Sellars v Matthews (Trustee), in the matter of Sellars
[2018] FCA 1475
•6 September 2018
FEDERAL COURT OF AUSTRALIA
Sellars v Matthews (Trustee), in the matter of Sellars [2018] FCA 1475
Appeal from: Matthews as Trustee of the Bankrupt Estate of Sellars v Sellars [2017] FCCA 2323 File number: SAD 289 of 2017 Judge: CHARLESWORTH J Date of judgment: 6 September 2018 Date of publication of reasons: 28 September 2018 Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43
Federal Court Rules 2011 (Cth) rr 2.16, 4.12, 36.51, 36.52, 36.53, 36.54, 36.57, 36.74, 40.07, Div 36.05
Date of hearing: 6 September 2018 Registry: South Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: No Catchwords Number of paragraphs: 56 Counsel for the Appellant: Ms G Costello, pursuant to a certificate issued pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) Counsel for the Respondent: The Respondent did not appear Counsel for the Other: Mr J Oks appeared in person ORDERS
SAD 289 of 2017 IN THE MATTER OF DEAN RAYMOND SELLARS
BETWEEN: JACQUELINE ROBIN SELLARS
Appellant
AND: ANTHONY CHRISTOPHER MATTHEWS AS TRUSTEE OF THE BANKRUPT ESTATE OF DEAN RAYMOND SELLARS (A BANKRUPT)
Respondent
JAAK OKS
Interested Person
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
6 SEPTEMBER 2018
THE COURT ORDERS THAT:
1.Pursuant to s 43(3)(f) of the Federal Court of Australia Act 1976 (Cth), such of the respondent’s costs not falling within any previous costs order made by the Court are to be paid personally by the appellant’s lawyer, Mr Jaak Oks.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
On 6 September 2018 I made an order that such of the respondent’s costs not already forming the subject of a previous order be paid personally by the appellant’s solicitor, Mr Jaak Oks. Reasons for judgment were given orally on that day with the qualification that the legal principles governing the exercise of the discretion to make the order would be included when written reasons were published. What follows is a record of the reasons given on the day the order was made, together with the inclusion of the legal principles as foreshadowed to the parties.
This appeal from a judgment of the Federal Circuit Court of Australia (FCCA) was commenced by the appellant, Ms Sellars, on 13 October 2017. The primary judge allowed an application by the trustee of the bankrupt estate of Ms Sellars’ husband concerning the ownership of certain assets said to belong to that estate. The primary judge proceeded to hear the trustee’s application in Ms Sellars’ absence. The application was allowed on its merits, including by reference to admissions that Ms Sellars was deemed to have made by virtue of her non-response to a notice to admit that had been served upon her by the trustee.
It was to have been Ms Sellars’ case on the appeal that the primary judge erred by not adjourning the trial because she had been unwell and because she had provided evidence of her sickness by way of an affidavit annexing a medical certificate. She sought to argue on the appeal that the primary judge ought not to have relied on the notice to admit, particularly having regard to her status as a self-represented litigant who had suffered from an illness on the day of the trial.
Ms Sellars was represented on the appeal by Jaak Oks Lawyers. The solicitor responsible for the conduct of the appeal was Mr Jaak Oks. Mr Oks filed a notice of acting on 19 December 2017, although there is evidence before me that he has acted for Ms Sellars in relation to the appeal from as early as August 2017.
On the respondent’s interlocutory application, the appeal was dismissed on 29 March 2018 pursuant to r 36.74(1)(a) of the Federal Court Rules 2011 (Cth). That dismissal was the consequence of Ms Sellars failing to comply with orders of the Court, particularly orders made on 15 March 2018 especially that order requiring the filing of an appeal book. Reasons for dismissing the appeal and explaining the background against which that order was made were given orally on 29 March 2018.
Earlier, on 15 March 2018, the Court had declined to make the orders that were urged by the respondent. On that day, the Court granted certain extensions of time to Ms Sellars with a view to ensuring that the appeal could be adequately prepared for hearing on a newly listed date, 24 April 2018. The respondent on that day was granted liberty to apply to re-agitate his interlocutory application for the dismissal of the appeal in the event of any non-compliance by Ms Sellars with the Court’s orders.
