Lambert v Jackson

Case [2011] FamCA 275

FAMILY COURT OF AUSTRALIA

LAMBERT & JACKSON AND ANOR [2011] FamCA 275

FAMILY LAW - COSTS - where the wife sought a costs order jointly and severally against the husband and the husband’s solicitor - where the conduct of the husband’s solicitor had been referred to a disciplinary body - application for adjournment by the husband’s solicitor - consideration of legal professional privilege and s 128 and 91 of the Evidence Act - where the referral of the husband’s solicitor to a disciplinary body was not ground for an adjournment of the costs application - whether there should be a stay of any costs order against the husband’s solicitor until after the husband’s substantive appeal against the property orders had been determined - whether fresh evidence about the husband’s financial position should be admitted - where issue estoppel applied - whether indemnity costs should be ordered - where a costs order can be made against the lawyer for an opposing party - whether the discretion to order costs against a third party is confined by the Family Law Rules - the considerations of statutory provisions as they apply to the husband - consideration of s 117AB Family Law Act - indemnity costs order made against the husband - where an indemnity costs order is made against the husband’s solicitor for part of those costs jointly and severally with the husband - whether there should be certification for senior counsel - whether the wife has been charged “unusual expenses” - consideration of the rule in Re:Blyth & Fanshawe - whether the costs should be as agreed or assessed or whether a lump sum should be ordered 

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Legal Profession Act 2007 (Qld)
B & Associates (a firm of solicitors) & Bloomfield (2003) 31 FamLR 1
Batey-Elton & Elton (Costs) [2010] FamCAFC 219
Blair v Curran (1939) 62 CLR 464
Brigenshaw & Brigenshaw (1938) 60 CLR 336
Cassidy v Murray (1995) FLC 92-633
Colgate Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Cornwell v The Queen (2007) 231 CLR 260
Fennessy & Gregorian (2009) FLC 93-339
Ferrall v Blyton (2000) FLC 93-054
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Another (2005) 33 Fam LR 123
Fraser & Moedt (NA 42 of 1996 unreported 30 October 1997)
Giannarelli v Wraith (1988) 165 CLR 543
Greedy and Greedy (1982) FLC 91-250
Griffin v Pantzer (2004) FCA FC 113
Gyles v Randall (1915) 1QdB 290
Hampton Court Ltd v Crooks (1957) 97 CLR 367
HPM Industries Pty Ltd v Graham (1996) NSW SC 371
Kohan & Kohan (1993) FLC 92-340
McAlpin v McAlpin (1993) FLC 92-411
Marinko and Marinko (1983) FLC 91-307
Martin & Harris (2010) FamCA 239
Munday v Bowman (1997) FLC 92 -784
O’Rourke v P & B Corporation Pty Ltd [2008] WASC 36
Parker & Jacks (No. 3) (2009) FMCA fam 993
Penfold and Penfold (1980) FLC 90-800
R…

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Details
AGLC
Lambert v Jackson [2011] FamCA 275
Case
[2011] FamCA 275
Decision Date

CaseChat Overview and Summary

In this matter before Watts J, the wife sought a costs order against the husband and, jointly and severally, against the husband's solicitor. The dispute encompassed various issues, including the conduct of the husband's solicitor, which had been referred to a disciplinary body, and applications for adjournment. The court also considered questions of legal professional privilege and the admissibility of fresh evidence concerning the husband's financial position.

The primary legal issues before the court were whether the referral of the husband's solicitor to a disciplinary body warranted an adjournment of the costs application, whether any costs order against the solicitor should be stayed pending the husband's substantive appeal against property orders, and whether fresh evidence regarding the husband's finances should be admitted, particularly in light of issue estoppel. The court was also required to determine whether a costs order could be made against the lawyer for an opposing party, the extent to which such discretion was confined by the Family Law Rules, and the application of statutory provisions, including s 117AB of the Family Law Act, to the husband. The court also had to consider whether indemnity costs should be ordered, the circumstances attracting such an order, and whether the wife had incurred "unusual expenses."

Watts J reasoned that the referral of the husband's solicitor to a disciplinary body did not provide grounds for an adjournment of the costs application. The court applied the principle that costs orders are ordinarily made on a party and party basis, but that this discretion can be departed from in circumstances warranting it, such as misconduct causing loss of time, wilful disregard of known facts or law, or conduct intended to undermine the integrity of proceedings. The court found that issue estoppel applied to the fresh evidence concerning the husband's financial position. The court ultimately ordered the husband to pay the wife's costs from the commencement of proceedings to 5 August 2009 on an indemnity basis. Furthermore, the husband and Ms Y (presumably the husband's solicitor) were ordered to pay the wife's costs from 6 August 2009 to the conclusion of the proceedings on an indemnity basis, jointly and severally. The court also certified that it was proper to retain senior counsel.

Orders

Orders of the court

IT IS CERTIFIED THAT:

1.

This is a matter where it was proper to retain senior counsel.

IT IS ORDERED THAT:

2.

The husband pay to the wife her costs from the commencement of the proceedings to 5 August 2009 (but excluding costs relating to the parenting proceedings) on an indemnity basis assessed pursuant to Rule 19.18 of the Family Law Rules, 2004(Cth) in the sum of $182,182.

3.

The husband and Ms Y pay to the wife her costs from 6 August 2009 to the conclusion of the proceedings (but excluding costs relating to the parenting proceedings) on an indemnity basis assessed pursuant to Rule 19.18 of the Family Law Rules, 2004 (Cth) in the sum of $140,075 and the husband and Ms Y be jointly and severally liable for the said payment.

4.

Costs ordered pursuant to paragraphs 2 and 3 be paid in full within 42 days and any amount outstanding thereafter carry interest at the rate prescribed from time to time by the Family Law Rules, 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Full Court in Fennessy & Gregorian (2009) FLC 93-339 adopted the following extracts from the Colgate-Palmolive case at page 83,360-1:(2)The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis …(3)This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it …(4)In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course ………… it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes); evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson; Maitland Hospital v Fisher (No 2); Crisp v Keng) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). [citations omitted and emphasis added] An example of another circumstance attracting indemnity costs is extracted below in Fraser & Moedt (NA 42 of 1996 unreported 30 October 1997) where the Full Court said: “Having regard to our findings as to the husband’s blatant and deliberate non-disclosure, the magnitude of the sums involved and comparisons with the fact situations in Weir’s case and Kohan’s case, this is a case where we consider the wife should receive all rather than half of her costs of the proceedings and that such costs should be ordered on a solicitor and client basis. The wife should not have to bear the cost consequences of the husband’s intentional tactics and we propose to order accordingly.” Another is where a party has misled the court and/or the conduct of the proceedings has caused unreasonable delay and expense (see Wentworth v Rogers [1999] NSWCA 403). I have no difficulty in accepting that another category would be circumstances where the conduct of a party and/or their solicitor was intended to undermine the integrity of the proceedings (see for example Parker & Jacks (No. 3) (2009) FMCA fam 993 at paragraphs 67 and 87).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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