Tratnik & Riordan and Partners

[2002] FamCA 1466

[2002] FamCA 1466

FAMILY LAW ACT 1975

IN THE FULL COURT     
OF THE FAMILY COURT OF AUSTRALIA  Appeal No SA55L and 58L of 2002
AT MELBOURNE  File No. MLF 4060 of 2002

BETWEEN:

JAMIE TRATNIK
Appellant

- and -

RIORDAN AND PARTNERS
Respondent

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  NICHOLSON CJ, KAY & MONTEITH  JJ
DATE OF HEARING:       02 December 2002
DATE OF JUDGMENT:    02 December 2002

The Applicant of 2 Kiba Court Cranbourne VIC 3966 appeared on his own behalf

The Respondent Messrs Riordan and Partners Solicitors DX 38330 Flagstaff Victoria did not appear and was not represented

CATCHWORDS:     Application for leave to appeal – Refusal of application to amend trial application during compliance check – Attempt to include bill of costs issues – Order 9 rule 5 Family Law Rules - Trial Judge did not err

Jurisdiction – Claims based on professional negligence or contract – Not within associated jurisdiction of the Family Court – Legal Profession Tribunal (Victoria) has jurisdiction – no constitutional issue arises

1. NICHOLSON CJ:   This is an application for leave to appeal by Mr Tratnik in proceedings between himself and Riordan and Partners, his former solicitors.  It relates to proceedings that took place before Carter J on 11 June 2002.

2. It is important at the outset to note that these proceedings were before her Honour as list judge for a compliance check prior to the fixing of a final hearing date for this case. This is part of the normal case management procedure and many other similar matters are commonly before the list judge on the same day

3. The matter had previously been the subject of a pre-trial conference before her Honour in March 2002. At that pre-trial conference her Honour ordered that the case be adjourned to the defended list of cases for a two day hearing in the second half of June 2002 if practicable. By this we take her Honour to have meant “practicable” in the sense of there being time available for the matter to be heard. She further ordered that the respondent solicitors file all affidavits relied upon by the close of business on 17 May, that the husband file any further affidavits by the close of business on 31 May and that there be a compliance check before her on 11 June 2002.  Her Honour reserved the costs of the proceedings on that day.

4. It is quite clear that on the day of the pre-trial conference Mr Tratnik gave no indication of his intention to raise further claims and indeed indicated that he could comply with the directions that were made.  When the matter came on for hearing on the compliance check on 11 June 2002, Mr Tratnik indicated that he had no more material to file in answer to a further affidavit filed on behalf of the solicitors, but he said:

   However, I am in the process of amending an application.

   Her Honour asked him:

   Amending an application?

   He answered:

   Yes.

   Her Honour said:

   To do what?

   He said:

   To include further orders sought.

   HER HONOUR:   This is a costs dispute.

   MR TRATNIK:   Well, it's not just a costs dispute.

   HER HONOUR:   As far as I am concerned, the matter which is before the court today is a question of costs.  It is a dispute between yourself and your former solicitors.

   MR TRATNIK:   That's correct in relation to costs and conduct issues.  That was mentioned in my application filed in September 1998.

   Her Honour then said:

   You want to file an amended application?

   Yes, I do.

   Why have you taken some years to do that, Mr Tratnik?

   MR TRATNIK:   Well, your Honour, it's not up to me, some years, the court has not notified me….

   HER HONOUR:   Mr Tratnik, I made an order back in March when the matter was before me.  It was designed to have the matter heard, if possible, the second half of this month.  You were required to file any affidavits in response by the close of business 31 May and there was a compliance check listed for today.

   MR TRATNIK:   That's correct.  I don't have any affidavits.

   HER HONOUR:   Why have you waited, let's just say, since March?

   MR TRATNIK:   I've been in preparation of amending my documents.

   HER HONOUR:   For three months?

   MR TRATNIK:   We had a previous hearing at the Legal Profession Tribunal and that matter has been stayed in relation to these proceedings or the outcome of these proceedings.

   HER HONOUR:   So?

   MR TRATNIK:   So that has changed matters.

5. Then her Honour asked as to when the hearing before the Tribunal was conducted and was informed 16 May.  Her Honour asked:

   What are you proposing to amend your document  to say?

   MR TRATNIK:   Basically adding further orders in relation to conduct issues and - - -

   HER HONOUR:   What further orders?  I don't understand.  It's a costs dispute.

   MR TRATNIK:   No, it's not a costs dispute.  It's an application, a form 8 application which I filed in relation to conduct issues that have happened in this court four years ago today, which  disturbs me because this is at - you know, four years today that these incidents happened to me.  I raised this issue a number of times with the courts.  I was advised that I should and I could file a form 8 application in relation to any action that I wanted to take.

