ZANDAS & ZANDAS
[2014] FCCA 1184
•11 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZANDAS & ZANDAS | [2014] FCCA 1184 |
| Catchwords: PRACTICE AND PROCEDURE – Where Applicant failed to present case – where Applicant’s case unprepared – where two days of court time wasted – where Applicant’s counsel and solicitor required to show cause why a complaint should not be made to the Office of the Legal Services Commissioner as to their unsatisfactory professional conduct in the handling of the Applicant’s case – undertaking to Court – where Counsel failed to honour undertaking. COSTS – Whether Applicant should pay the Respondent’s costs of the two hearing days thrown away – indemnity costs – whether costs should be paid on an indemnity basis. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 79, 117 Legal Profession Act 2004 (NSW), s.496 |
| Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340 Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197 |
| Applicant: | MR ZANDAS |
| Respondent: | MS ZANDAS |
| File Number: | SYC 5680 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 28 & 29 May 2014 |
| Date of Last Submission: | 5 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lott |
| Solicitors for the Applicant: | State Lawyers |
| Counsel for the Respondent: | Ms Beck (direct brief) |
ORDERS
The Applicant is to pay the Respondent’s costs thrown away of the 28 and 29 May 2014 on an indemnity basis.
The Respondent is to file and serve a memorandum setting out the quantum of costs sought within seven (7) days.
The Principal Registrar is to forward to the Office of the Legal Services Commissioner in and for the State of New South Wales a copy of the Reasons for Decision with the request that the Legal Services Commissioner investigate whether Patrick Lott, Barrister, has demonstrated unsatisfactory professional conduct in his representation of the Applicant on 28 and 29 May 2014.
IT IS NOTED that publication of this judgment under the pseudonym Zandas & Zandas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5680 of 2012
| MR ZANDAS |
Applicant
And
| MS ZANDAS |
Respondent
REASONS FOR JUDGMENT
Application
The substantive proceedings concern an Application by the husband for property orders and an application by the wife, contained in her Response, for parenting orders. The matter was listed for final hearing on 28, 29 and 30 May 2014 and should have been comfortably heard within that time. Whilst other circumstances meant that the third hearing day had become unavailable, that is of no significance in this case, as the Applicant, over a period of two days, was unable to commence his case at all, so that not a word of evidence was taken. Precisely nothing was achieved except that Counsel for the wife made a number of objections to the affidavits of the husband and his brother.
The Orders to be made today arise from the fact that at 3:30 pm on the second hearing day I adjourned the hearing and made the following Orders:
1. The Application is adjourned to Wednesday 11 June 2014 for mention at 10:00 am.
2. I require a transcript of the proceedings of 28 and 29 May 2014.
3. Within 7 days the Applicant is to file and serve a written submission as to why he should not pay the Respondent’s costs of the proceedings of 28 and 29 May on an indemnity basis.
4. Within 7 days the Applicant’s counsel and solicitor are each to file a written submission to show cause why the Court should not make a complaint to the Office of the Legal Services Commissioner as to their unsatisfactory professional conduct in their handling of the Applicant’s case.
Background
The proceedings commenced when the husband filed an Application for Property Orders on 21 September 2012, accompanied by an affidavit and a Financial Statement. The husband was represented by a solicitor, Ms Bernadette Smyth of Dimocks Family Lawyers, of Sydney.
The wife, who was not represented at the time, filed a Response, an affidavit and a Financial Statement on 16 November 2012. In her Response she sought property orders and a parenting order.
The parties were directed to attend a Conciliation Conference before a Registrar of the Court, which took place on 1 February 2013. The property proceedings did not resolve at the conference.
On 4 March 2013, when the wife was represented by Ms Picker of Counsel on a direct brief, the parties entered into interim consent orders relating to property and children’s issues, including attending a Child Dispute Conference, which took place on 13 March.
The wife filed an Amended Response on 10 April 2013, in which she sought in considerable detail the parenting and property orders which she sought.
The husband filed a Reply on 1 May 2013, setting out the parenting orders he sought in reply to the wife’s Response.
The parties attended a Child Inclusive Child Dispute Conference on the morning of 24 June 2013. The Family Consultant, in her Memorandum to the Court dated that same day, noted that the parties’ daughter would shortly attain the age of 18 and that matters relating to the parties’ elder son appeared to have resolved. However, there were unresolved issues concerning the parties’ younger son, who was born on (omitted) 2000 and was therefore aged 12 years and 7 months at the time.
