STAFFORD v TABER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, HANDLEY and SHELLER JJA 31 October 1994 [1994] NSWCA 293 LEGAL PRACTITIONERS — solicitor — failure to prosecute appeal with due diligence — abandonment of appeal on day of hearing — appellant and solicitor required by Court to attend court — held; Solicitor should personally pay two-thirds of respondent's costs TESTATOR'S FAMILY MAINTENANCE - TFM Act claim — claim belatedly abandoned — apparent neglect of prosecution of appeal and of appellant's interests — held; Appellant's solicitor to pay two-thirds of respondent's costs personally LEGAL PRACTITIONERS — SOLICITORS — personal liability for costs — apparent neglect of proper prosecution of appeal — belated application on return date of appeal for order that appeal be dismissed with respondent's costs assessed at $6,000 — Court of Appeal requires solicitor and appellant to attend to explain circumstances — appellant states lack of content by solicitors until eve of hearing of appeal — belated instruction secured to submit to dismissal of appeal with costs of $6,000 — held (Kirby P; Handley JA and Sheller JA concurring) (1) Having regard to the statement of the appellant and the inferences to be drawn from the absence of evidence from the solicitor, the respondent's costs of the appeal should be paid as to two-thirds by the solicitor and no costs after the call-over should be payable by the appellant to his solicitors; (2) The papers should be referred to the Law Society for investigation. TESTATOR'S FAMILY MAINTENANCE — TFM Act claim — belated claim by son in respect of estate of mother left entirely to daughter — appeal abandoned on day of hearing — proper order as to costs — held: in the circumstances the solicitor and the appellant were required to attend Court to explain the apparent neglect and belated abandonment of the appeal. Testator's Family Maintenance and Guardianship of Infants Act 1916, s3 Supreme Court Rules Pt52, R66 at 43. ORDERS 1. Appeal dismissed; 2. Order the appellant to pay the respondent's costs as to one-third of such costs; 3. Order that two-thirds of the respondent's costs of the appeal be paid by John J Puleo and Co, solicitors for the appellant; 4. Note that the respondent's costs of the appeal are agreed in the sum of $6,000; 5. Order that the solicitors for the appellant, John J Puleo and Co, recover no costs to the appellant in respect of any work performed or disbursements incurred on Or after 23 September 1994. Kirby P The Court has before it a very old proceeding. So old is it that it is brought under the Testator's Family Maintenance and Guardianship of Infants Act, 1916 which has long been repealed and replaced by the Family Provision Act, 1982. The hearing of the appeal has taken an unusual tum. TFM CASE DISMISSED, APPEAL AND NEGLECT 2 UNREPORTED JUDGMENTS The proceedings were commenced by summons in 1982. They arose out of the death of Mrs Winifred Stafford (the deceased), the mother of Mr Rex Stafford (the appellant). It was alleged that she had failed to make adequate Provision for him in her will. The proceedings were contested by Mrs Gloria Taber, daughter of the deceased. Mrs Taber was the executrix and the sole beneficiary under the will of the deceased. The proceedings took a very long time to come to resolution before Master Gressier. I should say that so long ago were the proceedings heard that Master Gressier has now retired. The Master determined the matter on 21 June 1990. In the event, he found that the Jurisdictional basis for an order existed in that the failure of the mother to make any provision for the appellant appeared on its face to offend the moral sense. However, having regard to the respective assets of the appellant and of the respondent at the time of the hearing, the Master declined to make an order under the Act. The Court is not concerned with the merits of the appeal in the events which have occurred. However, I think it is appropriate to say that, in the light of recent and not so recent authority, the appellant would have been very hard pressed to have displaced the evaluative decision of the Master and to have succeeded in the appeal. See, for example, Singer v Berghouse [No. 2] (1994) 123 ALR 48 (HC). The reason the Court has not been concerned with the merits of the matter arises from what appears, on the face of matters disclosed to the Court and unexplained, to have been a lack of proper attention to the case by the solicitors for the appellant, Messrs John J Puleo and Company, and within that firm by a solicitor, Mr Aldo Mezzanotte. Mr Mezzanotte is before the Court today. The Court has been told that it was he who had the management of the case within the firm. The notice of appeal was filed quickly enough. Thereafter, the appeal appears to have gone into hibernation, just as the earlier proceedings that were heard by the Master appeared to have done. The notice of call-over was sent to the solicitors. That resulted in the call-over of the proceedings before Handley JA on 23 September 1994. On that day, a representative appeared for the appellant, namely Mr Best. However, he made it clear that he had no real knowledge of the proceedings. Nonetheless, the proceedings were said to be ready for hearing. The hearing date was assigned. The appeal was returned before this Court today for hearing. When the appeal was listed for hearing, no submissions were received from the appellant. Accordingly, the Court had steps taken to inquire of the solicitor for the appellant concerning the written submissions which are required in Proceedings of this kind. The Court was then informed that the matter might be settled. When, subsequently, the request for submissions was further pressed, the Court was informed that an application for adjournment might be made. When the proceedings were called on the return day, the foreshadowed application for adjournment was duly made. ANNOUNCEMENT OF SETTLEMENT - THE COURT ENQUIRES FURTHER. Unsurprisingly, the request for adjournment was opposed by counsel for the respondent who, having waited so long for finality, wanted to have the matter concluded today. The Court stood the matter down. The Court was later informed that the appellant would consent to the dismissal of the appeal and to an order that URJ STAFFORD v TABER (Kirby P) 3 he pay costs in the sum of $6,000. These rapid developments in the case between 10.15 am and noon occasioned some concern in the Court. The Court was most anxious that no last minute abandonment of the appeal, with submission to a substantial order for costs, should be agreed to by the appellant, under pressure, in circumstances for which he may have been innocent, arising out of the events which I have described. Accordingly, the Court asked that the matter be listed later in the day and that the solicitor handling the matter, and the appellant himself, be requested to come