MHC & Y &Y

[2006] FamCA 610

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT PERTH

Appeal No. WA 07 of 2005

File No. PTW 2960 of 2003

IN THE MATTER OF:

MHC

Appellant

- and -

Y & Y

Respondent

REASONS FOR JUDGMENT

BEFORE:Bryant CJ, Kay and Boland JJ
HEARD:21 November 2005

JUDGMENT: 14 July 2006

APPEARANCES:

Mr Martin of Queen’s Counsel (instructed by Butlers Barristers and Solicitors, 83 – 85 Stirling Highway, Nedlands WA 6909) appeared on behalf of the Appellant.
Ms Braddock of Senior Counsel (instructed by Young & Young Barristers and Solicitors, 8 Spencer Street, Bunbury WA 6230) appeared on behalf of the Respondent.

APPEAL SUMMARY

MATTER: MHC and Y & Y

APPEAL NUMBER: WA 07 of 2005 (PTW 2960 of 2003)

CORAM: Bryant CJ, Kay and Boland JJ
DATE OF HEARING: 21 November 2005

DATE OF JUDGMENT: 14 July 2006

CATCHWORDS:

APPEAL – COSTS – Between solicitors and client - Interim costs accounts - Where refusal by trial Judge to grant extension of time to wife to dispute interim costs accounts and to have those costs accounts assessed – Where concession by solicitors’ counsel of error in interpretation by trial Judge of solicitors’ letter dated 18 August 2000 – Whether error of fact by trial Judge in finding solicitors did not say they would cease to act for the wife if she taxed (assessed) their bill – Factual error by trial Judge in misconstruing solicitors’ letter in which solicitors threatened to cease to act for wife if she sought taxation (assessment) of their costs vitiated the exercise of his discretion – Where wife sought to adduce further evidence - Further evidence corroborated wife’s version of events independently of misconstruction of letter – Evidence, if before trial Judge, could have affected outcome of case –– Evidence, if accepted, demonstrates trial Judge’s order erroneous - One of rare and exceptional cases where discretion to admit further evidence should be exercised.

Whether any relevance in fact that costs accounts were interim accounts – Consideration of when time to seek an assessment starts to run, from a final or interim costs account – Consideration of position on interim costs under general law - Consideration of whether the Family Law Act 1975 (Cth) and the Family Law Rules 2004 provide a complete code – Reasoning of Fogarty J in Weiss v Barker Gosling (1993) FLC 92-399 that the rules were intended to and do retain the common law position applied - Whether provisions of costs agreements override rules and general law – Absent any substantial argument on this issue, not appropriate to determine whether position at common law in respect of final bill has any relevance to costs under the Act and present rules.

Consideration of wife’s delay - Where time delay of over three years from when first interim costs account rendered – Concession by solicitors’ counsel no substantial prejudice caused to solicitors by assessment process – Prejudice to wife of refusal to grant extension of time outweighs prejudice to solicitors – Discretion to grant extension of time exercised in favour of the wife.

COSTS –Appropriate to depart from usual provision that each party pay own costs – Indulgence granted to the wife in extending time – Appropriate that wife should pay solicitors’ costs including reserved costs of proceedings before the trial Judge – Appropriate to grant certificates to each party under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of costs of the appeal.

Legislation:

Family Law Act 1975 (Cth), s 117

Federal Proceedings (Costs) Act 1981 (Cth), ss 6 and 9

Family Law Rules 2004, rr 1.02 and 1.14, Ch 19

Family Law Repeal Rules 2004, r 4

Family Law Rules 1984, O 3 r 3 and O 38 rr 26 and 42

Case law:

Atwood v Chichester (1878) 3 QBD 722

Baker v Bowketts Cakes Ltd [1966] 1 WLR 861; [1966] 2 All ER 290

CDJ v VAJ (1998) FLC 92-828

De Winter and De Winter (1979) FLC 90-605

Eaton v Storer (1882) 22 Ch D 9 1 (CA)

Gamble v Killingsworth [1970] VR 161

Henderson v Federal Commissioner of Taxation (1970) 70 ATC 4016

Johnson v Johnson (1997) FLC 92-764

Marinko and Marinko (1985) FLC 91-609

O’Neill v Kaddatz [1964] NSWR 1280

Re F Litigant in person guidelines (2001) FLC 93-072

Re P's Bill of Costs (1982) FLC 91-255

Saunders v Pawley (1884) 14 QBD 234

Schafer v Blyth [1920] 3 KB 140

Slapp and Slapp (1989) 13 Fam LR 158; FLC 92-022

Weiss v Barker Gosling (1993) FLC 92-399

Introduction

This is an appeal by the wife against orders made by Holden J in the Family Court of Western Australia on 10 May 2005. His Honour dismissed the wife’s application for a declaration that a costs agreement between herself and her former solicitors, Y & Y (“the solicitors”) was invalid. There is no appeal against that decision. However, the wife appeals against his Honour’s refusal to grant an extension of time for her to dispute certain interim costs accounts rendered by the solicitors to the wife in extensive litigation between herself and her former husband in the Court, and then to have those costs accounts assessed.
The solicitors rendered ten interim accounts to the wife between January 2000 and 4 December 2002 for sums totalling $224,723.60 in respect of costs incurred in defended property and parenting proceedings between the wife and husband. There is no dispute that the wife had, at the date of the hearing before us, paid to the solicitors a total sum of $165,500.72. The sum of $70,000 is invested in an interest bearing account as security for the solicitors’ claimed outstanding balance of costs owing.
The wife relies, inter alia, on a factual error by the trial Judge to support her appeal. The solicitors concede that the trial Judge incorrectly construed a letter written by them as threatening to cease to act for the wife if she required taxation of her previous solicitor’s bill, when in fact the reference in the solicitors’ letter was to their own bill.
Whilst the wife does not dispute that the granting of an extension of time involves an exercise of discretion, she submits that his Honour failed to properly consider all the matters relevant to the exercise of the discretion, and that on balance, he should have exercised his discretion in her favour, as to do so could not have caused any prejudice or hardship to the solicitors.

Further evidence

Before us the wife seeks to adduce, by way of further evidence, two affidavits. The first affidavit is that of a solicitor formerly in the employ of the wife’s previous solicitors. The second affidavit is that of a friend of the wife who attended a meeting with the wife and the solicitors when a discussion occurred about the solicitors’ costs. The evidence relates to events which occurred prior to the hearing before the trial Judge. The reception of the further evidence is opposed by the solicitors. We will return to the question of the admissibility of the further evidence later in our reasons.

