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Lawyers’ tactics, judges’ warnings and an order for costs

By February 23, 2017No Comments

By Gianna Huesch

A recent case in the Family Court dealt with an unrepresented applicant who brought an “unnecessary” application, despite judges’ warnings to obtain legal advice, and was consequently ordered to pay the costs of the other party in the matter.

The Melbourne woman had discontinued an application in parenting and property proceedings after receiving documents from the other party’s solicitors “at the 11th hour”, which she believed was not within the rules regarding time-frames. Unfortunately, however, she was incorrect in her interpretation of the law, and that issue turned out to be irrelevant to the costs application.

In costs matters, each party is to bear their own costs unless a court is satisfied that there are justifying circumstances to depart from that principle, such as the way proceedings have been conducted, including participation in the legal process. In this case, the judge found there were appropriate circumstances to justify making the costs order, because of the applicant’s conduct in running her case:

“(The applicant) was put on notice by Johns J by virtue of the order for reserved costs, but also that she should get advice. She was put on notice again by Thornton J by the reservation of costs, and it was only some seven or eight days later that she decided to withdraw the proceedings completely.”

Expressing an inability to understand why the applicant had delayed withdrawing the proceedings, the judge noted the woman’s misjudgment regarding the other party’s solicitors’ communications:

“All of the threats relating to costs if she proceeded with that application were ignored, as she says, because she gets lots of threats about costs and sees it simply as a tactical issue for lawyers to demand costs.”

The judge said that rejecting the application would amount to a situation where “Ms Walker just shrugs her shoulders and says, they can pay for her folly”. The judge added:

“In this case, letters were ignored where, on any view, there was a risk and Ms Walker took it”.

The key takeaways? Never dismiss or ignore correspondence from the other party’s solicitors as mere “tactics”, and make sure you carefully listen to the court’s instructions—if a judge warns you to get legal advice because a matter is complex or highly legalistic, you should heed the warning. Self-representation through the court system is fraught with the potential to make misjudgments–obtaining expert legal advice is the only way to protect yourself from making costly legal errors.

Read the case: http://www.austlii.edu.au/au/cases/cth/FamCA/2017/35.html

Do you need assistance with a family law matter? Please call Canberra family lawyer Cristina Huesch or one of our other solicitors on (02) 6223 2400 for advice.

(Please note: Our blogs are not legal advice. For details about how to obtain correct legal advice please arrange a free conference with Alliance Family Law.)

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