Pomroy and McPhee Solicitors

[2010] FamCA 198

FAMILY COURT OF AUSTRALIA

POMROY & MCPHEE SOLICITORS [2010] FamCA 198

FAMILY LAW – COSTS – Between solicitor and client – Review of an assessment of costs – Absence of reasons – Bill of costs – Certificate pursuant to Section 10(2)

Evidence Act 1995 (Cth)
Family Law Rules 2004 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) s 10(2)
Legal Profession Act 2007 (Qld)

APPLICANT: Mr Pomroy

RESPONDENT: McPhee Solicitors

FILE NUMBER: BRF 24 of 2006

DATE DELIVERED: 25 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 25 February 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr G J Robinson

SOLICITOR FOR THE RESPONDENT: McPhee Solicitors

Orders

IT IS ORDERED THAT

1. The oral application by Mr Pomroy that the evidence of the respondent not be admitted is dismissed.

IT IS FURTHER ORDERED THAT

1. The requirements of the Family Law Rules 2004 in respect of the assessment of solicitor/client costs in this case be dispensed with insofar as they require the process applicable to bills of costs for work done prior to 1 July 2008.

2. Accordingly, schedule 6 to the Rules is dispensed with.

3. The rendering of a bill of costs, any objection to the bill, and any assessment thereafter occur by reference to the practices and procedures applicable to the assessment of bills of costs for work done subsequent to 1 July 2008.

4. In respect of paragraph 4 above, each of the parties be entitled to rely upon such documents as each considers appropriate already filed by them in respect of these current proceedings.

IT IS FURTHER ORDERED THAT

1. A certificate is granted pursuant to section 10(2) of the Federal Proceedings (Costs) Act 1981 in respect of the costs of the respondent’s appearances before the Honourable Justice Murphy in the Family Court of Australia, Brisbane Registry, in respect of each of the dates of 17 June 2009 and 25 February 2010.

IT IS NOTED that publication of this judgment under the pseudonym Pomroy & McPhee Solicitors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 24 of 2006

MR POMROY

Applicant

And

MCPHEE SOLICITORS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant for review in this matter seeks an order (pursuant to an oral application) that “the evidence of the respondent be dismissed” by reason of the late service of documents required to be filed and served pursuant to earlier orders made by me.

2. There is no doubt that when a court makes procedural orders they ought have the same sanctity and the same compliance as any other orders.  However, when an application is made to “strike out evidence” resulting from a failure to file and serve by a specified time, the overriding consideration in respect of any such application is the interests of justice.

3. In measuring the interests of justice a significant matter, probably the most significant matter, is any prejudice said to have been incurred by the “innocent party” as a result of the non-compliance with those orders.

4. Due to the necessity to list in this court a number of urgent matters including urgent matters involving, crucially, allegations of abuse and neglect of children on the one hand, and on the other, allegations of fraud and the like, this matter, unfortunately, could not be accorded the sort of priority that, in an ideal world, it would have been given.

5. As a result, the time that has elapsed between the date upon which the documents needed to be filed and today, and the time which has elapsed between the date upon which the documents were served and today, is many months.

6. When asked to point to the potential for prejudice to him, the applicant, Mr Pomroy, indicated that the only prejudice was that he was required to file documents on time, and did, and it is unfair, in effect, that the respondent did not.

7. Mr Pomroy’s feelings in that respect might be seen as understandable, particularly given that he represents himself.  Nevertheless, I am not persuaded that there is any prejudice in the relevant sense occasioned to him by the late delivery of those documents, and it is plainly, in my view, contrary to the interests of justice for the evidence of the respondent “to be struck out”.

8. For those reasons, I dismiss the oral application by Mr Pomroy in those terms.

9. This matter came before me today consequent upon a lengthy history in this court.  The applicant seeks a review of an assessment of costs rendered by the applicant’s then solicitor in and about representation in respect of proceedings for settlement of property.

10. The work performed to which the bill relates occurred prior to 1 July 2008. Accordingly, in the usual course of events, Schedule 6 to the Family Law Rules 2004 applies (see 6.01).

