4,000 (plus GST) per day for a final hearing.
In all the circumstances, I find that the appropriate order is that the mother and Ms P are jointly and severally liable for the costs of and arising from the mother’s application filed 14 December 2017, as amended such costs to be paid on scale.
For the reasons outlined above, I therefore make the following orders:
a)the mother’s 9 October 2017 application be dismissed;
b)the mother’s 14 December 2017 application be dismissed;
c)within 60 days of the making of these orders, the mother pay the father’s costs of and incidental to the mother’s 14 December 2017 application (as amended) to be calculated on scale;
d)
within 60 days of the making of these orders, the mother pay
Mr Testart’s costs fixed in the sum of $4,400;
e)the mother and Ms P be jointly and severally liable for the father’s costs of and incidental to the mother’s 14 December 2017 application (as amended), such costs to be calculated on scale and to be paid within 60 days of the making of these orders; and
f)the parties have liberty to apply within 28 days of the making of these orders with respect to calculating costs on scale pursuant to orders (c) and (e) herein.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 21 September 2018
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