Case: Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155
Outcome: cited
The Full Court in Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155 cited Goldberg J with approval and added the caution that it will often be difficult for a court to know all the details and circumstances of a solicitor's instructions, but then said (at 166 [44]): '... it is equally important to uphold the right of a court to order a solicitor to pay costs wasted by the solicitor's unreasonable conduct of a case. What constitutes unreasonable conduct must depend upon the circumstances of the case; no comprehensive definition is possible. In the context of instituting or maintaining a proceeding or defence, we agree with Goldberg J that unreasonable conduct must be more than acting on behalf of a client who has little or no prospect of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.' (emphasis added) It is the last mentioned conduct which is relevant here where the question is whether the practitioner has proceeded without any, or any proper, consideration of the prospects of success. That does not require demonstration of any collateral or improper purpose. 18 Weinberg J drew a distinction between the approach taken by the Full Federal Court in Levick and that taken by the Queensland Court of Appeal in Steindl. He regarded Steindl as sanctioning a range of cases in which a solicitor might be ordered to pay costs, wider than that enunciated in Levick . He said of O 62 r 9(1) (at [15]): ' The question whether costs have been unreasonably incurred because of the manner in which a legal practitioner has conducted a case should not require consideration of whether this was done for an ulterior purpose. If a client instructs a legal representative to take points that are manifestly without merit, the legal representative has a duty to the Court to refuse to act on those instructions. In that regard, there is a distinction between points that are barely arguable, but most likely to fail which can and sometime must be taken, and points that are simply unarguable. If a point is plainly unarguable, it is improper to argue it. If a client insists upon it being argued, the legal representative should decline to do so and, if necessary, withdraw from the proceeding.' 20 In Lemoto McColl JA referred, at 324, to an apparent tension between decisions of the Federal Court and those of State appellate courts in circumstances in which legal practitioners act for litigants with hopeless cases. The Full Court in Levick had approved Goldberg J's conclusion in White Industries that a solicitor does not act improperly by acting for a party with a hopeless case unless that conduct is 'unreasonable'. On the other hand, in Carson v Legal Services Commission [2000] NSWCA 308 at [113] , Sheller JA (Giles JA agreeing) apparently excluded from the scope of proper conduct proceedings which are 'futile or fore doomed to fail'. And in Steindl (at 689) Williams JA set apart the case '... which is plainly unarguable and ought to be so to the lawyer who presents it'. Her Honour found it unnecessary to resolve those tensions in the case before the Court of Appeal in Lemoto . Nor is it necessary here to resolve those tensions. However, what Weinberg J said in Tran appears to involve the proposition that the wider range of cases is open to the application of O 62 r 9. 22 Having regard to the passages to which I have referred from the decision of the Full Court in Levick and the subsequent cases, I do not consider that the generality of the approach enunciated in De Sousa has been relevantly limited. A costs order may be made under s 43 of the Federal Court Act or O 62 r 9 when the solicitor or counsel has so failed in the duty to give proper consideration to the legal and/or factual questions involved in the preparation and presentation of an application as to be seriously derelict in his or her duty to the client and/or to the Court. There is no relevant distinction here between the position of solicitor and barrister whether in a divided or a fused profession.