Marny and Anor and Garnett and Anors
[2014] FamCA 247
FAMILY COURT OF AUSTRALIA
| MARNY AND ANOR & GARNETT AND ANORS | [2014] FamCA 247 |
| FAMILY LAW – Costs against unsuccessful applicant for orders to restrain his former solicitors – Order made – Costs sought on an indemnity basis – Refused – Costs also sought against the solicitors who acted for the unsuccessful applicant – Application refused. |
| Family Law Act 1975 (Cth) |
| Burns & Caldwell & Anor (Costs) [2011] FamCAFC 84 |
| APPLICANT: | Mr Marny |
| RESPONDENT: | Mr Garnett |
| FILE NUMBER: | MLF | 3444 | of | 2006 |
| DATE DELIVERED: | 15 April 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | By way of written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ian Waller SC & Justin Mereine |
| SOLICITOR FOR THE APPLICANTS: | C Lawyers |
| COUNSEL FOR THE RESPONDENTS: | D A Klempfner, Colin Biggers & Paisley for G and G Lawyers and Mr Garnett R McCormick for Mr B |
| SOLICITOR FOR THE RESPONDENTS: | G Lawyers |
Orders
That the husband pay the costs of the applicant solicitors in relation to the application for their disqualification by agreement and in default of agreement as assessed.
That the application by the applicant solicitors for costs against Mr Garnett and G Lawyers is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marny and Anor & Garnett and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 3444 of 2006
| Mr Marny and Anor |
Applicants
And
| Mr Garnettarnett and Ors |
Respondents
REASONS FOR JUDGMENT
On 26 February 2014, I dismissed the application of Mr B in which he sought that Mr Marny and C Lawyers (“the solicitors”) be restrained from continuing to act for other respondents in substantive proceedings before the Court. The details of those other respondents do not matter here save that, it was then foreshadowed that costs applications would be filed seeking orders not only against the husband but also his solicitors (Mr Garnett and G Lawyers).
The orders I made provided for the costs applications to be by way of submission supported by such evidence as the parties saw fit and for the determination to be made in chambers.
I have read the affidavit material which mainly underpinned the submissions of the solicitors filed 20 March 2014. I received those of the husband filed 31 March 2014 and submissions of Mr Garnett and G Lawyers filed 31 March 2014. On 4 April 2014, the solicitors filed a further document by way of reply.
In respect of the claim against Mr Garnett and G Lawyers, it was submitted that the solicitors did not act for the husband as had been submitted (and with that submission I agree); and four other matters which effectively point to the flaws in the submission of Mr Garnett and G Lawyers (but as can be seen below, I am determining this matter on a different basis).
As I have indicated, the submissions referred to the evidence relied upon which I have read and taken into account.
In proceedings in this Court, s 117 of the Act provides that each party shall bear their own costs unless the Court finds there are circumstances to justify a departure from that principle. If indeed, a justifiable circumstance is found, the Court must take into account the matters set out in s 117(2A) before it can make any such costs order. It is the overall circumstances that must be considered to justify an order for costs (see Muldoon and Carlyle [2012] FamCAFC 135).
The application of the solicitors is that the husband, Mr Garnett and G Lawyers, pay their costs on an indemnity basis in an amount to be agreed and failing that agreement, as assessed by the relevant registrar. The husband and Mr Garnett & G Lawyers oppose any order for costs being made.
It is convenient to first deal with a question of whether an order for costs should be made at all against the husband.
The solicitor submitted that “having regard to” the matters set out in s 117(2A), there were circumstances justifying an order for costs. It was submitted that:
(a)The husband had not produced evidence in respect of his financial position and consequently his financial circumstances could not preclude an order for costs;
(b)There was no evidence of legal aid considerations;
(c)The provisions of s 117(2A)(c), (d) and (f) do not apply; and
(d)That the husband was wholly unsuccessful.
Many litigants have significant financial resources, are not eligible for legal aid and are wholly unsuccessful. That alone is not a basis to make an order for costs. There must be something about the case to justify the Court finding it is just to depart from the statutory edict that each party should pay their own costs. That was the submission put on behalf of the husband and I agree with that.
