It has been said generally that increased costs have become an increasing problem in FPA actions. Mr. Greg Smith MLA told the NSW Parliament in 2008:
“Not only Justice Young has complained, but also the Chief Justice, Jim Spigelman, has complained. In an article in the Australian by Chris Meritt on 26 March 2007 lawyers were warned about excessive costs. Justice Spigelman gave a speech at the Australian Legal Convention in Sydney, at which Chris Meritt said that the profession may be alarmed, but in a sense, he echoed what had been said the previous day by the Chief Justice of the High Court, Murray Gleeson, who recently retired. Justice Gleeson told the conference that litigation is a perfect example of Parkinson’s law—work expands to fill the available time. Unfortunately, some lawyers have used the time-based charging system to accumulate large costs. In the old days when I was in private practice as a solicitor, there were ways of costing that may not be covered by any law book. Some lawyers said that they put the file under their arm to determine how thick it was and others would throw the file up in the air and wait to hear the noise it made when it landed on the ground—that may trivialise the practice. I know that others charge by the number of letters sent. The time-based costing system using units of six minutes that was introduced has created or helped to create this situation. The profession of law is not meant to be a mechanical thing where you charge for every minute of the day. Discretion must be used, and most lawyers use that discretion and charge a fair amount.”
As a result, the courts are more readily adopting a position that costs are to be paid by the losing party rather than both parties’ costs being met from the estate. According to The Hon. John Hatzistergos:
“While the majority of lawyers work really hard for their clients to achieve a fair outcome where a will is disputed, there is comment from the courts that there are still a minority of practitioners who do their best to exploit a highly emotional case for their own benefit, on the assumption that almost always, the costs of the challenge are paid from the estate.
We have recognised the fact that some lawyers representing other parties seem to us to be more difficult to deal with in inheritance related Supreme Court proceedings than others.
We will always carefully implement our own strategies to circumvent incurring needless costs where possible, and we will always follow the recent new court practice direction for inheritance matters. ”
Craig Gregson LLM TEP
(Disclaimer: The material in this article is of a general nature and intended for information only. It is not intended to be comprehensive and does not constitute legal advice. Any person with a specific legal issue should consult a lawyer.)