Farrell fallout … Outstanding work … Rares to the rescue … Costs certificates for all … Big NSW CA case on exorbitant costs and the court’s jurisdiction to relieve lawyers of money that isn’t theirs … For whom the Bell tolls … From Ginger Snatch, Associate of Judges
There’s further misadventure as a result of former justice Kathleen Farrell’s failure to produce judgments prior to her departure from the Federal Temple of Justice.
On July 21, 2023 we had Justice Ian Jackman giving Farrell a pasting in Smart Education Program Pty Ltd (in liq) v CLGC Australia Pty Ltd.
She heard the case in November and December 2020 and over two and a half years later still had not delivered a judgment and was unlikely to do so before bailing out on August 1.
Chief Justice Mortimer sent it to Jackman to sort out and come up with a result.
The CJ has had to do the same in two of Farrell’s unfinished immigration appeals – this time Rares J was lucky enough to catch the bouquet.
Unlike Jackman, Rares was the model of restraint, only mentioning the hiatus as “unfortunate and extremely unusual” – as opposed to Jackman’s observation about Farrell’s “unwillingness to discharge the judicial function”.
Last August he finished Farrell’s job and dismissed the appeals in FZF18 and CHQ18 and then on October 18 granted costs certificates under the Federal Proceedings (Costs) Act.
It emerged that on June 30, 2023, Mortimer CJ wrote to the parties in both appeals “to inform them … that the judge who had heard argument and reserved judgment … would not be able to pronounce orders or deliver reasons before that judge’s resignation took effect on August 1, 2023”.
In FZF18, Farrell heard argument and reserved her judgment on January 28, 2021 – two years and nine months later nothing had happened.
CHQ18’s appeal was not much better, having been heard by Farrell on March 18, 2021 and thereafter sweeping it under the carpet.
At the time Mortimer was writing to the parties in June with the grim news, there would still have been time for Farrell to extract a digit and come up with some reasons.
Rares himself is due to retire on November 14. An event that will be accompanied by the sound of media respondents popping Porphyry Pearl corks.
FZF18 v Minister for Immigration, etc (No. 2)
Beau acted for mortgagee Gwendoline Deakin-Bell in seeking to enforce a $30,000 mortgage on a property that Anthony Bell had inherited from his Mum, Mabel Deakin-Bell.
There was scant evidence of a costs agreement between Beau and Gwen. An unsigned document gave a costs estimate of $3,900 to $6,400 along with an “uplift fee” of 25%.
Good work if you can get it.
Orders were made by David Davies J in 2016 for possession and sale of the property.
By this stage Beau totted up fees of $77,200. By December 2016, probate had not been obtained for Mabel’s estate, so he wrote to the NSW Trustee and Guardian estimating his costs for the possession proceedings of between $220,000 and $240,000.
A bit later he revised this to include the uplift fee which he’d had forgotten to mention earlier, now it was $302,500-$330,000. The net proceeds of the sale were $352,137.02.
Gwen signed a trust account authority authorising payment to her of $39,089.57; $288,601.03 to Hartnett’s law shop; and payment of the balance of $33,834.45 to the Supreme Court, pursuant to earlier order.
The payment to the court was not made.
After probate was obtained Anthony Bell engaged in protracted letter writing to obtain copies of invoices and details of the charges from Hartnett. He also lodged complaints with the Bureau de Spank in Queensland
Invoices and details of the amounts charged were never forthcoming, instead Hartnett threatened to seek a revocation of Bell’s grant of probate over Mabel’s estate.
Eventually, costs assessor Christopher Wall determined that the total amount payable to Beau was a disappointing $37,354.50, not $288,601.03.
In September 2020, Anthony Bell, the respondent, asked the Equity Division for a declaration that Hartnett held $287,551.30 as trustee for him.
Admiral Michael Slattery J reopened the possession proceedings, adding that Hartnett was amenable to the court’s supervision as part of its inherent supervisory jurisdiction over the legal trade.
In September 2022, Justice Elizabeth Peden ordered, pursuant to the court’s inherent jurisdiction, that Beau pay Anthony Bell $251,255.53 – the difference between the amount he was seeking to trouser and the assessment by Christopher Wall.
The Gold Coast lawyer then decided to give the court’s inherent jurisdiction a run with the NSWCA.
It was bad luck for Beau. The CA held that the court’s inherent supervisory jurisdiction was still keeping an eye on him, adding that “exorbitant charging debases the reputation of the legal profession”.