Here, there is a justification because, on the basis of my findings, the husband had slept on his rights and when ultimately cautioned by the solicitors about bringing the application (see the letter from the solicitors dated 5 December 2012), the husband chose to pursue the relief he was unsuccessful. In my reasons, I observed that it has been a long-standing principle that a litigant who has a basis to object to his former solicitor acting against him may fail because of delay. The logic is that a claim for that type of relief can be used as a weapon which delays proceedings and puts another party at risk of having to instruct other lawyers. Although this point was not specifically argued by the solicitors, it was clear from their submission that they relied upon what I consider was a cautionary warning to the husband in December 2012. At that time, the husband had the assistance of legal representatives.
In this unusual case, the husband raised the issue of conflict on a number of occasions over several years but when challenged, did not bring his application until December 2013 which was at a point where this litigation was beginning its final pathway to trial.
The husband submitted that whilst unsuccessful, he was not wholly so. It was submitted:
(a)It could not be said that his application was entirely without merit;
(b)Some of the arguments advanced by the solicitors were rejected by the Court; and
(c)Ultimately, there had been a finding that the husband had slept on his rights and that was the decisive view formed by the Court to justify the exercise of discretion against him in circumstances where he raised the issue shortly after the proceedings were actually commenced by the wife.
In respect of those matters, it is (c) that is of most significance because of what I earlier mentioned about the timing problem. In my view, that is the justifying circumstance to depart from the principle in s 117 but the Court is still obliged to contemplate the matters set out in s 117(2A).
In respect of s 117(2A), the husband conceded his lack of success but observed that he was able to convince the Court about some matters. Accordingly, it could not be said that he was wholly successful. I accept that submission. However, the factors are all to be considered and no one factor is determinative (see Fitzgerald (as child representative for A) Legal Aid Commission of Tasmania v Fish and Anor (2005) 33 Fam LR 123).
Nothing was submitted here to suggest financial impecuniosity or legal aid status on the husband’s part nor was anything similar submitted on behalf of the solicitors. Financial issues are therefore hardly relevant here but particularly so where the underlying dispute revolves around assets said to be worth significant sums of money.
The reply on behalf of the solicitors ranged across all issues but the relevant matters were:
(a)No one particular factor in s 117(2A) was necessary to form the foundation for an order for costs;
(b)The suggestion by the husband that he had not been wholly successful was fanciful but I have otherwise dealt with that issue in these reasons;
(c)The decision of Sifris J in Jane v Bob Jane Corporation & Anor (No 2) [2013] VSC 467 was distinguishable (and with that submission I agree but the principle to which I shall refer later in these reasons is of some assistance).
It was submitted, and I agree, most of the other matters in s 117(2A) are of no relevance. There is a distinction between being unsuccessful and wholly unsuccessful but in this case, the line is fine. The argument was about whether the discretion should have been exercised to grant the relief. The husband must have known the principles under which that relief was granted; he chanced his arm and lost. Taking all those matters into account, there are justifiable circumstances to make an order for costs against the husband.
The second question is whether there should be an order for indemnity costs against the husband.
It was submitted on behalf of the solicitors that the husband continued the proceeding when there was objectively no chance of success, wilfully disregarded facts known to him and was on notice of a significant deficiency in his case. There had been considerable correspondence between practitioners under which the solicitors urged the husband to withdraw and he declined. It was submitted that the husband was on notice about previous responses by the solicitors to his complaints about the conflict of interest and he had failed to identify information confidential to him. It was further submitted that he delayed the application for 2½ years during which time, the solicitors acted against him in six separate legal proceedings. It was also submitted that the Court should also take into account the involvement of the Legal Services Commissioner having dismissed a complaint summarily and that the husband was on notice that he risked an order for costs on an indemnity basis. It was therefore submitted:
In light of the above, it is open to the Court to find that (the husband) commenced and continued (the application) in circumstances where, properly advised, there was objectively no chance of success. The Court is entitled to presume (the husband) continued the (application) in wilful disregard of the known facts, particularly given that there was little dispute between the parties as to the applicable legal principles.
It is hard not to accept the underlying premise in the submission that the husband was on notice and there is little dispute about the determinative principles. Those principles are, in my view, not just confined to the jurisprudence of this Court. But, that is not the basis upon which this Court should make an indemnity costs order.