Upon dismissal of the appeal, the respondent sought an order for his costs to be paid. The Court advised Mr Oks that consideration would be given to the question of whether the respondent’s costs should be borne by him personally rather than by his client, Ms Sellars.
Neither Ms Sellars nor Mr Oks had suggested or made any submission that the respondent should not be entitled to his costs or any part of them.
I will make an order today that the respondent have his costs. These reasons for judgment concern the question of who should be responsible for bearing that liability. They are to be understood in conjunction with the reasons given orally on the respondent’s interlocutory application on 13 March 2018 and on 29 March 2018.
The Court referred Ms Sellars for legal assistance under r 4.12 of the Rules for the limited purposes of adducing evidence and making submissions as to the appropriate costs order. Ms Costello of counsel appeared on Ms Sellars’ behalf pursuant to that referral. Ms Sellars and Mr Oks have both filed affidavit material and each have been afforded the opportunity to make oral submissions before me.
The papers in the appeal were to be settled and prepared in accordance with the Div 36.05 of the Rules. So much was stated on the face of the notice of appeal itself and ought to have been known to any legal representative appearing as a legal representative in this Court. On 22 December 2017, the Court made an order setting down the appeal for hearing at 10 am on 19 March 2018. Further orders were made requiring Ms Sellars to provide a draft index to the appeal book to the respondent on or before 22 January 2018, and also to file and serve written submissions on or before 19 February 2018.
On 23 January 2018, the respondent’s solicitor enquired when the draft index to the appeal book would be provided. That request was repeated on 6 February 2018. A draft index was provided by Mr Oks to the respondent’s solicitors on 9 February 2018. It appears as exhibit MXM-9 to the affidavit of Maureen Maurer affirmed on 13 March 2018. That document includes within it a document titled Draft Index to Appeal Book which itemises 41 documents. That list of documents commences at page 25 of Ms Maurer’s affidavit. It is common ground that the 41 documents referred to in that list are evidentiary materials that were not before the primary judge.
It is submitted, and I accept, that Ms Sellars wished to adduce that material on the appeal to demonstrate the evidence that she could and would have adduced had she been able to attend at the trial of the trustee’s application before the primary judge. The respondent’s solicitors correctly complained that the draft index that had been provided by Mr Oks did not comply with the requirements of r 36.51 to r 36.54 of the Rules. The respondents prepared a draft index which did comply with the requirements of the Rules. It appears within MXM-10 of the affidavit of Ms Maurer and commences at page 34.
In the meantime, the date by which Ms Sellars was to have filed her written submissions had come and gone. No application was made by Ms Sellars to extend the date by which the submissions were to be filed, nor was an application made for an extension of time in which the draft appeal book index was to be provided to the respondent. The respondent, on the other hand, sought and was granted an order extending the time in which to file his written submissions on the appeal. On 7 March 2018, Mr Oks wrote to the respondent’s solicitors in the following terms:
We refer to our previous correspondence herein and apologise for the delay complying with the Orders made in this matter.
Unfortunately, a folder of documents that our client requires to properly instruct us and which are required so the orders can be properly complied with has gone missing. We understand this was sometime in late January or early February 2018.
Our client initially thought that we had them but we do not. … she has still been unable to locate the folder of documents. As a result we need to identify the material and source that material from elsewhere. That in itself will take time. …
On 15 March 2018, the respondent made submissions in support of his application that the appeal be dismissed by virtue of Ms Sellars’ non-compliance with the Court orders as of that date. Mr Oks opposed the application. He submitted that the Court should instead make variations to the timetable progressing the appeal for hearing. The variations were sought “simply because part of the file went missing and that has now been located. But it did mean that we weren’t able to finish off what we needed to be filed”. Mr Oks sought a further seven days “to file the documents that needed to be filed”. He stated, “I have got the draft appeal book ready. We have agreed the index and so it simply is a question of preparing the appeal books”.
The following exchange then occurred:
The Court:Now, again, when you ask for an extension of time in which to file an appeal book, do you propose to file an appeal book containing the documents set out at page 25?
Mr Oks: Yes, your Honour.
The Court: And it is those documents that you say you have had difficulty locating but have now located?
Mr Oks: Yes. We have now located those documents. Yes.
The Court: Yes. And what’s your client’s position as to whether or not the appeal book should instead take the form of that provided by the respondent’s solicitors on page 34?
