FEDERAL COURT OF AUSTRALIA
Modra v State of Victoria [2012] FCA 240
Citation: Modra v State of Victoria [2012] FCA 240 Parties: LUKE MODRA (BY HIS NEXT FRIEND, ELLEN MODRA) v STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT AND DEPARTMENT OF HUMAN SERVICES) File number: VID 844 of 2010 Judge: GRAY J Date of judgment: 19 March 2012 Catchwords: COSTS – legal practitioner – whether legal practitioner should be ordered to pay costs – costs thrown away by reason of failure to comply with orders in relation to statement of claim – costs of unnecessary directions hearing – costs ordered against client – circumstances in which legal practitioner may be ordered to pay those costs – nature of duty of client – overarching purpose of civil practice and procedure provisions – nature of duty of legal practitioner – whether serious dereliction – whether retention of counsel absolved solicitor – whether solicitor unable to explain failure by reason of legal professional privilege not waived Legislation: Disability Discrimination Act 1992 (Cth) ss 5, 6
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 37N(1), 37N(2)(b), 37N(4), 43(1), 43(2), 43(3)(f)
Federal Court Rules 2011 rr 8.05(1)(a), 40.07, 40.07(1), 40.07(2)Cases cited: Medcalf v Mardell [2002] UKHL 27 [2003] 1 AC 120, cited
Modra v State of Victoria [2011] FCA 1375, cited
Myers v Elman [1940] AC 282, cited
UTSA Pty Ltd (in liq) v Ultra Tune Pty Ltd [2004] VSC 105, cited
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169, citedDate of hearing: 9 and 28 November 2011, 12 December 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 40 Counsel for the applicant: Mr D Hancock (9 November 2011)
Mr M Pearce SC and Mr D Hancock (28 November 2011)Solicitor for the applicant: Access Law (9 November 2011)
MLC Lawyers (28 November 2011)Counsel for the respondent: Ms R Doyle SC (9 November 2011) Solicitor for the respondent: Minter Ellison Counsel for Gabriel Kuek of Access Law: Mr D Perkins (9 November 2011)
Mr N De Young (28 November and 12 December 2011)Solicitor for Gabriel Kuek of Access Law: Access Law (9 November 2011)
Middletons (28 November and 12 December 2011)
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 844 of 2010
BETWEEN: LUKE MODRA (BY HIS NEXT FRIEND, ELLEN MODRA)
Applicant
AND: STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT AND DEPARTMENT OF HUMAN SERVICES)
Respondent
JUDGE:
GRAY J
DATE OF ORDER:
19 MARCH 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Mr Gabriel Kuek of Access Law pay personally the costs the applicant was ordered to pay in paras 2 and 6 of the order made on 9 November 2011.
2.Mr Kuek bear his own costs of the determination of the question whether he be ordered to pay those costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court…
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- Modra v Victoria [2012] FCA 240
- Case
- [2012] FCA 240
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CaseChat Overview and Summary
The case of Modra v Victoria involved a legal practitioner, Mr Gabriel Kuek, acting for the applicant, who was seeking to bring a discrimination case against the State of Victoria. The primary legal issue before the court was whether Mr Kuek should be held personally liable for costs incurred due to his failure to comply with the court’s orders regarding the preparation and filing of the statement of claim. The court had to determine if Mr Kuek's dereliction in duty constituted a serious enough dereliction to warrant personal financial liability.
The court found that Mr Kuek had failed to adhere to the specific orders given regarding the statement of claim, leading to unnecessary costs and a directions hearing. Despite the overarching principle that a legal practitioner should not be ordered to pay costs if they cannot reveal their instructions due to legal professional privilege, the court held that Mr Kuek's failure to act was not due to any privileged information but rather his own indifference. The court held that Mr Kuek's actions constituted a serious dereliction of his duty, justifying the imposition of personal liability for the costs. The court emphasised the importance of legal practitioners fulfilling their duty to the court and their clients, particularly in adhering to court orders.
In conclusion, the court ordered that Mr Gabriel Kuek of Access Law personally pay the costs that the applicant was ordered to pay, as well as bear his own costs of the determination of his liability for those costs. This decision underscores the importance of compliance with court orders and the potential personal consequences for legal practitioners who fail to meet their obligations.
The court found that Mr Kuek had failed to adhere to the specific orders given regarding the statement of claim, leading to unnecessary costs and a directions hearing. Despite the overarching principle that a legal practitioner should not be ordered to pay costs if they cannot reveal their instructions due to legal professional privilege, the court held that Mr Kuek's failure to act was not due to any privileged information but rather his own indifference. The court held that Mr Kuek's actions constituted a serious dereliction of his duty, justifying the imposition of personal liability for the costs. The court emphasised the importance of legal practitioners fulfilling their duty to the court and their clients, particularly in adhering to court orders.
