Z (A Solicitor) v Limousin (Costs)

FAMILY COURT OF AUSTRALIA

Z (A SOLICITOR) & LIMOUSIN [2010] FamCAFC 59

FAMILY LAW - APPEAL – COSTS ORDER – Costs order against solicitor – Whether the trial Judge erred in making findings that the proceedings were unreasonably maintained by the solicitor without proper consideration of prospects of success –Where the case was listed for trial on the basis of the solicitor’s representations several years after commencement of the proceedings – Where multiple opportunities for inspection of the husband’s documents were afforded – Where applications made during the lengthy hearing were found to be without merit – Where there was evidence to support the finding that the proceedings were unreasonably maintained with disregard of any proper consideration of the prospects of success – No appealable error established.

FAMILY LAW - APPEAL – COSTS ORDER – Costs order against solicitor – Whether the trial Judge erred in finding that the solicitor had an improper purpose in instituting or maintaining the proceedings – An allegation against a legal practitioner of improper motive for the conduct of litigation is an extremely serious one which requires clear and cogent proof – Where there was evidence suggestive of an improper purpose – Where such evidence taken at its highest did not meet the standard required by the Evidence Act 1995 (Cth) – Where the trial Judge failed to analyse the difference between the husband’s expert’s oral evidence and the purported record of it – Finding of improper purpose by the trial Judge unsafe.

FAMILY LAW - APPEAL – COSTS ORDER – Costs order against solicitor – Whether the trial Judge erred in relying on “in court observations” of the wife – Where the trial Judge’s remarks were not confined to observations of the wife in the witness box – Whether the solicitor was denied natural justice by the trial Judge failing to inform him that he intended to rely on his in court observations – Where the matter proceeded by way of written submissions – Where the husband’s principal submissions did make reference to the wife’s demeanour – Trial judge’s findings supporting the costs order not dependent on in court observations of the wife – Stead v State Government Insurance Commissioner (1986) 161 CLR 141 applied – Appeal not allowed on this ground.

FAMILY LAW - APPEAL – COSTS ORDER – Costs order against solicitor – Whether the trial Judge failed to provide adequate reasons for costs order against the solicitor for discrete applications made by the wife – Where the course adopted by the trial Judge in respect of the discrete applications was practical – The trial Judge’s reasons in each instances were adequate – No appealable error.

FAMILY LAW - APPEAL – COSTS ORDER – Costs order against solicitor – s 117(2) does not mandate that more than one or all of the matters in s 117(2A) must be found to warrant departure from the general provision that each party pays its own costs – Where the trial Jude determined that the solicitor’s…