Schnur & Urbina (No 2)
[2024] FedCFamC1F 477
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Schnur & Urbina (No 2) [2024] FedCFamC1F 477
File number(s): MLC 13501 of 2020 Judgment of: JOHNS J Date of judgment: 18 July 2024 Catchwords: FAMILY LAW – COSTS – costs awarded against practitioner – where the applicant brought an application against the respondent’s counsel for costs thrown away – where the final hearing was unable to proceed on its listed date – where the respondent’s counsel failed to appear when called – where the respondent’s counsel was not adequately prepared for the final hearing – where the respondent’s counsel submits costs can only be awarded against a solicitor and not counsel – consideration of s 117(2A) factors – costs order made Legislation: Family Law Act 1975 (Cth) ss 4, 117(1), (2), (2A)
Federal Circuit and Family Law of Australia (Family Law) Rules 2021 (Cth) rr 12.15, 12.17(1) & (3), Schedule 3
Cases cited: I and I (1995) FLC 92-625
Schnur & Urbina [2024] FedCFamC1F 374
Division: Division 1 First Instance Number of paragraphs: 41 Date of last submission/s: 31 May 2024 Date of hearing: Heard in Chambers on the papers Place: On the Papers Counsel for the Applicant: Ms Morkos Solicitor for the Applicant: Aboriginal Family Violence Prevention & Legal Service Counsel for the Respondent: Mr B Solicitor for the Respondent: Rodriguez Family Lawyers Counsel for the Independent Children's Lawyer: Ms Hutchings Solicitor for the Independent Children's Lawyer: Ms Welsh ORDERS
MLC 13501 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCHNUR
Applicant
AND: MS URBINA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.That within 28 days of the date of these orders, the respondent’s Counsel, Mr B, pay the applicant’s costs of and incidental to the hearings on 29 and 30 April 2024 and 7 May 2024, fixed in the sum of $4,541.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Schnur & Urbina has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 30 April 2024, being the second day of the final hearing (which was listed for eight days), I made orders adjourning the final hearing of these proceedings to 8 October 2024. The proceedings were adjourned as a result of the conduct of Mr B, Counsel briefed to appear on behalf of the respondent mother.
On 7 May 2024 I made orders requesting that the National Registrar of this Court refer the conduct of Mr B to the Office of the Legal Services Commissioner for investigation. I delivered Reasons for Judgment in relation to those orders on 31 May 2024 (Schnur & Urbina [2024] FedCFamC1F 374).
In addition to orders adjourning the proceedings, on 30 April 2024 I made provision for any application for costs as follows:-
2.That any party seeking orders for costs thrown away in relation to this hearing file and serve written submissions in support of such application by 4.00pm on 17 May 2024.
3. That any respondent to an application for costs pursuant to order 2 hereof file and serve any submission affidavit relied upon in response to such application by 4.00pm on 31 May 2024.
4. That the applicant or applicants for costs pursuant to order 2 hereof file any submission in reply upon which they seek to rely by 4.00pm on 7 June 2024.
5. That any applications for costs pursuant to order 2 hereof be determined in Chambers on the papers.
(Emphasis in Original)
On 17 May 2024 submissions were filed on behalf of the applicant father. The father seeks an order in the following terms:-
1.That within 28 days of the date of these orders the Respondent’s Counsel, [Mr B] pay costs in the amount of $4,541.00 to the Applicant’s solicitors.
(Emphasis in Original)
The mother’s Counsel filed written submissions in response on 31 May 2024. He opposes any order for costs against him.
For the reasons that follow I am satisfied that an order for costs ought be made against the mother’s Counsel; I propose to make an order as sought by the applicant father.
LEGAL PRINCIPLES
The question of costs is governed by s 117(1) of the Family Law Act 1975 (Cth) ("the Act") which provides:-
Subject to subsection (2), subsection 102QAB(6) and sections 117AA and 117AC, each party to proceedings under this Act shall bear the party’s own costs.
On that basis, the general rule in proceedings under the Act is that, subject to the provisions of s 117(2), the parties to a proceeding shall bear their own costs of that proceeding.
Section 117(2) of the Act provides that:-
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) of the Act provides that in determining what, if any, order should be made under subsection (2), the Court must have regard to the following:-
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Should it be determined that it is just to make an order as to costs, costs are not awarded to punish the unsuccessful party, but rather, are compensatory in the sense that they are awarded to ameliorate the expense of the successful party resulting from their having been required to participate in the proceedings.