11. A costs agreement (6.15) was signed between the parties. No issue in the lead‑up to these proceedings is raised about what might conveniently be called the “formalities” required of the fees charged by the solicitors (see 6.14; 6.16‑6.18). A registrar of this court made an assessment (6.33) after completion of the process otherwise required by Schedule 6 (Division 6.6.2).

12. The process of review provided for by the applicable Rules was attended by the unusual feature that the reviewing registrar left the employ of the court after assessing the bill and after the applicant’s request for her to provide reasons (see 6.33(4)).

13. The absence of reasons produces difficulties for the process of review otherwise contemplated within the Rules.  This unusual situation and this difficulty was dealt with by a process ultimately embodied in orders made on 23 March 2009 which provided relevantly as follows:

    (2)The requirements of the Family Law Rules 2004 in respect of the assessment of solicitor/client costs in this case be dispensed with insofar as they require the process applicable to bills of costs for work done prior to 1 July 2008.

    (3) Accordingly, schedule 6 to the Rules is dispensed with.

    (4)The rendering of a bill of costs, any objection to the bill, and any assessment thereafter occur by reference to the practices and procedures applicable to the assessment of bills of costs for work done subsequent to 1 July 2008.

    (5)In respect of paragraph 4 above, each of the parties be entitled to rely upon such documents as each considers appropriate already filed by them in respect of these current proceedings.

14. The application for review by this court (Part 6.8) was, then, to proceed in the manner just described.

15. It will be appreciated by reference to the orders made that an attempt had been made by the court to facilitate the earliest possible hearing of this application (bearing in mind that other applications involving serious issues with respect to children and, indeed, financial matters are deserving of the Court’s time) but in a manner that, because of the difficulty created by the absence of the Registrar’s reasons, provided the most expeditious and cost-effective means of dealing with the application.

16. The parties ultimately complied with the requirements of those orders and in particular, the applicant - who I should mention appears for himself and has done so at all times, including in the preparation of his material - prepared a document which is headed for convenience “Identification of Items and Applicant’s Documents”.  Mr Robinson, counsel for the respondent firm, responds in the document required of the respondent filed 10 August 2009, which adopts as headings the headings adopted by the applicant in that document.

17. In the course of oral submissions made on behalf of the applicant, it transpired that he relied upon an affidavit sworn by a solicitor, Mr T, and filed in this court in support of the applicant’s case on 4 November 2008, and the applicant also relied upon a letter from solicitors in Toowoomba.

18. That evidence can be seen as important to a central assertion made by the applicant in respect of the disputed costs: namely, that the use of counsel at a conciliation conference in this court was unnecessary, as that expression is used in clause 6.35 of Schedule 6.

19. Upon the applicant seeking to rely upon those documents, Mr Robinson advised the court that a ruling had been made by the assessing registrar that the affidavit of Mr T could not be used by the applicant at the assessment process.  There were some doubts about whether a similar ruling had been made in respect of a letter from Toowoomba solicitors, Kennedy Spanner.

20. Mr Pomroy accepts, at least, that the affidavit of Mr T, a sworn document deposing in general terms to the necessity of the use of counsel at a conciliation conference, was not permitted to be used by the Registrar and accordingly was not evidence before the Registrar.

21. That circumstance creates a difficulty that ultimately impacts not only upon the applicant, but also upon the respondents. Clause 6.55(1) of Schedule 6 provides:

    6.55(1) An application for review must be heard by a judge;

    6.55(2) At the hearing of the application:

    (a) the court must not receive any new evidence;

    ...

22. Accordingly, that rule prohibits, on its face, the applicant from relying upon the evidence which he seeks to rely upon before me, which is plainly crucial to his case, because it was not evidence before the Registrar, and, therefore, is new evidence before me, contrary to the prohibition contained in the clause just referred to.

23. In my view, I have the power to dispense with that requirement by reference to Rules 1.10 and 1.12 of the Family Law Rules.

24. However, if I were to do so, what might conveniently be called natural justice considerations arise with respect to the respondent.  It seems to me the respondent can fairly say, because of the provisions of 6.55(2)(a), that they did not come to this review prepared to meet a case based upon the receipt of evidence which was not before the Registrar.

25. In turn, Mr Pomroy says that the evidence is crucial to the case he seeks to make, and from what I have seen of the material, that seems to me to be plainly correct.