Mr Oks:Well, only that we’re of the view that the appeal book should contain all the relevant documentation in relation to the matter, and the reason for that is that in essence our client seeks the appeal because the matter wasn’t adjourned when she not able to attend court on the previous occasion when the matter was heard before his Honour Judge Brown.
The Court invited Mr Oks to consider r 36.57 of the Rules. It provides for an application to be made to adduce further evidence on an appeal. Mr Oks accepted that the 41 documents contained in Ms Sellars draft index were further evidence in the relevant sense and that may be the subject of such an application. Mr Oks then confirmed that the appeal book that he proposed to file within seven days was a book containing the 41 documents in the list that Ms Sellars had prepared commencing on page 25 of Ms Maurer’s affidavit, nothing more, and that he had no intention of filing an appeal book containing the documents listed in the respondent’s proposed index.
When asked why not, Mr Oks replied, “Well, I’m happy to do that if that’s a requirement”. When asked how long it might take for Ms Sellars to file an appeal book in the form proposed by the respondent, Mr Oks said that he would require a minimum of seven days. The following exchange then occurred.
The Court: Do you have in your possession all of the documents contained in that proposed draft which proceeds from page 34 …
Mr Oks:Yes, your Honour. All of the documents have been located so we’ve got them all now, and we needed them to prepare the index in the first place.
On the basis of those submissions, the Court did not make the orders sought by the respondent on its interlocutory application at the hearing of 15 March 2018. Rather, the hearing date originally fixed for the hearing of the appeal was vacated. The appeal was set down for hearing at the later date of 24 April 2018. The following orders were then made to progress the matter to hearing:
1. On or before 22 March 2018, the appellant is to file and serve:
a.Part A and an index to Part B of the appeal book in compliance with Div 36.05 of the Federal Court Rules 2011 (Cth) (‘Rules’);
b.any application to adduce further evidence on the appeal in accordance with r 36.57 of the Rules; and
c.written submissions on the appeal and in respect of any application filed in accordance with the order in paragraph 1(b) and in respect of the respondent’s notice of objection to competency, such submissions not to exceed 15 pages.
In the reasons for judgment given on that day, I determined that Ms Sellars’ default was not explained by any deleterious or flagrant attitude on her part personally, but rather were explained by a degree of ignorance on the part of her legal representative as to the requirements of the Court Rules in relation to the preparation of the appeal papers.
I made orders as to costs on the day requiring Mr Oks personally bear the costs of the respondent’s interlocutory application and the costs incurred by the respondent in drafting a compliant proposed index to the appeal book and the costs that had been thrown away by the respondent as a result of the vacation of the hearing date of 19 March 2018.
At this junction, I observe that at the conclusion of the hearing of 15 March 2018 it ought to have been clear to Mr Oks the appeal book was to take the form proposed on the respondent’s index and not the form proposed in the index he belatedly provided to the respondents. It would also have been clear to Mr Oks, to the extent that Ms Sellars sought to adduce further evidence on the appeal, that evidence should be the subject of an application made under the Rules.
No further work was required on Mr Oks’ part in respect of the preparation of an index to the appeal book because that work had been undertaken by the respondent’s solicitors. Further, the submissions made by Mr Oks on 15 March were to the unequivocal effect that he had in his possession all of the documents necessary to compile at least Part A of the appeal book in accordance with the respondent’s index.
The order in [1] of the orders of 15 March was not complied with. Unsurprisingly, the respondent exercised his liberty to apply to re-agitate his interlocutory application and that application was set down for resumed hearing on 29 March 2018.
At the commencement of that hearing, Mr Oks sought an extension of time to comply with the orders that had been made on the previous occasion. However, the timetable proposed by Mr Oks would have resulted in the vacation of the hearing date of 24 April 2018.
Mr Oks relied on an affidavit of Ms Sellars affirmed on 27 March 2018. By that affidavit, Ms Sellars sought a further 14 days in which to file the appeal book. Ms Sellars stated that it had taken her longer than anticipated “to get in and collate the material required for the index and the Appeal Book”. Ms Sellars said that she also wished to introduce material into the index in the appeal book to “the extent of which I will only know when I have all the material to hand”.
