Penhall-Jones v Carroll

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PENHALL-JONES v CARROLL [2008] FMCA 1556

COSTS – Application for orders for costs against solicitors – solicitor in default because not ready to argue his client’s case – whether costs awarded against the client should be paid by the solicitor or whether the solicitor’s own professional fees should be disallowed considered.

Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Legal Profession Act 1987 (NSW), s.198L

Baik v Minister for Immigration [2008] FMCA 61
Fuller v Baptist Union of NSW & Anor [2004] FMCA 789
Taylor v CGU Insurance Ltd (2005) 193 FLR 120

Applicant: MARGARET LEILA PENHALL-JONES

Respondent: MICHAEL PAUL CARROLL

File Number: SYG 538 of 2006

Judgment of: Driver FM

Hearing date: 18 November 2008

Delivered at: Sydney

Delivered on: 28 November 2008

REPRESENTATION

Counsel for the Applicant: Mr C P Locke

Solicitors for the Applicant: Oliveri Lawyers

Counsel for the Respondent: Mr P G Cutler

Solicitors for the Respondent: Carroll and Associates

ORDERS

1. Pursuant to rule 21.07(4)(a) of the Federal Magistrates Court Rules, the costs as between the respondent’s firm and Ms Penhall-Jones of and incidental to the interlocutory application dismissed on 6 December 2005 be disallowed.

2. Mr Carroll is to pay Ms Penhall-Jones’ costs of and incidental to the present application, fixed in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 538 of 2006

MARGARET LEILA PENHALL-JONES

Applicant

And

MICHAEL PAUL CARROLL

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. Ms Penhall-Jones was an applicant in this Court under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Ms Penhall-Jones sought both final and interim relief in relation to alleged disability discrimination and victimisation. She was initially a self-represented litigant but in late 2005 she retained the respondent’s firm to represent her. Her solicitor was Mr Daniel Petkovic who is no longer with the firm. The respondent accepts any liability arising from the conduct of Mr Petkovic.

2. On 6 December 2005 I ordered that Ms Penhall-Jones’ application for interlocutory relief for victimisation be dismissed for want of prosecution.  I awarded costs against her fixed in the sum of $2,000.  Mr Petkovic appeared for Ms Penhall-Jones on that day and unsuccessfully sought an adjournment. Subsequently, Ms Penhall‑Jones withdrew her instructions from the respondent’s firm and instructed other solicitors.

3. On 23 January 2006 Ms Penhall-Jones filed the application currently before the Court in which she seeks orders that the respondent be required to pay the costs that she was ordered to pay in the principal proceedings on 6 December 2005 and, secondly, that costs the respondent’s firm claimed from her for their services as between solicitor and client be disallowed.  A further claim that the respondent be required to pay part of additional costs that Ms Penhall-Jones was ordered to pay on 20 January 2006 (after the firm had ceased acting for her) was not pressed. 

4. The application is brought pursuant to rule 21.07 of the Federal Magistrates Court Rules 2001 (Cth)…