Potepa, S. v Commonwealth of Australia

[1990] FCA 112

IN THE FEDERAL COURT OF AUSTRALIA	)	v ,
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NEW SOUTH WALES DISTRICT REGISTRY	NO. NG 1371 of 1988
GENERAL DIVISION

BETWEEN:  STANISLAWA POTEPA

Applicant

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AND:  COlrIMONWEALTH OF AUSTRALIA m .

Respondent

CORAM :  Einfeld J

DATE	:	29 March 1990
PLACE	:	Sydney

REASONS FOR JUDGMENT ON PAYHENT OF RESPONDENT'S COSTS OF

4 SEPTEMBER 1989

This application for review of a determination of the Administrative Appeals Tribunal made on 28 October 1988 was originally fixed for hearing on Monday 4 September 1989. On that date the solicitor for the applicant applied for an adjournment on the ground that his counsel was occupied in a part heard criminal trial and could not attend Court. He briefly explained some of the circumstances, one of which was that he had not been notified by counsel of his unavailability until around lunchtime on Friday 1 September. He said that he had been unable to retain

substitute counsel.

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The respondent, while not consenting to the adjournment, said

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that if it was granted, it wished an order for costs of the day.	!
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In the event, I granted the adjournment, fixed a new date for
hearing, and reserved the costs of the day to the hearing.	l ~
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The hearing took place on 4 October 1989 when after a half day	1..
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hearing, judgment was given dismissing the appeal and ordering	1
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the applicant to pay the respondent's costs. The question of the	I
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costs of 4 September 1989 was stood over to enable the	, .
applicant's barrister and solicltor to present affidavits of the	:
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circumstances whlch gave rise to the adjournment.	This was done

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for the obvious reason that if the circumstances were as outlined	!
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by the solicitor for the applicant on 4 September 1989, it would	I
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be unfair that the applicant should have to bear the respondent's	a ,
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costs of that day.	Yet the respondent is clearly entitled to	t :
those costs.
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Two a fidavits by the applicant's solicitor, one by his employed	2 , . I
solicitor and two by the applicant's counsel have now been supplied. No party including the respondent has indicated a wish to cross examine any deponent.
The applicant's solicitor, Richard Joseph Jankowski, asks that no
costs order be made against him.	He says in an affidavit of 10

October 1989 that he delivered a brief on this appeal to Christopher Bernard Vernon of Counsel on about 10 July 1989. Mr Vernon had appeared for the applicant before the Tribunal and had given a written advice that an appeal should be lodged. blr Jankowski said that prior to the hearing fixed for 4 September

1989, he instructed Michael William Shaw, a solicitor employed by

him, to check with Mr Vernon that all was in readiness for the hearing. Mr Shaw deposed on 9 October 1989 to having made efforts on 30 and 31 August to contact Mr Vernon by telephone, but the messages left with Mr Vernon's receptionist were not returned, even though Hr Shaw left his home as well as his office telephone number.

Mr Jankowski's account was that he had taken a telephone call from Mr Vernon at about 1.40 pm on 1 September during which itr Vernon advised that the (criminal) trial in which he had been appearing for some days would not end that day and would contlnue into the following week. Mr Vernon explained to Mr Jankowski that he had been hoping for and was anticipating being able to negotiate a plea of guilty that day but as the Crown Prosecutor had fallen ill that morning, the discussions to that end could not be pursued and the trial would be continuing. He twice suggested that Mr Jankowski seek an adjournment, but when Mr Jankowski expressed doubts and anger and pressed him to appear on 4 September, Mr Vernon said that he would be unable to appear for the applicant in this Court on that day. Mr Jankowski sald that

member to deliver the brief elsewhere. According to Mr	Mr Vernon's only offer to assist him was to provide a staff	Jankowski, the trial in fact continued for several more days.
If this was what was said to Mr Jankowski by Mr Vernon, I must confess to some doubts about the explanation. The clear inference from Mr Jankowski's account of Mr Vernonrs words, which Mr Jankowski gave to me and the respondent on the adjournment

application was that Mr Vernon was part heard in a jury trial. For obvious reasons, these are usually difficult to delay or adjourn. If this was a possible plea of guilty to the actual charge(s) which were part heard, it would hardly turn on the prosecutor's presence, for no consent or acceptance would be necessary. I£ there was a real chance of the Crown's accepting a plea of guilty to something less than the whole indictment, it is difficult to believe that the discussions to this end were sufficiently far advanced by the Friday to justify a belief that defence counsel would be free on the Monday following, if the absence of the Crown Prosecutor on one day destroyed the chances of a guilty plea permanently, as I an asked to believe did occur. The inference I would draw from this set of facts is that whatever Mr Vernon hoped, there was never a chance of the matter being resolved by the Friday, and he had little or no chance of being free to do this case on the Monday.