to Court. This they each duly did. With the consent of his counsel and in the presence of his solicitor, the Court then asked the appellant to explain the events which had led to the last minute abandonment of the appeal with the consequent accumulation of substantial costs that would not have been incurred had the appeal been abandoned earlier. Indeed, had the appeal been abandoned at any time up to the call-over before Handley JA when it was set down for hearing before us today, it is likely that the respondent's costs of the appeal would have been minimal. The appellant then made a statement to the Court which has been recorded. In the statement he made it plain that he had given instructions for the commencement of the appeal. He had done so upon advice given to him by his then counsel, who is not, I should say, his present counsel. Having heard nothing about it for years. he came to assume that the appeal had been terminated. He had, indeed, changed his address. However, his new address and telephone number were in the telephone book under his own name and also in the name of a firm of motor mechanics with which he had long been associated. The proffered explanation that the appellant was difficult for his solicitor to contact is difficult to accept. Not only does the telephone directory indicate that the appellant is there for all to see. When it became absolutely imperative that he should be contacted, it became possible for the solicitors to contact him late last week and then to-day. Need occasioned the means. There are several matters which are of concern about the way in which these proceedings have progressed. They are matters which I do not believe I should elaborate at this stage because of the course which I intend to propose. It would be quite wrong for the Court to reach any pre-judgment of the activities (or lack of activities) of the firm of solicitors, John J Puleo and Co, or specifically of Mr Mezzanotte. He has been afforded the opportunity of explaining the events described to the Court. However, after an adjournment and the opportunity to discuss the matter with Mr Monaghan, counsel for the appellant, he has, perhaps wisely, decided not to give evidence or any explanation before the Court today. INFERENCE OF NEGLECT: SOLICITOR TO PAY PART COSTS. The only inference that is presently available is that this appeal has been seriously neglected by the appellant's solicitors. It also appears that the interests of the appellant have been seriously neglected and possibly prejudiced. I should say that I do not believe that this has finally had any adverse effect on the rights of the appellant. My careful examination of the case has led me, albeit without full argument, to the conclusion that the appellant would probably not have succeeded in the appeal. Nonetheless, every client, and indeed every individual, is entitled to be dealt with courtesy by the Court and by every officer of the Court. A client is entitled to have an appeal handled with attentive diligence. That does not appear to have occurred in this case. By Pt52, R66 at PtS2A R43 of the Supreme Court Rules, provision is made whereby, in the circumstances such as occurred in this case, the Court may in disposing of orders for costs order that a legal practitioner, in default, should pay 4 UNREPORTED JUDGMENTS the whole or part of the costs that have been incurred by want of due attention to the proceedings. It seems to me that those rules apply in the uncontested facts of this case. In the presence of the solicitor an opportunity was afforded to indicate to the Court why the foregoing rules should not be invoked in this case. In the result, no submission was put to the Court to suggest that this was not a proper case to invoke those rules and to order the solicitor to pay part of the costs. I say "part" because the appellant, apparently with complete honesty and candour, told the Court that he had given instructions to lodge the appeal although he knew the appeal had difficulties and success was by no means assured. He, therefore, must take some responsibility for the initiation of the appeal. However, in the circumstances, as the Court understands them at this stage, it would be wrong that the appellant should bear the whole of the respondent's costs. So much of his costs as were incurred after 23 September 1994 (when the matter was called over before Handley JA) should, I believe, be borne by his solicitors. The possibility of an order which reflected this consideration was put in the presence of Mr Mezzanotte. Counsel for the appellant told the Court that the solicitor did not wish to be heard to resist the making of such an order. The result is that it is proper in the circumstances to make the order disposing of the appeal by dismissing it. I repeat that, in my view, there is probably no ultimate prejudice to the appellant for I consider that, almost certainly, that would have been the order that would have been made on a full hearing of the appeal. But we shall never know. The matter was never finally disposed of by contest on the merits, as it could have been within the costs which were accumulated by the appointed hearing day. Instead, the case has been disposed of in the rather unfortunate way which I have now described. Nonetheless, the appellant himself should pay one-third of the costs of the respondent of the appeal. The balance of two-thirds of the costs of the respondent of the appeal should be ordered to be paid by John J Puleo and Co, the solicitors on the record for the appellant. The appellant will have to pay his own costs of the appeal to those solicitors. However, such costs should not include any costs on or after 23 September 1994 when the proceedings were called over before Handley JA and the Court was assured, incorrectly as it has transpired, that the matter was ready for hearing. Finally, I consider that the papers in these proceedings should be referred to the Law Society of New South Wales for such further consideration and investigation as appears appropriate to the Society. ORDERS I propose the following orders: 1. Appeal dismissed; 2. Order the appellant to pay the respondent's costs as to one-third of such costs; 3. Order that two-thirds of the respondent's costs of the appeal be paid by John J Puleo and Co, solicitors for the appellant; 4. Note that the respondent's costs of the appeal are agreed in the sum of $6,000; 5. Order that the solicitors for the appellant, John J Puleo and Co, recover no costs to the appellant in respect of any work performed or disbursements incurred on or after 23 September 1994. Handley JA I agree. URJ STAFFORD v TABER (Sheller JA) Sheller JA I also agree. Kirby P: They, therefore, are the orders of the Court. 5 Counsel for the appellant: AP Monaghan Solicitors for the appellant: John L Puleo and Co Counsel for the respondent: TA Alexis 10 Solicitors for the respondent: Lacey and Co