Marshall v Sheahan [2001] FCA 55 (31 January 2001)

Last Updated: 22 February 2001

FEDERAL COURT OF AUSTRALIA

Marshall v Sheahan [2001] FCA 55

JILLIAN HELEN MARSHALL, RICHARD JOHN COOPER & SIMON VINCENT COOPER v JOHN SHEAHAN as Trustee of the bankrupt estates of JILLIAN HELEN MARSHALL, RICHARD COOPER & SIMON VINCENT COOPER and

W J FOUNTAIN PTY LTD (ACN 075 652 318) and WILLIAM JOHN FOUNTAIN

S 7097 of 1999

MANSFIELD J

31 JANUARY 2001

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7097 OF 1999

BETWEEN:	JILLIAN HELEN MARSHALL, RICHARD JOHN COOPER & SIMON VINCENT COOPER Applicants
AND:	JOHN SHEAHAN as Trustee of the bankrupt estates of JILLIAN HELEN MARSHALL, RICHARD COOPER & SIMON VINCENT COOPER First Respondent W J FOUNTAIN PTY LTD (ACN 075 652 318) Second Respondent WILLIAM JOHN FOUNTAIN Third Respondent

JUDGE:	MANSFIELD J
DATE:	31 JANUARY 2001
PLACE:	ADELAIDE

REASONS FOR DECISION

1 This is a motion that the order for costs which I made in this application on 17 June 1999 against Alderman Consultant Solicitors be set aside.

2 The ground upon which the motion is brought is that High Court proceeding M129 of 2000 (in which the applicants are Robert John Halliday and others and the respondents the Commonwealth of Australia, the Treasurer and the Commissioner of Taxation) seeks to elicit from the High Court some observations as to the applicability and effect of the "Basic Principles on the Role of Lawyers" which were adopted by "The Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders" held in Havana, Cuba between 27 August and 7 September 1990. Those Basic Principles, it is submitted, if interpreted in a certain way by the High Court, will provide a foundation for contending that the general manner in which I approached the determination of the application for costs against the solicitors was erroneous. In general terms, it is put as a matter of principle that the Court should, in considering such matters, recognise that solicitors act on instructions and should not impose costs orders against solicitors because of their role in implementing the instructions of their clients or in pursuing claims on behalf of their clients in accordance with those instructions. There is no indication as to when that application in the High Court might be heard and determined.

3 The order for costs which I made on 17 June 1999 was the subject of an application for leave to appeal to the Full Court. That application was heard by von Doussa J, sitting as the Full Court in accordance with the Federal Court Rules. His Honour recorded in par 4 of his reasons that he pointed out to counsel for the solicitors on that application that the single judge hearing the application was exercising the powers of the Full Court, so that if the application was pressed before that single judge (as it was) there would be no further avenue for appeal in the Court. The solicitors might have been able to seek special leave to appeal to the High Court. On 22 July 1999, the application for leave to appeal was refused. So far as the material before me discloses, there has been no application to the High Court for special leave to appeal from the decision which I made and in respect of which leave to appeal to the Full Court was refused. The situation is, therefore, that the order for costs has been made and any appeal rights exhausted.

4 In the normal course, the trustee of the bankrupt estates of the members of the Cooper family referred to in the material would be entitled to enjoy the fruits of that order. The motion now before me seeks either to set aside the order for costs or (by amendment, which I would grant if there were any real prospect of success) an order staying the execution of the order for costs made on 17 June 1999 pending resolution of the High Court proceedings to which I have referred.

5 I refuse the orders which are sought on the motion. I do not think that I have any power to set aside what is a final order, or that on the basis claimed it would be proper to grant what amounts to an indefinite stay of execution. I refuse the orders sought in any event because the normal appeal processes have been exhausted, and the order for costs stands. As I have said, the beneficiary of that order ought, in the normal course, to be able to enforce it. I also refuse the application because, on the grounds upon which it has been presented, I do not think that the issue which is proposed to be ventilated before the High Court in entirely separate proceedings will alter in any way the foundation for the order for costs which I made.

6 There were features of the conduct of the solicitors, as they were reported to me by counsel on behalf of the solicitors and other parties at the hearing of the application for costs, which distinguished this case very significantly from the run-of-the-mill circumstance. I will not repeat in detail those features. They are set out in my reasons for decision given on 17 June 1999. In effect, however, counsel then appearing indicated that the clients of the solicitors had determined to proffer no undertaking in the usual form in support of the application for interlocutory relief, nor to proffer any security in support of any such undertaking, but I had been told by counsel for those clients on the instructions of the solicitors that such an undertaking was about to be or had been filed in support of a claim for interlocutory relief then made. The matter was adjourned for a brief time for that reason. I commented at the time that the only conclusion which I could draw was that the instructions given by the clients to the solicitors were not satisfactorily conveyed by the solicitors to counsel then appearing for the applicants. There was nothing before me to indicate that counsel was not accurately conveying the state of affairs upon which I acted. I therefore consider that the circumstances which obtained when the order for costs was made are not circumstances which, even if the High Court proceedings lead to some statement of principle along the lines which I am told is sought, would undermine the process of reasoning leading to the order for costs in any material way.

7 Accordingly, I refuse the order sought.

8 I order that the applicant on the motion pay to the respondent costs of the motion, to be taxed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated: 21 February 2001

Counsel for the Applicants:	Mr G Hevey
Solicitors for the Applicants:	Alderman Consultant Solicitors
Counsel for the Respondents:	Mr M Evans
Solicitors for the First Respondent:	Piper Alderman
Solicitors for the Second and Third Respondents	Andrew B Thiele & Co
Date of Hearing:	31 January 2001
Date of Decision:	31 January 2001