Background

We find it is convenient to set out briefly from the trial Judge’s reasons and the Court record some background history to this matter.
The wife initially engaged SAP, solicitors to act for her in family law proceedings. SAP were unable to continue to act for the wife by reason of an asserted conflict of interest, and the wife then retained the solicitors in about December 1999.
A costs agreement was prepared by the solicitors on about 15 December 1999 and the wife was requested to sign the agreement. The agreement was eventually signed by the wife in January 2000.
The wife says she did not receive a Notice of Rights with the costs agreement, or a pamphlet under Order 38 r 26 at the time of signing, or when she received the costs agreement. She asserted she did not receive a Notice of Rights until 7 May 2001.
Interim accounts were sent to the wife on 31 January 2000, 10 March 2000 and 18 April 2000. Each account contained an endorsement entitled “Notice of Rights” which said:
“3. Within 30 days of receipt of this account you may require us by notice in writing to provide to you an itemised account of the costs the subject of this account.
4. Within 30 days of receiving an itemised account, you may require us by notice in writing to submit the account to the taxing officer of the Supreme Court of Western Australia for review of the amount of costs charged to you, the subject of this account.”
On 10 March 2000 the solicitors wrote a detailed letter to the wife reporting on the proceedings. They said:
“The time has come when we must be paid for our services. Furthermore, we must be assured by you that we will be paid our future accounts in accordance with our costs agreement as provided to you. The difficulty with our costs is that there is a great deal more work to be done. This is due in part to Q’s refusal to settle the issue of interim contact. We are now faced with yet another hearing on the 28^th March for which affidavit material must be prepared and counsel briefed. Quite bluntly we are unwilling to incur further disbursements or further costs if we cannot be assured our fees will be paid in accordance with the scale agreed to with you.”
The wife asserts on 28 February 2000 she raised with an employee of the solicitors, Ms B, objections to the account she had received saying “If there are any problems with that account would you advise me of the time frame I have to address them”.
In February 2000 the proceedings were listed before Martin J, but were adjourned. Subsequently, on 8 March 2000 her Honour ordered that the husband pay the wife’s costs thrown away as a result of the adjournment. The proceedings were then fixed for hearing in May 2000.
On 13 March 2000 the wife, accompanied by a friend Ms R, attended the solicitors’ office and discussed at that meeting, amongst other matters, the quantum of the bills.
Defended proceedings were heard before Tolcon J in May 2000. The wife was represented by Senior Counsel retained on her behalf by the solicitors. The husband appealed against Tolcon J’s orders in June 2000.
On 18 July 2000 the solicitors wrote to the wife noting she had agreed to approach the National Australia Bank to obtain a mortgage by way of security for costs. The solicitors said:
“Our firm has an excellent credit rating, but the size of the debt owing to us has become a real problem, made all the worse if Mr [W] insists upon payment, which we believe he will.”
The reference to Mr W is a reference to Senior Counsel retained by the solicitors on the wife’s behalf.
On 18 August 2000 the solicitors again wrote to the wife. Parts of the solicitors’ letter, the subject of the concession noted above, were extracted by the trial Judge in his Honour’s reasons for judgment. The relevant portions of the letter are:
“Under the terms of the Costs Agreement, by which you are bound, we can at any time terminate our services and although to date I have not given serious thought to doing that, it may be that that is the only thing left for me to do because it is difficult to estimate to what level this debt will escalate, and I note that when money has become available, you simply pay other people with it, including putting money into your superannuation, and not accounting to us at all for the money you had in the Bank of Scotland.
If we terminate our instructions at this stage, we can withhold our file as we have a lien on it, unless and until we are paid in full. At one stage you even suggested that we should tax our first bill to give you some sort of argument against [SAP], and the state in which the file was handed to us, but taxing the bill will only add to the unpaid work we have to do, which would be considerable in a taxation, and in my opinion will not forward your case with [SAP] at all. The only thing [P] could be blamed for would be in under-describing the work that still remained to be done, but that would not in any way affect the payment that he received which was no doubt rightfully owing to him, and consequently we cannot see the point of it.
Furthermore, it is sad that you treat so lightly the extra work which you would give us in taxing that bill. We note that you have not mentioned it recently, and hopefully you are still not expecting us to tax it, because if you were, then the most obvious thing for us to do is simply to cease acting for you, and to obtain a judgment against you for our costs and then garnishee the money which you were due under the judgment. What a way to finish a relationship!”
By 18 August 2000 the wife had advised an employee of the solicitors she had settled a compensation claim. However, no payment was made to the solicitors.
On 20 August 2000 an order was made by consent that the wife receive the total proceeds of sale of the husband and wife’s former matrimonial home. The net proceeds of sale were paid into the solicitors’ trust account. The proceeds were applied to pay counsel’s fees, other expenses (or disbursements as they were then referred to in the Family Law Rules 1984 (“the former rules”)) and $51,176.45 was paid to the solicitors. The solicitors assert the wife remained indebted to the firm at that time in the sum of $52,724.23.
On 9 April 2001 the solicitors wrote to the wife about their outstanding fees and suggested payment by regular instalments. The solicitors assert the wife made one such payment.
On 7 May 2001 the solicitors sent a Notice of Rights to the wife. This procedure was described in the solicitors’ letter as part of their “procedural practice”.
In about September 2001 the wife advised the solicitors she would act for herself in a taxation of costs under an order she had obtained against her husband for costs thrown away in February 2000. The wife continued to act for herself in respect of submissions to the Full Court in relation to costs following an appeal brought by the husband in respect of Tolcon J’s parenting and property orders, and for parenting aspects of the proceedings. The solicitors assisted the wife with the preparation and transmission of the submissions.
During the first quarter of 2002 the solicitors wrote to the wife about their outstanding costs.
In July 2002 the solicitors personally paid $7,000 as part payment to counsel retained by them on behalf of the wife.
On 28 September 2002 the wife wrote to the solicitors requesting they prepare a Bill of Costs. Ms B, who swore an affidavit in the proceedings on behalf of the solicitors, deposes that the wife did not specify a particular account.
On 3 October 2002 the solicitors wrote to the wife “requesting further instructions on the preparation of the Bill giving notice that recovery proceedings might be issued for costs outstanding”.
On 18 December 2002 the solicitors caused a writ to be issued from the District Court in south-west Western Australia for their outstanding costs.
On 8 January 2003 the solicitors wrote to the wife as follows:

“…Our final account
As to the Notice of Rights we believe we have covered that in previous correspondence and note that you have already been provided with a copy of the Notice. It is not a requirement that a Notice be attached to every account. We will prepare one final account in taxation format in accordance with your cost agreement in due course. Hopefully any items in dispute might be settled rather than that matter have to go to the Registrar of the Family Court for a decision.”