At the recommendation of the Family Consultant, the Court ordered a Family Report. This Report was released to the parties on 1 October 2013.
On 11 October 2013 the proceedings were set down for final hearing in respect of both parenting and property issues for three days, to commence on Wednesday 28 May 2014.
The wife consulted a solicitor, Mr David Cohen, who filed a Notice of Address for Service on 9 May 2014. However, he filed a Notice of Withdrawal as Lawyer a week later, on 16 May.
On 19 May 2014 the husband’s current solicitor, Mr Zubin Hiramanek, filed an affidavit by the husband’s brother, Mr R, sworn on 16 May.
The wife filed a Further Amended Response, setting out in detail the parenting and property orders which she sought, on 21 May 2014. At the same time she filed an affidavit affirmed that same day and a Financial Statement.
On 23 May 2014 the husband’s former solicitors, Dimocks Family Lawyers, filed a Notice of Withdrawal of Lawyer.
The Hearing
The Application came on for hearing on Wednesday 28 May 2104. I called the matter shortly after 10:00 am and took the appearances. Mr Lott of counsel appeared for the husband, Ms Beck of counsel appeared for the wife, on a direct brief basis. I informed counsel that there were some matters for mention, more than usual because dates had been missed due to my recent illness, and gave the matter a 12 noon marking. I was informed by Mr Lott that counsel wished to discuss certain matters in the meantime.
The matter was called on shortly after 12 noon. Mr Lott informed the Court that the husband was in some difficulty in prosecuting his case, as, whilst the husband himself was available for cross-examination, the husband’s brother would not be available until the following day. Mr Lott told the Court that a further witness may be required to give evidence, depending on “what cross-examination of the applicant and the applicant’s witnesses there is.”[1]
[1] Transcript 28.5.2014 page 4 line 12
I raised with counsel for the husband whether he had prepared a Case Outline Document, noting that counsel for the wife had submitted such a Case Outline that morning. Mr Lott told the Court that there was not such a document in existence. The Transcript shows that this exchange took place:
MR LOTT: Your Honour, I have to extend my apologies. I received the brief…
HIS HONOUR: Okay. Right.
MR LOTT: …so late that it’s still half-baked on my desktop screen in my chambers, before I had to run out this morning, so I don’t.
HIS HONOUR: All right.
MR LOTT: But, your Honour …
HIS HONOUR: It won’t be the first time that I’ve received a case outline at the end of the first day of hearing. You are going to complete it at some stage, are you, Mr Lott?
MR LOTT: Your Honour, I can give you an undertaking that I will have that to you by the start of court tomorrow.
HIS HONOUR: Undertaking?
MR LOTT: Yes
HIS HONOUR: Are you…
MR LOTT: From the bar table.
HIS HONOUR: You know I hold people to undertakings.
MR LOT: And you should.
HIS HONOUR: I never – in my entire career (in) the profession, I never reneged on an undertaking, it’s – and I expect no less from practitioners, just so long as you’re on notice.
MR LOTT: I don’t have my kids this week, your Honour. Anything can be done when they’re not there.[2]
[2] Transcript 28.5.2014 p.9 lines 8-43
The Case Outline from the husband’s counsel has never been received.
Mr Lott sought a period of 10 minutes to discuss some issues with counsel for the wife. I allowed a period of 20 minutes for those discussions to take place. The transcript shows that I adjourned at 12:27 pm and resumed at 12:56 pm. I asked if counsel had been able to resolved any issues in the intervening period:
MR LOTT: I think we resolved something, didn’t we? There was at least one thing.
HIS HONOUR: Can you recall what that might be?
MR LOTT: No.
HIS HONOUR: No.
MR LOTT: Surely we resolved something.
MS BECK: No, your Honour…[3]
[3] Transcript p.15 lines 26-36
Ms Beck proceeded to set out what she believed were the matters still in issue, but went on to say that “the children’s issues are really not going to be an issue….(but) the wife is quite concerned that the parties enter into some sort of relationship with family counselling. She’s concerned that (the child) will be lost to her unless there’s some way to facilitate the relationship again, and she has suggested that the parties attend that with such children that …would benefit from counselling, and that’s an order that she would like made in relation to the children.[4]
[4] Transcript pp.15-16
Mr Lott told the Court that he may be seeking an adjournment. On being told he could do that at 2:15 he said:
… but the risk is in seeking an adjournment there is always that argument as to costs.[5]
[5] Transcript page 18 line 18
The parties were not ready to resume at 2:15 pm. I returned to the bench at 2:41 pm, at which stage Mr Lott complained that he had recently received a written document from counsel for the wife but he had not had an opportunity to obtain instructions from his client about the matters in the document.
