Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Hearing dates: On the papers Decision date: 18 February 2015 Before: Basten JA at [1]; Ward JA at [45]; Emmett JA at [49] Decision: (1)Order that George Potkonyak, the solicitor for the applicant in the proceedings in this Court, pay to the Secretary and the father the amount of the costs which the applicant was ordered to pay to those parties, being costs incurred in this Court.

(2)Order that Mr Potkonyak pay the Secretary's costs of this motion of 29 July 2014. Catchwords: COSTS – application for order against legal practitioner – whether costs incurred by the misconduct of applicant's solicitor – obligation of legal practitioner in conducting litigation – Civil Procedure Act 2005 (NSW), ss 56 and 99

COSTS – application for order against legal practitioner – supervisory jurisdiction of Supreme Court over legal practitioners – scope of jurisdiction under Supreme Court Act 1970 (NSW), s 23 – whether limited by Civil Procedure Act 2005, s 99

STATUTORY INTERPRETATION – construing statutory language involving related concepts holistically – application of "overriding purpose" under Civil Procedure Act 2005, s 56 – power of court to award costs against practitioner

WORDS AND PHRASES – "serious misconduct"; incurring costs "without reasonable cause" – Civil Procedure Act 2005, s 99 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 4, 56, 58, 98, 99; Sch 1 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 79, 88, 90 Legal Profession Act 2004 (NSW), s 496 Supreme Court Act 1970 (NSW), s 23 Supreme Court Act 1981 (UK), s 51 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.4 Cases Cited: Attorney-General v Wylde (1947) 47 SR(NSW) 99 Baffico v YMCA of Great Lakes Inc (No 2) [2014] NSWCA 171 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 Ireland v Retallack (No 2) [2011] NSWSC 1096 Kelly v Jowett [2009] NSWCA 278; 76 NSWLR 405 Kendirjian v Ayoub [2008] NSWCA 194 Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; 63 NSWLR 300 Myers v Elman [1940] AC 282 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 5; 181 CLR 404 Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 Ridehalgh v Horsefield [1994] Ch 205 Category: Costs Parties: FM (Felicity's Mother) (Applicant) Secretary, Department of Family and Community Services (First Respondent) Felicity's Father (Third Respondent) Representation: Counsel: Mr G Potkonyak, Solicitor (Applicant) Mr M Anderson (First Respondent) Third Respondent in person