Re Felicity; FM v Secretary, Department of Family and Community Services (No 4)

In *Re Felicity; FM v Secretary, Department of Family and Community Services (No 4)*, the Court of Appeal of New South Wales considered an application for costs to be awarded against a legal practitioner personally. The applicant, FM, sought to appeal a decision concerning her child, Felicity, and the Secretary of the Department of Family and Community Services was the respondent. The core of the dispute revolved around whether the applicant's solicitor, George Potkonyak, had engaged in conduct that warranted a personal costs order against him.

The primary legal issues before the court were whether the costs incurred by the Secretary and the father were attributable to the misconduct of the applicant's solicitor, and whether the solicitor had incurred costs without reasonable cause, as contemplated by section 99 of the *Civil Procedure Act 2005* (NSW). Additionally, the court examined the scope of the Supreme Court's supervisory jurisdiction over legal practitioners under section 23 of the *Supreme Court Act 1970* (NSW) and whether this jurisdiction was limited by the provisions of the *Civil Procedure Act 2005*. The court also considered the application of the "overriding purpose" of the *Civil Procedure Act 2005*, specifically section 56, in determining the power to award costs against a practitioner.

The court reasoned that the solicitor's conduct in prosecuting the appeal, which was ultimately unsuccessful, had led to unnecessary costs being incurred by the respondents. Applying section 99 of the *Civil Procedure Act 2005*, the court found that the solicitor had acted without reasonable cause and that his actions constituted serious misconduct in the context of litigation. The court held that its supervisory jurisdiction under section 23 of the *Supreme Court Act 1970* was not abrogated by section 99 of the *Civil Procedure Act 2005*, and that the overriding purpose of the latter Act supported the making of a personal costs order in circumstances of misconduct.

Consequently, the Court of Appeal ordered that George Potkonyak, the solicitor for the applicant, pay to the Secretary and the father the amount of the costs which the applicant was ordered to pay to those parties, being costs incurred in the Court of Appeal. The court further ordered that Mr Potkonyak pay the Secretary’s costs of the motion heard on 29 July 2014.