26. There also exists at least the possibility that a judge of this court might be able to facilitate proof of “general practice” about the use of counsel at a conciliation conference by reference to section 144 of the Evidence Act 1995 (Cth). Mr Pomroy, who not only appears for himself but is not legally trained, understandably does not come to court equipped or ready to advance arguments in respect of the use of section 144 in the manner just described.

27. In any event, whether section 144 is (arguably) applicable or not, I confess to a significant degree of discomfort in using that section to facilitate proof of what at best, if permissible, is a general proposition unrelated to the facts and circumstances surrounding the particular conciliation conference in which counsel was used in this case.

28. As I indicated during the course of argument, even if section 144 was available to this court, to facilitate proof of the general practice which is partly, at least, deposed to by Mr T and referred to in the letter from Kennedy Spanner, it seems to me that I ought not do so in the circumstances of this case. That is all the more so in circumstances where a respondent seeks to place before the court evidence in relation to the specifics of this particular conciliation conference in the context of this specific bill of costs.

29. That being the case, the position confronted by the court on a review is that a self-represented applicant who seeks to challenge a bill, for what for him is a significant sum of money, is confronted by a potential difficulty arising from a provision of the Rules.

30. As I indicated during the course of argument, it seems to me proper and just to give the respondent firm an opportunity to respond, if they so choose, and/or to cross-examine the deponent, Mr T, and, indeed, Mr Kennedy, if the letter from Kennedy Spanner is to be relied upon.

31. That raises significant issues about the manner in which this case should be dealt with.

32. First, as reference to Schedule 6 and also to Chapter 19 of the Rules makes plain, the process of assessment and ultimate review by a court is designed to take place in an expeditious way in respect of which the assertions about matters not properly forming part of the bill of costs can be dealt with.

33. The notion that proceedings ought be conducted by this court in that context that would involve significant factual matters and cross-examination of witnesses at what is, effectively, a trial is broadly antithetical to the processes contemplated by the Rules and, relevantly, Schedule 6.

34. It can fairly be said, I think, that the reason that Mr Pomroy, the respondent, and the court are in the position that they are in, in that respect derives, at least significantly, from the unfortunate circumstance that reasons were not provided by a Registrar, as the rules contemplate, by reason of that Registrar leaving the employ of the court prior to the request for reasons being made.

35. I should also add that, where a Registrar has left the court and has been conducting what might be described, I think, as a “quasi-judicial process”, there is no power in the court to require a person no longer holding that “quasi-judicial position” to provide reasons subsequent to their departure from the court.  That consideration was, it can be understood, a significant matter underlying the manner in which the case was proposed to be dealt with in the first place.

36. The thrust of the submissions made by Mr Pomroy is that he wants these assertions made by him, plainly central to his case, to be looked at properly within the context of a proper assessment of the bill of costs.  The process required for that to occur, if the pre-1 July 2008 procedures are to take place, would involve a Registrar being involved in a process not contemplated by the Rules.

37. As well as that, as I indicated to both parties during the course of the hearing, Registrar resources within this court are already committed to the management of important and difficult matters, and there is simply neither the resources nor the capacity to deal with matters of substance of the type envisaged by Mr Pomroy.

38. As a result, if any such process was to commence anew, it is likely to be extremely lengthy (perhaps stretching even over years rather than months) and, in any event, is a process not contemplated within the process of assessment provided for.

39. The position with respect to the assessment of bills of costs for work done after 1 July 2008 is now significantly different.  In particular, the assessment process, by reference to court-appointed assessors, that is common to the Uniform Civil Procedure Rules Queensland and recognised in the Legal Profession Act2007 (Qld), also applies to “new bills” within this court.

40. That process involves the capacity for each of the parties to make such assertions as they each consider appropriate in respect of the proper amount, the subject of the bill.  That process would permit Mr Pomroy to raise each and all of the matters that he has raised in the context of these proceedings. 

41. Mr Robinson of counsel, who is highly experienced in the area of costs generally, and is himself a costs assessor registered in the Supreme Court, advises that not only, as might be expected, do natural justice considerations attend the assessment process contemplated, but also the assessor in that same process can take account of such matters as the assessor considers appropriate - much like, for example, a State Magistrates Court in dealing with civil claims of less than $10,000.

