Terrell and Terrell - [2013] FCCA 105

FEDERAL CIRCUIT COURT OF AUSTRALIA

TERRELL & TERRELL

[2013] FCCA 105

Catchwords:
FAMILY LAW – Practice and Procedure – referral to the Legal Services Commissioner for overcharging and inadequacy of the material placed before the Court.

Legislation:
Federal Circuit Court Act 1999
Federal Circuit Court Rules 2001
Legal Professional Act 2004 (NSW), ss.309, 316, 350
Evidence Act
Real Property Act 1900 (NSW), s.74J

Cases cited:
McMahon v Gould (1982) 7 ACLR 202
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Giannarelli v Wraith (1988) 165 CLR 543
Myers v. Elman [1940] AC 282
Kowaliw v Kowaliw (1981) FLC 91-092

Weir & Weir (1993) FLC 92-338
Black & Kellner (1992) FLC 92-287

Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115
Khotsimeuang v Workcover Corp of SA [2006] FMCA 204
Jones v Dunkel (1959) 101 CLR 298
Jefferson Ltd v Bhetcha [1979] 1 WLR 898
Bechara v Legal Services Commissioner [2010] NSWCA 369

Applicant:

MS TERRELL

Respondent:

MR TERRELL

File Number:

SYC 3348 of 2012

Judgment of:

Judge Harman

Hearing date:

5 April 2013

Date of Last Submission:

5 April 2013

Delivered at:

Parramatta

Delivered on:

5 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr Farah

Solicitors for the Applicant:

Farah Lawyers Solicitors & Barristers

Counsel for the Respondent:

[omitted]

Solicitors for the Respondent:

[omtited]

Counsel for the Independent Children’s Lawyer:

Ms O’Donnell

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW - Campbelltown Family Law

ORDERS

The proceedings are adjourned to 9.30am on 6 June 2013 for further mention and directions.
The Applicant wife shall file and serve by no later than close of business on 26 April 2013 an Amended Application setting out with specificity all orders she invites the Court to make.
The Respondent Husband shall file and serve a Response setting out with specificity all orders he invites the Court to make by no later than close of business on 17 May 2013.
On the next occasion consideration will be given as to what further orders are required to advance matter to finality.
The Registrar of the Court is requested to furnish to the Legal Services Commissioner NSW a copy of today’s reasons for the purpose of the Legal Services Commissioner pursuing and dealing with such complaint or inquiry as he considers appropriate as to:
(a)The failure of the Attorney’s for the Husband to diligently or competently represent his interests and comply with orders of this Court as to the filling of evidence; and
(b)The fees charged with respect to the conveyance referred to within these reasons, being the sum of $6,800.
The Legal Services Commissioner shall be provided with such Affidavit material, Applications and/or Response as have been filed in these proceedings and as may be requested.
The costs of both parties and the Independent Children’s Lawyer with respect to today’s appearance (which concluded today at 1.50pm) are reserved the determination of such costs being adjourned to 9.30am on 6 June 2013.

IT IS NOTED that publication of this judgment under…

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

Case: [2013] FCCA 105
Decision Date: 5 April 2013

CaseChat Overview and Summary

In the matter of *Terrell and Terrell*, heard by Judge Harman, the proceedings concerned a dispute between an Applicant wife and a Respondent husband. The specific nature of the dispute is not detailed, but the orders indicate it involves applications for court orders and the filing of evidence.

The court was required to determine the appropriate procedural steps to advance the matter towards finality, including the specificity of orders sought by each party and the filing of evidence. Additionally, the court considered the conduct of the Respondent Husband's attorneys in relation to their diligence, competence, and compliance with court orders concerning evidence, as well as fees charged for a conveyance.

Judge Harman's reasoning focused on ensuring clarity and specificity in the parties' claims to facilitate efficient resolution. The court directed the Applicant wife to file an Amended Application detailing her requested orders, and the Respondent Husband to file a Response outlining his requested orders. The court also noted concerns regarding the Husband's attorneys' conduct and the fees for a conveyance, requesting the Registrar to provide the reasons for these concerns to the Legal Services Commissioner for further inquiry.

The proceedings were adjourned for further mention and directions, with consideration to be given to further orders required to bring the matter to finality. The costs of the parties and the Independent Children's Lawyer for the day's appearance were reserved for future determination.

Orders

Orders of the court

The proceedings are adjourned to 9.30am on 6 June 2013 for further mention and directions.

The Applicant wife shall file and serve by no later than close of business on 26 April 2013 an Amended Application setting out with specificity all orders she invites the Court to make.

The Respondent Husband shall file and serve a Response setting out with specificity all orders he invites the Court to make by no later than close of business on 17 May 2013.

On the next occasion consideration will be given as to what further orders are required to advance matter to finality.

The Registrar of the Court is requested to furnish to the Legal Services Commissioner NSW a copy of today’s reasons for the purpose of the Legal Services Commissioner pursuing and dealing with such complaint or inquiry as he considers appropriate as to:

(a) The failure of the Attorney’s for the Husband to diligently or competently represent his interests and comply with orders of this Court as to the filling of evidence; and

(b) The fees charged with respect to the conveyance referred to within these reasons, being the sum of $6,800.

The Legal Services Commissioner shall be provided with such Affidavit material, Applications and/or Response as have been filed in these proceedings and as may be requested.

The costs of both parties and the Independent Children’s Lawyer with respect to today’s appearance (which concluded today at 1.50pm) are reserved the determination of such costs being adjourned to 9.30am on 6 June 2013.

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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