Although the rules of the Court require a copy of the costs agreement to be filed, there can be little doubt that the husband and his lawyers were aware of the high costs that the respondent was incurring. After all, the husband had experienced that himself when the solicitors acted for him. That said however, the authority of the Full Court of this Court in Prantage and Prantage [2013] FamCAFC 105 is what binds the Court.
In his submission, the husband said that Prantage made clear that costs orders on an indemnity basis were seen to be a very great departure from the normal standard and that there had to be some special or unusual features in a case to justify party and party costs. I accept that.
I also agree with the husband’s submission that the solicitors had adopted the position that they were simply right and the husband was wrong. However, it is not as simple as that because much litigation in this Court requires the judge to exercise a discretion. That discretion is not simply at large in the sense that it must still be exercised judicially and according to principles of law. The law in relation to the exercise of discretion was set out in Prantage. There, the majority of the Full Court said:
16.Before discussing the merit of the appeal, we should state our understanding of the meaning of the expression “indemnity basis”.
17.Although the Explanatory Guide to the Family Law Rules 2004 (“the Rules”) is not formally part of the Rules, we accept as accurate its definition of “indemnity basis” when applied to a costs order as being:
an entitlement to costs, including costs under a costs agreement, for all costs incurred, other than costs that are unreasonable in amount or that have been incurred unreasonably.
Thackray and Ryan JJ then quoted what I said in the first instance judgment which was the subject of the appeal, as follows:
45.However, his Honour went on:
44.In this jurisdiction, Judges have the benefit of watching the progress of how the profession is dealing with costs issues in what is obviously a commercial environment. This Court sees costs disputes between litigants and their own lawyers but it also has rule 19.04(3) which gives an understanding of what litigants are being charged. It is not an unreasonable assumption to say that most cases which require judge involvement have an intractable conflict where precedent does not assist the parties to confidently know an outcome or where views about facts are so disparate as to make compromise and resolution difficult. The complexity of litigation in this Court continues to rise with the recent additional jurisdictions relating to third parties and de facto relationships. With new jurisdictions come costs disputes.
45.It is my experience that it is unusual to see a litigated case in this Court where the lawyers are committed to and charging the scale costs. That can be seen in both property and parenting cases. The relevance of the scale as a benchmark must therefore be questioned when it is not often used. A court should be less concerned about using it as the benchmark for the appropriateness of a costs order. The remarks of the Full Court in Kohan (supra) which were intended as both a guide and also the setting of the parameters for the exercise of discretion, probably need to be reconsidered after 20 years.
46.In financial cases, this Court has used the single expert witness concept in financial matters for a number of years but it is evident from the expenses that the parties are bearing, that experts such as specialist accountants, medical practitioners and handwriting experts are charging significant sums of money to give evidentiary advice to the Court. That is not a criticism but rather an acknowledgement that litigation is now extremely expensive and the Court is ordering these reports at the parties’ expense. Little control seems to be exercised by the Court over those expenses yet a legal practitioner costs scale bearing no resemblance to the reality of the litigation, continues to be the benchmark. It defies commonsense.
46.His Honour next noted, at [47], that the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248 (“Colgate-Palmolive”) was often cited in submissions seeking indemnity costs. His Honour observed that Colgate-Palmolive “is from the same period as Kohan (supra) and this Court needs to contemplate whether there is a change occurring in the community about costs”.
Their Honours reflected:
79.At the time Kohan was decided, there was no mention of indemnity costs in the Rules. This is no longer the case, as will be seen from our recital of the Rules earlier. It will also be noted that the requirement for the Court to be informed of the terms of the relevant costs agreement has now been enshrined in the Rules. Notwithstanding this formal recognition of indemnity costs, this Court and trial Judges in this jurisdiction have routinely followed Kohan in holding that indemnity costs orders are to be seen as “a very great departure from the normal standard”. We consider citation of authority to this effect would be otiose, so well accepted is the proposition.
80.We know of one attempt in another jurisdiction to move away from the “usual rule” that costs are awarded on a party and party basis. In Marks v GIO Australia Holdings Ltd (1996) 137 ALR 579, Einfeld J gave reasons why the “usual rule” should no longer apply in the Federal Court of Australia.
