Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako

JUDGE: MANSFIELD J DATE: 10 MAY 2013 PLACE: ADELAIDE

Introduction 1 The issues between the applicants and the respondents have been resolved: Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako (No 3) [2013] FCA 22; Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako [2012] FCA 889. Final orders have been made, including orders for costs against the respondents in favour of the applicant. 2 This judgment addresses the claim of Robin Poumako, one of the respondents, that some of the costs he has been ordered to pay to the applicant should be paid to him by his former solicitor, Legalese Pty Ltd practising as Scragg & Associates (the solicitors). The solicitors were engaged by Mr Poumako to act for the respondents in this proceeding, which commenced on 2 December 2011. They had been acting for the respondents generally in matters related to the facts and events upon which the claim was made by the applicant since about June 2009. The solicitors' instructions were terminated on 22 March 2012. 3 On 15 December 2011, directions were given to progress the claim to hearing. That included directions that the respondents file and serve by 17 February 2012 any affidavits of witnesses they proposed to call at the hearing. The applicant's proposed evidence had largely been filed with their application. The solicitors represented the respondents on that occasion. The next directions hearing was fixed for 2 March 2012. 4 No proposed affidavit evidence was filed by the respondents by 17 February 2012, and no application or other communication by that time, or prior to the next directions hearing, indicated that the respondents intended to take any step in the proceeding. 5 At the next directions hearing, the matter was listed for hearing commencing on 2 April 2012. The respondents did not appear. Despite the failure to file any proposed evidence, the respondents were given to 16 March 2012 to apply for an extension of time to do so, including on the basis that they would then have their proposed affidavit evidence. It now appears the solicitors overlooked that directions hearing. They were notified by the Court of those directions. 6 On 16 March 2012, the respondents applied for an extension of time to 26 March 2012 to file and serve their proposed affidavit evidence. That application came on for hearing on 22 March 2012. At that time, the respondents were represented by counsel, through the solicitors. An oral application was made to vacate the hearing date, as counsel said that the respondents could not by 26 March 2012 (or before the hearing) file and serve their proposed affidavit evidence. The applicant opposed the vacation of the hearing date. 7 On that occasion, I declined to vacate the hearing. I extended the time for the respondents to file their proposed affidavit evidence to 26 March 2012, as their application sought. I ordered the respondents to pay the costs of the application in any event. Reasons for those orders were given: Ambrose v Poumako [2012] FCA 318. 8 On 26 March 2012, the solicitors filed a notice that they no longer acted for the respondents. 9 At the commencement of the hearing on 2 April 2012, Mr Poumako appeared in person and was given leave to represent and speak for the other respondents. The hearing did not proceed, and on 5 April 2012 the hearing dates were formally vacated and the hearing was listed to commence on 14 May 2012. Mr Poumako then made his claim that the costs thrown away by the adjournment should be paid by the solicitors. The costs payable by the respondents caused by the adjournment were fixed at $6000 and ordered to be paid by the respondents. The question of whether the respondents should recover those costs from the solicitors was then stood over. Directions were given for the filing of material relevant to that question. 10 Mr Poumako's contention is that the solicitors were engaged to conduct the necessary investigations, to give appropriate and timely advice, and to carry out the pre-trial preparation necessary so the hearing could proceed on 2 April 2012. He asserts that: (1) the respondents were at all material times available to, and ready to, work with the solicitors to prepare for the hearing; and (2) the solicitors, being aware of the directions on 15 December 2011, failed to properly commence trial preparation, failed to attend the 2 March 2012 directions hearing, failed properly to advise the respondents about the hearing preparation steps and to require them to provide the necessary instructions, and failed to take proper steps to ensure the respondents were ready to proceed to hearing. 11 It is not suggested that proper advice from the solicitors would have led to the hearing not proceeding and the matter in issue being resolved in some other way. It is simply that the solicitors' defaults caused the hearing date to be vacated, with the respondents being liable for the costs thrown away. 12 Clearly, the claim of Mr Poumako requires an inquiry about communications between the respondents and the solicitors between December 2011 and March 2012 and the nature and extent of the work done by the solicitors during that period in preparation for the hearing. 13 The relevant material, which I have considered, is contained in the affidavit of Peter Scragg of 13 April 2012, the affidavits of Carla Scragg of 16 March 2012 and 13 April 2012 and the affidavit of Mr Poumako of 20 April 2012. 14 The affidavit of Mr Poumako, understandably, in part reads like a submission rather than a recital of facts. For that and other reasons, large parts of it are objected to by the solicitors. I will refer to its content only as necessary in the light of the objections and where there is contradictory or supplementary comment by Mr Scragg or Ms Scragg. The following does not address every objection, because it is largely unnecessary to do so. Much of the material objected to is treated as submissions, or has little weight in any event for present purposes. Indeed, there is little dispute about material facts.

