In the matter of Graham Ross Bendeich [1994] FCA 890

In the matter of Graham Ross Bendeich [1994] FCA 890

Although Mr. Hewlett repeatedly breached duties to his client and, in some respects, his duty to the Court, a personal costs order was justified only where his grossly negligent conduct caused the objectors to incur costs that produced no benefit in advancing their objections. That causal requirement was satisfied for the application filed 28 October 1992 and heard on 6 November 1992, and for the application filed on behalf of Mr. Bendeich on 26 November 1992 up to but not including the 1 December 1992 hearing. It was not satisfied for the other applications, the interrogatories application, or the Feez Ruthning summons costs.

Jurisdiction
Australia
Judgment Date
23 November 1994
Procedural Posture
Bankruptcy Costs Application Against a Solicitor Personally / Reasons for Judgment and Orders on the Objectors' Application
Outcome
The objectors' application was allowed in part against Mr. Hewlett and otherwise dismissed; no order was made as to the costs of the costs application itself.
Legal Topics
['personal Costs Orders Against Solicitors' 'party and Party Costs and Solicitor and Client Costs' 'gross Negligence by Solicitor' 'duty to the Court' 'discovery and Interrogatories' 'self Executing Orders']
['costs' 'bankruptcy' 'civil Procedure' "legal Practitioners' Duties"] ['personal Costs Orders Against Solicitors' 'party and Party Costs and Solicitor and Client Costs' 'gross Negligence by Solicitor' 'duty to the Court' 'discovery and Interrogatories' 'self Executing Orders']

Case Brief

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Procedural Posture

Bankruptcy Costs Application Against a Solicitor Personally / Reasons for Judgment and Orders on the Objectors' Application

Legal Issues

  1. 1 ['Whether the Federal Court in bankruptcy had power to order Mr. Hewlett, a non-party solicitor, to pay costs personally.' "Whether Mr. Hewlett breached his duty to the Court in conducting Mr. Bendeich's litigation with due propriety." 'Whether any breach amounted to more than mere negligence and at least to gross negligence.' "Whether Mr. Hewlett's conduct caused the objectors to incur useless costs in relation to the identified interlocutory applications, interrogatories application, and summons to Messrs. Feez Ruthning."]

Ratio Decidendi

Although Mr. Hewlett repeatedly breached duties to his client and, in some respects, his duty to the Court, a personal costs order was justified only where his grossly negligent conduct caused the objectors to incur costs that produced no benefit in advancing their objections. That causal requirement was satisfied for the application filed 28 October 1992 and heard on 6 November 1992, and for the application filed on behalf of Mr. Bendeich on 26 November 1992 up to but not including the 1 December 1992 hearing. It was not satisfied for the other applications, the interrogatories application, or the Feez Ruthning summons costs.

Court Disposition

The objectors' application was allowed in part against Mr. Hewlett and otherwise dismissed; no order was made as to the costs of the costs application itself.

Orders

  • ['The respondent Mr. Hewlett pay to the objectors the difference between their party and party costs of their application filed 28 October, 1992 and heard on 6 November, 1992 recoverable by them from Mr. Bendeich under the order of 6 November, 1992 and the costs they have reasonably incurred to their own solicitors...