Strahan and Strahan (No 2)

[2016] FamCA 703

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO 2) [2016] FamCA 703

FAMILY LAW – ADJOURNMENT – where the respondent seeks an adjournment – where the applicant opposes the adjournment – where the respondent has instructed new solicitors – where an adjournment is granted.

FAMILY LAW – COSTS – where costs are ordered in favour of the applicant.

Family Law Act 1975 (Cth) s 97, 117

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

APPLICANT: Ms Strahan

RESPONDENT OTHER PARTIES: Mr CW and CW Lawyers

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 22 August 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Heinrich

SOLICITOR FOR THE APPLICANT: Camatta Lempens Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Smith

SOLICITOR FOR THE RESPONDENT: CW Lawyers

Orders

1. Further consideration of this application is adjourned for mention before The Honourable Justice Austin at 9.00 am on Thursday 1 September 2016 by video-link.

2. The respondent other parties Mr CW and CW Lawyers pay to the wife the sum of ONE THOUSAND FIVE HUNDRED DOLLARS [$1,500.00] on account of costs of today such sum to be paid within twenty-one [21] days.

3. Leave is given to the wife to file and serve a further Notice to Produce to Mr CW and CW Lawyers and to serve the same electronically (email) to the current solicitors Neal Collin Lawyers and making the same returnable for 9.00 am on Thursday 1 September 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Strahan & Strahan (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

Ms Strahan

Applicant

And

Mr CW and CW Lawyers

Respondent Other Parties

EX TEMPORE REASONS FOR JUDGMENT

1. I am now faced with an application on behalf of the former solicitors, Mr CW and CW Lawyers, for an adjournment of today’s hearing.  For appropriate reasons, the adjournment is opposed by counsel on behalf of the wife.

2. Orders were made on 11 May 2016 listing the matter before me today.  At that time Mr Heinrich, who is present for the wife today, was present, and Ms Lewis of counsel was present for what were described as the second and third respondents, being Mr CW and CW Lawyers. 

3. Specific orders were made on that occasion that the wife file and serve further affidavit material by 4.00 pm on 24 June 2016.  The wife subsequently filed that affidavit on 27 June 2016 with no explanation in the affidavit itself to explain the short delay.  There were subsequent matters listed before me in relation to the litigation between the parties who I will describe as the husband and the wife. 

4. The matter was set down today for half a day.  Clearly, the issues which were then to be determined related to the Application in a Case by the wife seeking the repayment of a substantial sum of $300,000 and other matters in the Further Amended Application in a Case filed by the wife on 29 April 2016 (which is document 691).  That application has detailed orders in it, but, in particular, in paragraph 2 “that [Mr CW] and/or [CW Lawyers] pay the sum of $300,000 to Camatta Lempens’ trust account within seven days”.  The amendment to that application seeks specific orders relating to the money being held for the payment of solicitor’s fees, counsel fees and disbursements for the final hearing.  It is also seeking detailed orders in relation to the material to be provided by the parties in relation to disclosure and discovery. 

5. The amended application was filed on 29 April 2016, and with it was filed substantial affidavit material.  Since then there has been further affidavit material filed. 

6. This morning the wife is represented by Mr Heinrich of counsel who has clearly considerable knowledge of the background to this matter.  The wife is not present.  There is no explanation for her failure to be here today.  Mr CW and CW Lawyers are represented by Ms Smith of counsel who informs me that there are going to be solicitors filing a Notice of Address for Service indicating they are acting for Mr CW and CW Lawyers.  Up until now they appear to have been unrepresented or representing themselves as qualified solicitors.  There is no appearance by anyone other than counsel today and no explanation for the failure for them to appear or to seek leave to appear by telephone or video link. 

