Pomroy and McPhee Solicitors (No. 2)

[2009] FamCA 354

FAMILY COURT OF AUSTRALIA

POMROY & MCPHEE SOLICITORS
(NO. 2) [2009 ] FamCA 354

FAMILY LAW – COSTS – Assessment – Review

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPLICANT: Mr Pomroy

RESPONDENT: McPhee Solicitors

FILE NUMBER: BRF 24 of 2006

DATE DELIVERED: 23 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 23 March 2009

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Robinson

SOLICITOR FOR THE RESPONDENT: Mr McPhee

Orders

IT IS ORDERED THAT

1. The hearing of the Application in a Case for Review filed by the Applicant on 21 November 2008 be adjourned to a date to be advised following receipt of documents as outlined below.

2. The requirement prescribed in Rule 6.55(2)(c)(iv) of the Family Law Rules 2004 (as amended), for Registrar Stevens to provide Reasons is dispensed with.

3. Within 28 days of today, the Applicant shall file by forwarding by mail to the Justice Murphy’s Associate,; and serve by forwarding by Registered Post to the Respondent:

   a.A document which:

   i.Identifies precisely which of the items contained in the Notice Disputing Itemised Costs Account filed before Registrar Stevens is alleged to be relevant to the application for Review;

   ii.Specifies precisely what errors of fact are said to have been made by Registrar Stevens at the time of assessment of the bill;

   iii.Specifies precisely what errors of law are said to have been made by Registrar Stevens at the time of assessing the bill;

   iv.Identifies precisely the evidence which was before Registrar Stevens which, it is said, supports each of the above contentions of error.  (Note: the court does not dispense with the requirements of Rule 6.55(2)(a) - the Court will not receive any new evidence,  that is, any evidence that was not before Registrar Stevens, from either party);

   v.Attaches any document which was in evidence before Registrar Stevens which, it is said, supports any of the matters contended for.

   b.A written outline of submissions sought to be made in support of matters contained in the document outlined in order 3(a) above, with such submission attaching any documents in support of such submission.

4. The Respondent shall file by forwarding by mail to the Justice Murphy’s Associate; and serve by forwarding by Registered Post to the Applicant within 28 days of receipt of the Applicant’s documents outlined in order 3 above:

   a.Their response to the Applicant’s documents outlined in order 3 above;

   b.A written outline of submissions sought to be made in support of their response outlined in order 4(a) above, with such submission attaching any documents in support of such submission.

5. The Applicant shall file by forwarding by mail to the Justice Murphy’s Associate; and serve by forwarding by Registered Post to the Applicant within 14 days of receipt of the Respondent’s document outlined in order 4 above, any response to such document.

UPON THE UNDERTAKING BY THE APPLICANT THAT

Until such time as these proceedings are finalised, he will not further extend the mortgage facility with Suncorp over the property situated at M in the State of Queensland, and shall preserve the redraw facility attached to such borrowing such that it does not at any time fall below the sum of $15,000.00

IT IS FURTHER ORDERED THAT

1. The injunctions ordered in paragraph 2 of the orders made by Justice Murphy on 27 January 2009 are discharged.

AND IT IS FURTHER ORDERED THAT

1. The Respondent firm is granted a certificate pursuant to Section 10(2) of the Federal Proceedings (Costs) Act 1981, that in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 to them of such part of their costs incurred in relation to these proceedings on 27 January 2009 and 23 March 2009 as the Attorney-General considers appropriate.

NOTATION :

This Order has been amended pursuant to Rule 17.02 of the FAMILY LAW RULES 2004 by adding the words “on 27 January 2009 and 23 March 2009” to paragraph 7 of the orders.

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. On 27 January 2009 I made orders in respect of what is, in essence, an application by the applicant, Mr Pomroy, who represents himself, to review a view of a decision with respect to costs made by Registrar Stevens.

2. Procedural orders were made at that time.  Unknown to the Court at that time was the fact that Registrar Stevens was no longer a Registrar of this Court.  The order, in effect, required Registrar Stevens to undertake certain things, in particular, to provide Reasons as provided for within the Rules. 

3. In order to deal with this hiatus, the Court wrote to each of the parties on 3 February 2009.  The terms of that letter are important and I will set them out in full as follows:

4. It is the mention of the matter consequent upon the applicant failing to consent to that process to which these reasons relate. 

5. Mr Robinson, counsel for the respondent firm, contends that the process outlined in that letter is the process that ought be adopted and submits in that respect that the Court has power to adopt that process in the somewhat unusual circumstance of this case.  I accept that submission. 

6. It seems to me that, by reference to the Rules outlined in the letter of 3 February 2009, the Court has power, and in particular, the power to dispense with Rules so as to effect justice between the parties, and that the process outlined in that letter provides for the requirements of natural justice to be met. 

7. That process also provides for the review by the applicant to be dealt with in the most cost-efficient and expeditious manner in the light of the absence of Registrar Stevens. 

8. It will be appreciated that the Rules in general in respect of the assessment of costs, speaking generally, have as their core such a methodology.  In particular, those Rules provide, in the first instance, for a summary assessment without reasons to be made for the very reason that such a method is both cost and time efficient.  The Rules go on to provide for methods of review that allow, by reference to the rules of natural justice, each of the parties to be heard in respect of error. 

9. Having satisfied myself both that I have power to make orders in accordance with the proposals contained in the letter which I have just set out, and that it is both cost and time efficient for each of the parties, I propose to make orders now formally in accordance with that proposed outline. 

10. The provisions of the relevant section of the Federal Proceedings (Costs) Act 1981 (Cth) come into operation in circumstances by reason of unforeseen events such as illness, death and resignation.

11. An appearance here became necessary by reason of the unavailability of a judicial officer. 

12. The situation here seems to me to fall squarely within the terms of that section and I have no difficulty ordering a certificate.

13. The orders that I have earlier indicated will be made upon the undertaking given by the husband personally today that, until such time as these proceedings are finalised, he will not further extend the mortgage facility with Suncorp over the property situated at M, and he shall preserve the redraw facility attached to such borrowing such that it does not at any time fall below the sum of $15,000. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:                 

Date:              5 May 2009