Rigoli Lawyers and Arman - [2009] FamCA 42

FAMILY COURT OF AUSTRALIA

RIGOLI LAWYERS & ARMAN

[2009] FamCA 42

FAMILY LAW – COSTS – Solicitor’s lien – Costs dispute – Extension of time

Family Law Act 1975 (Cth)

Bolger and Bolger (1985) FLC 91-646
Chester v Cassidy Gisborn Howlin (1995) FLC 92-556
Cosgriff v Issac Brott and Co [2008] VSC 515
Gallo v Dawson (1990) 93 ALR 479
Gamlen Chemical Co (UK) Ltd v Rochem Limited and Ors (1980) 1 All ER 1049
Hughes v Hughes [1958] All ER 179
Re Weedman and Ors [1996] FCA 1112
Stark v Dennett [2008] QCA 50
Strudwick and Johnson (1996) 20 Fam LR 789

APPLICANT:

Rigoli Lawyers

RESPONDENT:

Mr Arman

FILE NUMBER:

MLC

3450

2007

DATE DELIVERED:

3 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

23 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Moisidis

SOLICITOR FOR THE APPLICANT:

Rigoli Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Goldsmith

SOLICITOR FOR THE RESPONDENT:

Goldsmiths Barristers and Solicitors

Orders

That upon the written undertaking by Goldsmiths Lawyers to Rigoli Lawyers that they will:
(a)Hold all papers and documents delivered to them by Rigoli Lawyers pursuant to this order subject to the lien of Rigoli Lawyers for costs;
(b)Afford Rigoli Lawyers and any professional person acting on their behalf, reasonable access to the said papers and documents for the purposes of preparing itemised accounts as otherwise required by these orders; and
(c)Afford Rigoli Lawyers reasonable access to the papers and documents for the purposes of any other litigation arising as between the husband and them; and
(d)Redeliver the said papers and documents to the said Rigoli Lawyers after the conclusion of the costs dispute and the pending appeal to the Full Court,
the said Rigoli Lawyers so soon as may be reasonably practicable hereafter, deliver to Goldsmith Lawyers all papers in this action and other documents in their custody or power belonging to the husband.
That the husband have leave to serve notice by 4.00pm on 12 February 2009 his request for itemised invoices in accordance with the Family Law Rules to Rigoli Lawyers.
That subject to the orders that follow, all proceedings as between Rigoli Lawyers and the husband be otherwise dismissed.
That should any party desire to make any application for costs arising out of these orders, they do so by written submission including as to quantum of such costs by filing them with my Associate by email and served upon the other party by no later than 4.00pm on 12 February 2009.
That the recipient of any such application for costs may file and serve any submission in reply by 4.00pm on 23 February 2009, such submission being provided to my Associate at the email address shown above.
That any such application for costs be determined in chambers.
I certify that it was appropriate for the parties to be represented by counsel and a solicitor acting as counsel.

IT IS NOTED that publication of this judgment under the pseudonym Rigoli Lawyers & Arman is…

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.

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Details

AGLC: Rigoli Lawyers and Arman [2009] FamCA 42
Case: [2009] FamCA 42
Decision Date: 3 February 2009

CaseChat Overview and Summary

In the Supreme Court of Victoria, Justice Cronin considered an application by Rigoli Lawyers concerning their lien over client papers. The dispute arose from Rigoli Lawyers' representation of a husband in family law proceedings, where the husband sought to obtain his papers from Rigoli Lawyers, presumably to engage new solicitors, while Rigoli Lawyers sought to protect their costs.

The primary legal issue before the Court was whether Rigoli Lawyers were obliged to release the client's papers to new solicitors, Goldsmith Lawyers, and if so, upon what conditions. This involved determining the scope and application of a solicitor's lien for costs in the context of ongoing litigation and the potential for a costs dispute.

Justice Cronin ordered that Rigoli Lawyers must deliver all papers and documents belonging to the husband to Goldsmith Lawyers, provided that Goldsmith Lawyers provided a written undertaking. This undertaking stipulated that Goldsmith Lawyers would hold the papers subject to Rigoli Lawyers' lien for costs, afford Rigoli Lawyers reasonable access to the papers for preparing itemised accounts and for any future litigation between the husband and Rigoli Lawyers, and redeliver the papers to Rigoli Lawyers after the conclusion of the costs dispute and a pending appeal. The Court also granted the husband leave to request itemised invoices and otherwise dismissed proceedings between Rigoli Lawyers and the husband, subject to further applications for costs.

Orders

Orders of the court

That upon the written undertaking by Goldsmiths Lawyers to Rigoli Lawyers that they will:

(a) Hold all papers and documents delivered to them by Rigoli Lawyers pursuant to this order subject to the lien of Rigoli Lawyers for costs;

(b) Afford Rigoli Lawyers and any professional person acting on their behalf, reasonable access to the said papers and documents for the purposes of preparing itemised accounts as otherwise required by these orders; and

(c) Afford Rigoli Lawyers reasonable access to the papers and documents for the purposes of any other litigation arising as between the husband and them; and

(d) Redeliver the said papers and documents to the said Rigoli Lawyers after the conclusion of the costs dispute and the pending appeal to the Full Court,

the said Rigoli Lawyers so soon as may be reasonably practicable hereafter, deliver to Goldsmith Lawyers all papers in this action and other documents in their custody or power belonging to the husband.

That the husband have leave to serve notice by 4.00pm on 12 February 2009 his request for itemised invoices in accordance with the Family Law Rules to Rigoli Lawyers.

That subject to the orders that follow, all proceedings as between Rigoli Lawyers and the husband be otherwise dismissed.

That should any party desire to make any application for costs arising out of these orders, they do so by written submission including as to quantum of such costs by filing them with my Associate by email and served upon the other party by no later than 4.00pm on 12 February 2009.

That the recipient of any such application for costs may file and serve any submission in reply by 4.00pm on 23 February 2009, such submission being provided to my Associate at the email address shown above.

That any such application for costs be determined in chambers.

I certify that it was appropriate for the parties to be represented by counsel and a solicitor acting as counsel.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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