The discretion afforded by s 117 of the Act is broad and the relevant factors contained in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs, but all factors must be taken into account and balanced (I and I (1995) FLC 92-625).
Rule 12.15 of the Federal Circuit and Family Law of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that the Court may make an order for costs against a lawyer. It provides as follows:-
(1)The court may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs to be incurred by a party or another person, or to be thrown away, because of:
(a) a failure to comply with these Rules or an order; or
(b) a failure to comply with a pre-action procedure; or
(c) improper or unreasonable conduct; or
(d) undue delay or default.
(2) A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a) to attend, or send another person to attend, the hearing; or
(b) to file, lodge or deliver a document as required; or
(c) to prepare any proper evidence or information; or
(d) to do any other act necessary for the hearing to proceed.
(3)An order under subrule (1) may be made on the initiative of the court, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.
(4) An order under subrule (1) may include an order that the lawyer:
(a) not charge the lawyer's client for work specified in the order; or
(b) repay money that the client has already paid towards those costs; or
(c) repay to the client any costs that the client has been ordered to pay to another party or another person; or
(d) pay the costs of a party; or
(e) repay another person's costs found to be incurred or wasted.
The method of calculation of costs is prescribed by r 12.17(1) of the Rules, which provides:-
(1) The court may order that a party is entitled to costs:
(a) of a specific amount; or
(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c) to be calculated in accordance with the method stated in the order; or
(d) for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
Rule 12.17(3) of the Rules sets out matters that may be considered in the calculation of costs, providing that:-
(3) In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable proceedings;
(d) whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;
(e) the time properly spent on the proceeding, or in complying with pre-action procedures;
(f) whether expenses (paid or payable) are fair, reasonable and proportionate.
Having regard to the above, I consider that I hold a broad discretion in respect of matters relating to the award of costs.
THE APPLICANT’S CASE
It is submitted on behalf of the father that the mother’s Counsel caused costs to be incurred by him for two days of hearing, being 29 April and 30 April 2024, and further, at the case management hearing on 7 May 2024. It is contended that costs of those days were thrown away due to Counsel’s failure to comply with the rules of Court and further, as a result of his improper or unreasonable conduct which resulted in the undue delay of the proceedings, being a final hearing fixed for eight days.
The father’s application for costs principally relies upon the considerations identified at s 117(2A)(g), together with the considerations identified at r 12.15(1)(c) of the Rules, that is, improper or unreasonable conduct by Mr B. It is said that that conduct justifies an order for costs against him.
THE RESPONDENT’S CASE
Mr B submitted that the operation of r 12.15 of the Rules is limited to the work done by a solicitor. Accordingly, he contended that it was not open to the Court to make an order for costs against him.
Section 4 of the the Act defines a “lawyer” as follows:-
“lawyer” means a person enrolled as a legal practitioner of:
(a) a federal court; or
(b) the Supreme Court of a State or Territory.
Similarly, r 1.05 of the Rules provides the following definition:-
"lawyer" means a person who is enrolled as a legal practitioner of:
(a) a federal court; or
(b) the Supreme Court of a State or Territory.
The mother’s Counsel is a member of the Victorian Bar and enrolled as a legal practitioner in the State of Victoria. Accordingly, I am satisfied that he is a lawyer within the meaning of the Act and the Rules.
Given the definition of lawyer, as set out in s 4 of the Act and r 1.05 of the Rules, I am satisfied that the Court has the power to make a costs order against Mr B, he being a member of counsel who is a legal practitioner in the State of Victoria. Accordingly, that contention must fail.
SECTION 117(2A) CONSIDERATIONS
It was submitted that the father is unemployed and in receipt of Centrelink payments. There is no submission made as to the mother’s current financial circumstances.
The father is in receipt of a grant of legal assistance from Victoria Legal Aid. The mother is in receipt of funding from Victoria Legal Aid pursuant to a grant made under the Commonwealth Family Violence Cross-Examination Scheme.
It is submitted by the father that there is no evidence that he has conducted himself in any way other than appropriately. As to the mother, it is contended that she has failed to comply with orders on occasion and persists in her failure to meet payments for the release of the single expert report.
The considerations identified at s 117(2A)(d) to (f) inclusive are not relevant to the father’s application.