6. The discussion continued.  Her Honour made some inquiries of Mr O'Callaghan of Counsel as to the nature of the dispute and Mr Tratnik further explained that:

   I'd like to say that on 2 November 1998 a response was filed in relation to my application filed on 15 September 1998.  Mr Paul Cronin, the partner of the firm Riordan and Partners, filed an affidavit on 2 November stating exactly about the conduct issues on 11 June in 1998.  I mentioned those in my application and therefore I'd like to amend that application because of the outcome of the proceedings that have been going on.

7. It is perhaps important at this stage to look at the nature of the application that Mr Tratnik had filed.  That was an application dated 15 September 1998 :

   (i)         That pursuant to Order 38 Rule 40, leave of the court be granted to enable the applicant to request a bill of costs within 14 days in relation to accounts dated 1 may 1998, 11 May 1998, 29 May 1998 and 12 June 1998 and covering the period 1 June 1998 to 9 June 1998.

   (ii)        Further and in the alternative, pursuant to Order 38 rule 28, that the costs agreement between the applicant and Riordan & Partners be set aside.

   (iii)       Further and in the alternative, that Riordan & Partners be required in accordance with Order 38 rule 29(2), to recalculate their account dated 12 June 1998 and to charge in accordance with their costs agreement dated 9 June 1998, or in such other manner as the court may order.

   (iv)       That Riordan & Partners pay the applicant’s costs.

   (v)        That interest be payed by Riordan & Partners to the applicant on the monies returned to him at the rate provided for in the costs agreement in accordance with the Penalty Interest Rate Act 1993.

   What is noticeable about the application is that it relates entirely to issues concerning bills of costs. However, it must be said that in an affidavit filed on 15 September 1998, and a further affidavit filed on 14 March 2002, Mr Tratnik raised other issues relating to conduct by his then solicitors.

8. It emerged during the course of discussion with Mr Tratnik on the hearing of this application for leave to appeal that his real complaint relates to what he says was a situation where he was, in effect, forced by his solicitors on 11 June 1998 to enter into a consent order in relation to residence issues in respect of his child, which he said he should not have been forced to enter into.  In substance, he said that in all the circumstances he should not be liable to pay any legal fees to his then solicitors because of that.  It is quite clear that that was an issue that all parties were ready to deal with at the forthcoming trial.

9. However, it appears that in the meantime Mr Tratnik had also made a complaint to the Legal Profession Tribunal, which conducted its hearing on 16 May and issues arose as to the Tribunal's jurisdiction.  The claims made by Mr Tratnik, as recorded by the Tribunal, were that he was dissatisfied with the services provided to him and sought an order that the fees charged be waived or fully or partly refunded.  Secondly, he alleged that his solicitors and counsel had acted negligently in the family law proceedings and caused him to suffer pecuniary loss, taking the form of legal costs that he was ordered to pay to his wife and legal costs incurred by him with other solicitors.  Thirdly, he alleged that the actions of his solicitors and counsel caused him to suffer from distress for which he sought compensation.

10. The Tribunal indicated that it did have jurisdiction to deal with such a claim.  The Tribunal recorded that the complication was that the disputes arose out of proceedings in this Court, and the Tribunal said that as Mr Tratnik made the application which is the subject of discussion in these proceedings to the Family Court before he made his complaints to the Legal Ombudsman, the effect of section 123(4) of the Legal Profession Practice Act 1996 (Vic) is that disputes about legal costs are not properly before the Tribunal. The Tribunal also recorded that it had decided on many occasions that it did not have jurisdiction to determine a dispute between a legal practitioner and a client about legal costs charged in family law proceedings by reason of the operation of section 109 of the Constitution, the Family Law Act 1975 (Cth) and the Legal Profession Practice Act 1996 (Vic).

11. The Tribunal then went on to indicate its consideration of whether it had jurisdiction to hear and determine the claims that did not relate to legal costs that were based on allegations of negligence and breach of contract. The Tribunal went on to say, after making reference to section 33 of the Family Law Act 1975, that it was possible that the Family Court might deal with the allegation of negligence and breach of contract when it deals with the disputes about legal costs even though the losses are quite different. It is suggested that these claims might be associated with the disputes about legal costs, but the Tribunal said:

    [W]hether the Family Court has jurisdiction to deal with claims based upon professional negligence or based upon a breach of contract or retainer is another matter, depending as it does upon whether the Commonwealth has power under the Constitution to deal with such matters. In this respect the opening words of section 33 of the Family Law Act are pertinent, namely, “To the extent that the Constitution permits”.

