Simic & Norton - [2017] FamCA 1007

FAMILY COURT OF AUSTRALIA

SIMIC & NORTON

[2017] FamCA 1007

FAMILY LAW – COSTS – conduct of the parties and/or their legal practitioners – referral of legal practitioners to Legal Services Commissioner
APPLICANT:	Mr Simic

RESPONDENT:

Ms Norton

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

SYC

6449

2015

DATE DELIVERED:

11 December 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

23, 24, 27, 28, 29 and 30 November 2017 and 1 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey & Ms Beck

SOLICITOR FOR THE APPLICANT:

Mr D of X Firm

COUNSEL FOR THE RESPONDENT:

Ms Gilles SC

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Ms M of Y Firm

Ms Murphy

Stephen W Bell & Associates

Orders

IT IS DIRECTED

A Registrar of this Court forward to the Legal Services Commission of New South Wales the following documents:-
(a)a sealed copy of this order;
(b)a copy of the reasons upon which this order is based; and
(c)a copy of the submissions made by or on behalf of each of the Applicant and Respondent in respect of the question as to whether to refer the solicitors to the Legal Services Commission of New South Wales.

IT IS REQUESTED

The Legal Services Commission of New South Wales investigate and consider whether the costing and approaches adopted by each of the current solicitors for the parents in these proceedings, namely Mr D for the Applicant and Ms M for the Respondent (collectively called ‘the solicitors’), could constitute professional misconduct or unsatisfactory professional conduct by either one and/or other of the solicitors.
In that investigation the Court requests that the Legal Services Commissioner consider:-
(a)whether the legal work undertaken by each of the solicitors was necessary for the pursuit of these legitimate forensic needs of each of the solicitor’s clients;
(b)whether the legal work was undertaken by each of the solicitors in a reasonable manner, bearing in mind these are proceedings on behalf of otherwise unsophisticated parties in terms of family law litigation and in highly emotional circumstances;
(c)whether the legal costs and disbursements claimed were, in all of the circumstances, fair and reasonable; and
(d)whether the costs and disbursements were proportionate to the overall issues to be determined in these proceedings.

IT IS ORDERED

The Court gives leave for the Legal Services Commissioner of New South Wales or his/her nominee to have photocopy access to the documents on the Court file in these proceedings, including all Exhibits.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simic & Norton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law…

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 Simic & Norton

Details

AGLC: Simic & Norton [2017] FamCA 1007
Case: [2017] FamCA 1007
Decision Date: 11 December 2017

CaseChat Overview and Summary

In the matter of Simic & Norton, Benjamin J of the Supreme Court of New South Wales directed that certain documents be forwarded to the Legal Services Commission of New South Wales. These documents included a sealed copy of the court's order, the reasons for that order, and the submissions made by the parties concerning a referral to the Legal Services Commission.

The court requested that the Legal Services Commission investigate and consider whether the costing and approaches adopted by the solicitors for the parents in the proceedings constituted professional misconduct or unsatisfactory professional conduct. Specifically, the court asked the Commissioner to examine whether the legal work undertaken was necessary for the clients' legitimate forensic needs, whether it was performed reasonably given the clients' lack of sophistication in family law litigation and the emotional circumstances, and whether the legal costs and disbursements claimed were fair, reasonable, and proportionate to the issues in the proceedings.

Furthermore, the court granted the Legal Services Commissioner or their nominee leave to access photocopies of all documents on the court file, including exhibits, for the purpose of this investigation.

Orders

Orders of the court

IT IS DIRECTED

A Registrar of this Court forward to the Legal Services Commission of New South Wales the following documents:-

(a) a sealed copy of this order;

(b) a copy of the reasons upon which this order is based; and

(c) a copy of the submissions made by or on behalf of each of the Applicant and Respondent in respect of the question as to whether to refer the solicitors to the Legal Services Commission of New South Wales.

IT IS REQUESTED

The Legal Services Commission of New South Wales investigate and consider whether the costing and approaches adopted by each of the current solicitors for the parents in these proceedings, namely Mr D for the Applicant and Ms M for the Respondent (collectively called ‘the solicitors’), could constitute professional misconduct or unsatisfactory professional conduct by either one and/or other of the solicitors.

In that investigation the Court requests that the Legal Services Commissioner consider:-

(a) whether the legal work undertaken by each of the solicitors was necessary for the pursuit of these legitimate forensic needs of each of the solicitor’s clients;

(b) whether the legal work was undertaken by each of the solicitors in a reasonable manner, bearing in mind these are proceedings on behalf of otherwise unsophisticated parties in terms of family law litigation and in highly emotional circumstances;

(d) whether the costs and disbursements were proportionate to the overall issues to be determined in these proceedings.

IT IS ORDERED

The Court gives leave for the Legal Services Commissioner of New South Wales or his/her nominee to have photocopy access to the documents on the Court file in these proceedings, including all Exhibits.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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