The conduct in question began in May 2020 when the opposing client – the wife of the firms’ client – sought dismissal of two applications that consisted of various requests for the disputed property. Despite being put on notice that the court did not have jurisdiction to hear those applications, the solicitors insisted on a hearing.

During that hearing, the primary judge told the firms’ solicitors that she did not have jurisdiction but made specific orders in favour of the wife, including a costs order that the husband pays the wife in the sum of $14,605. Based on that judgment, the husband’s solicitors filed appeals and sought an application to stay proceedings. 

According to the Family Court, those appeals were “incompetent”, the written arguments were “baseless”, and the oral submissions made at the hearing in favour of the husband were “devoid of all merit”. Part-way through the appeals hearing, the firm received orders to abandon them, which led to further orders for both parties to file written submissions on costs and to attend a hearing to take place in December. 

Although the wife complied, the husband filed his submissions late. Importantly, the court noted, “the solicitors made no arrangements for the husband to appear”. This was necessary, it added, because if the inevitable costs order was not made against the solicitors and the firm, it would be instead made against the husband. 

The first issue in the most recent hearing was whether there should be a costs order at all. However, regardless of a concession that was made by the husband’s solicitor-advocate, the court found that an order for costs was justified. 

“Both appeals were incompetent and had absolutely no chance of success. They should never have been filed, or been pursued to the point where they were both abandoned midway through a hearing,” the Family Court noted in judgment. 

The husband’s solicitors opposition of the costs order against them was first to claim that they had given appropriate advice to the husband and that the only realistic basis for a costs order to be awarded against them would be a demonstration that there was a serious dereliction of duty on their part during the matter. 

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The court said that for this argument to succeed, the solicitors had to demonstrate that the advice given to the husband from day one was that the appeals had no chance of success, that the instructions from the husband on the basis of that advice was to proceed regardless, and for that advice to be maintained at all times. 

However, in a file note of 26 August 2020 of a conference call between the husband, the principal of James McConvill & Associates, and the solicitor-advocate recorded that the solicitors maintained “the law is in our favour”. It suggested the prospects of success were questionable, but the solicitor-advocate explained the comment stemmed from the primary judge’s handling of a stay application and not on appeal. 

“Now, nothing could be further from the truth than to suggest to the client that the law was in his favour, and demonstrates that the advice being given to the client was not correct, but presumably it would have been on the basis of advice such as that the client instructed the solicitors to proceed with the appeals,” the court found. 

Importantly, the court also noted that at all times, including at the time of the file note, the respondent’s solicitors were corresponding with the husband’s solicitors and were “correctly pointing out that the appeals were flawed and should be withdrawn”. 

“In the circumstances, I am satisfied that the primary position of the husband’s solicitors that they were acting on the instructions of the husband having given him appropriate advice cannot be maintained,” the Family Court found. 

“It is really apparent, even from what this court now knows about the interaction between the husband and his solicitors, that he was not given the correct advice, and indeed the advice given was substantially flawed and devoid of any merit, and the fact that the husband instructed the solicitors to proceed with the appeals cannot prevent an order for costs being made against them.”

The entire judgement can be read on AustLII and JADE: Cansdall & Cansdall [2021] FamCAFC 162 (26 August 2021)