12. The Tribunal adopted what it described as a pragmatic course of staying the hearing and determination of the claims until such time as the application to the Family Court had concluded in some way.  The Tribunal pointed out that if the Court decided the claims, the matters would not remain for determination by the Tribunal but if it did not decide the claims, then any party could ask the Tribunal to appoint a date for the determination of those claims.  References were made to estoppel.

13. It is on that basis that one of the issues raised by Mr Tratnik in these proceedings is what he says is a constitutional issue.  In fact, I think it fair to say that this Court has never undertaken the hearing of claims for damages or otherwise against legal practitioners arising out of proceedings before it.  It has exercised a jurisdiction in relation to claims for costs by legal practitioners against their clients and in the course of so doing no doubt issues such as those that have been raised by Mr Tratnik in these proceedings could be canvassed as part of an argument that no moneys should be due by him to the solicitors.

14. However, in my view, such a claim does not fall within the associated jurisdiction of the Court and, if it does so and in so far as the Court has a discretion, and I consider that it does have a discretion, I would not be in favour of exercising it in favour of the determination of such claims.  It seems to me to be quite clear that proceedings of this sort are better and properly determined before Legal Profession Tribunals rather than by this Court.  Insofar as any constitutional issue is thought to arise in the present case, I do not believe that it is a real issue and I do not believe it is one that this Court ought to countenance.

15. When the matter came on for hearing before us, we asked Mr Tratnik to indicate whether he could give us in writing, material that might encompass the precise nature of the amended claims that he was to make.  He was unable to do so and it was after a series of questions to him based upon the amended grounds of appeal that he had set out in an amended notice of appeal dated 15 November 2002 that the nature of his proposed amendments emerged.

16. Firstly, it seems he wishes to argue at trial that there was a miscarriage of justice associated with the making of the original consent order in 1998.  It is of course apposite to note that the wife is not a party to these proceedings.  Therefore, it is quite clear that the attempted amendment to assert that that order involved a miscarriage and should be set aside is an amendment that could not have been permitted in this Court without proper proceedings being commenced involving the wife.

17. I should hasten to say, however, that I should not be taken as encouraging the commencement of such proceedings because, as Kay J pointed out to Mr Tratnik in the course or argument, whatever might be determined as to whether the making of that order did amount to a miscarriage of justice, the Court's inquiry at this time would relate to the best interests of the child and not to what may or may not have occurred at that time because any such inquiry would really be moot, given the period of time that has elapsed.  Similarly, as I pointed out to Mr Tratnik, he could of course make an application based upon changed facts and circumstances to vary the original consent order and that would be a matter for him to consider depending on the amount of contact that he had with the child and the interests of the child and how they would be best served.

18. The second aspect that I have already touched upon related to his desire to amend the application, which Carter J refused, to raise disciplinary issues in relation to the conduct of the solicitors.  As I have indicated, that proceeding would, in my view, be inappropriate and ought not to be proceeded with in this Court.

19. Turning to his other complaints about Carter J, one of the principal complaints that he made appeared to be that there was bias, prejudice and perceived bias on her part.  This largely arose from an interlocutory hearing that took place before her Honour following the making of the consent orders in which her Honour made findings in which she preferred the credit of the wife against the husband.  He concluded from that and her subsequent indication that she would disqualify herself from the substantive proceedings, that this meant that she was disqualified from all forms of proceedings that came before her.  In my view, that is an obviously unsustainable proposition.  Her Honour was not dealing with issues in relation to credit.  Her Honour had not indicated any dislike of the husband at all and, really, all she was doing was her duty as a list judge to arrange for matters to come on for trial.

20. This particular application came on a busy day and in the course of a busy list and I can see nothing about what her Honour said or did on that day that in any way indicated bias or prejudice, nor can I see any basis in the matter that Mr Tratnik sought to raise concerning earlier hearings.

21. The rest of his complaints would seem to relate to what he said were errors of judgment and denial of justice in practice and procedural and procedural fairness issues.  In my view, there is no substance in any of these matters.  In fact, it is of interest to note the timing of the objection that Mr Tratnik actually took in the proceedings before her Honour to her Honour hearing the matter.  That objection was not taken at the commencement of the proceedings and was not taken for a considerable time as the proceedings progressed.