On 29 April 2003, Mr M, a solicitor then retained by the wife, wrote to the solicitors requesting they provide a bill of costs in respect of each account issued to the wife including paid accounts. Mr M also sought the solicitors’ consent to a taxation occurring in the Family Court and that the District Court proceedings become the subject of a taxation in the Family Court.

Trial Judge’s judgment

The trial Judge’s reasons deal firstly with the substantial issue litigated by the wife and the solicitors, namely the question of the validity of the costs agreement.
Having found that the agreement entered into between the wife and the solicitors was a valid agreement, the trial Judge turned to the question of an extension of time to tax costs. The trial Judge set out the following extract from the cross examination of the wife:
“You made a deliberate decision not to have the bills taxed. Is that correct?---On the 13^th of March?
Yes?---Yes.
You knew you could have the bills taxed?---Yes,
And you decided not to?---Yes.”
His Honour then said:
“[The wife] stated that her sole reason for not taxing the bills was because she felt coerced by the fact that she was told on 13 March 2000 that if she taxed any bills, the firm would cease to represent her and that she was bound by the costs agreement. During the course of her evidence, [the wife] admitted that she had conceded that she was bound by the costs agreement that she subsequently sought to set aside”.
The trial Judge then made the following findings:
·   that he was not satisfied “that the evidence establishes that the firm said it would not act for [the wife] if she taxed her bill”;
·   that the solicitors’ letter of 18 August 2000 did not contain a threat of ceasing to act if the wife taxed their bill “but is a reference to taxing the bill of the previous solicitor, [SAP]”;
·   at no stage did the firm say it would cease to act for the wife in the event that she taxed its bill;
·   that the wife engaged in a course of conduct to “escape meeting her obligations to the firm”; and
·   the wife only addressed the issue of costs after a writ was issued from the District Court in south-west Western Australia.
The trial Judge, having noted that the bills rendered were in itemised, if not taxable form, dismissed the wife’s application.

Grounds of Appeal

The wife’s grounds of appeal are as follows:
“1.That the learned Trial Judge erred in his finding of fact to the effect that the reference in the letter from the Respondent to the Applicant dated 18 August 2003 [sic] to the firm ceasing to act if the Appellant required taxation of costs was a reference to taxation of the bill of the Appellant’s previous solicitor, [SAP], when he should have found that it was a reference to taxation of the Respondent’s bill of costs.
2.The learned Trial Judge erred in finding that the Respondent did not say that it would cease to act for the Appellant in the event that she taxed its bill, when he should have found that the Respondent did say that, both orally and in the letter dated 18 August 2003 [sic].
3.The learned Trial Judge erred in declining to exercise his discretion to extend the time within which the Appellant might require the Respondent to tax its costs in that he took no account of any matter other than his adverse finding in relation to the Appellant’s assertion that the Respondent had threatened to cease to act for her if she required taxation, and failed to take account of any of the other circumstances of the case which, when considered, warranted the exercise of the discretion to extend time.
4.The learned Trial Judge erred in the exercise of his discretion with respect to the extension of time within which the Appellant might require the Respondent to tax its bill of costs in that having found that the Respondent had advised the Appellant that the firm would not be happy to continue acting for her if she required taxation of their bill, he should have found that the Appellant’s failure to require the Respondent to tax its bill within the time specified by the Rules was reasonable, and on that basis should have exercised his discretion to extend the time within which the Appellant could require the Respondent to tax its bill.”

Admission of further evidence

Before us the wife seeks to adduce evidence of Ms EB and Ms R. The wife’s application to adduce further evidence is opposed by the solicitors.
The wife acted on her own behalf before the trial Judge and the solicitors were represented by Senior Counsel. The wife had, by the date of the hearing before the trial Judge, caused an affidavit to be sworn by Ms EB, a solicitor formerly employed by SAP. The wife sought to rely on the affidavit before the trial Judge, but asserted she was confused when the trial Judge advised her she would have to call Ms EB, and did not otherwise explain to her his rejection of the affidavit.