fINDINGS 15 The solicitors had acted for members of the Poumako family in relation to matters related to family assets and Mr Poumako's bankruptcy from at least about June 2009. When the current proceeding was commenced, Ms Scragg is said by the solicitors to have been responsible for its day-to-day conduct on behalf of the respondents, but Mr Scragg communicated with Mr Poumako from time to time, and on the evidence the communications were mainly with Mr Scragg up to 17 February 2012. 16 The solicitors promptly notified Mr Poumako of the proceedings, and arranged for him to collect a copy of the application and affidavits of the applicant (including extensive annexures) "so we may obtain your instructions": email of 2 December 2011. Ms Scragg and Mr Poumako had a conversation when he attended to collect them, so Mr Poumako understood he was to consider the affidavits and make notes with a view to a meeting with the solicitors to provide instructions. He was also made aware of the directions hearing on 15 December 2011. 17 Mr Poumako's affidavit says he knew of the hearing date from December 2011. That is not right, because it was only fixed on 2 March 2012. I infer that he is referring to the directions hearing in December. 18 Mr Poumako had a meeting with Ms Scragg on 13 December 2011. He had by then considered the affidavits of the applicants, and provided an "Instruction Note" to them for discussion. The Note is wide-ranging, covering strategic issues as well as specific but brief and largely vague responses to the contents of the affidavits. Clearly, and appropriately, the solicitors understood that the claims were to be resisted on all fronts, although settlement was to be explored. The Instruction Note was not sufficiently detailed to prepare responsive affidavits. Nor were detailed instructions for that purpose sought or provided on that occasion. 19 Reference is made above to the directions given by the Court on 15 December 2011. Following those directions, the solicitors made contact with the applicant's solicitors to inspect the applicant's documents in January 2012. 20 On 21 December 2011, Mr Poumako asked by email to the solicitors when he should attend on them to give instructions, and whether there was anything else he could prepare in relation to the claim. The prompt reply asked him to contact the solicitors after 16 January 2012 for an appointment. On 22 December 2011, he was also sent a copy of the directions given on 15 December 2011. 21 It is convenient to note that one matter raised was the valuation from time to time of the properties the subject of the applicant's claims. In the end, this was not a matter which featured at the hearing. Whatever was or was not done in relation to it, either by the solicitors or Mr Poumako, was not a cause of the vacation of the hearing dates or the costs thrown away. It is not necessary to refer to it in any detail, save to note that there were communications on the topic during the relevant period, and, it appears, some delay on the part of Mr Poumako in giving instructions in relation to it. The same comments may be made about Mr Poumako's failure to provide the contact details of the other respondents. 22 The same observation can be made about other communications during the relevant period concerning other issues being dealt with for the Poumako family which did not relate to these proceedings. 23 On 29 December 2011, Ms Scragg wrote to two of the other respondents (whose contact details had been provided by them) seeking instructions about the valuations, and enclosing a proposed costs agreement and a disclosure statement for each of them. 24 On 19 January 2012, Mr Poumako by email referred to the directions given on 15 December 2011. He asked the solicitors for advice about the inspection process (required to be completed by 25 January 2012) and the need to discuss the affidavits to be filed by 17 February 2012. He asked to be notified of an appointment time. On 23 January 2012, Mr Poumako indicated he was about to go away and would be available from 30 January 2012. On 1 and 14 February 2012, he again contacted the solicitors by email seeking an appointment, and on the latter occasion pointing out the expiry date for filing affidavits. The solicitors had not over that period received any response to their letters of 29 December 2011 to the other respondents. Ms Scragg was anxious to receive those documents to ensure the solicitors had instructions to act for those respondents other than Mr Poumako. 25 On 16 February 2012, Mr Poumako telephoned the solicitors and spoke to Mr Scragg. He was told that the solicitors had requested the applicant's solicitors to allow more time to inspect the applicant's documents (to have been completed by 25 January 2012), and again asked for an appointment. That was confirmed by email of 17 February 2012. It does not appear that the solicitors expressed concern at that time about who they were to represent. In any event, it is apparent that - despite the directions given on 15 December 2011 and Mr Poumako's attempts to arrange a meeting to give the necessary instructions - the solicitors had taken no steps to ensure the respondents complied with the directions other than the brief meeting on 13 December 2011. 