During the course of submissions on 29 March, it became apparent that Mr Oks was not in fact in possession of all of the material to be contained in Part A of the court book. He acknowledged that those documents might readily be obtained from the records of the FCCA. When asked why the documents had not been obtained from that source, Mr Oks made submissions to the effect that obtaining the documents would attract a $100 fee which his firm had not received from Ms Sellars. Mr Oks said, “We can’t - without payment of that fee we can’t get the evidence and our client is not disposed to pay that because she thinks that she shouldn’t have to”.
As I have mentioned, reasons for dismissing the appeal were given orally on 29 March 2018. The reasons were to the effect that the Court could not be confident that any extended timetable could be complied with. Among the things that informed that assessment was Mr Oks’ assertion that his firm had not obtained documents from the records of the FCCA and that the reason that had not been done was an apparent impasse between him and his client about the payment of the fee that might be charged for doing so. In his submissions made on 15 March 2018, and again on 29 March 2018, and again at today’s hearing, Mr Oks did not draw a clear distinction between those documents required by the Rules to be contained in Part A of the appeal book and those evidentiary materials that might form the subject of an application by Ms Sellars to adduce further evidence on an appeal on an application made pursuant to r 36.57.
That was especially apparent on 15 March 2018 when Mr Oks disclosed that he had no intention to file an appeal book in a form resembling the respondent’s proposed book and that he intended to include in the appeal book the 41 documents that should form the subject of a new evidence application. I infer from the affidavit of Ms Sellars of 27 March 2018 that she did indeed seek to introduce yet further documents in an appeal book, which evidence she did not presently have to hand. I will proceed on the assumption that it is further new evidence that had not been provided to her solicitor, Mr Oks. Read in proper context, Ms Sellars’ affidavit should be understood as referring not to the material that should be included in Part A of the book but to referring to her attempt to bring in yet further new evidence.
Mr Oks relies on two affidavits in respect of the costs issue presently before me. He deposes to what appears to be his entire dealings with Ms Sellars from the time that they first met in August 2017. He submitted, and I accept, that the entire background of the matter bears some relevance. The entire background is relevant, because I consider it appropriate to draw inferences not only from the material contained in Mr Oks’ affidavits but what is not contained in that material.
Mr Oks submits, and I accept, that Ms Sellars sought to reduce her legal costs by undertaking secretarial and administrative work that might be necessary for the preparation of her appeal.
Mr Oks submits that it was Ms Sellars who was responsible for the failure to comply with the orders of 22 December 2017 and 15 March 2018. He submits that Ms Sellars did not provide to his firm in a timely fashion all of the documents that he required so as to enable his firm to file the appeal book. He further submitted that as at 29 March 2018 Ms Sellars had persisted with the intention to locate further documents which she sought to have included in the appeal book, and yet she had not properly itemised to him what that further material might be.
He submitted that he did not have an exhaustive list of the documents from Ms Sellars that might form the subject of an application to adduce new evidence, and I will assume, without finding, that to be the case. Mr Oks asserts that he did not have in his possession all of the documents that he required, therefore, for the compilation of the materials that were due to be filed on 22 March 2018, including the application to file the new evidence. I should pause here to observe that the requirements of the order of 15 March 2018 were important particularly insofar as they required the filing of an appeal book. Whether or not Ms Sellars also sought to make an application to adduce new evidence was another matter. It was the non-filing of the appeal book that made it difficult, in fact impossible, for the respondent to prepare his case on the appeal.
I have considerable difficulty reconciling the submissions made by Mr Oks today and some portions of his affidavit evidence with the known history of these proceedings, and with certain assertions of fact that he has previously made, albeit from the bar table, explaining prior delays and defaults in the preparation of this matter.
By the orders made on 15 March 2018, the Court granted Ms Sellars a further opportunity to comply with the orders of the Court. The Court had regard to the submissions of Mr Oks on that date when fixing a revised timetable, particularly Mr Oks’ assertion that he had in his possession the documents referred to in the respondent’s index. In his submissions today, Mr Oks stated that he made that assertion to the Court on 15 March 2018 because he had been told by Ms Sellars that she had provided everything to him that was required. There is no independent evidence that Mr Oks made his own assessment as to whether or not, as at 15 March 2018, he did indeed have in his possession everything that was required. On 29 March 2018, Mr Oks stated that he was not in possession of all the necessary documents and he could not obtain them because Ms Sellars would not put him in funds of $100 to enable him to do so. Mr Oks submitted today that it was not for his firm to incur that expense, but it was for Ms Sellars to pay. I will proceed on the basis that it would be reasonable for a solicitor to not take any steps in relation to obtaining documents from the FCCA without being put in funds to do so.
