Pomroy and McPhee Solicitors

[2009] FamCA 335

FAMILY COURT OF AUSTRALIA

POMROY & MCPHEE SOLICITORS [2009] FamCA 335

FAMILY LAW – COSTS – Assessment – Review

Family Law Act 1975 (Cth)

APPLICANT: Mr Pomroy

RESPONDENT: McPhee Solicitors

FILE NUMBER: BRF 24 of 2006

DATE DELIVERED: 27 January 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2009

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Atkinson

SOLICITOR FOR THE RESPONDENT: McPhee solicitors

Orders

IT IS ORDERED THAT

1. Within 3 days of today, the Applicant pay to the Respondent Solicitor’s firm the sum of $3600.00.

2. The Applicant be restrained and an injunction be granted restraining the Applicant from dealing in any way, save as ordered by the Court or by consent between the Applicant and the Respondent, with:

   a.the amount currently invested at the Heritage Building Society in the approximate sum of $15,000.00 due to mature on 22 May 2009;

   b.the net proceeds of sale of 3 blocks of land currently owned by the Applicant and situated at H, which he has today informed the Court are on the market for sale at the current time.

IT IS FURTHER ORDERED THAT

1. The time available to the Applicant to seek Reasons from Registrar Stevens pursuant to Clause 6.33(4) of Schedule 6 to the Family Law Rules 2004, be extended until 4.00pm 3 February 2009 and that within such request the Applicant specify which such items in the Bill of Costs he disputes and in respect of which he seeks Reasons.

2. In the event that no request for Reasons is filed by 4.00pm on 3 February 2009, the Application of Mr Pomroy be dismissed, and listed before Justice Murphy at a time and date to be advised for the determination of an application for costs by the Respondent solicitor in respect of the proceedings today.

3. If the request for Reasons is filed by 4.00pm on 3 February 2009:

   a.the matter be listed for further hearing before Justice Murphy at a time and date to be advised;

   b.the question of the application for costs of today be reserved until the hearing to be listed before Justice Murphy.

4. The Applicant keep the Respondent solicitors informed of the progress of sale of each and all of the blocks of land, including:

   a.all Real Estate agents that the blocks of land are listed with;

   b.the terms of any written offer, whether in the form of a contract, or otherwise received in respect of any or all of the blocks of land;

   c.any prospective settlement dates, including any variations to settlement dates of any or all blocks of land, from those contained in any such contract.

5. In the event that the matter is not listed before Justice Murphy prior to 22 May 2009, the Respondent solicitors are given liberty to apply with respect to the $15,000.00 invested with the Heritage Building Society.

6. Either party file and serve any further affidavit upon which either seeks to rely, not later than 14 days prior to the further hearing of this matter on the date to be advised.

7. The Applicant file and serve a new Application for Review within 14 days of receiving the Reasons for Judgment.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF24/2006

MR POMROY

Applicant

And

MCPHEE SOLICITORS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 7 November 2008, a costs assessment was made by Registrar Stephens as between the applicant in the current proceedings, Mr Pomroy, and his former solicitor, Mr McPhee. 

2. An application was made to review that decision. There was some doubt initially about the time at which that application was made and whether it was, in fact, within time. 

3. As a result, there were proceedings previously before me on 18 December 2008 at which time the respondent's solicitor sought to have the assessed costs paid and, at which time, Mr Pomroy sought a stay.

4. By reason of the matters which occurred on that day, I ordered that the review be heard today. The solicitor then appearing on behalf of Mr McPhee indicated that no action would be taken to enforce the assessed costs pending the matter coming on before the Court today.

5. The application made by Mr Pomroy is made by him in circumstances where he represents himself and where it seems, at least on the face of it, that he has prepared all of his own material. 

6. I should say at the outset that a review of that material indicates to me that Mr Pomroy’s application is not made vexatiously, nor without a purported foundation. 

7. The application is though, incompetent. It makes reference to Ch 19 of the Family Law Rules 2004, which, of course, governs the issue of costs as between party and party. Schedule 6 of the Family Court Rules is, in relevant respects, in similar terms and provides the correct basis for the application made by Mr Pomroy.

8. Schedule 6 contains a number of detailed paragraphs that set out comprehensively the mandatory process which must be followed if an applicant is to properly review a decision of the Registrar in respect of solicitor and client costs before a Judge of this Court.

9. Mr Pomroy points out that one of the relevant paragraphs provides that he may seek reasons for the Registrar's decision.  He submits, therefore, that this is a permissive provision, and there is no mandatory requirement for him to do so. 

