Kleid & Schnur

Case [2024] FedCFamC1A 236

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Kleid & Schnur [2024] FedCFamC1A 236

Appeal from: Schnur & Urbina (No 2) [2024] FedCFamC1F 477
Appeal number: NAA 208 of 2024
File number: MLC 13501 of 2020
Judgment of: ALDRIDGE, GILL & STRUM JJ
Date of judgment: 13 December 2024
Catchwords: FAMILY LAW – APPEAL – Appeal from a costs order against counsel who appeared in a parenting hearing – Findings that the appellant failed to adequately prepare for the hearing, had accepted a brief in another court on the same date, and did not have standing to appear in a federal court – Where the grounds of appeal are misconceived – Where the primary judge provided reasons for her findings – Where the primary judge considered the material identified by the appellant – No error established – Appeal dismissed – Where the appellant failed to adequately prepare for the appeal – Where the Court holds concerns about the frankness of some of the appellant’s statements – Referral to the Legal Services Commissioner.
Legislation:

Family Law Act 1975 (Cth) ss 102NA, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 57

Judiciary Act 1903 (Cth) s 55B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.15

Cases cited:

Cassidy v Murray (1995) FLC 92-633; [1995] FamCA 91

Schnur & Urbina [2024] FedCFamC1F 374

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Number of paragraphs: 56
Date of hearing: 19 November 2024
Place: Heard in Melbourne, delivered in Sydney
The Appellant: Litigant in person
Solicitor for the First Respondent: Aboriginal Family Violence Legal Service (Djirra) (submitting notice filed)
The Second Respondent: Litigant in person (submitting notice filed)
Solicitor for the Independent Children’s Lawyer: Perisic Lawyers (submitting notice filed)

ORDERS

NAA 208 of 2024
MLC 13501 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR KLEID

Appellant
AND:

MR SCHNUR

First Respondent

MS URBINA

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, GILL & STRUM JJ

DATE OF ORDER:

13 DECEMBER 2024

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Principal Registrar is directed to forward a copy of these reasons and the transcript of the appeal hearing to the Legal Services Commissioner of Victoria.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of…

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AGLC
Kleid & Schnur [2024] FedCFamC1A 236
Case
[2024] FedCFamC1A 236
Decision Date

CaseChat Overview and Summary

The case of Kleid v Schnur involved an appeal against a costs order imposed on the appellant, Mr. Kleid, who appeared as counsel in a parenting hearing. The respondents, Mr. Schnur and Ms. Urbina, were represented by the Independent Children's Lawyer. The Federal Circuit and Family Court of Australia, in its appellate jurisdiction, heard the appeal. The primary judge had ruled against Mr. Kleid, finding that he failed to adequately prepare for the hearing, accepted another brief on the same date, and lacked standing to appear in the federal court. These findings were upheld on appeal.

The appeal raised several grounds, including the primary judge's alleged failure to provide objective criteria supporting the adjournment of the proceedings, improper reference to a section of the Family Law Act, and incorrect characterisation of the appellant's submissions regarding a rule on costs. The court found these grounds to be misconceived. The primary judge had clearly detailed the reasons for the adjournment and had taken into account the appellant's affidavit. Moreover, the court clarified that the relevant section of the Family Law Act could apply to non-parties, including lawyers. The court also found that the submissions were correctly characterised, and the appellant's argument about Rule 12.15 was misconceived.

Given the appellant's failure to establish any error in the primary judge's reasoning, the appeal was dismissed. The court expressed concerns about the frankness of some of the appellant's statements and directed the Principal Registrar to forward the reasons for judgment and the appeal hearing transcript to the Legal Services Commissioner of Victoria. This action was taken in light of the concerns about the conduct of the appellant.

The court's final order was that the appeal be dismissed and that a copy of the reasons and the transcript of the appeal hearing be forwarded to the Legal Services Commissioner of Victoria. This decision reinforces the importance of proper preparation and adherence to court rules and procedures in family law proceedings.

Orders

Orders of the court

NAA 208 of 2024

MLC 13501 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR KLEID

Appellant

AND:

MR SCHNUR

First Respondent

MS URBINA

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, GILL & STRUM JJ

DATE OF ORDER:

13 DECEMBER 2024

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The Principal Registrar is directed to forward a copy of these reasons and the transcript of the appeal hearing to the Legal Services Commissioner of Victoria.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Accordingly, the appeal was doomed to fail from the outset. Ground 1 – “Stating conclusions without providing objective criteria including facts in support of the conclusions” Notwithstanding that the appellant conceded that Ground 1 was “incorrect” (Transcript 19 November 2024, p.7 line 20), he continued to press it. The complaint is that at [1] of the reasons, her Honour stated that the proceedings were adjourned as a result of the conduct of the appellant. The appellant contends that “no detail is given as to the nature of that conduct and why that conduct was the reason for that adjournment” (appellant’s Summary of Argument filed 14 October 2024, p.1). The primary judge provided that detail at [29]–[39], the paragraphs apparently not read by the appellant. This ground fails.Ground 2 – “Failure to take into account the contents of the affidavit of the appellant which were relevant to the conclusions in ground 1, including directions from the instructing solicitor for the appellant in particular with regard to his role” At [37] her Honour said:In addition to the submissions filed on his behalf, Mr [Kleid] also relied upon an affidavit sworn 31 May 2024. In that affidavit, he deposes that he was briefed to appear in the matter on 26 March 2024. He deposes that following receipt of that booking he had a further discussion with his clerk on 29 April 2024 regarding the terms of his engagement. Nowhere in his affidavit does Mr [Kleid] refer to the appearance before me on 16 April 2024 where I went to some length to ensure that he understood the nature of the proceedings, the seriousness of the matters in issue and the expectation of the Court as to the necessity for him to be appropriately prepared to conduct the proceeding on behalf of his client. At that case management hearing, Mr [Kleid] confirmed that he had adequate time to prepare for the hearing. Plainly, the primary judge took the affidavit and its contents into account. Ground 3 – “Improper reference to s.117 of the Family Law Act” It was submitted that this section is irrelevant as it only applies as to costs between parties (appellant’s Summary of Argument filed 14 October 2024, p.2). We do not agree. Section 117(1) of the Act makes it plain that the prima facie position is that a party shall bear his or her own costs. However, as s 117(2) provides, the Court may make such costs orders it thinks just and where the circumstances justify such a course. Such other orders may include an order that a non-party, such as a lawyer, pay the costs (Cassidy v Murray (1995) FLC 92-633 at 82,365). This ground is quite misconceived and fails. Ground 4 – “Incorrect characterisation of the submissions of the appellant about Rule 12.15” Rule 12.15 of the Rules deals with costs orders against lawyers. The appellant submitted that the primary judge mistakenly took his submission to be that the rule only applied to solicitors and not barristers when he actually submitted that as the provisions generally relate to work done by solicitors it is more difficult to apply to a barrister.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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