However, in her affidavit of 30 July 2018, Ms Sellars expresses surprise at the explanation that Mr Oks had given to the Court concerning her alleged non-payment of the $100 fee. Ms Sellars states at [11]:
I am surprised by that explanation because I always paid the fees Mr Oks asked me to pay him, and the amounts totaled [sic] thousands of dollars. To the best of my recollection Mr Oks was paid $5,000 in legal fees to conduct my appeal. Furthermore, I had paid Mr Oks $400 to obtain a replacement copy of the notice to admit documents from O’Toole Lawyers because he had lost the set of those documents I had left at his office.
Ms Sellars’ reference to the notice to admit documents is to be understood as a reference to the documents that were annexed to the respondent’s notice to admit upon which the respondent had relied in the proceedings below and that gave rise to deemed admissions on Ms Sellars’ part. This aspect of Ms Sellars’ affidavit evidence is not challenged by Mr Oks in his affidavit. Mr Oks’ affidavit purports to be a complete record of his dealing with Ms Sellars. It does not contain any record of him making any request of Ms Sellars to put him in funds sufficient to enable him to obtain documents from the FCCA, nor does Mr Oks provide any adequate explanation as to why he assured the Court, on 15 March 2018, that he had in his possession all the documents referred to in the proposed index to the appeal book.
Mr Oks asserts, and I accept, that the list of 41 documents appearing from page 25 of Ms Maurer’s affidavit was prepared by Ms Sellars personally and not by him. That document, as I have said, was provided by Ms Sellars on 9 February 2018. On the same day, Mr Oks sent Ms Sellars an email stating that her index “falls short of what is required, but we have had to send it to the respondent’s solicitors bearing in mind the date that it was due to be filed”. Two days later, Ms Sellars sent an email to Mr Oks noting his comment that the index fell short of what was required. She asked him what further information Mr Oks required. I find that Mr Oks gave no substantive and adequate response to Ms Sellars’ enquiry.
The next contact occurred on 7 March 2018 when Mr Oks sent Ms Sellars a letter saying he did not have the documents that had been annexed to the respondent’s notice to admit. I infer from the affidavit of Mr Oks, and particularly from what is not contained in it (having regard to his assertion that it is a complete statement of his dealings with Ms Sellars) that Mr Oks did not provide Ms Sellars with legal advice as to the requirements of the rules of this Court as to the documents that should and should not be contained in an appeal book. The highest the evidence goes in this regard is an unsubstantiated assertion by Mr Oks to the effect that he “understood” that Ms Sellars had been informed of certain requirements, albeit unidentified by a staff member. It is unclear whether the staff member is a lawyer. The content of what was said to Ms Sellars is not stated.
Moreover, if any such advice was given, I infer that it could only have been given before 15 March 2018 and, as at that date as I have previously held, Mr Oks himself was ignorant of the requirements of the rules of this Court. As at that date, he maintained in his submission that it was appropriate that the appeal book contain the further evidence and he stated that he had no intention of filing, on Ms Sellars’ behalf, an appeal book in accordance with the respondent’s compliant index. The reasons given on 15 March 2018 and the costs order made against Mr Oks personally on that day should reasonably have given a solicitor in Mr Oks’ position pause for thought.
Mr Oks was aware, as at that date, that the respondent had liberty to re-agitate his application to have Ms Sellars’ appeal dismissed should she again fail to comply with the Court orders. Counsel for Ms Sellars submits, and I accept, that the affidavit relied on by Mr Oks contains no evidence as to advice having been given to her after 15 March 2018 about the matters that required urgent attention, particularly in relation to the form and content of the documents to be filed on or before 22 March 2018. There is nothing in the affidavit evidence to suggest that Mr Oks attended to the preparation of any application to adduce further evidence on the appeal. There is nothing to suggest that Mr Oks provided Ms Sellars with a copy of the respondent’s index, although he asserted from the bar table that he did. Nor is there any evidence to suggest that Mr Oks gave Ms Sellars guidance and instruction to compile the appeal book in accordance with that index.