The wife also seeks to rely on an affidavit sworn by Ms R. In support of her present application the wife says at the time of the hearing she had not thought the evidence of Ms R was “necessary or required” but that she now understands the evidence of Ms EB and Ms R is “relevant and significant in that they provide support for my evidence, and contradict the evidence given at the hearing by [Mr Y]”.
Senior Counsel for the wife submits “[t]he discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way: CDJ v VAJ (1998) FLC ¶92-828”. He notes “[t]he power to admit further evidence exists to serve the demands of justice and may be of a remedial nature” and that the relevant purpose of s 93A(2) “in certain cases is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge”.
The wife’s counsel submits the further evidence is relevant and significant because it goes to the issue of whether or not the solicitors ever indicated to the wife that they would cease to act for her if she taxed their bills and that this matter lies at the crux of the appeal. The wife’s counsel further says “[i]f the Trial Judge had been privy to that evidence, it is likely that he would have made a different finding of facts and conclusion and exercised his discretion to extend the time within which the Appellant is able to require taxation of the Respondent’s accounts”.
The wife also relies on the fact that before the trial Judge she was unrepresented and did not understand the rules of admissibility of evidence.
In CDJ v VAJ (1998) FLC 92-828 McHugh, Gummow and Callinan JJ said at 85,477:
“109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.”
Noting that the discretion to be exercised in determining whether or not to admit further evidence must be exercised judicially, their Honours considered the question of failure to adduce evidence which was available at the date of the hearing before a primary judge and said:
“116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.”
There is no suggestion in this case that part of the further evidence on which the wife now seeks to rely was deliberately withheld. To the contrary, she clearly sought to adduce Ms EB’s evidence before the trial Judge in the form of an affidavit filed in proceedings in the District Court.
The transcript reveals the wife sought to have a partner of the solicitors, Mr Y read, during the course of his cross examination, part of Ms EB’s affidavit. Objection was taken to that course by Mr Y and the following exchange occurred:
“HIS HONOUR: I’m sorry. You can’t do that. If you want evidence before me of what Ms [EB] might have said, then you’ll have to call Ms [EB].
[THE WIFE]: Can I put it in as a way of discovery, your Honour?
HIS HONOUR: No. It’s not discovery.
[THE WIFE]: Yes, it is, your Honour.
HIS HONOUR: It is not discovery.
[THE WIFE]: The client - - -
HIS HONOUR: You may discovered [sic] it but you don’t put anything in by way of discovery. You only put it in if it’s admissible.
[THE WIFE]: Is it admissible if it’s in discoverable documents?
HIS HONOUR: No. Just because you’ve discovered it does not make it admissible.”
The first affidavit on which the wife now seeks to rely is one sworn by Ms EB on 16 June 2005. Ms EB deposes to a conversation with Mr Y on 14 March 2000 and making a file note of the conversation, the relevant portions of which are as follows:
“Have written off huge amounts of W.I.P
The disbursements amount to $26,000
[P] estimated a further am’t to trial $8,000 - $16,000
Y & Y says what does that have to do with Y & Y’s bill
They have had a meeting
She wants their bills taxed
They won’t act if she assists”
Ms EB deposes to an error in her file note and says that the word “assists” should have been “insists” “to more accurately record the conversation”.
The second affidavit on which the wife seeks to rely is one of Ms R sworn 17 June 2005. Ms R deposes to attending an appointment with the wife on or around 13 March 2000 at the offices of the solicitors. She deposed:
“During that meeting and in my presence, [the wife] raised the issue of taxing an account from [Y & Y]. The account from [Y & Y] which she was talking about related to the first Trial in the Family Court between [the wife] and her former husband [QO], which had collapsed. Mr [Y] indicated at that meeting that should [the wife] require the account to be taxed, [Y & Y] would cease to represent her in the Family Court proceedings.
As we left the offices of [Y & Y], Mr [Y] commented and said words to the effect that he did not know what [the wife] was worried about, as she would get her costs back anyway”.
We accept that each of the affidavits could have been filed in the proceedings before the trial Judge. We discern however that if this evidence had been before the trial Judge it could have affected the outcome of the case, and absent the evidence, the wife’s rights to seek an assessment of the solicitors’ costs accounts could be infringed.
We turn to consider whether this “is one of the rare and exceptional cases in which the discretion to admit fresh evidence on appeal should be exercised”.
We consider firstly the wife’s claim that she was disadvantaged as a self represented litigant.
It is appropriate that we consider the discussion and guidelines in Re F Litigant in person guidelines (2001) FLC 93-072 at 88,274. The Full Court set out matters relevant to litigants in person and the impartial conduct of proceedings including the remarks of McLelland CJ as follows:
“213. The above remarks were endorsed by McLelland CJ in the Equity Division of the Supreme Court of New South Wales in the matter of Studer v Konig, unreported, 4 June 1993, in which the Chief Judge stated:
‘There can be little doubt that a litigant in person who has little or no legal training or experience is subject to a serious disadvantage in the effective conduct of legal proceedings, and in recognition of this fact, the court takes such steps as are reasonably available to it to assist such a litigant to overcome or diminish that disadvantage. But there are limits to how far the Court can properly go in providing such assistance and the limits are reached when to go any further would either (a) compromise either the impartiality or the appearance of impartiality of the court, or (b) result in procedural or substantive injustice to the other party.’”
The Full Court noted the difficulties inherent in parts of the Johnson v Johnson (1997) FLC 92-764 guidelines, particularly the distinction between information and advice (see 84,419 to 84,422).
The evidence discloses that the wife is a well educated professional. By the time of the hearing before the trial Judge she had been involved in extensive litigation in the Court. We discern no error on the part of the trial Judge in the manner in which he informed the wife about the admissibility of Ms EB’s evidence. We accept however the expression “call Ms [EB]” whilst readily understandable in its plain terms, particularly to persons with legal training, may without anything further, cause confusion to a lay person such as the wife, in circumstances where it appears the document had been discovered in the proceedings.
We are of the view that evidence of the conversations at the meeting held at the office of the solicitors in January 2000, and events occurring at about that time, would have been fundamental to the trial Judge’s finding as to whether the firm said it would not act for the wife if she taxed her bill. We agree with the submission of Senior Counsel for the wife that if the Trial Judge had been privy to that evidence, it is likely that he would have made a different finding of fact and conclusion and exercised his discretion to extend the time within which the Appellant was able to require taxation of the Respondent’s accounts.
We are satisfied that this is one of the rare and exceptional cases where the discretion to admit further evidence should be exercised as we are of the view that evidence, if accepted, demonstrates the trial Judge’s order was erroneous.

Relevant law

The orders appealed were made under the present rules, however the costs agreement was entered into under the former rules which provided inter alia:
“Order 38 Rule 26 Agreements as to costs
(1)A lawyer may enter into an agreement with a client of the lawyer relating to the costs to be charged by the lawyer for work done for a proceeding.
(2)            A costs agreement must be fair and reasonable.
(3)            A costs agreement must:
(a)     be in writing; and
(b)     be signed by both the lawyer and the client.
(4)At the time of, or within a reasonable time after, entering into a costs agreement, a lawyer must:
(a)provide each other party to the costs agreement with a copy of a pamphlet, prepared by the Principal Registrar, that summarises the main effects of this Order; and
(b)advise each other party to the costs agreement of the availability of independent legal advice concerning the costs agreement.
(5)The court, or a Judicial Registrar, may set aside a costs agreement if subrule (2), (3) or (4) is not complied with.”
We note there is no challenge to his Honour’s findings about the validity of the costs agreement entered into between the solicitors and the wife.
Further, in relation to disputing costs, Order 38 r 42 provided:
“(1)        A person who is served with a bill may dispute an item in the bill by                  filing:
(a) a copy of the bill; and
(b) a notice disputing the bill.
(2)       The notice must:
(a) be in accordance with Form 57; and
(b) identify each item in dispute; and
(c) state the grounds of objection in respect of each item in dispute; and
(d) in respect of each item in dispute:
(i) state that the person giving the notice considers that no   amount of costs is payable; or
(ii) specify the amount of costs that the person giving the notice   considers is reasonable.
(3)       A copy of the notice must be served on the person on whose behalf the   bill was served.
(4)       The notice must be filed and served within 28 days after the later of:
(a) the day when the bill is served; and
(b) the day when the notice of rights, if applicable, is served.”
The equivalent rule under the Family Law Rules 2004 (“the rules”) provides:
“19.23 Disputing itemised costs account
A person served with an itemised costs account may dispute it by serving on the person entitled to the costs a Notice Disputing Itemised Costs Account (Form 15) within 28 days after the account was served.
Note 1 A person may apply for an extension of time to dispute an account (see rule 1.14).
Note 2 If no Form 15 is received and the costs are not paid, the person entitled to the costs may seek a costs assessment order (see rule 19.37).
Note 3 If the parties agree on the amount to be paid for costs, they may file a draft consent order (see Part 10.4 for consent orders).”
Rule 1.02 provides for the commencement of the present rules:

