Luu and Kaa

[2019] FamCAFC 194

FAMILY COURT OF AUSTRALIA

LUU & KAA [2019] FamCAFC 194

FAMILY LAW – APPEAL – COSTS – Where the appellant’s solicitor sought to file a lengthy affidavit on the last working day before the appeal was heard – Where the annexures to the affidavit were largely unnecessary – Where the appellant’s solicitor intended to charge for preparing the affidavit – Where it is ordered that the appellant’s solicitor not charge the appellant in excess of $700.00 for drawing the affidavit.

APPELLANT: Mr Luu

RESPONDENT: Ms Kaa

FILE NUMBER: BRC 6137 of 2017

APPEAL NUMBER: NOA 59 of 2019

DATE DELIVERED: 4 November 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Brisbane

JUDGMENT OF: Ryan, Aldridge & Tree JJ

HEARING DATE: 8 October 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 21 June 2019

LOWER COURT MNC: [2019] FCCA 1973

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Coulsen

SOLICITOR FOR THE APPELLANT: Bruce Dulley Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Horsley

SOLICITOR FOR THE RESPONDENT: Barry Nilsson Solicitors

Orders

1. That the appellant’s solicitor not charge the appellant any sum in excess of $700.00 (excluding GST) for drawing the affidavit of the solicitor sworn 3 October 2019.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Luu & Kaa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 59 of 2019
File Number: BRC 6137 of 2017

Mr Luu

Appellant

And

Ms Kaa

Respondent

REASONS FOR JUDGMENT

1. On 4 October 2019, the evening of the last working day before this expedited appeal was listed to commence, the appellant’s solicitor attempted to file an Application in an Appeal seeking to read further evidence at the hearing of the appeal. The affidavit sought to be read had been sworn by the appellant’s solicitor the day before, and although only 10 paragraphs in length, it had annexed to it approximately 160 pages of material, which were mostly print-outs of email chains between the parties’ solicitors.

2. Much of the material annexed to the affidavit appeared in several places, little appeared to have been reviewed for relevance and some was incomplete. Also absent an index to the documents, it generally presented as a morass of material which obscured, rather than informed, a most unfortunate state of affairs given how inexplicably late it was.

3. We enquired of counsel for the appellant whether the appellant’s solicitor intended to charge for preparing the affidavit, and were informed that he did.

4. Legal practitioners in family law matters must expect scrutiny of their fees by the Court, including charging for the preparation of largely unnecessary material, into which category most of the annexures to the appellant’s solicitor’s affidavit unfortunately fall.

5. We consider that no more than half an hour’s time would have been required to draft an affidavit containing the necessary material, and perhaps an additional hour to filter the various email communications for relevance. The appellant’s solicitor charges $465.00 per hour according to his costs agreement. We therefore order that he not charge in excess of $700.00 (excluding GST) for drawing and engrossing his affidavit sworn 3 October 2019.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Tree JJ) delivered on 4 November 2019.

Associate: 

Date:  4 November 2019