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Solicitor’s response to client’s refusal to pay ‘unsatisfactory’
A full court bench criticised a solicitor for his “unsatisfactory” response to the court, which potentially impacted the other party’s fair opportunity to consider the issues prior to a hearing.
Naomi Neilson
While determining a protracted costs assessment dispute, NSW Court of Appeal Justices Fabian Gleeson, Anna Mitchelmore, and Jeremy Kirk said there were a number of “unsatisfactory aspects” in the way solicitor Herbert Weller proceeded in the matter.
The bench first took issue with a four-page written submission provided by Weller, which had a name of counsel but not a signature and had referenced an affidavit that was not attached.
Ten days prior to the hearing and one day after the due date for submissions, Weller filed a further one-page submission, this time bearing both the name and the signature of counsel.
However, Justices Gleeson, Mitchelmore and Kirk noted that “no explanation was provided in the submission for why it had been filed, nor of what its relationship was with the previous written submission”.
While Fong responded to both submissions in her written reply, Weller indicated he did not rely on the first written submission as the document “was only a daft which should not have been filed”.
The second written submission, which he sought to rely on, contained seven sentences “with very little in the way of reasoning”.
The bench said a respondent is required to file and serve a summary of his argument to allow the other party procedural fairness and to enable the court to identify and consider issues in advance.
“Weller’s failure to provide written submissions outlining the arguments he ultimately sought to rely upon meant that Fong was potentially prevented from having a fair opportunity to consider and respond to the issues in advance of the hearing,” the bench said.
It was noted Fong’s counsel was able to deal with them.
“In short, Weller’s response to the judicial review application was unsatisfactory,” Justices Gleeson, Mitchelmore and Kirk found.
Fong was unsuccessful in overturning the District Court ruling, bringing an end to the “protracted” dispute.
While costs would ordinarily follow, the bench said Weller’s response to the application for judicial review was “unsatisfactory” and the determinative issue of determination “was not one raised by Weller”.
“In these circumstances, there should be no order as to costs in this court,” the bench determined.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
