Legal Research
Cases
Wade & McPherson

Wade & McPherson

Case [2014] FCCA 1321 25 June 2014

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADE & MCPHERSON

[2014] FCCA 1321

Catchwords:
FAMILY LAW – Costs – Application for costs – where Applicant wholly unsuccessful in proceeding – whether costs should be awarded against the Applicant’s solicitor personally – whether costs should be payable on an indemnity basis – unarguable case – failure to refer to appeal decision relevant to the case – potential to mislead the Court – whether unsatisfactory professional conduct.

PRACTICE AND PROCEDURE – Family Law Rules 2004 rr.1.14, 1.21 and 19.08 do not apply in the Federal Circuit Court – whether Application for costs out of time –whether extension of time should be granted – Court may extend time fixed even after the time has passed – application filed only 3 days late – no practical injustice.

Legislation:

Family Law Act 1975 (Cth), ss.69ZK, 94A, 117

Children and Young Persons (Care and Protection) Act 1998 (NSW), s.79
Civil Procedure Act 2005 (NSW), s.99
Legal Aid Commission Act 1979 (NSW), s.41
Legal Profession Act 2004 (NSW), s.496
Family Law Rules 2004 rr. 1.14, 1.21, 19.08
Federal Circuit Court Rules 2001, rr 3.05, 21.02, 21.07

Cases cited:
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
Fay & Turner [2008] FMCAfam 1508
Re Felicity [2012] NSWSC 494
Re Felicity (No.2) [2012] NSWSC 1561
Re Felicity [2013] NSWCA 21

Re J (1990) 14 Fam LR 584

In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300

Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155

In the Marriage of Mullane (1980) 5 Fam LR 801; FLC 90-826
Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197
Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683

Wade & McPherson [2013] FCCA 1583

Applicant:

MS WADE

Respondent:

MR MCPHERSON

File Number:

SYC 1930 of 2013

Judgment of:

Judge Scarlett

Hearing date:

Heard in chambers

Date of Last Submission:

28 May 2014

Delivered at:

Sydney

Delivered on:

25 June 2014

REPRESENTATION

Solicitor for the Applicant:

Mr Potkonyak

Solicitors for the Applicant:

Capellia Legal

Solicitor for the Respondent:

Ms Little

Solicitors for the Respondent:

Little & Associates

ORDERS

The time for the Respondent to file an Application for costs is extended to 11 November 2013.
The Applicant’s solicitor, GEORGE POTKONYAK, is to pay the Respondent’s costs of the proceeding an indemnity basis, fixed in the sum of $4604.00.
I allow three (3) months to pay.
Any application for an order for costs of the Application in a Case filed on 11 November 2013 is to be filed and served within twenty-eight (28) days.
The Applicant’s solicitor GEORGE POTKONYAK is to make a written submission to the Court within twenty-eight (28) days to show cause why a complaint should not be made to the Office of the Legal Services Commissioner…

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 Wade & McPherson

Details

AGLC: Wade & McPherson [2014] FCCA 1321
Case: [2014] FCCA 1321
Decision Date: 25 June 2014

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Scarlett considered an application for costs. The applicant was wholly unsuccessful in the proceeding, leading to a dispute over whether costs should be awarded against the applicant's solicitor personally and whether those costs should be payable on an indemnity basis. The respondent also sought an extension of time to file their application for costs.

The court was required to determine whether to grant an extension of time for the respondent to file their costs application, despite it being filed only three days late. Furthermore, the court had to consider whether to order the applicant's solicitor to pay the respondent's costs personally, on an indemnity basis, given the circumstances of the proceeding. Finally, the court was asked to consider whether the solicitor's conduct warranted a complaint to the Office of the Legal Services Commissioner for unsatisfactory professional conduct.

Judge Scarlett reasoned that the Federal Circuit Court had the power to extend time for filing applications, even after the time had expired, and that granting the extension would cause no practical injustice as the application was only marginally out of time. The court found that the applicant's case was unarguable and that the solicitor's conduct, including a failure to refer to a relevant appeal decision and a potential to mislead the Court, justified ordering the solicitor to pay the respondent's costs on an indemnity basis. The court also determined that the solicitor's conduct constituted unsatisfactory professional conduct.

Consequently, the court extended the time for the respondent to file their application for costs. The applicant's solicitor, George Potkonyak, was ordered to pay the respondent's costs on an indemnity basis, fixed at $4604.00, with three months to pay. The solicitor was also ordered to make written submissions to the court within twenty-eight days to show cause why a complaint should not be made to the Office of the Legal Services Commissioner regarding his conduct.

Orders

Orders of the court

The time for the Respondent to file an Application for costs is extended to 11 November 2013.

The Applicant’s solicitor, GEORGE POTKONYAK, is to pay the Respondent’s costs of the proceeding an indemnity basis, fixed in the sum of $4604.00.

I allow three (3) months to pay.

Any application for an order for costs of the Application in a Case filed on 11 November 2013 is to be filed and served within twenty-eight (28) days.