“1.02 Commencement
These Rules commence on 29 March 2004.
Note The Family Law Rules 1984 (the “old Rules”), as in force under the Family Law Act 1975 immediately before the commencement of these Rules (the “new Rules”), are repealed — see the Family Law Repeal Rules 2004 . The new Rules apply to a case that was commenced in accordance with the old Rules and not determined before the repeal of those Rules — see rule 4 of the Family Law Repeal Rules 2004.”

Rule 4 of the Family Law Repeal Rules 2004 provides for transitional provisions as follows:
“Transitional
4 (1) If:
(a) a case was commenced in accordance with the 1984 Rules; and
(b) the case not finally determined before the repeal of those Rules;
the case must be continued in accordance with the 2004 Rules.
(2) If:
(a) an act or thing was done under the 1984 Rules before the repeal of those Rules; and
(b) the act or thing is of a kind that could be done under the 2004 Rules;
the act or thing is taken to have been done under the 2004 Rules.
(3) If:
(a) an obligation was incurred, or an undertaking was given, under the 1984 Rules before the repeal of those Rules; and
(b) the obligation is of a kind that could be incurred, or the undertaking is of a kind that could be given, under the 2004 Rules;
the obligation is taken to have been incurred, or the undertaking is taken to have been given, under the 2004 Rules.
(4) If:
(a) an act or thing was required to be done under the 1984 Rules before the repeal of those Rules; and
(b) the act or thing was not done before the repeal of those Rules; and
(c) the act or thing is of a kind that is required to be done under the 2004 Rules;
the act or thing is taken not to have been done for the purpose of the 2004 Rules.
(5) The 2004 Rules do not operate to revive any period of time for doing an act or thing that was required to be done under the 1984 Rules, if the period had expired before the repeal of those Rules.
(6) If:
(a) a period of time was running in relation to a matter under the 1984 Rules before the repeal of those Rules; and
(b) the period had not expired before the repeal of those Rules; and
(c) the matter is of a kind to which the 2004 Rules apply;
the period continues to run as if the 1984 Rules had not been repealed.”

It is clear when the wife’s application was filed the former rules applied. However, by the time this matter was before the trial Judge for determination, the present rules were applicable. We accept therefore if time is extended, the solicitors’ costs and expenses will be assessed under Chapter 19 of the present rules applying the rates provided in the costs agreement as the basis of charging. This fact is relevant to our assessment of any prejudice to the solicitors in extending time to dispute their accounts, a matter to which we will return later.
The relevant rule for an extension of time in proceedings is r 1.14. It provides:
“1.14 Shortening or extension of time
(1)A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2)A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.”
The rule does not set out any criteria to be taken into account when considering an application to extend time. Earlier decisions under the former rule, Order 3
r 3 are of assistance, as are the authorities on the common law (see Marinko and Marinko (1985) FLC 91-609; Schafer v Blyth [1920] 3 KB 140; Saunders v Pawley (1884) 14 QBD 234 at 237; Atwood v Chichester (1878) 3 QBD 722 at 723; Eaton v Storer (1882) 22 Ch D 9 1 (CA); Baker v Bowketts Cakes Ltd [1966] 1 WLR 861; [1966] 2 All ER 290 at 292; O’Neill v Kaddatz [1964] NSWR 1280 at 1281; Gamble v Killingsworth [1970] VR 161 at 176-7; Slapp and Slapp (1989) 13 Fam LR 158; FLC 92-022.
In Marinko Nygh J, who was considering an application for an extension of time under Order 3 r 3, said at 79,944 to 79,945:
“I refer now to the exercise of the power to abridge or extend time contained in O. 3 r. 3(1). This order, unlike sec. 44(3A) (the power to extend the time within which proceedings of certain types may be instituted), contains no indication of the criteria to be applied. I conclude therefore that the basic requirement is to make an order which so far as can be done will ensure that justice should be done to all parties. … From time to time attempts have been made to lay down binding principles to be applied in the determining of whether the time prescribed by the Act or Rules should be extended. However, as was said in Mallett v. Mallett (supra per Gibbs C.J. at p. 79,111):
‘Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the Court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.’
The reference to ‘just and equitable’ would seem to have been a reference to the injunction to the court contained in sec. 79(2). No exhaustive definition of the matters to be considered to do justice between the parties is possible nor can guidelines be laid down to provide for the evaluation of those matters or the weight to be given to them either individually or collectively. All the circumstances of each case require consideration and upon such consideration a judicial exercise of discretion should be made to achieve a result which is just in all those circumstances. Various circumstances seem to present themselves for evaluation during such consideration. For example the length of the extension of time required, how and why the delay occurred, the hardship which may be suffered by one party if the order extending time is not made and the hardship which may be suffered by the other if it is, how far one party may have relied upon the passing of the time prescribed as indicating a cessation of dispute in relation to the issue in question, the changes which may have occurred in the respective positions of the parties, the bona fides of the application and such like. The importance to be attached to any one or more of such circumstances, their relative evaluations and effects upon one or both of the parties call into play the discretionary judgment of the decision maker.”

Ground 1

Counsel for the solicitors very properly conceded before us the error in interpretation by the trial Judge of the solicitors’ letter dated 18 August 2000. Accordingly, this ground is established.

