Pond and Thurga and Ors

[2011] FamCA 292

FAMILY COURT OF AUSTRALIA

POND & THURGA AND ORS [2011] FamCA 292

FAMILY LAW - COSTS – third party costs - directions

Family Law Act 1975 (Cth)

APPLICANT: Ms Pond

FIRST RESPONDENT: Mr Thurga

SECOND RESPONDENT: Mr Hedger

SIXTH RESPONDENT: Ms X Thurga

FILE NUMBER: SYF 3665 of 2005

DATE DELIVERED: 5 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 5 April 2011

REPRESENTATION

APPLICANT:

No appearance

SOLICITOR FOR FIRST RESPONDENT:

No appearance

COUNSEL FOR SECOND & SIXTH RESPONDENTS:

G Watkins

SOLICITOR FOR SECOND &

SIXTH RESPONDENTS:

Sage Solicitors

COUNSEL FOR THIRD PARTY:

G Gould

Orders

1. That on or before 12 April 2011 the second and sixth respondents file and serve an application and supporting application seeking dismissal of the Amended Initiating Application (Family Law) filed 8 October 2010.

2. That both the application and affidavit in support be forwarded to the first respondent by prepaid post or document exchange to John Costigan, Barrister at Law, …, Sydney on or before 12 April 2011 AND THAT this be sufficient service upon the first respondent.

3. That the application for dismissal be listed before me at 10.00am 5 May 2011 and in the absence of an appearance by or on behalf of the applicant and first respondent such application be heard on an undefended basis.

4. That the second and sixth respondents cause a sealed copy of the Orders made this day to be served on the applicant and first respondent on or before 12 April 2011.

5. That the following directions are made in relation to the proposed application for costs to be sought by the second and sixth respondents against Mr M:

   (a)Within seven (7) days of the conclusion of the proceedings commenced by the Amended Initiating Application (Family Law) filed 8 October 2010 the second and sixth respondents notify Mr M in writing of the conclusion of the proceedings.

   (b)The second and sixth respondents pay the costs of Mr M of and incidental to the proceedings listed 5 April 2011 assessed in the sum of $1,500.00 on or before 3 May 2011.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF3665 of 2005

Ms Pond

Applicant

And

Mr Thurga

Respondent

And

Mr Hedger

Second Respondent

And

Ms X Thurga

Sixth Respondent

REASONS FOR JUDGMENT

Introduction

1. On 1 April 2011 written notice was given on behalf of the second and sixth respondents to Mr M, solicitor (hereinafter referred to as “the solicitor”) that an order for costs would be sought against him by them in relation to the substantive proceedings between all of the parties and in particular, the substantive application previously made by the applicant for property settlement orders.

2. In addition, the solicitor was notified at the same time that an order for costs and alternative directions would be sought when the matter was listed in a duty list on 5 April 2011.

3. Counsel appeared for the solicitor.

4. No application for costs has yet been filed.

5. No notification, either in writing or orally, was given to the solicitor that an order for costs would not be sought against him today and that in those circumstances he may wish to consider whether or not he should be legally represented.

6. Counsel for the solicitor sought an order for costs in the sum of $1,500.00.

7. That order was sought on the basis of the lack of any notice being given to the solicitor and that an order for costs would not be sought against him today.

8. In the absence of such notice being given, it is submitted that it was reasonable for the solicitor to be represented by counsel, given that the basis for an order for costs may well reflect upon the exercise of his profession and may also raise other issues of potentially grave concern.

9. The order for costs of the day sought by the solicitor was opposed by the second and sixth respondents through counsel.

10. It was submitted that it should have been clear to the solicitor that in the absence of a written application for costs with an affidavit in support, the probabilities were that only directions would be made today.

11. In addition, it was submitted that no communication was received by or on behalf of the solicitor to the effect that his position was not likely to be adversely affected, if only directions were to be sought today.

Conclusion

1. I have concluded that it is just and proper that an order for costs be made as sought.

2. My reasons are as follows.

3. The second and sixth respondents gave the written notice to which I have referred.

4. The written notice potentially raised a substantive issue for determination, namely, costs against the solicitor.  An order for costs is normally sought as between parties.

5. Consequently, the fact that an order for costs was to be sought against the solicitor raised issues for determination which may reflect upon his standing as a solicitor given the grounds that must be established for that purpose.

6. No notice was given to the solicitor that an order for costs would not be sought against him today.  Nor was he informed as to when an application, properly prepared with a supporting affidavit, would be filed and served upon him.

7. The solicitor was left in the position where it was possible that an order for costs would be sought against him today as intimated in the written notice which he received last Friday, 1 April 2011.

8. In the circumstances, I consider that it was reasonable that the solicitor brief counsel to represent him today.

9. No communication was provided by or on behalf of the second and sixth respondents, making it clear to the solicitor that the only matter that would be raised today would be the question of directions of a procedural nature for the purpose of continuing proposed proceedings for costs to be instituted by the second and sixth respondents.

10. In addition, no reasonable explanation was given for the lack of such notice or that an application with a supporting affidavit had not yet been filed and served.

11. Therefore, an order for costs will be made as sought.

12. No issue was raised in relation to quantum.

13. Nor was any specific period sought so far as payment of costs in the event that the issue of costs per se, was to be decided in favour of the solicitor.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 5 April 2011.

Associate: 

Date:  4 May 2011