Mr Jankowski deposed that the applicant was a difficult client

and would not have understood or readily accepted a change from the counsel whose advice had prompted her instructions to appeal, especially so close to the hearing. Nevertheless Mr Jankowski

foreshadowing to the Australian Government Solicitor and the	says that he then set about to find another counsel, while
Court early on the Friday afternoon the possibility of an adjournment application. He preferred barristers with workersr compensation experience and wlth whom he was familiar or who were recommended. His efforts to retain a barrister of that description were unsuccessful and he therefore confirmed to the Australian Government Solicitor and the Court later on Friday 1 September that there would be an appllcatlon for an adjournment on the Monday. Mr Jankowski points out, with evident force, that Mr Vernon's failure to return his employed solicitor's telephone calls of Wednesday and Thursday contributed if not caused this problem. It is implicit in Hr Jankowski's account that Mr Vernon must have known of his likely problems then and that his desire to hold onto the brief until the last possible moment was the cause of his not returning the calls.
Mr Vernon's affidavit of 9 October 1989 informs me that the criminal proceedings were in fact committal proceedings in a Local Court in the Sydney city area which had commenced on Thursday 31 August. He did not say which Local Court or what the charge(s) were, or give any details of the matter at all. Mr Vernon deposes that the committal proceedings were expected to be finalised that day but "due to a change in instructions", were not finalised until 8 September 1989. He does not state what the change of instructions or its effect was. He only became aware of the clash with his 4 September commitment to this case "during ,
the morning of Friday l September 1989". There is no mentlon of an illness of the Crown Prosecutor having caused this situation.
Mr Vernon said that during the luncheon adjournment of the Local Court on the Friday, he tried to obtain a suitable replacement
counsel but failed at the only Chambers he approached. He says that he then telephoned Mr Jankowskifs office where he spoke, not to Mr Jankowski, but to his secretary whom he advised that he would not be able to appear on the Monday and that Mr Jankowskl would have to arrange alternative counsel. No mention of an adjournment is made in Mr Vernonrs affidavit.
This evidence conflicts in significant respects with Mr Jankowski's account of Mr Vernonrs conversation with him. I must say that if Mr Vernonfs account had been given to me on the application for an adjournment, it is likely that I would not have granted the adlournment sought but would have stood the matter down to 12 noon and directed Mr Vernon to be present. The appeal would then have proceeded on 4 September and these costs would not have been thrown away.
Mr Vernon next deposes to the extraordinary circumstance that at about 10.30 am on Monday 4 September, whilst conducting proceedings in the Local Court, he received a message on his pocket pager: "You have to appear in Potepa this morning. R Jankowski". He did not respond to this message.
In his first affidavit Mr Vernon describes his own actions as having taken "every reasonable step to ensure proper representation for the applicant in these proceedings". If this affidavit accurately describes what he did, this is, to my mind, self adulation of the most unjustifiable kind. The amount of
money involved for Mrs Potepa, and the importance of the case to her, seem simply to have been ignored in favour of Mr Vernon's
personal enrichment. The attitude to the Court is quite extraordinary.
In an affidavit in reply of 11 October, Mr Jankowski agrees that Mr Vernon did first speak to his receptionist on the Friday but that "within minutes of that telephone call", he telephoned Mr
Vernon's chambers and told hls receptionist to tell Mr Vernon that he expected him to appear for the applicant on the Monday morning. Mr Jankowski says that "within minutes" of that call, viz. at about 1.40 pm, Mr Vernon returned the call and that that is when they had the conversation detailed by Mr Jankowski in his earlier affidavit. Mr Jankowski says they had no further contact about the hearing of this case on 4 September and points out, as is evident, that it was hardly likely he would still have been seeklng Mr Vernonrs appearance at 10.30 am on the Monday morning, the respondent and the Court having been advised on the Friday afternoon of the proposed adjournment application, and the Court having heard and granted the application by that time.
On 18 October, in "reply" to Mr Jankowski's second affidavit, Mr Vernon recalls a conversation in "the late afternoon" of Friday during which Mr Jankowski told him that he had to do thls case. To this Mr Vernon says he answered:

There is no way I can just leave this criminal matter. It is a very serious case. Its not my fault that Fullerton [prosecution counsel] called in sick on Friday. Surely you can get someone else. It is a pretty open and shut case.