Mr Oks does assert that at some earlier point in time he provided Ms Sellars with a precedent to follow for the preparation of an appeal book. On the evidence before me, I am not satisfied that that occurred. Even if it did occur, it occurred prior to Ms Sellars providing her list of 41 documents to Mr Oks on 9 February 2018, which to Mr Oks’ knowledge fell short of the Court’s requirements, and yet he did nothing to rectify the defects in the list or to give Ms Sellars any guidance as to how she should do so. Instead, he provided the list to the respondent and then he relied on it at the hearing on 15 March 2018 as an appropriate document.
It may well have been the case that as at 15 March 2018 and, for that matter, as at 29 March 2018, Mr Oks was not in possession of all the documents to be included in Part A of the appeal book, being the critical document to be filed on 22 March 2018. It is not possible, on the evidence before me, to determine which documents went missing at certain times, which of them resurfaced and when, and how critical any such documents might have been to the task that the appellant had to perform. It is sufficient to find that there was at least one body of material that did go missing between different offices of Mr Oks’ firm and that those documents were later located. I do not hold Ms Sellars responsible for the circumstance that that body of material went missing for some time.
The parties each made submissions about documents contained in a white folder, although it remains unclear to me what documents were contained in that folder and whether, if the folder was missing, the documents contained in it were available to be obtained by other means. It is sufficient to find that between 11 February 2018 and 7 March 2018 Mr Oks took no steps to identify whether Ms Sellars or his firm were in possession of all of the documents necessary to progress Ms Sellars’ appeal to hearing. That is notwithstanding Ms Sellars’ express request that Mr Oks identify whether he required any further information from her.
The circumstance that Ms Sellars had undertaken to perform secretarial and administrative tasks to reduce her overall costs cannot explain the lack of legal attention to the tasks that needed to be performed. Moreover, the circumstance that Ms Sellars insisted on adding to the body of additional evidence she wished to adduce at the appeal, to my mind, does not absolve Mr Oks from his duty to advise Ms Sellars of the requirements of the Court rules, especially in relation to the preparation of the appeal book.
The general effect of the correspondence is that Mr Oks left it to Ms Sellars to discern for herself which documents should be included in the appeal book and which documents might form the subject of an application to adduce new evidence. There is no evidence of any advice having been given to Ms Sellars about how to discern the difference between the two categories of documents, nor evidence of adequate and timely steps being taken by Mr Oks to discern for himself which documents fell within each category. That is a legal task, not a secretarial one. When asked in February what further information was required, Ms Sellars was met by a non-response. There is, however, evidence from about 27 March 2108 containing certain legal advice. From about that date, Mr Oks sent a series of letters to Ms Sellars criticising her faults in the preparation of the appeal. By that time, the deadline of 22 March 2018 had passed. One letter of 23 March 2018 reads as though Ms Sellars had not previously provided the list of 41 additional documents at all. It reads, in part:
We further confirm that we were informed last night that much of the material you wish to use in support of your appeal was not filed for use at the trial but rather some time earlier. Further that it may not have been filed but rather sent to the Judge and the Trustee’s Lawyers. If that is indeed the case, an interlocutory application should be issued as a matter of urgency seeking leave to introduce the material as evidence. We understood from what we were told last night, that you were going to prepare a separate index of the material and the material itself and identify it in the appropriate way. We could then attach it to an application to the Court seeking to allow it to be considered by the Judge in the Appeal. Has this been done, if not when will it be done?
I find that that correspondence cannot be readily reconciled with the acknowledgements that Mr Oks made to this Court on 15 March 2018. I find that, at that date, Mr Oks well knew that Ms Sellars sought to adduce evidence on the appeal that had not made its way to the primary judge. He said that the list of 41 documents contained in Ms Sellars list were provided because this Court had earlier raised the question about the use to which such evidence might be put, especially when an allegation of a breach of procedural fairness had been raised. Mr Oks said:
… your Honour, I think, mentioned on one of the occasions that we were before the court that you were interested in hearing about the substantive matter itself, and it’s those substantive matters that require the documentation that may not have been before the court at the time, but would have been before the court had the matter been adjourned and the appellant in this matter been able to produce that to the court.
