A solicitor’s worst nightmare came true in the Circuitous Court late last year when he was slugged with indemnity costs after his counsel dropped out at the 48th hour before trial. The order was successfully appealed earlier this month.
The problem of missing counsel arose in the context of a longstanding family law matter. The proceedings had already faced substantial delays, largely at the hands of the respondent, who had cycled through five different solicitors by the time of trial and had not complied with a number of orders.
Mr “Jeremy” was the latest of these solicitors and found himself in quite a pickle after the barrister that he had arranged cancelled.
Although he attempted to contact a number of other briefs, he was ultimately unsuccessful in securing a replacement.
On the morning of the hearing, he sought an adjournment, which was refused by the primary judge, Tuskeen Jacobs. The solicitor’s subsequent request for leave to withdraw was similarly refused.
However, Mr Jeremy was not left entirely without assistance from the court. Noting that he had been “caught off guard to some extent“, HH adjourned the trial for a brief 23 minutes to allow him to prepare.
When the trial resumed, and Mr Jeremy was asked to cross-examine a witness, he reaffirmed his position:
JEREMY: Your Honour, I submit with respect that I am not ready for the trial. I can’t cross-examine the applicant.
HH: I understand – Mr [Jeremy], we’ve been through this before —
JEREMY: Yes.
HH: –— in terms of the position you find yourself in. I’ve not acceded to your request to withdraw. You assisted your client or otherwise drafted the affidavit. You’ve read the affidavit. It’s a matter for you if you wish to ask questions of the witness.
JEREMY: With respect, your Honour, I can say again, I’m not ready for the trial. If I knew how to do it. Your Honour, there’s an affidavit of 200 pages of the applicant, more than 200 pages of the report writer. It will take the best part of the day to cross-examine just one person. And I’m not able to do that today.
HH: Well what would you have me do, Mr [Jeremy]?
JEREMY: Your Honour, I was requesting for an adjournment. That’s all I can do. I can’t do anything else. I sought to withdraw.
The request was once again opposed by HH, who suggested that if the matter was pressed again, she would potentially make a personal costs order against him:
JEREMY: It’s not my fault, your Honour.
HH: I appreciate that, but what would you have me do?
JEREMY: Your Honour, in my submissions, the best course of action would be to adjourn it to another date. I will have a barrister by that time. I’ve done everything in my power to find a barrister for today’s trial. I’ve known many barristers who I very often brief, none was available on short notice. You know, I can’t do the trial by request. If I was able to, I would have done it.
After a further back and forth, including some discussion of how Jeremy was a highly experienced solicitor who had been practicing for over 30 years, HH concluded that he was “effectively refusing to ask questions of the witness on behalf of his client … as such he can be of no assistance”.
Poor old Jeremy was ordered to personally stump the costs of the hearing, amounting to $5,885.
On appeal, this order was set aside by Justice Richard Schonell – one rung higher up the food chain. He found that the solicitor did not act improperly, and had been denied procedural fairness.
The volume of material was extensive, and there was no evidence that another barrister was willing or able to take a brief. It did not matter that Jeremy was highly experienced, given that he had only 23 minutes to prepare, or that his client had in the past caused some delay.
Moreover, the specific aspects of his conduct said to warrant the costs order were not particularised, and no submissions were made as to why an indemnity costs order should be granted.
These procedural fairness considerations bore an even greater weight given that the primary judge initially suggested costs may be ordered against the respondent, rather than Mr Jeremy personally, and did not provide clear reasons for this change in position.
In a re-exercise of the discretion, Schonell J set aside the order for indemnity costs, noting that legal practitioners should only be ordered to pay costs with “care and discretion and only in clear cases” (citing Lemoto v Able Technical Pty Ltd).
Fortunately for the parties, it appears that the Commonwealth will cough up the costs of the appeal, as HH ordered costs certificates for both the appellant and respondent under ss 6 and 9 of the Federal Proceedings (Costs) Act (Cth).
Jeremy’s nightmare it seems, was just a nightmare.