A solicitor has been criticised for a “clearly inadequate” costs application, which included the “inappropriate” suggestion that the judge could specifically request additional material.
Judge Grant Riethmuller from the Federal Circuit and Family Court of Australia (FCFCOA) (Division 1) criticised the solicitor for a respondent in a property settlement matter over an inadequate costs application.
The application for indemnity costs was “clearly inadequate” because it was not supported by a copy of the costs agreement despite the specific requirements under section 12.13(4) of the FCFCOA’s rules.
Further, the solicitor provided the primary judge “with almost no evidence as to the detail of the work undertaken”.
In a part of the statement that claimed $167,091 for legal services, the solicitor wrote: “If required, copies of the actual invoices pertaining to each of the items in the schedule above can be provided.”
Judge Riethmuller said in a decision handed down late last month: “It was entirely inappropriate for the respondent or his solicitor to attempt to place the onus upon the primary judge to ‘require’ additional material or to imply that the failure of the unrepresented appellant to specifically request the documents led to some form of admission.”
Judge Riethmuller said the costs in dispute were not “small or discrete”, and the judge did not have the benefit of evidence about the costs incurred by the other party to “provide some point of comparison”.
Instead, the judge was provided only with the solicitor and counsel fees, leaving him in an “invidious position”.
“The primary judge could have calculated the costs on the lump sum scale for Division 2, however ought not to have been put to that process: the solicitor for the respondent ought to have provided the calculation to the primary judge,” Judge Riethmuller said.
“As a result, there was no evidence upon which the primary judge could find that the costs claimed (around three times the scale amount) ‘were reasonably incurred and fall comfortably within the range of costs charged in property settlement proceedings’.”
On those grounds, an appeal brought by the appellant was allowed.
Given the appellant’s approach to litigation was still “unrealistic” in ways that caused “considerable additional costs” to the respondent, Judge Riethmuller still ordered that she pay on a solicitor/client basis.
The case: Tekla & Tekla [2025] FedCFamC1A 245.