Later, Mr Oks acknowledged that the judge did not have the material available to him and so his Honour did not hear evidence on that particular point. It was for that purpose that the additional evidence was sought to be adduced. In his submissions today, Mr Oks sought to explain this discrepancy by reference to Ms Sellars’ intention to bring in and compile yet further additional evidence. In my opinion, that is not a fair reading of the correspondence that Mr Oks sent to Ms Sellars on 23 March 2018. By that correspondence, Mr Oks seems to express some surprise that he has heard only for the first time, the evening before, that there was evidence that Ms Sellars sought to rely upon that should form the subject of an application to adduce new evidence. That correspondence was sent one day after the deadline on which any such application should have been filed.
Ms Sellars’ own affidavit of 27 March 2018 portrays a misunderstanding as to what ought to be contained in an appeal book and what ought not to be. She deposed that her difficulties in obtaining additional evidence was the reason for her not being able to file the appeal book itself. Ms Sellars is not criticised personally for failing to understand what the rules of the Court required. It was the duty of her solicitor to inform her as to those responsibilities. I find that it remained open to Mr Oks to obtain the missing documents from the FCCA files. I find that the explanation that he gave to the Court on 15 March 2018 in respect of Ms Sellars’ alleged refusal to pay the fee to obtain such documents has no foundation in the evidence he has adduced now before me. I find that Ms Sellars was not responsible for her default in complying with the orders of the Court of 22 March 2018 that ultimately resulted in the dismissal of her appeal.
Section 43(3)(f) of the Federal Court of AustraliaAct 1976 (Cth) (FCA Act) confers on this Court the power to make an order that a party’s lawyer bear costs personally.
In exercising the discretion, the Court must take into account any failure of a party, or her lawyer to conduct the proceeding in a way that is consistent with the “overarching purpose” of s 37N(4) of the FCA Act. Section 37M(1) of the FCA Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
In all of the circumstances, I consider it appropriate to exercise that discretion in this case and to make an order that the respondent’s costs be paid personally by Mr Oks and not by Ms Sellars.
I have considered whether or not it might be more appropriate to make an order under r 40.07 of the Rules in a form that would require Ms Sellars to pay the respondent’s costs but to require Mr Oks to then indemnify her in respect of that liability. However, I do not, in all of the circumstances, consider it appropriate to further extend any form of legal relationship or obligation, or especially a triangle of legal obligations, as between Mr Oks, Ms Sellars and the respondent to the appeal.
Finally, I have had regard to the period of time in which Ms Sellars was, according to the Court records, a self-represented litigant on the appeal. Ordinarily, I would have made an order that Mr Oks only be personally responsible for the costs of the respondent as and from the date upon which he filed a notice of acting. The notice of appeal, as I said, was filed on 13 October 2017. It contains, in its footer, an assertion that the notice was prepared by Ms Sellars. However, it appears that on 12 October 2017, and I so find, that Mr Oks provided detailed legal advice to Ms Sellars as to her prosects of success on the proposed appeal. His advice concludes with a statement to the effect that his firm had commenced the drafting of a notice of appeal and would have it ready for Ms Sellars to sign and file the following day. I infer from that correspondence the notice of appeal filed on 13 October 2017 was a notice of appeal in fact prepared by Mr Oks. Other correspondence annexed to the affidavit revealed that Mr Oks continued to provide advice and assistance to Ms Sellars in relation to this appeal, including by drafting affidavits and applications for filing in this and other courts. It is entirely unclear as to why Mr Oks was not identified as Ms Sellars’ solicitor from the outset of this appeal, nor why he did not file a notice of acting prior to 19 December 2017.
This Court has previously emphasised that a lawyer who prepares a document to be filed in this Court must be identified at the footer of the document as the person who has prepared the document. That is a requirement of r 2.16 of the Rules. To assert, or permit another person to assert, that a document was prepared by a self-represented litigant when in fact it was prepared by a lawyer is to mislead the Court.
Whilst that circumstance has peripheral relevance to the question of costs, it does inform my assessment as to the date from which Mr Oks should be required to bear personal liability to pay the respondent’s costs of the appeal. In the circumstances I have determined it is appropriate that the order apply to all of the respondent’s costs incurred in the appeal, including those costs prior to Mr Oks filing a notice of acting on 19 December 2017.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 6 September 2018
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