Re Felicity (No. 2) - [2012] NSWSC 1561

Supreme Court

New South Wales

Medium Neutral Citation: Re Felicity (No. 2) [2012] NSWSC 1561
Hearing dates: Submissions from plaintiff 22 May 2012
Decision date: 14 December 2012
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
No further orders made.

Catchwords: COSTS - costs orders against legal practitioners pursuant to s 99 of Civil Procedure Act 2005 - no such order made in the circumstances because arguments advanced by solicitor were not obviously untenable - solicitor's conduct of Children's Court proceedings not relevant to wasted costs order in present proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 1987 (NSW)
Family Law Act 1975 (Cth)
Commonwealth Powers (Family Law - Children) Act 1986 (NSW)
Children & Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Re Felicity [2012] NSWSC 494
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300
Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683
Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155
Fay v Turner [2008] FMCA Fam 1508
Louise v Director General of Community Services [2011] NSWSC 1646
Category: Costs
Parties: Mother of Felicity (Plaintiff)
Director General, Department of Family & Community Services (1st Defendant)
Father of Felicity (2nd Defendant)
Felicity (4th Defendant)
Representation: Counsel:
G Potkonyak, solicitor (Plaintiff)
K Richardson (1st Defendant)
In Person (2nd Defendant)
K Shea, solicitor (4th Defendant)
Solicitors:
Capellia Legal (Plaintiff)
Crown Solicitor's Office (1st Defendant)
N/a (2nd Defendant)
Legal Aid NSW (4th Defendant)

File Number(s): 2011/407161

Judgment

HIS HONOUR: In these proceedings I ordered that the plaintiff pay the first and second defendants' costs, but directed that the plaintiff's solicitor provide a written submission in relation to the question whether I ought to make an order under s 99 of the Civil Procedure Act 2005 (NSW) directing payment of costs by the plaintiff's solicitor (Re Felicity [2012] NSWSC 494 at [75] and [76]). This judgment concerns that question. Section 99 of the Civil Procedure Act relevantly provides:

"99 Liability of legal practitioner for unnecessary costs

(cf Act No 52 1970, section 76C; SCR Part 52A, rules 43 and 43A)

(1) This section applies if it appears to the court that costs have been incurred:

(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or

(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.

(2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following:

...

(b) it may, by order, direct the legal practitioner:

...

(ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs,

(c) it may, by order, direct the legal practitioner to indemnify any party (other than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Felicity (No. 2)

Details

AGLC: Re Felicity (No. 2) [2012] NSWSC 1561
Case: [2012] NSWSC 1561
Decision Date: 14 December 2012

CaseChat Overview and Summary

The case involved a dispute concerning the costs of legal proceedings, specifically an application for an order under section 99 of the Civil Procedure Act 2005. The applicant sought an order for the solicitor to pay the costs of the proceedings due to the conduct of the solicitor in the Children's Court proceedings. The case was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the solicitor's conduct in the Children's Court proceedings was relevant to the application for a wasted costs order in the present proceedings, and whether the arguments advanced by the solicitor were obviously untenable to justify an order for costs. The court had to consider the scope and purpose of section 99 of the Civil Procedure Act 2005 and the criteria for making a wasted costs order.

The court held that the arguments advanced by the solicitor were not obviously untenable and that the conduct of the Children's Court proceedings was not relevant to the application for a wasted costs order in the present proceedings. The court found that the applicant had not demonstrated that the solicitor's conduct was sufficiently egregious to justify an order for costs. The court held that the applicant had not met the threshold for making a wasted costs order under section 99 of the Civil Procedure Act 2005. The application for a wasted costs order was dismissed.

No orders were made regarding costs.

Orders