7. I am being asked to make the adjournment on the basis that the Notice to Produce was provided last week and did not give Mr CW and his company the necessary seven days to allow them to comply with the rules in relation to the production of documents.  The other ground for seeking the adjournment is that counsel informs the Court that Mr CW has as recently as Friday of last week only then taken advice from a barrister who raised with him the issue of negligence and the need for his indemnity insurers to be notified of the matter and the risk that the indemnity insurers may, therefore, want to be heard in this matter.

8. When considering an adjournment I have to consider both the need to deal with this matter promptly and, in particular, take into account the material that I have often quoted from the High Court in the matter of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. I will not quote it all, but counsel would be quite aware that simply seeking an adjournment time for filing of documents is not necessarily a basis upon which the Court would grant the adjournment and has to take into account the rights of the parties to have the matter dealt with promptly in accordance with the provisions of the Family Law Act 1975 (Cth) s 97 and the rules.

9. The litigation between the husband and the wife has been outstanding before this Court now for 11 years.  The litigation between the wife and these solicitors has also been ongoing since at least all of this year, if not earlier.  The Court, therefore, has to be very careful in considering the principles of justice. 

10. However, in this case I am concerned that the information which the Court has received from the former solicitors is clearly not explaining the basis upon which hundreds of thousands of dollars have been removed from their trust account and paid to them for work they claim to have done.  That action has been taken on the basis that they have, apparently, not provided any bills or invoices or accounts to the wife for the money which they have taken. 

11. I am also concerned that this is a matter which involves litigation in the Supreme Court of South Australia between the wife and these former solicitors wherein an adjudication is taking place which has also been adjourned to 23 September 2016.  That is information I am given from the bar table.  There is considerable ongoing dispute about any amount that the former solicitors should be entitled to by way of legal costs.

12. I am reluctantly, therefore, of the view that it is appropriate to grant an adjournment to enable the former solicitors to provide appropriate information to this Court upon which the Court will be able to make a decision.  This will also allow them to obtain appropriate advice concerning the risks of negligence and the risk of reports to the Law Society authorities concerning their actions if it transpires that their behaviour in this matter could result in a finding that, not only have they been negligent in dealing with the wife in these proceedings (by not providing her with proper invoices and bills) but that they may also have behaved in a way which would result in some determination being made about their capacity to continue to act as solicitors. 

13. The difficulty the Court faces is that the dates available are limited.  I am, therefore, adjourning further consideration of this application for mention to his Honour Justice Austin at 9.00 am on 1 September 2016.  The hearing will be in this building and the judicial officer will be attending by video link.

14. The matter is adjourned to 9.00 am on 1 September 2016 for mention on the understanding that Austin J will be notified that this application is also before him and will require the allocation of a date for hearing by another judicial officer.

15. In relation to the question of costs, clearly, s 117 refers to each party bearing their own costs save and except in circumstances which are determined in accordance with those provisions. 

16. One of the bases is whether the party has been wholly unsuccessful, but that relates to the actual claim.  The request for the adjournment today comes on the day and for reasons which relate only to the former solicitor.  The main issue that I have granted the adjournment is on the risk of the involvement of indemnity insurers.

17. In relation to the Notice to Produce, Mr Heinrich, counsel for the wife, did not proceed with that today and therefore the basis upon which this adjournment has been granted has clearly been because of the issues raised by the former solicitor and what amounts to his failure to obtain appropriate advice and file appropriate documents since the adjournment of the matter and the listing of the matter in May of this year. 

18. Therefore, I am satisfied that it is appropriate, just and equitable that the wife receive her costs of attendance of counsel today.  I therefore make an order that the respondent other parties, Mr CW and CW Lawyers pay the sum of $1500 to the wife on account of costs of today, such sum to be paid within 21 days.

19. In relation to the further order sought in relation to the Notice to Produce and the timing of it, I give leave to the wife to file and serve a further Notice to Produce to Mr CW and CW Lawyers and have leave to serve the same by electronic means (email) to the former solicitor’s current lawyers, Neal Collin Lawyers making the same returnable for 1 September 2016.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 August 2016.

Associate: 

Date:  25 August 2016