Mr Vernon acknowledges that the pager message on the Monday "may	have been" from his own receptionist in response to Mr
Jankowski's "prior telephone call to her". The only problem with this thesis is that Mr Jankowski's only relevant "prior telephone call" with Mr Vernon's receptionist was, according to Mr Jankowski but not to Mr Vernon, at lunchtime on the Friday, and according to Mr Jankowski, Mr Vernon responded to that call
immediately. No doubt Mr Vernonrs receptionist could have stated the facts. Mr Vernon's failure to procure her evidence or to explain its absence appears significant. There is common ground in Mr Vernon's further assertion of the simple truism that Mr Jankowski could have proceeded with the case on the Monday if he had obtained alternative counsel, but that hardly advances the present matter very far.
AS is obvious, these accounts are manifestly contradictory and conflicting in many respects. One of them is clearly untrue, I think deliberately so. Without cross examination or sign~ficant
corroboration of either account, it is difficult to say with certainty who is telling the truth. However, Mr Vernon's account is the more inherently improbable of the stories. This is principally because of his dismissive, uninformative and arrogant first affidavit and his real refusal to meet or deal with Mr Jankowski's account in his second affidavit. I cannot believe that Mr Vernon could have forgotten a personal convers'ition with Xr Jankowski on the Friday, as he did in his first affidavit, while specifically recalling that he did have a conversation with Mr Jankowski's secretary and that he did nothing else in the
matter after lunchtime on the Friday. It is suspicious that if, as he remembers 8 days later, he had a very brief conversation
with Mr Jankowski in the late afternoon of the Friday (presumably after the Local Court had finished sitting and he had returned to Chambers), Mr Jankowski would not have mentioned that he had been unable to obtain another barrister and had therefore notified, or was about to notify, the Court and the Australian Government Solicitor that he would be applying for an adjournment.
Another example of Mr Vernon's selective memory concerns the way his so-called "problem" arose. In the first affidavit, this is put down to "a change of instructions"; in the second it is said to be the sudden illness of prosecuting counsel. The effect of either and the search for alternatives other than an adjournment of the case in this Court are not addressed at all.
I say nothing of Mr Vernon's view that this matter was "a pretty open and shut case". That this assertion was tied to the likelihood that other suitable counsel would be available was at best naive. In my experience, someone else's opinion about the chances of success of a case in court is not usually influential in determining the availability of counsel, especially when as here there was what purports to be a desperate search by I Jankowski for anyone who was suitable, mostly through barristers' clerks. Even on his own account, Mr Vernon's assistance in this regard was insignificant and showed no recognition of any professional responsibility of any kind for a situation entirely of hls own making.
present purposes by the facts that Mr Vernonfs account is This attitude, however, is more relevantly demonstrated for
entirely uncorroborated despite an obvious need for corroboration, and that he does not make full, and frank disclosure. He does not even reveal when he received the Local Court brief and what it was a brief to do. Nor does he even pretend to have made an effort, which if the facts related in his second affidavit were true, may well have found favour with the prosecution and the magistrate, to recommence the Local Court proceedings on the Tuesday or even at 2.00 pm on the Monday after he had spent the morning presenting this appeal to this Court, perhaps with the assistance of chronologies and written submissions to save time.
In addition, Mr Vernon's complete failure to deny Mr Shaw's account of his attempts to make contact on the Wednesday and Thursday, and Nr Jankowskl's assertion that Mr Vernon ignored his request for an explanation of thls fallure to return Mr Shaw's calls, lead me to believe that he did receive notification of the calls and that he deliberately ignored them. It also gives rise to the inference that this was due to his concern and unease at the likely clash of commitments that was looming and his hope that, whilst he could not have assured Mr Shaw of his availab~lity for this case on the Monday, something mlght crop up which would make it possible. This is simply unacceptable and unprofessional conduct by a barrister. When it causes loss to another party, the loss should be recompensed. The contempt of and discourtesy to the Court falls to be dealt with differently.
whichever of the accounts of Messrs Jankowski and vernon is accepted, there is no doubt in my mind that the cause of the
adjournment on 4 September was Mr Vernon's retention of the brief for the applicant and acceptance of another brief, when he must have known that there would or would very likely have been a clash between them. This adjournment cost the Australian taxpayers a day's legal costs, the Court a day that could have been allocated to other deserving and waiting litigants and the cost of staff and court reporters not needed, the applicant her long and no doubt agonizingly awaited final day in Court, the applicant's solicitor and assorted clerks of barristers' chambers wasted time and telephone calls, and several other losses. This is a not lnconsiderable trail of disaster. Most of it can never be recompensed. Mr Vernon says that he is blameless in the matter. If so, standards of professional behaviour have fallen more than I should have hoped. I am surprised, to say the least, that Mr Vernon did not offer to relieve the applicant of the burden of paying the Commonwealth's costs of 4 September, either alone or jolntly with Mr Jankowski, or even explain frankly and fully, and apologise for, his part in the circumstances.
As for Mr Jankowskl, I still find it difficult to believe that it was not possible between 1.45 pm and 4.45 pm on a Friday afternoon to have found a barrister with adequate compensation law experience to do this case on the Monday. If it was not .quite the "open and shut case" declared by Mr Vernon, it was certainly not a difficult case to assimilate and prepare over a weekend. If the filed affidavits had explained any problems concerning the availability of adequate funds for counsel's fees,
understood a little better the stated difficulty of obtaining a or provided details of the barristers approached, I might have
counsel other than one of those with whom M r Jankowski regularly worked. But with no mention of this hatter in the evidence, I must assume that fees did not present a problem. In the circumstances, I am left to draw the conclusion that he was either over-selective or simply did not try as hard as he should have in the time available to obtain alternative counsel, and