Ground 2

The wife asserts an error of fact on behalf of the trial Judge in respect of his finding that the solicitors did not say they would cease to act for the wife in the event she taxed their bill.
The wife’s counsel submits that “[t]he erroneous construction of the letter referred to in the preceding Ground was obviously instrumental in His [sic] Honour declining to find that ‘at any stage the firm said it would cease to act for [the wife] in the event that she taxed its bill’”. He further submits “Plainly that finding was not open, when the letter of 18 August 2000 is properly construed”.
Counsel further submits on the wife’s behalf that the erroneous construction of the letter obviously influenced the trial Judge’s assessment of the oral evidence, and if his Honour had properly construed the letter, it would not have been open to him to have accepted the evidence of Mr Y.
At paragraph 41 of his reasons for judgment, the trial Judge set out an extract from the cross examination of Mr Y by the wife. The wife’s cross examination of Mr Y included the following:
“[THE WIFE]: Mr [Y], how many times did you raise the issue of ceasing to represent me if I taxed the bill?--- How many times did I raise the issue of ceasing - ?
- to represent me if I taxed the bill?--- I have not the faintest idea, but - -
Was it more than once?--- - - let me say - - I doubt it, but let me say this, if you want the question answered fully: I have never said I would cease to represent you. I said that I wouldn’t be happy if I represented you – something like that. I was laughing, and said ‘I wouldn’t be happy to be representing you’ if you were going to keep taxing my bills; something like that.
And that you would have a lien over my file?---Well, I can’t remember putting those two comments together. Although I think I probably did say that, that was probably in answer to a question or statement made by you.
Have you ever written that?---I could have done. I have no idea. I write thousands of letters a year. How would I know? The fact is that I would have a lien on the file. That wouldn’t stop you from having it.”

The wife also cross examined Ms B. Ms B confirmed that Ms R was present at the meeting. Having referred Ms B to the wife’s affidavit, the wife then continued her cross examination of Ms B as follows:
“Have you read this affidavit? --- Not recently I haven’t.
[THE WIFE]: No, but you read it before you did your affidavit? --- Yes. I did.
You haven’t refuted it in your affidavit?---I can’t speak about your feelings about how you felt.
You read my affidavit before you did your affidavit?---Yes.
You haven’t refuted what I said in my affidavit?---(No audible response)
[SENIOR COUNSEL FOR THE SOLICITORS]: Your Honour, I think we’re going to have to be a lot more specific than that in relation to what particular aspects we’re talking about.
[THE WIFE]: At that meeting I said that [Mr Y] had said if I taxed the bill, he’d cease to represent me?---Yes. You said that.
I said that; and you haven’t refuted that?---I haven’t refuted that.
I’ve also said that the respondent would have a lien over my file?---That would have been standard practice, yes.
So you don’t refute that?---I don’t.
Then I’ve gone on to say:
“At this meeting it was mentioned by me that I felt coerced by MR [Y]’s threat not to act for me if costs were taxed. I didn’t know whether he could ethically do this, and I would not have my bills taxed because the respondent would then cease to represent me”.
You haven’t refuted that?---I can’t refute all of it. I can’t remember the bit about coercion, that you felt coerced into continuing with us, because I think we wouldn’t have acted if you’d said that, although I can’t remember.”
There are some slight discrepancies in the wife’s version of the events set out in paragraph 23 of her affidavit sworn 15 May 2003 and that of Ms R who refers to the wife “taxing an account from [Y & Y]. The account from [Y & Y] which she was talking about related to the first trial in the Family Court between [the wife] and her former husband.” Ms R also deposed to Mr [Y]’s comment to the wife “… that he did not know what [the wife] was worried about, as she would get her costs back anyway”.
We accept Ms R’s evidence is capable of being construed as a taxation of the wife’s costs ordered by Martin J on 8 March 2000 for the purpose of quantifying the sum to be paid by the husband, rather than a discussion of a taxation of the solicitors’ accounts rendered to the wife because the wife herself wished to tax those accounts. However, the solicitors’ letter of 18 August 2000, and Ms EB’s evidence, makes it clear that the solicitors were threatening to cease acting for the wife if she sought a taxation of their costs, and the taxation under discussion was not for the purpose of establishing costs payable by the husband pursuant to Martin J’s order of 8 March 2000.
We discern the factual error of the trial Judge in misconstruing the solicitors’ letter was one which vitiated the exercise of his discretion. In De Winter and De Winter (1979) FLC 90-605 Gibbs J said at 78,091-78,092:
“It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v. Storie (1945) 80 C.L.R. 597 , both Latham C.J., at p. 600, and Rich J., at p. 604, cited from the judgment of Viscount Simon L.C. in Blunt v. Blunt (1943) A.C. 517, at p. 526:
‘If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate materials . . . .’
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p. 137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p. 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.”
We also observe that if his Honour had before him the evidence of Ms R and
Ms EB, corroboration is provided for the wife’s version of events independently of the misconstruction of the letter. Accordingly we are satisfied this ground is established.

Grounds 3 and 4

Grounds 3 and 4 overlap to a considerable extent with the issues raised by grounds 1 and 2. Having found the latter two grounds established it is unnecessary for us to consider grounds 3 and 4 in any detail. Suffice it to say, we accept that the trial Judge, other than making findings about the level of detail in the solicitors’ bills, did not address the criteria referred to in Marinko, or the other common law authorities to which we have referred.

Re-exercise of the discretion – extension of time under the rules

(a) does the fact the bills were interim have any relevance?

Before us the wife’s counsel noted part of the difficulty in dealing with an extension of time in which to “tax” a bill may be traced to the difficulty in attempting to reconcile the “traditional” position at common law of a “single indivisible retainer” and the authorities dealing with taxation where one final account is generally rendered at the conclusion of the completed proceedings with a time period thereafter to seek taxation, and the “modern” practice, particularly in lengthy litigation, of “interim” billing. The question of when time starts to run, that is, from a final or interim costs account, to seek assessment of a costs account is relevant to the exercise of our discretion in considering delay.