Mr Lott referred to “further offers to settle this case” but I told him:
Well, don’t tell me what the offers to settle the case are, please. And I presume from the fact that you’re not robed that you’re not actually in a position to call your client to give evidence at this stage.[6]
[6] Transcript page 19 lines 4-6
After some further discussion, which included further complaints by Mr Lott about the receipt of further proposed minutes of order or offers of settlement I said at 2:44 pm:
I am going to adjourn. I will not return before 3 o’clock., and if I can’t get some sense out of someone by 3 o’clock the matter will go over until 10 o’clock tomorrow morning.[7]
[7] Transcript page 20 lines 9-11
I returned to the bench at 3:10 pm and, at the request of Ms Beck of counsel, heard her objections to the admissibility of evidence in the affidavits of the husband of 20 September 2012 and the husband’s brother of 16 May 2014. This procedure took the rest of the afternoon until 4:15 pm.
The hearing resumed the following morning at 11:10 am. Counsel for the husband sought an adjournment of the hearing in the following terms:
I said to my friend, we’re prepared, rather than to continue in this haphazard fashion, we’re prepared to offer my friend, she’s uninstructed, we’re prepared to make an offer of our costs to her today to adjourn today and get another date in the future when all the ducks are in a row and this can be dealt with efficiently.[8]
[8] Transcript 29.5.2014 page 50 lines 8-12
I allowed time for this open offer to be considered and was informed by Ms Beck after the morning tea adjournment that the husband’s application for adjournment was opposed. I noted that the wife intended to tender a minute setting out some amended parenting orders which were to be sought.
I delivered a decision in which I stated:
I am surprised to hear the submission from counsel for the Applicant that this case was never about parenting. It most clearly has been. Parenting has been an issue right throughout, and there are still parenting proceedings on foot…(What) I require of counsel is that they apply their minds to dealing with the parenting issues that are outstanding.
It appears that the property matters may have to wait and they may well have to be hived off from the parenting. I propose to give the parenting issues priority and I do so because I’m relying section 60CA of the Family Law act which requires the Court, when considering whether to make a parenting order, to regard the best interests of the child as the paramount consideration.
In my view, children’s best interests require that the Court apply its mind to resolving these issues as soon as possible. If the property has to wait, the property has to wait.
But the time should be sufficient for the Court to hear evidence and submissions in respect of the parenting, and in my view the balance of the time should be devoted to that.
I resumed at 2:00 pm. It soon became clear that counsel for the husband was in no position to offer anything useful by way of evidence or submissions in respect of the parenting issues. He complained that the husband’s former solicitors had failed to prepare an affidavit in reply to an affidavit by the wife filed on 1 March 2013 which he described as:
It’s those kinds of things that unresponded, uncontested, despite what order is sought from the bar table, the court will make whatever order it chooses to and that evidence uncontested, in the circumstances may well lead the court to make a very, very different order…
And additionally, your Honour, events have occurred, still whilst under the representation of his former solicitors, that the court is unaware of, that in my respectful submission, very relevant to the question of sole parental responsibility, despite the father’s view that the children should still have a shared living arrangement, but giving sole parental responsibility, perhaps it might be refined in the order, so that’s only with regard to certain other issues, other issues are shared.[9]
[9] Transcript 29.5.2014 pages 70-71
As it was clear that the husband was in no position to proceed with the case at all, I made the orders referred to in paragraph [2] above and adjourned at 3:30 pm.
Costs
The husband filed a written submission on 5 June 2014, as directed. In his submission, he set out that he initially informed his former solicitors on 30 April that he proposed to withdraw their instructions to act for him and asked for his file to be released. He claimed that he was not able to collect his file until 4:30 pm on 22 May, at which time he paid the amount outstanding for their fees.
The husband stated that the reason why he decided to change solicitors before the hearing was that he could not afford to pay them any more money. He went to state:
I instructed my lawyers to do their best to settle the case and that if that couldn’t be done, to go to hearing just on the loan of my brother.