22. It is quite obvious, and the inference I think is clear, that it was only when Mr Tratnik decided that he was not going to get what he wanted from her Honour that he decided that he would object to her hearing the matter.  It is also interesting that his first application in this regard was that the matter be transferred to the Federal Magistrates Court to be heard by a different court.  Her Honour rejected that proposition and it was only then that he requested that the matter be heard by a different judge.  Her Honour, not surprisingly, said:

    I am not going to hear the matter -

    meaning the trial, and no doubt her Honour would not have done so by reason of her earlier expressed views.  Mr Tratnik said:

    No, well, you're hearing this matter now.  You're making decisions in relation to this case.

    HER HONOUR:   No, I'm deciding whether or not this matter is ready for trial.

    MR TRATNIK:   And it's not ready for trial because I haven't filed an amended application and that.

    HER HONOUR:   That's not a matter which I'm going to give you leave to deal with because, from what you've told me, you want to raise matters which are irrelevant to the application and probably beyond the court's power to deal with in any event.

23. Then Mr Tratnik said there were further details in relation to conduct issues and documents that needed to be filed and he referred to particular documents, and her Honour said those matters could be dealt with at trial and did not have to be annexed to affidavits.

24. The matter that does not appear to have been adverted to by her Honour in specific terms during the discussion that related to issues of amendment is that Order 9 Rule 5 provides that:

    A party who has filed and served a document may amend the document without the leave of the court or the consent of any other party to the proceedings at any time before a date is fixed for the hearing of the proceedings.

25. Her Honour, in her March orders, had not fixed a specific date for the hearing of the proceedings but had indicated in general terms when the proceedings would be fixed for hearing.  On one view, therefore, Mr Tratnik could have in fact amended his application without leave prior to the matter coming on before her Honour.  However that may be it is not a matter that I think is necessary to decide because this was a compliance check. Mr Tratnik came before her Honour on a compliance check in circumstances where he was quite unable to specify what his amended applications were or even when they would be filed.  In the circumstances, it seems to me that what her Honour did should properly be regarded as a refusal to permit Mr Tratnik to delay the matter further, particularly having regard to her view of the nature of the amendments that he foreshadowed.  Her Honour therefore effectively refused an adjournment of the proceedings to enable him to make that amended application and made orders preventing the filing of further material prior to trial.  In my view, that was a matter that was entirely within her Honour's discretion in the circumstances and I see no reason why Mr Tratnik can properly complain about the matter.

26. In all the circumstances therefore, it is my view that the application for leave to appeal should be dismissed.

27. I might, in conclusion, comment that it is important to note that this is an application for leave to appeal from an interlocutory order made by a judge, and the principles in relation to such an appeal are expressed in Rutherford v Rutherford (1991) FLC 92‑255 following the decision of the High Court in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170. Those principles are that the appellant must show an error of principle and/or a fact that the decision appealed from caused him a substantial injustice. The Court held in that case that there was no error of principle involved, it was solely a question of the exercise of discretion and that there was no substantial injustice to the husband. In my view, similar considerations apply to the present case and I consider that the application should be refused.

1. KAY J:   I agree.  I agree with the classification by the Chief Justice of the nature of the problem that confronted her Honour, namely, whether there should be an adjournment to enable an unspecified amended application to be filed as of right.  It was appropriate for her Honour to make inquiries as to the nature of the application and, once it was outlined, it was appropriate, in my view, or certainly within her Honour's discretion to refuse the application.  I would add that in respect of the issue of associated jurisdiction I draw attention to the remarks of the High Court in Smith v Smith (No 3) (1986) FLC 91‑732 where Gibbs CJ and Wilson and Dawson JJ said of the operation of section 33 of the Family Law Act as follows:

   It is hardly necessary to add that the jurisdiction of the Family Court is not relevantly enlarged by the provisions of section 33 of the Family Law Act.  At best, that section could validly do no more than give the Family Court jurisdiction in associated matters arising under some other federal law (see Philip Morris v Adam P. Brown Male Fashions).  Since at first sight it is difficult to envisage matters under other federal laws that might be associated with matters arising under the Family Law Act, the effect of this section is far from clear (see Ross Jones ex parte Beaumont).

   The issues sought to be raised by the applicant in these proceedings were issues of negligence and issues of breach of contract and issues of compensation available under the operation of the state law of Victoria.  Those matters could not possibly, in my view, fall within any area of associated jurisdiction.

2. MONTEITH J:   I agree that the application for leave to appeal should be dismissed.  I have nothing I wish to add.

3. NICHOLSON CJ:   The order of the Court will be that the application is dismissed.

I certify that the previous  30  numbered paragraphs are a true copy of
the reasons for judgment delivered by this Honourable Full Court.

Danny Sandor
Senior Legal Associate to the Chief Justice