10. However, Cl 6.55 of that schedule provides as follows:

    "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;

    b)         The Court may:

    (i)       Exercise all the powers of the Registrar,

    (ii)       Set aside or vary the Registrar's decision, and,

    (iii)Return any item to the Registrar for reconsideration.

    c)         A party may raise an issue only if it:

    (i)Was identified in an itemised costs account or notice disputing itemised costs account;

    (ii)Concerns the costs of assessing the itemised account;

    (iii)Concerns an alleged error of calculation in or omission from the assessment of the itemised costs account; or,

    (iv)Concerns an alleged error of law or fact by the Registrar and the party has made a request under sub clause 6.33(4)."

11. The reference to Sub-cl 6.33(4) is a reference to the permissive provision referred to earlier, which permits a party to ask the Registrar to give reasons for the Registrar's decision about a disputed item within 14 days.  There is no doubt that Mr Pomroy did not, and has not, sought to ask the Registrar to give reasons for her decision about any disputed item.

12. By reason of that fact, it is submitted by Mr Atkinson, who appears as counsel for the respondent firm, that the Court does not have the power, at least without exercising powers given to it pursuant to the Rules to extend time, to hear the application in its current form, and that the application is also incompetent in those terms.

13. It is difficult to discern from the affidavit material filed by Mr Pomroy, precisely what matters are raised, at least within the terms of Cl 6.55(2)(c) to which I have made reference earlier.  It is clear that that clause provides for a number of preconditions to the exercise of review by a Judge.

14. In broad terms, for reasons which I have attempted to outline to Mr Pomroy during the course of argument, the pre-conditions occur within the context of the Court attempting to have disputes about costs between solicitors and their clients have some proportionality and to avoid the necessity for an item by item consideration, either by the Registrar or by a reviewing Court. 

15. It seems to me that the submissions made by Mr Atkinson in his helpful written submissions are well made and that, in its current form, the Court does not have the power to deal with the Application.

16. The Court does, however, as Mr Atkinson properly concedes, have power to extend time so as to, as I put it in argument "cure" the difficulty confronting Mr Pomroy. 

17. In particular, the Court has power pursuant to Rule 1.12 to dispense with the rules, and pursuant to Rule 1.14 to shorten or extend time to allow acts required by the rules to be done. 

18. As is, with respect, correctly submitted by Mr Atkinson, if the Court considers the exercise of that power, the Court must exercise a discretion as to whether that power ought be exercised by reference to the whole of the circumstances pertaining to the case. Mr Atkinson makes six specific submissions to the effect that the discretion ought not be exercised in the applicant's favour. 

19. He submits:

    a)The matter has been ongoing for some two years;

    b)The (assessed) costs of $15,237.88 are not prima facie unreasonable for eight months work;

    c)The costs of any review threatened to become disproportionate to the amount at issue;

    d)The applicant has not paid any part of the costs even those amounts he does not dispute;

    e)There has been a strong traditional reluctance of Courts to intervene in the decisions of taxing officers because they involve matters of discretion and taxing officers have been regarded as a form of expert tribunal (see especially the authorities collected by McGill DCJ in Hennessey Glass and Aluminium v Watpac Australia Pty Ltd [2007] QDC 57);

    f)There is value in finality.

20. Mr Pomroy submits specifically with respect to some of those matters, that, although the matter has been ongoing for some two years, some at least of the delay was occasioned by the respondent's solicitor being subject to disciplinary action by the Legal Services Commission, the result of which was that he was, in effect, unavailable to attend to the matter. 

21. Secondly he submits that the costs in the specified amounts are in respect of five months' work, not eight months' work.  He acknowledges that the costs of any review threaten to become disproportionate to the amount at issue but (implicitly) submits that, the amount involved is an amount of significance to him. 

22. Next, after some discussion between Mr Pomroy and myself, Mr Pomroy indicated that he has been willing to pay an amount of $3600 odd to Mr McPhee and notified him of that fact. 

23. There was a risk that disclosure of the correspondence associated with that offer might result in the abrogation of the without prejudice privilege attaching to negotiations, and given Mr Pomroy represents himself, I was cautious in ensuring that did not occur. 

24. In broad terms, however, Mr Pomroy acknowledges that he should pay, and is in fact capable of paying, at least the sum of $3600 in respect of the amount assessed as owing.

25. Of course, Mr Atkinson makes the point that if that amount is paid, then the amount in dispute is some $12,000 or more, which, he says, exacerbates his point about the costs of review threatening to become disproportionate to the amount at issue.

26. Mr Pomroy does not take issue with the final two matters submitted by Mr Atkinson. 

27. In respect of the period of two years, I should briefly outline this chronology. A bill of costs in itemised form was sent by the respondent's solicitor to Mr Pomroy in February of 2007.  Pursuant to the Rules, Mr Pomroy was obliged to challenge that itemised account within 28 days, that is by March 2007.  He did not do so until November 2007, that is some eight months later.  His reasons for not doing so are not in evidence before me. 