The husband went on to complain about the affidavit and other documents filed by the wife on 21 May, saying that he was quite confused as to why the wife would be filing fresh material the week before the hearing. He said that he instructed his lawyers both to settle the proceedings and to vacate the hearing and pay the wife’s costs.
The husband blamed his previous solicitors for not advising him that “responses to the evidence were never filed over the period of 3 years since I instructed them.”
Interestingly, he states in the final paragraph of his submission:
I was happy to pay for the reasonable costs of the adjournment on day 1 and again on day 2. I do not think a court should make an order that I should pay costs on an indemnity basis on account of the above submissions and on account of the late filed material of the respondent.
When the Court is considering whether it is of the opinion that there are circumstances that justify it in making an order for costs against a party, it must have regard to the matters set out in subsection 117(2A) of the Family Law Act 1975 (Cth). One matter that stands out here is that referred to in paragraph (c) of s.117(2A), which says:
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
It is quite clear that the Applicant husband was entirely unprepared for the hearing. The late-filed documents of the wife about which he complains are her trial affidavit and an updated Financial Statement, as well as a Further Amended Response. These documents were filed on 21 May 2014, certainly well after the time specified by the Court when the matter was listed for trial. The material should have been filed by 5 May 2014, not 21 May.
However, the husband’s case was in a state of complete disarray:
a)He did not file a trial affidavit at all; the only affidavit from him was his affidavit in support of his original Application filed on 21 September 2012;
b)He did not file an updated Financial Statement; the only Financial Statement that he filed was the one filed in support of his original Application on 21 September 2012;
c)The affidavit of the husband’s brother, Mr R, was also filed out of time, on 19 May 2014; the husband can hardly be heard to complain about late-filed material when he is guilty of a similar fault.
Counsel for the husband appeared to be unaware that parenting was even an issue at all. However, the husband knew that the parties had attended two Child Dispute Conferences and a Family Report had been prepared. Why, then, did he not instruct his lawyers that parenting was still a matter that needed to be resolved?
It cannot be accepted that the husband can just blame his lawyers for the poor state of his case and expect to escape the consequences. He made the decision, less than a month before the trial, to change his legal representation. He chose his current lawyers to present his case for him, and he cannot avoid the responsibility for the fact that they did so in such an inept and unsatisfactory way.
The fact is that, as I pointed out on 29 May, the two days available for the hearing were almost completely wasted. There was ample time for the Applicant husband to have given oral evidence on the first day, and his cross-examination should have concluded by the end of the day. It is nothing short of astonishing that counsel for the husband should seek to blame counsel for the wife for objecting to material in the husband’s affidavit and that of his brother. The evidence was mainly objected to on the basis of hearsay, which is hardly a novel or esoteric concept in the law of evidence. For the husband’s counsel to seek an adjournment and refer to calling an unnamed third party to give evidence because the wife’s lawyer would not consent to the husband’s evidence being admitted in inadmissible form is nothing short of ludicrous.
I accept the fact that the husband’s brother was not going to be available for cross-examination until 29 May. There was ample time for his evidence to have been taken on that day. No attempt was made to call him.
It should have been patently obvious to the husband’s legal advisors that the husband’s case was nowhere near ready to proceed, even though it had been set down for trial seven months earlier. If they were going to seek to vacate the hearing, the application should have been made on the morning of the first day, not on the afternoon of the second day.
The husband said in his submission at paragraph 28 that “I was happy to pay for the reasonable costs of the adjournment on day 1 and again on day 2”. That offer was never put. The open offer put by counsel for the husband on the second day was to pay the costs of the second day only, not both days.[10] When the question of an adjournment was discussed before lunch on the first day, Counsel for the husband specifically spoke of the “risk” of an application for costs.[11]
[10] See at [27] above
[11] See at [22] above
If it is the case that the husband was prepared to apply for an adjournment of the hearing on the basis that he should pay the wife’s costs of both days, then that should have been put to the Court at the beginning of the hearing.
I have no way of knowing whether the husband was in fact prepared to make that application or not, or whether he gave those instructions to his lawyers and they did not act on those instructions.
It is well-established that the usual rule is that costs, when awarded, are on a party and party basis. There are various authorities to that effect, including In the Marriage of 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) 46 FCR 225; 118 ALR 248
[14] [2013] FamCAFC 105; (2013) 49 Fam LR 197
What, to my mind, takes this matter out of the usual rule is not just the egregious lack of preparation of the Applicant’s case and the failure of the Applicant’s lawyers to comprehend the fact that the case involves a parenting issue, at least in respect of one of the parties’ children, but the lack of frankness to the Court in presenting the case, or, rather, not presenting the Applicant’s case.