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assumed that despite the actual or possible opposition of the Commonwealth, the Court would simply fit in with the dismissive

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misbehaviour of his counsel. This he was not entitled to do.

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The Federal Court Rules themselves do not absolutely or expressly

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permit the Court to make an order for costs against a solicitor

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or barrister, although Order 62 rule 9 allows the Court to make	? =
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an order against a solicitor after inquiry by a taxing officer.	I ,
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It provides: 1 1

9.   The Court or a Judge may, after reference to and report by the taxing officer, order a solicitor to repay to his client costs ordered to be paid by the client to another party where those costs had been incurred by that party in consequence of delay or misconduct on the part of the solicitor.

Section 38(2) of the Federal Court Act allows the High Court Rules to be used in cases where the Federal Court Rules are

insufficient. It provides:

In so far as the provisions for the time being applicable in accordance with sub-section (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court of a Judge, to the practice and procedure of the Court.

Order 71 rule 4 of the High Court Rules deals with personal

liability of solicitors to pay costs. It provides:

4.   Where a trial or hearing cannot conveniently proceed by reason of the solicitor for a party having -

(a) neglected to attend personally or by some proper person on his behalf; or

(b) omitted to deliver a document necessary for the use of the Court or Justice and which, according to the practice of the Court or these Rules, ought to have been delivered,

the solicitor shall personally pay to all or any of the parties such costs as the Court or Justice thinks fit to award.

This does not in terms seem to cover barristers, although it presumably must do so in those States where the profession is fused. Order 71 rule l(1) is, however, more general. It provides:

Subject to the provisions of any law of the Commonwealth and to these Rules, the costs of and incidental to all proceedings in the Court and in Chambers, including the administration of estates and trusts, are in the discretion of the Court or a Justice.

In Jess v Scott and Ors [l9861 12 FCR 187, a Full Court of thls Court (Lockhart, Sheppard and Burchett JJ) made an order of costs against a party subject to the condition that those costs be borne by that party's solicltor personally. As it does not seem to have been argued that this could not be done without reference to a taxing officer under Order 62 rule 9, the power must have

been exercised under the High Court rules.

In all the circumstances of this matter, I order that counsel for the applicant pay to the Commonwealth its costs of 4 September 1989 as assessed or taxed. I also direct that the Registrar bring the evidence in this matter and this judgment to the attention of the NSW Bar Association and the Law Society of NSW for consideration of appropriate action in relation to the conduct of Mr Vernon and Mr Jankowski.

I ceriify that -the -rh~rreeq

preced~ng pages are a true copy of t h e

Reasons for Judgment h e r e ~ n of his Honour

Just~ce Elnfeld