81.The views expressed by Einfeld J were the subject of prompt criticism by the Full Court of the Federal Court in Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151, where Black CJ said at 153:
Recently, in Marks v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128, Einfeld J expressed the view that it was wrong to begin any consideration of costs by reference to a usual rule. Rather, he considered, the question of costs should be determined on its merits without any usual rule or preconception as to the costs issue (see at 133). Other judges, however, have continued to follow the established approach (see, for example, MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236) and it was recently applied by a Full Court in McHattan v Saramoa Charters Pty Ltd (unreported, Federal Court, Full Court, 17 September 1996). Moreover, one of the difficulties with any different approach is that O 62 of the Federal Court Rules 1979 (Cth), the costs order, proceeds on the footing that in the ordinary case costs will be ordered on a party and party basis. This is now reinforced by the provisions of O 23, r 11(4). Order 23 provides for the making of offers of compromise and, in specified circumstances, r 11(4) provides for a presumptive entitlement to costs on a party and party basis up to and including the day an offer was made and for indemnity costs after that day. Another difficulty with any departure from the established approach, an approach described by Sheppard J in Colgate-Palmolive (at 233) as “entrenched”, is the uncertainty that a different approach would involve.
It may be that on some future occasion a Full Court will nevertheless be asked to reconsider the basis upon which indemnity costs orders in this Court should be made, but no such invitation was extended in this case and the present application for indemnity costs should be considered in accordance with the well established principles discussed by Sheppard J in Colgate-Palmolive and summarised by Hill J in John S Hayes.
As for the question of whether other jurisdictions were departing from the party and party concept, their Honours said:
84.Our research shows that the Federal Court has continued to apply the “usual rule” that costs are payable on a party/party basis. See Boyapati v Rockefeller Management Corporation (No 2) [2008] FCA 1375, at [29] to [31], where Kenny J referred to the many cases where the rule has been applied in the Federal Court. We observe also that the rule was applied (and Re Wilcox was cited with approval) by this Court in Strahan & Strahan (Appeal Costs) [2009] FamCAFC 225 at [13] per Boland, Thackray and O’Ryan JJ.
85The same rule is applied in the Supreme Courts of:
· New South Wales (see Michos v Council of the City of Botany Bay (No 3) [2012] NSWSC 1465 at [7]);
· Victoria (see State of Victoria v Grawin Pty Ltd [2012] VSC 157 at [24]);
· Queensland (see Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc (t/as East Coast Apprenticeships) v Group Training Assoc Qld and Northern Territory Inc [2013] QSC 87 at [16]);
· South Australia (see Kenneally v Pouras & Ors [2007] SASC 303 at [13]);
· Tasmania (see Hayward v Forest Practices Tribunal (No 3) [2004] TASSC 14 at [6]); and
· Western Australia, where in Re Malley SM; Ex parte Gardner [2001] WASCA 83, a bench of five Judges held that a special costs order (another description for an indemnity costs order) will only be made in exceptional circumstances.
86.It will accordingly be seen that if the trial Judge purported to depart from the “usual rule”, he would not only have declined to follow settled authority in this Court, but also authority applied in all other superior courts in Australia.
Finally, Thackray and Ryan JJ said:
95.As we have pointed out, the “usual rule” relating to the basis upon which costs are ordered in this jurisdiction is well entrenched…
…
97.In our view, once it is recognised that ensuring access to justice is one of the key objectives of the “usual rule”, the claimed increasing disparity between scale costs and those being charged by lawyers becomes as much an argument against the awarding of indemnity costs as it is in favour of costs being ordered on that basis.
98.With respect to the trial Judge, we are not convinced that there is a great deal of difference between current “commercial realities” and those prevailing at the time Kohan was decided. It should be noted that the costs agreement in Kohan provided for a rate of payment three times in excess of the scale. However, even if there have been changes in the market place for legal services, we are not persuaded this should have any impact on the application of the “usual rule”, which seeks to balance competing public policy considerations.
Thus, for the purposes of determining this application for indemnity costs I emphasise the following passage from Prantage (supra):
101.It is true, as the trial Judge noted, that Sheppard J included in the list of situations that might give rise to an order for indemnity costs “the imprudent refusal of an offer to compromise”. However, in our view, imprudence by a party in “their approach” is not sufficient to enliven the power to award indemnity costs.