It will not do to spend two hearing days either blaming the Respondent for not agreeing to the Applicant’s version of the case or blaming the Applicant’s previous solicitors for their alleged failings in preparing the Applicant’s case for hearing, when it appears from the Applicant’s submission that he withdrew their instructions almost a month before the hearing. There was never any attempt to call either the Applicant or his brother to give evidence in two whole days.
At this stage, I do not have a clear understanding of what the Applicant’s case, because I have not heard any of his evidence. All I have been able to do is to rule on certain evidentiary matters in his affidavits.
It appears to me, from my observation of the proceedings, that Ms Beck for the wife was endeavouring to get the case to commence. She had prepared a Case Outline Document, which the husband’s legal advisers failed to do, and, whilst the material was late, the wife filed a Further Amended Response, a trial affidavit and an updated Financial Statement. It has also not escaped my notice that it was Ms Beck, on the afternoon of the first day, pressed the Court to embark on the hearing of her objections to the affidavits of the husband and his brother.
The abysmal standard of preparation of the husband’s case, the lack of frankness in presenting the case to the Court and the failings of the husband’s solicitor and counsel in their handling of the matter, to the extent that they have been called on to provide written submissions to show cause why the Court should not make a complaint to the Legal Services Commissioner their unsatisfactory professional conduct in the handling of this case, all lead to the conclusion that not only should the husband pay the wife’s costs of the two hearing days thrown away but that he should do so on an indemnity basis.
Counsel for the Respondent will need to provide to the Court a brief Memorandum setting out her client’s costs within seven days.
The Submission by the Applicant’s Counsel
As directed, Mr Lott filed a written submission on 5 June, setting out the reasons why neither he nor the Applicant’s solicitor should be the subject of a complaint by the Court to the Office of the Legal Services Commissioner for unsatisfactory professional conduct.
In his submission, Mr Lott stated that he was contacted on 30 April 2014 by one Ms T, apparently a friend of the husband’s, asking him if he could assist the husband in these proceedings. The following day, Ms T and the husband attended a conference in Mr Lott’s chambers. Mr Lott stated that he was informed that the only matter in issue was a loan of $200,000.00 from the husband’s brother to the brother.
Mr Lott said that he later encountered the solicitor, Mr Zubin Hiramanek, whom he knew. He asked Mr Hiramanek if he were interested in “assisting with a family law dispute in the family law court.[15] Counsel informed the solicitor that the Applicant could not afford to pay top end of town commercial rates.”[16]
[15] sic
[16] P. Lott Submission, paragraph [12]
Mr Hiramanek accepted the role of solicitor, although he made it clear that he was unfamiliar with the family law jurisdiction.
Mr Lott had a conference with Mr Hiramanek, the husband and Ms T on 6 May. The husband’s file was not available as it was still being held by his previous solicitors. There were discussions about the necessity of preparing an affidavit by the husband’s brother, Mr R. A draft affidavit for Mr R was prepared by Mr Lott.
The husband and Ms T contacted Mr Lott on 12 May to advise him that the wife had briefed Mr Peter Batey of counsel and “he held instructions to settle the case without a hearing”.[17] There were some discussions between Mr Batey and Mr Lott on 13 May, although Mr Batey had said that he had not yet accepted a brief to appear for the wife.
[17] Ibid paragraph [32]
Mr Lott sought further instructions over the next few days. On 22 May Mr Hiramanek advised Mr Lott by email of the documents that had been filed by the wife. The husband attended a conference with Mr Lott in his chambers later that day. It does not appear that Mr Hiramanek was present at the conference. Mr Lott sent an email to Mr Hiramanek about a subpoena that had been served.
At about 7:30 pm on 22 May Ms T delivered to Mr Lott the husband’s file which had been obtained from Dimocks Family Lawyers.
Mr Lott set out in his submission details of some difficulties in his personal life due to the fact that his wife, from whom he is apparently separated, had required him to care for their two young children from 4:00 pm on the Thursday until 4:00 pm on the following Tuesday. He had organised a nanny to mind the children on the Sunday but she cancelled at the last minute.