26 On 16 February 2012, Mr Scragg and Mr Poumako also discussed outstanding accounts. Mr Poumako wanted all accounts to be sent only to him, but was told that the accounts had to be sent to all respondents. Mr Poumako was anxious about the fact the time for filing affidavit evidence was about to elapse, and wanted a time for himself and the other respondents to attend to give instructions. He also gave instructions not to contest the valuation evidence. 27 The picture is clear enough. The solicitors had not taken any instructions for the affidavits by the date they were due, and had not inspected documents. Mr Poumako had asked a number of times for an appointment to provide the necessary instructions (including for his wife and daughter) without being given one. There was however a failure on the part of the respondents individually to instruct the solicitors, including in relation to the valuation of the properties, and in relation to other documents. 28 On Tuesday, 21 February 2012, the solicitors by email made some comments on the material filed by the applicants, and proposed an appointment later than week. They also pointed out the need for all respondents to give them instructions that the valuation of the properties was not in issue. Mr Poumako responded fixing an appointment on 23 February 2012. That meeting took place. 29 The meeting of 23 February 2012 was attended by Mr Poumako and both Mr Scragg and Ms Scragg. None of the other respondents attended. Instructions were sought and given by Mr Poumako about how the funds were provided to transfer the two properties, and which persons could depose to confirm those instructions. There were some matters that were to be followed up by Mr Poumako. The other respondents were to provide signed written instructions to the solicitors to act for them. Mr Poumako did not on that occasion raise any issues as to the accuracy of the transcripts of the examinations of the other respondents by the applicant, or the circumstances in which they had occurred. I note that Mr Poumako's affidavit of 20 April 2012 does not dispute that some further detail for the proposed affidavits was to be provided by him. Nor is it in dispute that the written instructions to act from the other respondents were never sent to the solicitors. I accept that some of the material then discussed, including to a degree the source of funds for the properties, had been earlier discussed with Mr Scragg in about 2009 (obviously, not in relation to this particular application). 30 In my view, from mid-December 2011 it was incumbent on the solicitors to: (1) confirm that they were properly instructed by all the respondents - that is a matter they followed up in late December 2011 and thereafter, and was never properly addressed by Mr Poumako and the other respondents; and (2) give advice to Mr Poumako (at least) as to the nature of the issues in the proceedings, and to proceed to seek instructions and to prepare the matters for hearing in accordance with those instructions. As to (2), there appear to have been at least two main themes for instructions: whether the values of the two properties alleged by the applicant were to be accepted, and secondly the circumstances in which the transfers of the two properties took place, including how they were funded. 31 The solicitors sought instructions from Mr Poumako about the values of the two properties. Without his instructions and the instructions of the other respondents, the solicitors could not take that aspect much further. Clearly, Mr Poumako appreciated at material times that that was an important issue. 32 The solicitors did not really attend to giving formal advice about the nature of the issues in the proceedings, or seek instructions about the circumstances in which the two transfers took place, including how they were funded, until the meeting of 23 February 2012. One aspect of that was the inspection of the applicant's documents. That was a step appreciated as necessary by Mr Poumako at material times, and raised by the solicitors with him. However, until it was clear to the solicitors what were the formal instructions of Mr Poumako to the claims, it was not a step they could meaningfully take - they would not have the necessary focus for the inspection. As noted above, Mr Poumako's Instruction Note given to Mr Scragg on 13 December 2011 was not clear enough - other than, in substance, to take whatever points were properly available by way of defence. 33 The solicitors, through oversight, did not attend the directions hearing on 2 March 2013 when the matter was listed for trial. No material had been filed on behalf of the respondents. The solicitors were notified by the Court of the orders then made, including the hearing date. As noted, they then applied for an extension of time to file responsive affidavits. 34 Following the meeting of 23 February 2012, the next communication with Mr Poumako and the solicitors appears to be an email from Mr Poumako of 13 March 2012 expressing some frustration at his inability to speak to Mr Scragg, and the need to "talk about the structure of the defence" and about some difficulty he was having in getting access to some documents which he thought related to the funding of one of the properties. A further email of 14 March 2012 suggested the focus for inspecting the applicant's documents as well as indicating the finance documents he was seeking had become available. 