Lambert v Jackson

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.