The Applicant’s solicitor GEORGE POTKONYAK is to make a written submission to the Court within twenty-eight (28) days to show cause why a complaint should not be made to the Office of the Legal Services Commissioner in respect of unsatisfactory professional conduct in his conduct of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Wade & McPherson [2014] FCCA 1321

Most Recent Citation

PEROV & MCPHERSON [2014] FamCAFC 176

Cases citing this decision · 5 of 5 shown

HUMPHREY & HUMPHREY
[2015] FCCA 3033 Para 8

…W) (see Wade & McPherson[5] at [71]), the total amount of costs that will be awarded is the amount of $1,595.00 allowed by the Legal Aid Scale. [5] [2014] FCCA 1321…
DUCKETT & ROBINSON (No.2)
[2015] FCCA 2277 Para 6

…greater than that provided by Legal aid, and I believe that the grant of aid itself would preclude that eventuality ( Wade & McPherson[16] ). [16] [2014] FCCA 1321…
UNDERWOOD & PRATT
[2015] FCCA 1818 Para 4

…precluded by the provisions of s.41 of the Legal Aid Commission Act 1979 (NSW) from obtaining more by way of costs than is payable by Legal Aid. [3] [2014] FCCA 1321…
Wade and McPherson (No.2)
[2014] FCCA 2490 Para 2

…f the Legal Services Commissioner in respect of unsatisfactory professional conduct in his conduct of the proceedings. [2] Wade & McPherson [2014] FCCA 1321…
PEROV & MCPHERSON
[2014] FamCAFC 176

…[2014] FCCA 1321…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

Wade & McPherson
[2013] FCCA 1583 Para 1

…h November 2013, seeking Orders for costs, either against the Applicant’s solicitor personally or against the Applicant, on an indemnity basis. [1] [2013] FCCA 1583…
Prantage & Prantage
[2013] FamCAFC 105 Para 3

…], and, more recently, Prantage & Prantage[14]. [12] (1992) 16 Fam LR 245; (1993) FLC 92-340 [13] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248 [14] [2013] FamCAFC 105; (20130 49 Fam LR 197…
Re Felicity
[2013] NSWCA 21 Para 5

…sion were copies of the judgment in Re Felicity and two subsequent decisions, Re Felicity (No.2)[20] and Re Felicity[21]. [20] [2012] NSWSC 1561 [21] [2013] NSWCA 21…
Re Felicity (No. 2)
[2012] NSWSC 1561 Para 5

…Attached to her submission were copies of the judgment in Re Felicity and two subsequent decisions, Re Felicity (No.2)[20] and Re Felicity[21]. [20] [2012] NSWSC 1561 [21] [2013] NSWCA 21…
Re Felicity
[2012] NSWSC 494 Para 2

…d Fay & Turner[9] but held: I do not consider that either case suggests a different construction of s 69ZK from that which I have adopted. [10] [7] [2012] NSWSC 494 [8] (1990) 14 Fam LR 584 [9] [2008] FMCAfam 1508 [10] [2012] NSWSC 494 at [67]…
Fay and Turner and Anor
[2008] FMCAfam 1508 Para 2

…that either case suggests a different construction of s 69ZK from that which I have adopted. [10] [7] [2012] NSWSC 494 [8] (1990) 14 Fam LR 584 [9] [2008] FMCAfam 1508 [10] [2012] NSWSC 494 at [67]…
Lemoto v Able Technical Pty Ltd
[2005] NSWCA 153 Para 1

…were incurred “without reasonable cause, in circumstances for which [he] is responsible” (s 99(1)(b)). 3. In Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300, McColl JA, with whom Hodgson and Ipp JJA agreed, discussed the exercise of the jurisdiction to make a wasted costs order(in that case,…
Steindl Nominees Pty Ltd v Laghaifar
[2003] QCA 157 Para 1

…proceedings must be “plainly unarguable” , not barely arguable, or “untenable and obviously so” (Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683 at 689; Lemoto v Able Technical at [113]). In Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155, the Full Court of the F…
Levick v Commissioner of Taxation
[2000] FCA 674 Para 1

…v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683 at 689; Lemoto v Able Technical at [113]). In Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155, the Full Court of the Federal Court said in a case such as the present which involves no unresolved question of fact and where the unsuccessful…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 3

…ussons Pty Ltd[13], and, more recently, Prantage & Prantage[14]. [12] (1992) 16 Fam LR 245; (1993) FLC 92-340 [13] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248 [14] [2013] FamCAFC 105; (20130 49 Fam LR 197…
Colgate-Palmolive Co v Cussons Pty Ltd
[1993] FCA 536 Para 3

…Kohan[12]; Colgate-Palmolive Co v Cussons Pty Ltd[13], and, more recently, Prantage & Prantage[14]. [12] (1992) 16 Fam LR 245; (1993) FLC 92-340 [13] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248 [14] [2013] FamCAFC 105; (20130 49 Fam LR 197…

Legislation cited in this decision · 8

Family Law Rules 2004 (Cth)
1.14, 1.21, 19.08 4 mentions (from Para 2)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
79 3 mentions (from Para 3)
Federal Circuit Court Rules 2001 (Cth)
21.02, 21.07, 3.05 3 mentions
Civil Procedure Act 2005 (NSW)
99 2 mentions (from Para 3)
Legal Aid Commission Act 1979 (NSW)
41 2 mentions (from Para 2)
Legal Profession Act 2004 (Vic)
496 2 mentions (from Para 3)
Family Law Act 1975 (Cth)
1 mention (from Para 3)
Legal Profession Act 1987 (NSW)
1 mention (from Para 1)