Murphy J agreed with Thackray and Ryan JJ and said:
150.As their Honours point out, there is clear authority for the proposition that this Court has the power to award indemnity costs and the principles governing the award of costs on an indemnity basis are, as their Honours set out, clear. In suggesting that Kohan “probably need[s] to be reconsidered”, the trial Judge suggests that a perceived significant disparity between the costs provided for in Schedule 3 to the Family Law Rules 2004 (“the Rules”) and the fees charged as between solicitor and client pursuant to a costs agreement provides a basis for an award of indemnity costs.
151.In my respectful view, his Honour erred in that respect. First, in his Honour’s discussion of the issue, I consider that his Honour conflates the issues of whether costs should be awarded on an indemnity basis with the issue of the quantum of indemnity costs if awarded. Secondly, the Act, the Rules read as a whole, and existing authority each evidence a clear intention that a significant disparity between the level of costs provided for in Schedule 3 and the fees payable by a client to their legal practitioner militates against an award of indemnity costs or, if the circumstances otherwise warrant such an order, operates as a brake on the quantum that might otherwise be awarded.
151. Section 117(1) is important in that respect. Indemnity costs are confined to “an exceedingly rare situation” (Callinan J quoted by Thackray and Ryan JJ at [42]) in jurisdictions where “the usual rule” is that a successful party receives an order for costs (i.e. “costs follow the event”). They might, then, be seen to be more so in this jurisdiction where the “usual rule” is that “each party … shall bear his or her own costs” (s 117(1)). The comments by this Court in Kohan that indemnity costs are “a very great departure” from the “normal standard” should be seen in that context. That, it should be observed, is not a fetter on this Court’s discretion to award costs or indemnity costs if justice so requires it (see Oshlack v Richmond River Council (1998) 193 CLR 72, at 134 (particularly subpar [3]), per Kirby J). Rather it recognises that an order for indemnity costs, has a particular context in this jurisdiction.
…
155.Like Thackray and Ryan JJ, I am not, with respect, persuaded that there is the difference in “commercial realities” to which the trial Judge refers and I respectfully agree with their Honours that the facts in Kohan might suggest otherwise. However, even were that the “commercial reality”, I am not persuaded that any such reality would provide a basis for the conclusion contended by the trial Judge to flow from that.
Emphasising the need to find an “exceedingly rare situation”, there is nothing in this case that justifies such a conclusion regardless of all of the matters I have accepted and which have been canvassed above. Indeed, there is much to be said for the proposition that even if the principles favoured the solicitors, the husband was still entitled to point to the need to have the Court contemplate whether or not to exercise the discretion.
The order against the husband should therefore only be by agreement and failing agreement, as assessed pursuant to the Schedule to the Family Law Rules 2004.
The solicitors also seek an order that the order for costs against the husband be jointly paid by Mr Garnett and G Lawyers. It was submitted that there was no dispute as to jurisdiction to make an order for legal costs against a legal practitioner albeit was acknowledged that it must be exercised with care and discretion as well as only in clear cases. It was further submitted that Mr Garnett and G Lawyers should have been on a heightened sense of alert causing them to carefully consider the relevant law before bringing the application on behalf of the husband. It was submitted that it was open to the Court to find that Mr Garnett and G Lawyers:
(a)Relied on a decision of Magro (1989) FLC 92-005 whereas they should have contemplated the Full Court’s decision in McMillan and McMillan (2000) 26 Fam LR 653;
(b)The husband should have understood from McMillan that he had the onus of establishing that the solicitors were in possession of confidential information provided by him but in any event, the solicitors had put the husband on notice that he had the onus of establishing what he was asserting;
(c)Bearing in mind the decision of the Full Court in McGillivray and Mitchell [1998] FamCA 96 a delay in bringing an application could be fatal.
It was submitted that had Mr Garnett and G Lawyers given proper attention to the relevant law they would have seen that the husband had no worthwhile prospect of success and in particular, even if the husband established that he had imparted confidential information to the solicitors, the argument about him having slept on his rights was insurmountable. It was therefore submitted that Mr Garnett and G Lawyers had a duty to the husband and to the Court to be competent in the conduct of the legal business and to make an independent assessment of whether a conflict application could be instituted. It was further submitted that Mr Garnett and G Lawyers were under a duty to exercise a degree of care that was expected of a reasonably prudent solicitor particularly knowing that such an application had to be determined with care and ought not be made lightly.