28. Subsequent to that, and notwithstanding that delay, there was, as the Rules prescribe, a preliminary assessment conference in January of 2008. Mr Atkinson fairly acknowledges that the difficulties confronted by his client's solicitor in the Legal Services Commission, resulted in some delay on his side during 2008. 

29. It seems to me that, although the matter has been ongoing for some two years, which is a matter of some considerable regret, it is not a case where delay can be entirely attributed to Mr Pomroy. I emphasise again that he has, at all times relevant to these instant proceedings, represented himself.

30. I have significant concerns arising from what might be described as the merits of the prospective review mooted by Mr Pomroy if the indulgence earlier referred to is granted to him. 

31. Mr Atkinson has, in that respect, referred me to the decision of Brott & Abeles, and cites that case as authority for the proposition that a Judge hearing a review of an application of this type is acting very much akin to an appeal, and the nature of the application is in effect in the nature of an appeal in that it is confined effectively to errors of law or fact. 

32. Mr Atkinson argues that, by reference to Mr Pomroy’s affidavit, I should have significant concerns about what might be described as his prospects.  I do have significant concerns about Mr Pomroy’s prospects, and I have taken that matter into account in arriving at my decision.  I consider it an important factor to be taken into account.

33. There are, though, some disputed matters of fact.  For example, whether in fact the respondent's solicitor was instructed by Mr Pomroy to instruct counsel for a conciliation conference.  Mr Pomroy has told the Court today that he specifically instructed Mr McPhee not to instruct counsel in respect of the conciliation conference.  Mr Atkinson says that the position of the solicitor reinforced, it is said, by a letter of authority signed by Mr Pomroy and forwarded to the counsel concerned, points to an opposite conclusion. 

34. The resolution of that factual dispute is beyond the scope of the current application for indulgence, but it is a matter that I ought take into account in exercising my discretion.

35. Ultimately, I am persuaded that Mr Pomroy ought be given the opportunity to frame the review in appropriate terms, having had the opportunity to look at and examine Reasons to be provided by Registrar Stephens, and should he so choose, to receive legal advice about the process and nature of the hearing provided for in Sch 6 to which I have earlier referred, as well as receiving advice, if he considers it appropriate, in respect of the prospects of success of any such review.

36. However, it seems to me, in the exercise of that discretion, that permitting Mr Pomroy to take advantage of that indulgence, should be conditional upon a number of things, that provides evidence of the sincerity of his approach in respect to the review. Also, those conditions should provide for the possibility that, if the review is unsuccessful, not only will there be an assessed amount of costs due and payable, but it is also highly likely that an application for costs will be made in respect of that review hearing.  In that respect, an application for costs is made by the respondent's solicitor in respect of today.

37. If I am to exercise my discretion to permit Mr Pomroy the indulgence sought, it should come with conditions.  Those conditions are:

    a)That within three days of today, he pay to the respondent solicitor's firm, the sum of $3600;

    b)That he be restrained and an injunction be granted restraining him from dealing in any way, save as ordered by the Court or by consent between he and the respondent, with:

    a)   The amount currently invested at the Heritage Building Society in the approximate sum of $15,000 due to mature on 22 May 2008, and,

    b)     The net proceeds of sale of three blocks of land currently owned by the applicant, Mr Pomroy, and situated at H, which he has today informed the Court are on the market for sale at the current time.

38. Having made those orders, I will extend the time available to the applicant to seek reasons from Registrar Stephens pursuant to Cl 6.33(4) of Sch 6 to the Family Law Rules 2004, until 4 pm on 3 February 2009 and within that request, Mr Pomroy shall specify which such items in the bill of costs he disputes in respect of which he seeks reasons.

39. In the event that no request for reasons is filed by that time on that day, the application of Mr Pomroy be dismissed and the matter be listed before me at a time and on a date to be advised for the determination of an application for costs by the respondent's solicitor in respect of the proceedings today.

40. If the request for the reasons is filed by the time on the date earlier specified:

    a)The matter be listed for further hearing before me at a time and on a date to be advised, and,

    b)The question of the application for the costs of today be reserved until that day.

41. In addition, I will order that Mr Pomroy keep the respondent's solicitors informed of the progress of sale of each and all of the blocks of land, including:

    a)All real estate agents that the blocks of land are listed with,

    b)The terms of any written offer, whether in the form of a contract or otherwise, received in respect of any or all of the blocks of land,

    c)Any prospective settlement dates including any variations to settlement dates of any or all blocks of land, from those contained in any such contract.

42. In the event that the matter is not listed before me prior to 22 May 2009, I give liberty to the respondent's solicitor to apply with respect to the $15,000 invested with the Heritage Building Society.

43. I will order that either party file any further affidavit upon which either seeks to rely not later than 14 days prior to the further hearing of this matter on the date to be advised.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  7 May 2009