Weldon and Levitt (No.2) - [2018] FCCA 436

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELDON & LEVITT (No.2)

[2021] FCCA 436

Catchwords:
FAMILY LAW – Property – costs application against the applicant and his former solicitors on an indemnity basis – the court having found that parties were never in a de facto relationship – costs awarded against the applicant and his former solicitors.

Legislation:
Family Law Act 1975, ss.90RD, 117
Federal Circuit Court Rules 2001, Pt 1 of Sch 1

Cases cited:

Cassidy v Murray (1995) 124 FLR 267; (1995) 19 Fam LR 492; (1995) FLC 92-633
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561
In the Marriage of I (No.2) (1995) 125 FLR 332; (1995) 22 Fam LR 557; (1995) FLC 92-625
In the Marriage of McDonald (1994) 122 FLR 401; (1994) 18 Fam LR 265; (1994) FLC 92-508
Martin v Harris [2010] FamCA 239
PBF v TRF (2005) 191 FLR 294; (2005) 33 Fam LR 123; [2005] FamCA 158
Tang & Keats [2016] FamCA 99
Weldon & Levitt [2017] FCCA 3072

Applicant:

MR WELDON

Respondent:

MS LEVITT

File Number:

MLC 240 of 2016

Judgment of:

Judge Riley

Hearing date:

11 December 2017

Date of last submission:

6 February 2018

Delivered at:

Melbourne

Delivered on:

27 February 2018

REPRESENTATION

Counsel for the applicant:

No appearance

Solicitors for the applicant:

None

Counsel for the respondent:

Ms Marshall

Solicitors for the respondent:

Altona Legal

Advocate for D & M Lawyers:

Ms Dhanapala

Solicitors for D& M Lawyers:

D & M Lawyers

ORDERS

The applicant pay the respondent $24,000, being 75% of her costs of the proceeding calculated on scale.
D & M Lawyers pay the respondent $8,000, being 25% of her costs of the proceeding calculated on scale.

DIRECTION

The Deputy Principal Registrar of this court refer this matter to the Legal Services Commissioner for consideration of whether Sulaika Dhanapala failed to meet her obligations as a solicitor:

(a)by signing affidavits in the absence of the purported deponents;
(b)by adding statements to the affidavits that the purported deponents had not made; or
(c)in any other manner.

For this purpose, the Deputy Principal Registrar give to the Legal Services Commissioner:

(a)a copy of these orders and the reasons therefor;
(b)a copy of the orders and the reasons therefor in Weldon & Levitt [2017] FCCA 3072;
(c)a copy of the transcript of the proceedings;
(d)a copy of the affidavits purportedly affirmed by Ms B, Ms M and Mr W;
(e)exhibit 1, being a handwritten letter by Ms B dated 3 June 2017; and
(f)any other document from the court file that the Legal Services Commissioner may request.

NOTATION

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT…

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 Weldon and Levitt (No.2)

Details

AGLC: Weldon and Levitt (No.2) [2021] FCCA 436
Case: [2018] FCCA 436
Decision Date: 27 February 2018

CaseChat Overview and Summary

In *Weldon and Levitt (No.2)*, Judge Riley of the Federal Circuit Court of Australia considered an application for costs following earlier proceedings. The dispute concerned the conduct of a solicitor, Sulaika Dhanapala, in relation to affidavits sworn in the matter.

The court was required to determine the appropriate orders for costs and whether the conduct of Ms Dhanapala warranted referral to the Legal Services Commissioner for investigation into potential breaches of her obligations as a solicitor. Specifically, the court considered allegations that Ms Dhanapala had signed affidavits in the absence of the deponents, added statements not made by the deponents, or otherwise failed in her duties.

Judge Riley ordered that the applicant pay 75% of the respondent's costs, with a further 25% of the respondent's costs to be paid by D & M Lawyers. Crucially, the Deputy Principal Registrar was directed to refer the matter to the Legal Services Commissioner. This referral was to facilitate an investigation into Ms Dhanapala's conduct, including the signing of affidavits without the deponents present and the inclusion of statements not made by the deponents. The Deputy Principal Registrar was instructed to provide the Commissioner with relevant documents, including the court's orders and reasons, prior court orders and reasons, the transcript, specific affidavits, and a letter from a deponent. The court also noted the prohibition under section 121 of the *Family Law Act 1975* against the publication of identifying details of family law proceedings.

Orders

Orders of the court

The applicant pay the respondent $24,000, being 75% of her costs of the proceeding calculated on scale.

D & M Lawyers pay the respondent $8,000, being 25% of her costs of the proceeding calculated on scale.

DIRECTION

The Deputy Principal Registrar of this court refer this matter to the Legal Services Commissioner for consideration of whether Sulaika Dhanapala failed to meet her obligations as a solicitor:

(a) by signing affidavits in the absence of the purported deponents;

(b) by adding statements to the affidavits that the purported deponents had not made; or

For this purpose, the Deputy Principal Registrar give to the Legal Services Commissioner:

(a) a copy of these orders and the reasons therefor;

(b) a copy of the orders and the reasons therefor in Weldon & Levitt [2017] FCCA 3072;

(d) a copy of the affidavits purportedly affirmed by Ms B, Ms M and Mr W;

(e) exhibit 1, being a handwritten letter by Ms B dated 3 June 2017; and

(f) any other document from the court file that the Legal Services Commissioner may request.

NOTATION

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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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