42. That being the case, there is plainly the scope for Mr Pomroy to raise each and all of the matters considered by him to be important and central to his objections to those parts of the bill rendered by his former solicitors.

43. Moreover, it seems to me that, if I have the power to facilitate that process, it would be efficient and expeditious. I consider that it would provide an outcome for these proceedings (that have now continued for a very long time) very significantly quicker than what commencing the pre-1 July 2008 process could achieve.

44. Thirdly, I see no reason why either party could not use the material already prepared by each of them in respect of these proceedings in those “new” proceedings.

45. In particular, it seems to me that Mr Pomroy has, with respect, done a competent job of preparing the document contemplated by the orders made earlier by me and Mr Robinson in his submissions in response has helpfully adopted the same “headings” and series of issues referred to by Mr Pomroy in response.

46. Either party may wish to produce further documents or evidence but, on the face of it, that appears unnecessary, and I can see no reason why those earlier documents cannot be used in any new process.

47. It follows, then, that a new process, in accordance with the post-1 July 2008 assessment process, can occur at very little additional cost to the respondent and with very little additional cost in terms of inconvenience and time to the applicant.

48. There remains, then, the issue of whether, if all of those matters point to a process different to that which is prima facie provided for within the Rules, I have power to facilitate that different process, and in particular, to facilitate the process that applies in respect of bills for work done after 1 July 2008.

49. In my view, I do have the power to so order.

50. No legislative provision stands in the way of the exercise of that power. The matters earlier referred to, including the processes earlier described, are prescribed in the Rules and, at least in part, in Schedule 6 to those Rules.

51. This court has power pursuant to Rule 1.12, and probably also pursuant to Rule 1.10, to both dispense with compliance with “any of” the rules, “at any time” and can make orders (subject to legislative prohibition) as provided for in Rule 1.10.

52. In the application of the Rules - including, it should be emphasised, the application of Rule 1.12 (and Rule 1.10) - the court is required to apply the Rules in a way which promotes the main purpose of the Rules and which facilitates the active management of cases by the court.

53. In the context of what is being discussed in this case, it is significant to note that Rule 1.06 includes the following mandatory obligations upon a court in promoting the main purpose of the Rules:

    …

    (g)considering whether the likely benefits of taking a step justify the costs of that step;

    (h)dealing with as many aspects of the case as possible on the same occasion;

    (i)minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and

    (j)having regard to any barriers to a party’s understanding of anything relevant to the case.

    …

54. The court is enjoined to apply the rules in a way that “achieve the main purpose” and a number of methods are set out in the Rules to indicate the course that the court should adopt.

55. In particular, the court must apply the Rules in a way that is “proportionate to the issues in a case and their complexity and the likely costs of the case”, “promotes the saving of costs” and “gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases” (Rule 1.07).

56. It will be clear, I think, from what I have earlier said, that I consider that the adoption of the process now provided for in disputations about solicitor/client costs that involve the use of assessors and make consistent the processes of this court with courts of civil jurisdiction in this State, are a cost-effective way of dealing with these issues and are “proportionate to the issues” involved and “the likely costs of the case”.

57. In my view, then, there is a strong case for dispensing with the requirements necessary to be applied in situations where bills apply to work done prior to 1 July 2008 and substituting in lieu the process now applicable to bills for work done after that date.

1. That is all the more so in my view in the unusual circumstances of this case. Doing so, in my view, allows the proper consideration of the important matters raised by the applicant and appropriately affords the respondent an opportunity to appropriately respond.

2. For those reasons, I make the orders earlier set out.

3. Mr Robinson, on behalf of the respondent firm, applies for a certificate pursuant to Section 10(2) of the Federal Proceedings (Costs) Act 1981 (Cth).

4. The circumstances of this case have already been referred to.  In particular, the unfortunate circumstance that reasons were required of a Registrar who no longer held that position within the court have been held central to the reasons why the court has adopted the approach indicated.

5. It seems to me that that event has been the catalyst for subsequent appearances that have been necessary and, in light of that unusual circumstance, it seems to me appropriate that I should grant a certificate pursuant to section 10(2) of that Act and I so order, in respect of the costs of the respondents in respect of each of the proceedings on 17 June 2009 and 25 February 2010.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Murphy J

Associate: 

Date:  15 March 2010