As legal practitioners we are always judged on our conduct, whether it be with our clients, other practitioners or, more seriously, the Court.  We are human and bound to err at some point in our careers but it’s what we do following any such error that could make or break us.

In August we highlighted a Division 1, first instance decision of Schnur & Urbina [2024] FedCFamC1F 374, involving Counsel, Mr B, who had been retained to act for a Respondent Mother through a Legal Aid grant pursuant to s102NA.  Mr B had not read the brief, for a case that was scheduled to run for eight days, failed to attend Court when the matter was called and accepted a brief in another matter that overlapped with this matter.  Mr B further did not appear when the matter was listed for a mention a week after the hearing, that had to be abandoned.  If all of that wasn’t enough Mr B was not listed on the High Court Register of Practitioners and was referred to the Legal Services Commissioner.

Part 2 – Schnur & Urbina (No 2) [2024] FedCFamC1F 477

An application for costs was made against Mr B personally and was determined in Chambers ‘on the papers’.  The last submissions were made on 31 May 2024 and Judgment delivered on 18 July 2024.  The Orders made required Mr B to pay the applicant’s costs in the fixed sum of $4,541.00, within 28 days.  This was, in fact, the amount sought by applicant and quite light in the circumstances.

For the applicant it was argued, primarily, s117(2A)(g) of the Act combined with r12.15(1)(c) of the Rules applied in that Mr B’s improper or unreasonable conduct justified the making of an Order for costs against him.

Curiously, Mr B as the Respondent argued, inter alia, that the Rules didn’t apply to him and that they only applied to work done by a solicitor and not a Barrister.  That submission was rejected along with Mr B’s other submissions, including having been diagnosed with Autism Spectrum Disorder (without any supporting medical evidence) and that he misunderstood the nature of his brief which proved entirely irrelevant given that he had no standing to appear in any event as he had not signed the Register of Practitioners maintained by the High Court of Australia.

Part 3 – Kleid & Schnur [2024] FedCFamC1A 236

Incredibly, Mr B was not yet done and filed an appeal against that costs Order.  The appeal came before Aldridge, Gill & Strum JJ on 19 November 2024 with Judgment delivered on 13 December 2024.  During the hearing of this appeal the situation went from bad to worse for Mr B.  Their Honours went through the chronology of events of the previous two proceedings and posed a number of questions to Mr B, all of which attracted unsatisfactory responses.  To begin with, Mr B’s position was that he did not think that he had read the Reasons for Judgment of Schnur & Urbina (No 2).  Accordingly, when directed to address certain paragraphs of that Judgment he was not able to do so, notwithstanding that he had filed a Summary of Argument in the appeal.  Their Honours found this somewhat perplexing as both the grounds of appeal and Summary of Argument indicated that Mr B had at least some knowledge of those Reasons for Judgment.

Further, Mr B was not aware of the contents of the Appeal Book and had not read the transcript of the hearing on costs – in his own appeal.  Mr B did not challenge the finding that he had no standing to appear in the earlier proceedings, and there would have been no basis to do so, the result being that he had not ever been in a position to run the mother’s case from the outset.  One would have thought that this was essential to challenge the Order for Costs which was primarily premised on that finding.

In respect of the 11 grounds of appeal they were either misconceived or nonsensical and were all dismissed with Mr B being referred again to the Legal Services Commissioner and a transcript of the appeal proceedings being provided.