position under the general law

The position under relevant state legislation on interim costs is set out by the learned author G E Dal Pont in Law of Costs (Sydney: LexisNexis Butterworths, 2003), at 149-50. At paragraph 4.56 the learned author notes:
“As statute in all jurisdictions except Queensland and South Australia prescribes time limits within which an application for taxation of a bill should be made – whether after the delivery of the bill or its payment – it is important to determine whether the rendering of interim or periodic ‘bills’ or ‘accounts’ by a solicitor operates to activate the time limitations. If the interim or periodic account is indeed a final bill for the work performed to date, then the client’s entitlement to taxation of that bill must be exercised within the time frame set by statute, and unless the client is able otherwise to attract the court’s inherent jurisdiction to order its taxation, any attempt to seek taxation outside of this time frame will be unsuccessful.” [footnotes omitted]
The author goes on to consider the position at general law as follows, at paragraphs 4.58 to 4.59:
“If legislation does not address this particular issue, the matter is left to the courts to distinguish between an ‘interim’ and a ‘final’ bill. In so doing, the court seeks to determine ‘whether a document is a separate bill of costs or, so to speak, a chapter in a volume.’ Some periodic bills can be final, and this is so if it was the clear intention of both parties that the bill is final, the bill was one to which the solicitor had committed himself or herself and was one that can be taxed. A leading case in this context is Re Romer & Haslam, in which Lord Esher MR made the following important statements:
‘… a solicitor cannot be said to have sent in a final bill if he has sent in something which neither party understood or intended to be final. Whether in a case of a series of bills each bill having been sent in as a final bill, or whether they are mere statements of account shewing how far the expenses have gone up to the time of sending them in, is a question of fact to be determined on the evidence in each case, and it is a question which cannot be determined in any case upon the finding of the Court in any other case …[W]here several accounts are sent in one after the other, in which a balance is carried down from one to the other, every man of business would treat them as intermediate statements which, by carrying on the balance from one to the other, would eventually make up one whole account. There is the strongest evidence in the present case that the intermediate bills were intended to be merely statements of how things were going on and were not intended as final bills. The solicitors never asked for payment of any of them, but asked for and took payment on account; they never treated the matter otherwise than as one running account.’
…
The onus of showing that a document is a final bill of costs for this purpose lies on the solicitor: ‘he must make out as to each document of the series that there has been such a delivery of a bill of costs as to satisfy the law’.” [footnotes omitted]

do the Act and rules provide a complete code?

No real argument was addressed to us as to whether or not s 117 and the rules provides a complete code for costing under the Act in respect of matters including assessment and recovery of costs, and/or the interaction between the position at general law and the Act and rules. In this case there is no suggestion other than that each of the nine costs accounts, now the subject of dispute, were interim and not final bills. We note that s 117 contains no specific criteria for the determination of solicitor/client costs, and the present rules do not distinguish between interim and final costs accounts.
In Re P's Bill of Costs (1982) FLC 91-255, Evatt CJ and Fogarty J discussed the jurisdiction of the Court to consider the validity of a costs agreement. Having considered whether the then provisions of the Act provided the Court with jurisdiction their Honours went on to say at 77,417:
“It is unnecessary to confine the source of power in this way. Although the Family Court is a creature of statute, it is a Court of Record and has inherent powers in appropriate circumstances. Those are powers which arise as a necessary adjunct to the existence of the Court itself, and such as are necessary to control and regulate the proceedings before it and to avoid injustice. (See Taylor v. Taylor (1979) FLC 90-674; Wilkes and Wilkes (1981) FLC 91-060; and Simsek v. Minister for Immigration and Ethnic Affairs (1982) 40 A.L.R. 61 at p. 65; and the cases therein referred to.)”
Their Honours, having considered a number of authorities under the general law, said at 77,418:
“Here, in our view, the Act and Regulations provide an exclusive code relating to disputed accounts between a solicitor and client for any business done by the solicitor for the client in or incidental to proceedings under the Family Law Act (see Silver v. The Consumer Claims Tribunal (1978) FLC 90-514; Re Molan and Messrs. Stedman Cameron Meares & Hall (1979) FLC 90-646 and Butler and Glendowan (1980) FLC 90-855).”
In his subsequent decision in Weiss v Barker Gosling (1993) FLC 92-399 Fogarty J again considered the question of whether the Act and rules provide an exclusive code. His Honour, having set out the passage we have quoted above said at 80,072 “[i]n my view, that passage is correct but what was meant by it may have been subject to some misunderstanding...”. Having set out the argument of counsel before him that the common law requirement that an agreement be fair and reasonable was excluded by the rules, His Honour went on to say “I think it is clear that the rules intended to and did retain the common law position. It would require emphatic language in rules of court to bring to an end such a central requirement of the common law”. We agree with and adopt his Honour’s reasoning.
Thus whether a bill is a final bill may in an appropriate case have relevance.

do the provisions of the costs agreement override the rules and the general law?

Rule 19.14 provides that a lawyer may enter into a written costs agreement with a client and such an agreement must contain certain provisions. Rule 19.14 is as follows:
“19.14 Costs agreements
...
(2)       The costs agreement must:
(a)       specify the type and amount of work to be done by the   lawyer;
(b)       set out:
(i) the costs payable by the client for the work as a   lump sum; or
(ii) the basis on which the costs will be calculated;
(c)       state whether a partner, employed lawyer or clerk will   work on the case and, if so, that person’s charge out rate;
(d) be fair and reasonable; and
(e) be signed by the lawyer and the client.

(3) The costs agreement may:
(a) relate to part only of a case; and
(b) be amended by written agreement.

Whilst preventing a lawyer charging contingency fees, the rule does not proscribe interim billing.
We turn to consider the costs agreement between the solicitor and the wife. Relevant clauses in the agreement provide as follows:
“INTERIM ACCOUNTS
4. The firm may send the client interim accounts on a monthly basis during the conduct of the matter. The client will pay such accounts within 14 days of the date of the account (‘the due date’).

INTEREST ON OVERDUE ACCOUNTS
5. Should the client fail to pay the full amount of any account (including any interim account but excepting a request under Clause 2(b) of this agreement) by the due date, the client shall pay interest on the amount outstanding from the date of the account until payment in full at the rate provided for in Order 40 Rule 1 of the Family Law Rules (presently 10.55%).”

(b) conclusions – relevance of interim bills

The rules do not provide a definition of a costs account nor does the Explanatory Guide.
Prima facie, there is nothing in s 117 or the rules, particularly having regard to
r 19.14 that is relevant to interim accounts. The ability to “contract out” subject to the requirements specified in r 19.14 and the principles established in the case law relevant to costs agreements appears to support the position that if the costs agreement provides for interim accounts such provision may override the general law. Absent any ground of appeal, or substantial argument on this issue, we do not find it appropriate to determine whether the position at common law in respect of a final bill has any relevance to costs under the Act and present rules, except to our limited consideration below about time delay.