Mr Lott stated that he telephoned the husband’s former solicitor, Ms Smyth, on 27 May and had a lengthy conversation with her. Mr Lott went on to state:
In the evening of the 27 May 2014, counsel determined that the Applicant was not in a position to present a case that would not be instantly overwhelmed by the respondent, and a very difficult discussion was had with the Solicitor and the Applicant laying out the Applicant’s options.[18]
[18] P. Lott Submission paragraph [69]
Mr Lott stated that he received certain instructions from his client which I will not reproduce here. I presume that the disclosure of the client’s instructions was done with the client’s consent. Suffice it to say that Mr Lott gave certain advice to the client and received instructions to either proceed with the case or to negotiate a settlement.
Mr Lott states that during the day he and the solicitor received instructions “to attempt a further settlement, and failing that an offer to pay costs of the respondent and adjourn.”[19]
[19] Ibid paragraph [78]
In his submission, Mr Lott describes the circumstances that led to the failure to submit the Case Outline, in accordance with counsel’s undertaking:
79.Counsel and the solicitor worked through the night on completing the Applicant’s outline of the case which his Honour had requested…
82.Counsel paused the completion of the outline to consider the objections raised in the respondent’s material by the solicitor. It was by now past midnight and Counsel was both physically and mentally exhausted.
83.Counsel rose early on the Thursday to continue the outline but was interrupted by the applicant who wished to discuss the proposed settlement offer that was planned for the morning.
84.The outline was not completed, primarily on account of Counsel’s limited knowledge on commercial transactions and the time consumed by researching a new area of law in the midst of a hearing on foot.
85.When the decision to accept the Applicant’s brief was made, Counsel’s instructions had been limited in so much at the Respondent’s dispute was said to be one of credibility concerning whether the loan had ever been made, and if so for who’s benefit. That position changed which took the matter beyond Counsel’s set of skills.
86.If Counsel had known from the outset, this would have acted to stop Counsel accepting the brief at first instance.[20]
[20] P. Lott submission, paragraphs [79], [82]-[86]
Mr Lott submitted that a prime cause of the failure to prepare the husband’s case for hearing was the delay in obtaining the husband’s file from his previous solicitors, due to the solicitors’ lien on the file until their costs were paid.
Mr Lott offered an unconditional apology to the Court “if there was any matter not addressed within these submissions which have caused the Court a grievance or inconvenience.”[21]
[21] Ibid at [105]
The Submission by the Applicant’s Solicitor
Mr Hiramanek filed a written submission on 5 June 2014 to show cause why the Court should not make a complaint to the Office of the Legal Services Commissioner about his unsatisfactory professional conduct, and that of counsel, in the handling of the husband’s case.
Mr Hiramanek explained that he had been contacted by Mr Lott on 1 May 2014 and asked to assist in the case, which he was told was a dispute in respect of a loan to the parties by the husband’s brother. He stated:
I explained to counsel that I had not run a matter before but was happy to assist in the preparation as I have put together many affidavits and financial documents in the past for a range of different matters in different jurisdictions.[22]
[22] Z. Hiramanek submission paragraph [2]
Mr Hiramanek said that he had attended the conference with counsel and the husband where they were instructed that the husband’s file was still in the possession of his previous solicitors. He made it clear that the file should be obtained as a matter of urgency.
Mr Hiramanek stated that counsel had drafted an affidavit for the husband’s brother to sign and had forwarded it to him on 13 May. He sent it to the husband for his brother to sign. He was aware that the husband’s previous solicitors had filed a Notice of Withdrawal. He states that he filed a Notice of Address for Service on 15 May, although the document does not appear on the Court file.
The solicitor received the affidavit of Mr R on Sunday 18 May and filed and served the affidavit the next day.
On 21 May Mr Hiramanek received from the wife sealed copies of the following:
a)Further Amended Response filed 21 May 2014;
b)Financial Statement filed 21 May 2014;
c)Affidavit of the wife filed 21 May 2014; and
d)A Notice of Address for Service filed on 14 May 2014.
He forwarded those documents to Mr Lott.
Mr Hiramanek emailed the husband’s former solicitor on 23 May to inquire about the husband’s file, to be told that the file had been picked the day before and taken directly to Mr Lott’s private address. He said he was unable to obtain a copy of the file from counsel who “was engaged in some private family matters”.[23]
[23] Z. Hiramanek submission at [22]
According to his submission, Mr Hiramanek was informed by Mr Lott on 27 May 2014, the day before the hearing was due to start, that the husband’s file from Dimocks “did not measure up with instructions of the client”.[24]
[24] Ibid at [23]
Mr Hiramanek attended a conference with Mr Lott and the husband. This appears to be the first time that Mr Hiramanek had seen the husband’s previous file. Certain advice was given to the husband.