35 The solicitors on 16 March 2012 by email informed Mr Poumako of the hearing date, the need to apply for an extension of time to file affidavits, and the need to "move forward" with the affidavit material. It also said there was a need to apply to vacate the trial date as Mr Scragg was already committed on 2 April 2012 in another matter or matters. It is not clear if Mr Poumako had earlier been told of the trial date. 36 Even by that time, the matter may not have been ready for trial. The solicitors for the applicant were anxious to proceed. They were, through the examinations, largely aware of the respondents' positions (subject to them changing). They were anxious to keep the trial date. From the respondents' viewpoint, that required very prompt inspection, completion of their affidavits, and the issuing (by leave) of any subpoenas to third parties to produce documents. Mr Poumako appears to have done the groundwork for knowing what documents were required, and where they could be obtained. There would probably have been a need to engage other counsel. 37 The remaining significant step is the circumstance of the termination of the retainer on 22 March 2012. I accept that, thereafter, Mr Poumako and the other respondents could not then, as unrepresented litigants, have pulled the matter together adequately for a fair trial. That is as events turned out. 38 On 13 March 2012, Mr Scragg spoke by telephone to Mr Poumako. He said he still needed clear instructions about how the transfers of the two properties were funded, and as part of those instructions the person or persons from whom documents should be subpoenaed. 39 On 15 March 2012, Mr Poumako provided the solicitors with an affidavit from a third party who provided some funds to Mr Poumako and his wife in 2004, and Mr Scragg explained that more documentary confirmation was necessary as well as more detail. That information was subsequently provided. 40 On 22 March 2012, Mr Poumako gave to the solicitors an "Instructions (for discussion)" note setting out some strategic suggestions for the hearing and the basis on which the two transfers were funded (the copy annexed to the affidavit of Mr Scragg of 13 April 2012 has pages numbered 1, 4, 5 and 7 only). 41 One topic discussed was the engagement of other counsel. Mr Scragg said he would need to brief other counsel, at an estimated cost of $15,000 which he would require before the hearing. Mr Poumako said he could not pay that sum within that time. 42 On that date, the Court refused to adjourn the trial date of 2 April 2012: see [7] above. The evidence shows on that date Mr Scragg and Mr Poumako then agreed that Mr Poumako would appear at the trial and represent the respondents. Mr Scragg spent some time with him discussing the procedures for issuing affidavits, the legal issues, the settling of a draft affidavit of Jacqueline Poumako and the need for affidavits from the other respondents. Mr Scragg says he was satisfied that Mr Poumako could adequately complete the steps necessary to be ready for the hearing. Events proved him wrong. He had a few more telephone conversations with Mr Poumako over the next few days. 43 However, there is a significant additional matter to note. As noted above, it appears on the material that the solicitors were engaged by Mr Poumako, and at the least saw the other respondents (other than Janice Poumako), in relation to the then foreshadowed claim by the applicant in about June 2009, and on a few occasions thereafter prior to the current proceeding being instituted. The documents then provided to the solicitors address to a significant degree the circumstances of, and the sources of funding for, the transfers of the two properties, and the detailed responses of the respondents to the potential claim of the applicant. There are two detailed documents of 8 July 2009 relating separately to the two properties, and a lengthy email of Mr Poumako of 4 January 2010, all provided to the solicitors. 44 In my view, the solicitors from December 2011 were remiss, in terms of their retainer with Mr Poumako (at least) in conducting the claim against the respondents. In fact, they had quite detailed instructions from mid-2009 in relation to the transfer of the two properties. They were asked by Mr Poumako to conduct the proceedings, but it appears the earlier instructions were not considered when doing so. That is, I suspect, because of the re-allocation of the file so the detailed nature of the instructions already given does not seem to have been appreciated. Mr Poumako's attempts to make an appointment to discuss the claims were largely unsuccessful until the time for responding to them had passed. If further instructions were necessary, they were not taken in a timely way. 45 I think that is the main reason why, in March 2012, Mr Poumako was confronted with the need to represent himself without the necessary affidavits having been filed, or the subpoenas issued, or (of lesser significance) without the inspection of the applicant's documents having been carried out. The oversight of the solicitors in failing to attend at the directions hearing on 2 March 2012 brought the need for counsel other than Mr Scragg to a head, but it was a circumstance which may well have been avoided had the solicitors not simply let the time pass for the filing of affidavits and had attended the directions hearing on 2 March 2012. They were aware of that occurring, but made no application to extend the time to do so. There is nothing to indicate that the respondents had been unable or unwilling to give instructions to the solicitors. The "meaningful content" required in the instructions, beyond that conveyed by the memos of 8 July 2009 in particular, should have been obtained by the solicitors.