It was submitted by the solicitors that the Court should find that the action by Mr Garnett and G Lawyers was a serious dereliction of duty because the application had no worthwhile prospects of success.
Mr Garnett and G Lawyers in reply submitted that the test set out in Prantage (supra) made clear that the usual rule relating to the basis upon which courts ordered costs was well entrenched. It was submitted that there was no basis for an order for costs to be made against Mr Garnett or G Lawyers. It was conceded there was certainly power for the order to be made but that this was not a case which fitted within Rule 19.10 of the Family Law Rules 2004.
The Court was asked to note that the application was made on instructions and that the husband swore the affidavit of the evidence supporting it. The evidence supports that conclusion.
Mr Garnett and G Lawyers submitted that to enliven the jurisdiction as was said by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 239 there was required, proceedings:
Unreasonably initiated or continued…when it had no or substantially no prospects of success but such unreasonableness must relate to reasons unconnected with success in the litigation or to an otherwise ulterior purpose or to a serious dereliction of duty or serious misconduct in promoting the cause or and the proper administration of justice.
His Honour’s observations which were not overturned by the Full Court of the Federal Court on appeal mirror the provisions in Rule 19.10 of the Family Law Rules 2004.
Mr Garnett and G Lawyers submitted that the Court had concluded (and I agree) there was not sufficient evidence to make the injunctive order and on the evidence, it would not be proper to do so. That comment related to the evidence presented by the husband. It was therefore submitted that the conflict application failed as the result of the sufficiency of evidence rather than the absence of it.
It was therefore submitted that nothing in the reasons I gave indicated that the application was devoid of merit or brought for an ulterior purpose. In reply, the solicitors submitted that Mr Garnett and G Lawyers as responsible practitioners should not have allowed the application to be filed. My focus is whether or not I could find that Mr Garnett and G Lawyers can be seen to have been guilty of improper or unreasonable conduct rather than any other aspect of Rule 19.10.
The question requires an examination of some of the authorities.
In Burns & Caldwell & Anor (Costs) [2011] FamCAFC 84, Coleman J noted that in considering whether to make an order against a solicitor, the Court had to balance public interests. His Honour cited with approval Ridehalgh v Horsfield [1994] 3 All E R 848 at 855 where it was said:
[L]awyers should not be deterred from pursuing their client’s interests by fear of incurring a personal liability to their client’s opponents; that they should not be penalised by orders to pay costs without a fair opportunity to defend themselves; that wasted costs order should not become a back-door means of recovering costs not otherwise recoverable by 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, recently and clearly affirmed by Act of Parliament, is that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponent’s 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.
In proceedings involving these parties in an action in the Supreme Court of Victoria as late as 2013, ( see Jane v Bob Jane Corporation Pty Ltd & Anor (No 2) (supra)) Sifris J made an observation which has some similar significance here. His Honour said:
(the husband) was entitled to run his case and endeavour to convince the Court that his explanation was valid and sufficient. The fact that I disagreed with him says nothing about his entitlement to make the argument. His case was that he did not disregard the known facts but disputed the accuracy and impact of those facts. His evidence fell short and he failed. The facts as found by the Court were only after a trial with evidence and cross-examination. The conclusion after a trial does not necessarily mean that at the outset it was inevitable that the claim would fail. The Court must avoid hindsight analysis, a point made by counsel for (the husband).
This Court has to also be cautious before drawing conclusions in hindsight against solicitors who act for litigants who do not convince courts particularly in relation to the exercise of discretion in their favour. I adopt with respect the same approach of Sifris J.
It has also been held in other jurisdictions that 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 which is plainly doomed to fail (see Lemoto v Able Technical Pty Ltd & Ors [2005] NSWCA 153; (2005) 63 NSWLR 300 per McColl JA). Caution should also be taken where the person against whom the order is sought is a “non-party” (see Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178).
Nothing in the evidence satisfies me that Mr Garnett and G Lawyers acted improperly or even unreasonably when I consider the tests as articulated by other courts above. In my view, the submission must fail.
I certify that the preceding Forty Three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 April 2014.
Associate:
Date: 15 April 2014
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