Efforts took place during the day to settle the case, without success. After the completion of the first day, a meeting was held between Mr Lott, Mr Hiramanek and the husband where certain advice was tendered to the husband.
Mr Hiramanek was given the task by counsel of reviewing the wife’s affidavits for objectionable evidence, which he did. He stated that:
Counsel was exhausted and retired to his apartment late in the evening.[25]
[25] Z. Hiramanek, submission, at [32]
The following morning Mr Lott informed him that he had not completed the Applicant’s case outline “as it was simply too much work in the eleventh hour”.[26]
[26] Ibid at [33]
The following morning, during an adjournment, Mr Lott and Mr Hiramanek spoke at length to the husband and gave him certain advice. The husband instructed them to seek an adjournment of the hearing.
Mr Hiramanek claimed that he was informed before receiving the husband’s file that the issues between the parties related solely to the credibility of the loan by the husband’s brother being a loan to the family or to the husband. The difficulties arose because of the late delivery of the husband’s file from his previous solicitors.
He further claimed that he and Mr Lott were subject to their client’s instructions to resolve the issue of the loan from the brother as a priority. Once it was clear that the matter was not going to settle, they ran out of options:
Ultimately, the advice to the client was, so as to avoid a total loss, to vacate the hearing.[27]
[27] Ibid at [46]
Unsatisfactory Professional Conduct
In my reasons for decision on 29 May 2014 I stated that two days of hearing time had been virtually wasted. I went on to say that:
I am of the view that the conduct of the case by the Applicant’s legal advisers has been nothing short of deplorable.
I have already made it clear that the conduct of the case over two days is such that, not only should the Applicant pay the Respondent’s costs thrown over those two days, but that the waste of time was so egregious that it calls for a departure from the usual rule that costs should be assessed on a party and party basis and that they should be assessed on an indemnity basis.
The Applicant’s barrister and solicitor have demonstrated a significant lack of competence in their handling of the case. What has to be decided is whether their performance is so unsatisfactory as to be regarded as “unsatisfactory professional conduct”, as defined by s.496 of the Legal Profession Act 2004, (NSW). Section 496 states:
For the purposes of this Act
“unsatisfactory professional conduct” includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
The Office of the Legal Services Commissioner for New South Wales gives on its website examples of unsatisfactory professional conduct:
Conduct that may be capable of being unsatisfactory professional conduct includes:
…
Failure to comply with an undertaking
poor advice and representation
It is apparent that both the barrister and the solicitor embarked on this case without a clear idea of what the issues were. The Applicant and Ms T approached the barrister direct and gave him some instructions which do not appear to have borne out by reality. There was no solicitor involved at that stage, and it was not until the barrister approached the solicitor that he became involved.
Both lawyers failed to obtain proper instructions from their client. All they had was an account from the client that was quite inadequate, as became immediately apparent when the file was obtained from the client’s previous solicitors.
It appears that neither the barrister nor the solicitor have any expertise or experience in family law. Mr Hiramanek, who was brought into the matter by Mr Lott, admits as much in his submission. His lack of knowledge of the jurisdiction may not have been so serious if counsel had a sufficient degree of competence and experience so as to guide his instructor, but this is clearly not the case.
Solicitors who practise regularly in the area of family law usually have a good idea of who are the capable and experienced barristers. There are several chambers in Sydney where many if not all of the barristers appear regularly in this jurisdiction and are known to this Court as being competent practitioners in the area.
The day has long passed when solicitors can “dabble” in family law. If a solicitor without experience in this jurisdiction is asked by a client to act, the proper course to adopt would be to brief a barrister who is an expert in the jurisdiction.
In this case, what appears to have happened is that the barrister was approached directly by the Applicant’s friend, Ms T. With respect, whatever talents Ms T may possess, judging the competence of a barrister is obviously not one of them.
Mr Hiramanek was brought into the case by Mr Lott, who had known him previously, and he should well have known that Mr Hiramanek possessed no experience in the field of family law. It also appears, from Mr Hiramanek’s submission, that he was kept “out of the loop” and that much of the communication took place directly between Mr Lott and the client. One example of this is the delivery by Ms T of the Applicant’s former file to Mr Lott at his private residence.