(c) time delay

The first costs account the wife seeks an extension of time to dispute was rendered on 31 January 2000. Seven of the ten accounts rendered to the wife by the solicitors were sent between January and November 2000. The solicitors’ final account was rendered on 4 December 2002. It is not in dispute the wife wrote to the solicitors on 10 December 2002 and gave notice she required the solicitors to tax their final account, and that such notice was within the time prescribed by the former and present rules. Mr M, who was acting for the wife on 29 April 2003, did not directly put the solicitors on notice that the wife wished to tax all of the solicitors’ bills but such a course of conduct may be implied from the letter which said:
“Do you agree that it is appropriate to refer the issue of costs subject of the District Court proceedings and your final account to the Family Court?
…
Time and effort in respect to the District Court action will be wasted in the event of taxation in the Family Court.”
The wife filed her application in these proceedings on 23 May 2003, and amended her application to seek an extension of time to dispute the solicitors’ costs accounts on 18 September 2003.
There has been a delay of over three years from when the first interim costs account was rendered to the wife and notice being given by Mr M that the wife wished to dispute the costs accounts, both paid and unpaid. Taking the most favourable position to the wife, the delay from March 2000 to the last costs account in respect of which leave is sought of 28 September 2002, when Ms B says the wife wrote advising she wished to tax the bills, is substantial and militates against the exercise of discretion in favour of the wife.

(d) how and why the delay occurred

We are satisfied the delay by the wife in formally notifying the solicitors that she wished to dispute their interim costs accounts was primarily because she knew that if she did dispute the accounts, and sought to proceed to a taxation, the solicitors would cease acting for her. On the one hand the wife’s concerns provide an explanation for her delay. She no doubt felt extremely concerned she would have to instruct a third firm of solicitors during the course of stressful and protracted litigation. Conversely, however, her conduct could well be considered to be misleading and deceptive to the solicitors.
We are satisfied that throughout the whole of the litigation when the solicitors acted for the wife, and in fact during periods when she acted on her own behalf in some aspects of her case and the solicitors gave her assistance, they acted in a completely honourable manner. In particular, we note that not only did the solicitors carry a large debt for a considerable period of time on which they had an obligation to pay tax (Henderson v Federal Commissioner of Taxation (1970) 70 ATC 4016), but they personally paid part of counsel’s fees, notwithstanding the explicit terms of the costs agreement. Further, notwithstanding assurances of the wife she would pay their fees or provide security for the outstanding sums, except for part proceeds of the matrimonial home, the wife did not reduce their outstanding costs accounts in any substantial manner during the course of the lengthy litigation.
On balance, whilst the threat of ceasing to act for the wife gives an explanation for the wife’s behaviour, that factor alone would not persuade us to exercise the discretion to extend time in her favour.

(e) prejudice to either party

Before us, counsel for the solicitors most appropriately and properly conceded no substantial prejudice would be caused to the solicitors by an extension of time being granted to the wife to use the assessment process provided in
Chapter 19, other than the inconvenience of the matter proceeding through the assessment process.
The solicitors’ claimed costs are the subject of security. Costs accounts rendered to the wife have been prepared relying, it would appear, on time sheets. The accounts are itemised into 6 minute units and specify dates of attendance. No substantial work should be involved in re-drafting the costs accounts to conform with r 19.22. The solicitors and the wife will have an opportunity of a settlement conference as provided in the rules. Significantly, the Registrar will conduct an assessment on the papers under r 19.29, and only if there is objection on the preliminary assessment will the matter proceed to an assessment hearing after the provision of security (see r 19.30). Interest will be payable on the outstanding costs under r 19.02. We note that interest is payable under the costs agreement at the rates prescribed in the rules from time to time.
We contrast the position of the wife with that of the solicitors. Absent the grant of an extension of time the wife has no right to seek an itemised costs account in accordance with the present rules, or an assessment of that costs account. Such a position is prejudicial to the wife, whose potential rights under the rules will be rendered nugatory unless leave is granted. We find this factor tips the scales in favour of the exercise of discretion in favour of the wife.

Costs

The wife’s Notice of Grounds of Appeal does not specify which of the trial Judge’s orders she seeks to appeal. However, the summary of argument makes it plain there is no challenge to orders 1 and 2 of the trial Judge. No ground is directed to his Honour’s order that the wife should pay the costs of the solicitors incurred in the proceedings, including reserved costs. We consider the question of the costs ordered in the re-exercise of our discretion. In so doing, we have regard to the wide discretion available in making an order for costs. We also have regard to the provisions of s 117. We are satisfied this is an appropriate case to depart from the usual provision that each party pay their own costs.

The wife is a duly qualified medical practitioner. Whilst there is little current financial material before us, there is nothing which suggests that the wife would be unable to meet any costs order made against her.
There are no relevant factors to be taken into account under s 117(2A)(b), (c), (d), (e) or (f).
The Court has granted an indulgence to the wife in extending time. Rule 1.14(3) is clear in its terms. We are satisfied the appropriate order in this case is that the wife should pay the solicitors’ costs including the reserved costs of the proceedings before the trial Judge.

Costs of the appeal

We received oral submissions from the parties at the conclusion of the appeal in respect of costs. We are satisfied that this is an appropriate case to grant certificates to each party under the Federal Proceedings (Costs) Act 1981 (Cth).

ORDERS

The appeal is allowed.
Order 3 of the orders made by Holden J in the Family Court of Western Australia on 10 May 2005 is discharged.
That the time for the wife to request an itemised costs account under r 19.20 of the Family Law Rules 2004 from the solicitors is extended to 21 days from the date of these orders.
The solicitors shall serve an itemised costs account in accordance with r 19.21 of the Family Law Rules 2004 on the wife within 28 days of any request by the wife for such itemised costs account.
The wife shall, if she wishes to proceed with an assessment under Chapter 19 of the Family Law Rules 2004, file a Notice Disputing Itemised Costs (Form 15) within 28 days after service of the itemised account as provided in order 4 of these orders.
That the Court grants to the appellant wife a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of such part as the Attorney-General considers appropriate of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent solicitors a costs certificate in relation to the appeal pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of such part as the Attorney-General considers appropriate of the costs incurred by the respondent in relation to the appeal.

I certify that the preceding 102 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.

Associate

[2006] FamCA 610

14 July 2006

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Statutory Interpretation

Legal Concepts

Appeal

Costs

Judicial Review

Procedural Fairness

Statutory Construction