In conclusion, the court ordered that Mr Gabriel Kuek of Access Law personally pay the costs that the applicant was ordered to pay, as well as bear his own costs of the determination of his liability for those costs. This decision underscores the importance of compliance with court orders and the potential personal consequences for legal practitioners who fail to meet their obligations.
Orders
Orders of the court
1. Mr Gabriel Kuek of Access Law pay personally the costs the applicant was ordered to pay in paras 2 and 6 of the order made on 9 November 2011.
2. Mr Kuek bear his own costs of the determination of the question whether he be ordered to pay those costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
It has also been held by the House of Lords in Medcalf v Mardell [2002] UKHL 27 [2003] 1 AC 120, that a court should not make an order that a legal practitioner pay costs when the practitioner is unable to reveal his or her instructions and other relevant material because of legal professional privilege, which has not been waived, unless satisfied that there is nothing that the privileged information could show that would absolve the practitioner. See especially per Lord Bingham of Cornhill at 134-135 and Lord Hobhouse of Woodborough at 145-147. The principle was followed by Habersberger J in UTSA Pty Ltd (in liq) v Ultra Tune Pty Ltd [2004] VSC 105 at [45]-[47].The facts The applicant was born on 12 August 1988. He is alleged to have Profound Autism Spectrum Disorder, Intellectual Disability and Occipital Lobe Epilepsy. In October 2009, the applicant’s mother filed a complaint with the Human Rights and Equal Opportunity Commission (now the Australian Human Rights Commission), pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (now the Australian Human Rights Commission Act 1986 (Cth)), (“the Human Rights Act”). The complaint alleged that the State of Victoria, through its Department of Education and Early Childhood Development and its Department of Human Services had discriminated unlawfully against the applicant in contravention of various provisions of the Disability Discrimination Act 1992 (Cth) (“the Disability Discrimination Act”), in the provision of education and other services, including residential services. On 6 August 2010, pursuant to s 46PH(1)(i) of the Human Rights Act a delegate of the President of the Australian Human Rights Commission terminated the complaint on the ground that she was satisfied that there was no reasonable prospect of the matter being settled by conciliation. By s 46PO of the Human Rights Act, this entitled the applicant to commence a proceeding in this Court alleging unlawful discrimination. The applicant commenced this proceeding on 1 October 2010, by his next friend, who is his mother. The application was filed by the firm Access Law, of which Mr Gabriel Kuek is designated as the principal. At the time of filing the application, no statement of claim was filed. On 21 October 2010, I made orders by consent referring the proceeding to mediation by a Registrar of the Court. The mediation took place, but the proceeding was not settled. It therefore returned for directions on 10 March 2011. In the course of that directions hearing, a discussion took place between Mr Gabriel Kuek, the solicitor from Access Law then acting on behalf of the applicant, senior counsel for the respondent and me as to the content of a proposed statement of claim. Senior counsel for the respondent emphasised the need for each allegation in the statement of claim to be related to the provisions of the Disability Discrimination Act. She also requested that the statement of claim identify the department or agency of the State of Victoria alleged to be responsible for each alleged instance of unlawful discrimination, an approach which is necessary, given that the applicant sues in respect of alleged unlawful discrimination in the provision of education services and other services as well. Mr Kuek gave every indication that he understood the need for the applicant’s case to be pleaded properly in this way. Nevertheless, I made a specific order, in the following terms:1.On or before 21 April 2011 the applicant file and serve a statement of claim setting out:(a)All acts, omissions and practices alleged to constitute or give rise to the unlawful discrimination the subject of the application;(b)The department or agency alleged to be responsible for each such act, omission or practice;(c)The provision or provisions of the Disability Discrimination Act 1992 (Cth) pursuant to which each act, omission or practice is alleged to constitute unlawful discrimination; and(d) The remedy claimed in respect of each act, omission or practice;and containing full particulars.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Even more importantly, communications between Mr Kuek and his client could have no bearing on Mr Kuek’s failure to act on the points raised by the letter of the respondent’s solicitors dated 2 November 2011. Responsibility for his indifference and inaction lies entirely with him.Conclusion In these circumstances, it is clear that I should exercise the discretion in relation to costs by ordering that Mr Kuek pay personally the costs ordered against the applicant in paras 2 and 6 of the order made on 9 November 2011. He should also bear his own costs of the determination of the question of his liability for costs.
Ratio Decidendi
Legal Principle Established
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