It appears that Mr Hiramanek did not see the client’s former file until the day before the hearing was due to start, when it became painfully obvious that what was in the file did not accord with the client’s instructions. If Mr Hiramanek had more experience in the jurisdiction, once the previous solicitors had filed their Notice of Withdrawal and he had come onto the Court record, he could have asked to inspect the Court file, to see for himself what was there, rather than wait until the client’s file had been obtained from his previous solicitors.
It should have been obvious that the Applicant’s case was not in a fit state to proceed the day before the hearing commenced. Obviously, both lawyers were bound by their instructions, and the client clearly wished to proceed, but there is no point in running a case if the prospects of success are poor to non-existent – no one goes to court to lose.
It should have been clear to the Applicant’s lawyers on the morning of the hearing that they were unable to settle the matter. It was then that the application should have been made to vacate the hearing, with the resultant penalty of a costs order. It is likely that costs would have been awarded on the usual party and party basis in that eventuality.
Barristers are professional advocates. Their task is to advise the client boldly and fearlessly of the state of the client’s case. This should have been done at the outset. The error here was to proceed for two days, achieving nothing but wasting time for almost the entire time. An experienced and capable barrister would have formed a view at an early stage that the Applicant’s affidavit was vulnerable on the grounds that were raised. The affidavit of the Applicant’s brother was, of course, prepared by counsel, who should be an expert in the law of evidence. That affidavit, too, suffered from the objections of the Respondent’s counsel.
There is another matter that causes great concern, and that is the failure by counsel to comply with the undertaking given to the Court on the first day, to provide a Case Outline Document by the second day. It should be noted that Mr Lott was not asked by the Court to give an undertaking; he volunteered it. When the seriousness of an undertaking was raised with him, Mr Lott assured the Court that he would comply with his undertaking. He did not.
It has always been the case that an undertaking by a lawyer, whether given to the Court or to another practitioner, imposes a clear and unequivocal duty on the give of the undertaking to comply with it. Compliance with an undertaking is not optional; it is mandatory.
In my view, the very fact that counsel for the Applicant failed to comply with his undertaking to the Court is itself sufficient to warrant a complaint to the Office of the Legal Services Commissioner of unsatisfactory professional conduct.
However, more than that, the conduct of the Applicant’s case was the responsibility of his Barrister. In the end, he must bear the responsibility for the poor representation of the Applicant before this Court. In my view, the performance by Mr Lott in this case falls far short of the standard of competence and diligence expected of a barrister by the Court, by the legal profession and by the community.
I consider that a complaint must be made to the Office of the Legal Services Commissioner about the unsatisfactory professional conduct of the barrister in this case.
Turning now to the conduct of the solicitor, Mr Hiramanek. He has certainly not shown the degree of competence that the Court would expect. He apparently has no experience in family law, and one can only ask what possessed him to involve himself in a case in a jurisdiction with which he is unfamiliar, without adequate instructions or, until the last minute, the previous solicitor’s file, instructing a barrister who, as he ought to have known, had little or no expertise in this jurisdiction.
The solicitor was brought into the case by the barrister but does not appear to have been privy to some of the dealings between the client and the barrister. He was clearly out of his depth in this case. A more experienced solicitor would have seen the problems in this case, with its vague instructions and absence of the client’s file until the last moment, but unfortunately Mr Hiramanek appeared not to have the knowledge or experience to refuse the poisoned chalice when it was offered to him.
The representation of the Applicant in this case is a clear example of why lawyers depart from established procedures at their peril. A party with a family law matter should consult a solicitor with proven expertise in the jurisdiction. The Law Society of New South Wales is able to provide to members of the public information about lawyers who practise in various jurisdictions.
Once instructed in a family law matter, the solicitor would then brief a barrister known to have expertise and experience in family law. The barrister and solicitor then work together to prepare their client’s case for hearing.
When lawyers follow this established procedure, the likelihood is that the client’s case will proceed in a proper manner.
I have considered the solicitor’s explanation in his submission. Whilst I consider that he has not demonstrated an acceptable degree of competence in his role in this matter, I am not satisfied that his lack of competence is such that it can be described as unsatisfactory professional conduct sufficient to warrant a complaint to the Office of the Legal Services Commissioner.
Mr Hiramanek would be wise not to accept instructions in the field of family law in future, at least he has acquired a better knowledge of the jurisdiction.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 11 June 2014
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