CONSIDERATION 46 Section 43 of the Federal Court of Australia Act 1976 (Cth) gives the Court power to award costs, in its discretion, including to order that a party's lawyer should bear costs personally: s 43(3)(f). That power, in relation to costs, must be exercised judicially, and in accordance with general legal principles pertaining to the law of costs: Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192; Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224. It is a power which should be exercised with caution: Re Bendeich (No 2) (1994) 126 ALR 643. 47 Rule 40.07(1)(c) of the Federal Court Rules 2011 (Cth) entitles a party who has reasonable cause to believe that additional costs have been incurred because of the party's lawyer's misconduct to apply to the Court for an order that the lawyer pay to the party costs that the party has been ordered to pay to another party. Rule 40.07(2) describes misconduct in broad terms, relevantly to include if a proceeding is adjourned because of the lawyer's failure to file a relevant document or otherwise to be prepared for a hearing or to comply with an order of the Court. 48 It is of course axiomatic that the decision on such an issue depends on all the circumstances of the case. I am also mindful of the need to be cautious. On the other hand, I am not persuaded that the epithets used in relation to O 69 r 9 of the former Federal Court Rules 1979 (Cth) are necessarily still appropriate, having regard to the quite explicit words used in Rule 40.07. In this matter, I do not think it is necessary to explore any difference. 49 In the present circumstances, by reason of the material before the Court, I am apparently fairly fully informed about what transpired between Mr Poumako and the solicitor: cf Macteldir Pty Ltd v Roskov [2007] FCAFC 49 at [56]. In my view, it is plainly a case where the conduct of the matter by the solicitors in a substantial degree caused the adjournment of the trial, and incurred the costs thrown away which the respondents were ordered to pay. I have recorded my reasons for that conclusion above. 50 I have also considered whether the conduct of Mr Poumako or the other respondents was also a cause of that adjournment to any material extent. For that purpose, I pose the rhetorical question what he ought to have done to have prevented the events which caused the trial to be adjourned. The relevant Court orders are that the respondents' affidavits be filed and served by 17 February 2012 and for the hearing to take place on 2 April 2012. As to the former, there is little more he could have done. He tried unsuccessfully to secure a meeting with the solicitors, who first met him for that purpose on 23 February 2012. They appear to have overlooked, too, the detailed instructions given in 2009. As to the latter, the solicitors failed to appear when the hearing date was fixed. That, I accept, was a minor oversight but it led to the fixing of a hearing date when Mr Scragg was not available. No attempt to rectify that position was made promptly - when a suitable date may have been available - until the oral application on 22 March 2012, and his unavailability meant, ultimately, the respondents appeared in person through Mr Poumako. The consequence of my finding about the first failure to comply with the Court's orders also meant, on the facts, that the respondents could not proceed to the trial as fixed so that it had to be adjourned. It is correct to note that there was some delay between 23 February 2012 and 13 March 2012 during which Mr Poumako was to provide further instructions, but - the date of 17 February 2012 having passed - it is not suggested by the solicitors that he was then made aware of the imminence of the hearing and so the need for great urgency. 51 I have also taken into account that the other respondents did not provide written instructions for the solicitors to act for them. I do not think that that failure on their part led to the solicitors not preparing the matter for hearing in the way they should have, and in any event they were clearly acting for Mr Poumako and at least from about June 2009 for the other respondents generally in the matter. The nature of the retainer from the other respondents (perhaps other than Mr Poumako) from June 2009 is unclear, but it is not suggested by the solicitors that it inhibited them giving general advice from that time. 52 For those reasons, I have concluded that - applying r 40.07 of the Federal Court Rules 2011 (Cth) - I should order that the solicitors pay to Mr Poumako the costs of $6000 which he was ordered to pay when the trial was adjourned, ultimately on 5 April 2012. In my view, it is an instance of conduct on the part of the solicitors falling within r 40.07(2)(a)(i), (ii), (iv) and (v). I fix a period of two months for making the payment (including the 21 day period referred to in the next paragraph). 53 I add that the making of this order in the circumstances does not effect adversely on the solicitors other than for their delay and oversight in the manner described. That is conduct which most of the community are vulnerable to. It does not suggest any more serious failing on the part of the solicitors. 54 Given the purpose of those costs, unless there is some supervening event of which I am unaware, I consider that that liability should be met either by paying that sum to the solicitors for the applicants direct if they have not been paid that sum, or alternatively by paying the sum to Mr Poumako if he is able to produce to the solicitors evidence (such as the receipt of the applicant's solicitors) of the payment of that sum. I will give the solicitors and the respondents and the applicant's solicitors leave to apply within 21 days to vary the order made by this paragraph of my reasons in the event that, for some reason of which I am presently unaware, it is not appropriate to make an order in those terms. The orders also ensure that the solicitors cannot be liable to any other respondent for the costs thrown away by the adjournment if the solicitors comply with the orders made. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.