It was submitted that the conduct of the mother’s Counsel is a relevant consideration in the determination of the question of costs. As to that conduct, it was submitted, and I have found that the conduct of the mother’s Counsel at the final hearing necessitated his referral to the Legal Services Commissioner for investigation; orders were made to that effect on 7 May 2024.
It was further submitted that as at the first day of hearing on 29 April 2024, it was apparent that the mother’s Counsel had failed to properly prepare the mother’s case, he informing the Court that:-
·He was appearing only for the purposes of cross-examination of the father;
·He had not prepared submissions; and
·He had not provided a list of objections to evidence as ordered.
In addition to the matters raised, it became apparent after the hearing on 30 April 2024 that Mr B did not have standing to appear in the matter as he has not signed the Register of Practitioners maintained by the High Court of Australia.
Further, Mr B failed to appear before the Court on 29 April 2024 and 7 May 2024 when the matter was called on.
Having regard to those matters, it was submitted that Mr B failed to appropriately prepare the case for the mother and failed in his duty to the Court and to the mother. In light of that conduct, it is submitted that an order for costs is justified.
Mr B submits that the complaints raised by the father in the submissions filed are “vague” and lack specific detail. I do not accept that submission. I also have regard to my Reasons for Judgment delivered 31 May 2024 as to my findings in relation to Mr B’s conduct during the proceedings that resulted in the referral of Mr B’s conduct to the Legal Services Commissioner for investigation (Schnur & Urbina [2024] FedCFamC1F 374).
Mr B also submits that due to a misunderstanding by him as to the terms of his engagement, there is no justification for a costs award. I do not accept that submission in circumstances where:-
·Notwithstanding his own assertions that he was briefed to cross-examine the father, he had accepted a brief to appear in another Court on the first day of the hearing; and
·It was communicated to him that it was the expectation of the Court that he appear for the whole of the proceedings both at the earlier case management hearing conducted on 16 April 2024 as well as on the first day of hearing.
Further, Mr B submitted that by reason of him having Autism Spectrum Disorder, he had a legitimate explanation for his inability to attend the hearing on 7 May 2024.
The difficulty with that submission is that that issue was not raised by Mr B until 6 May 2024 and only then, in correspondence from him to my Associate. Further, Mr B adduces no medical evidence to support his submission as to his capacity. Accordingly, I do not consider that matter to be a relevant consideration in the assessment of his conduct.
In addition to the submissions filed on his behalf, Mr B also relied upon an affidavit sworn 31 May 2024. In that affidavit, he deposes that he was briefed to appear in the matter on 26 March 2024. He deposes that following receipt of that booking he had a further discussion with his clerk on 29 April 2024 regarding the terms of his engagement. Nowhere in his affidavit does Mr B refer to the appearance before me on 16 April 2024 where I went to some length to ensure that he understood the nature of the proceedings, the seriousness of the matters in issue and the expectation of the Court as to the necessity for him to be appropriately prepared to conduct the proceeding on behalf of his client. At that case management hearing, Mr B confirmed that he had adequate time to prepare for the hearing.
It was patently clear on the first day of hearing on 29 April 2024 that notwithstanding the assurances given by him on 16 April 2024, Mr B was not prepared to proceed with the matter. Further, even were he so prepared, he was unavailable to appear for the whole of the day as he was holding a brief to appear in another Court that afternoon. Those issues are merely compounded by the fact that Mr B never had standing to appear in this Court having not signed the Register of Practitioners maintained by the High Court of Australia.
Having regard to those matters, I am well satisfied that the conduct of Mr B necessitated the adjournment of the trial which has occasioned significant expense to the parties and the community.
Whilst Mr B may be of the view that the fact that the father is funded by Victoria Legal Aid is a barrier or justification for parties each bearing their own costs, I do not share that view. It is not for the community to bear costs incurred as a result of the unprofessional or unreasonable conduct of a lawyer briefed to appear. Accordingly, I am satisfied that Mr B should pay the father’s costs thrown away as a result of his failure to appear and the adjournment of the proceedings.
Mr B made no submission as to the quantum of costs sought on behalf of the father. The costs sought by him are calculated in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Division 1) (Family Law) Rules 2021 (Cth). I am satisfied in all of the circumstances of the case that the costs as sought by the father are appropriate having regard to that schedule and I will make orders that costs be paid as sought by the father.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 18 July 2024
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