Saturday, 11 September 2010

Federal Magistrates Court case: what happens when a lawyer misleads the court

A Federal Magistrates Court decision requiring a barrister to pay over $5000 costs to the other party, and reporting the barrister to his disciplinary body has been overturned, pending a further trial before a different Federal Magistrate.

The case, known as R (a barrister) and Roberts, was decided by the Full Court of the Family Court.


16 December, 2008

On that day, the date of the original trial, one of the issues in the original case was whether or not the husband was the father of the child. It seems as though the wife was asserting that she was not sure. In any case  she gave evidence that on that day she told her barrister that she was certain that the husband was the father of the child, and that therefore paternity testing was not required.

The Federal Magistrate on that day was handed a draft order proposing a paternity test. The Federal Magistrate  said that the issue of paternity was a significant issue and if in doubt he would be reluctant to increase the husband's time with the child until that had been determined.

The wife's counsel told the court that had instructions from his client to oppose any orders for overnight time and that he otherwise had no instructions in relation to the issue of paternity.

After 16 December, 2008

Once it became apparent what the wife was saying about her barrister, his professional indemnity insurer was allowed to be come a party to the case.

Despite notice by the court that there would be a hearing on the point, the Federal Magistrate instead of holding a hearing,  pronounced the orders. The barrister sought a retrial because of the basic right to be able to be heard.

What the Full Court said

There was no question that a lawyer could be ordered to pay costs. The court reaffirmed the principles of when a lawyer might be required to pay costs:

In Cassidy v Murray the Full Court also set out the principles relevant to the exercise of the jurisdiction to award costs against a lawyer under the Act. The Full Court referred with approval to the decision of the Master of the Rolls, Sir Thomas Bingham, in Ridehalgh v Horsefield (1994) 3 All ER 848 at 855 and said at p 82,365:
  1. Pursuant to s 117(2) Family Law Act, the court has jurisdiction to make an order for costs against a solicitor or a non-party.
  2. The court should not make such an order without giving the person to be affected by the order an opportunity to be heard.
  3. The court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of serious professional misconduct.
  4. The solicitor has a duty to the court to promote the interests of justice whilst at the same time attending to the needs of the solicitors clients.
  5. A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default of negligence, any of which are found by a court to be or a serious nature, maybe sufficient to justify an order.
  6. The jurisdiction is compensatory.
The court found that the barrister should have the right to be heard and sent the matter back for rehearing before another Federal Magistrate to allow that to happen.

1 comment:

Anonymous said...

Very useful information. But I personally think that divorce laws should not be so strict that divorce comes headache for couple.