Wade & McPherson

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.