Barrister Found Liable for $1.7m in Wasted Costs

In Venter & Venter (No 2) [2024] FedCFamC1F 862 (13 December 2024) the Honourable Justice Carew upheld applications by the husband and other respondents for orders for costs against the wife’s barrister and firm of solicitors who previously acted for the wife. In the reasons, the names of the practitioners were anonymised (the barrister referred to as “Mr P”). It was found that the barrister and solicitors engaged in improper and unreasonable conduct amounting to exceptional circumstances justifying an order for costs against them, and on the indemnity basis. 

The conduct in questionwas held to have caused significant costs to be incurred unnecessarily and to have wasted Court resources. Costs totalling $1.7 million were ordered to be paid within 60 days, jointly and severally, by the barrister and solicitors. The issue of their conduct was referred to the relevant Legal Services Commissioners for investigation.

The substantive proceeding involved a property dispute between a former husband and wife and various other members of the Venter family and related entities. Those proceedings were listed for a further 10 days of trial which commenced on 10 February 2025. 

The proceeding had been listed for hearing over 10 days commencing 24 July 2023 but had been adjourned part-heard on 3 August 2023 as a result of revelations about unsatisfactory late disclosure on behalf of the wife, initially said to number 60,000 and later 96,000 documents. Some of the documents had been sourced from a number of hard drives, some were said to be contained in a “suitcase”.  A 27-page list of documents was prepared by the wife’s solicitor which identified documents relevant to the proceedings over which one or other of the respondents might claim legal professional privilege.

The wife, in her written submissions, attempted to attribute responsibility to the respondents for the adjournment of the trial which, the Court considered, did her little credit.

The Court summarised the wife’s disclosure as follows:

22. To fully appreciate the bases for the costs applications, it will be helpful to set out the detailed chronology relating to the wife’s disclosure and use of documents, reproduced below from Venter (No 5) at [10]-[54] and [63]-[68]:
    10. In early 2021, the wife located what she contends were three hard drives; a blue one and two silver/black ones, in a box in the former matrimonial home at [H Street, Suburb LL]. The wife delivered the three hard drives to her former solicitors, [MM Lawyers], shortly after locating them. The wife’s lawyers accessed the contents of the blue hard drive which the wife contends is “largely, if not wholly, an external back-up of the two silver hard drives”.
    11. At some point between early 2021 and March 2023 (when the wife retained her current solicitors, [GG Lawyers]), [MM Lawyers] extracted 146 emails from the blue hard drive and stored them in what is referred to as Folder 1. These are emails that by the descriptor accompanying them, indicate an assessment was made that they would be helpful to the wife’s case.

The husband sought costs thrown away by the adjournment of the part-heard trial; costs of and incidental to the application to restrain the wife from retaining her then lawyers or former lawyers; costs of the application for costs; and costs of and incidental to the proceedings to date having regard to the alleged egregious interference by the legal practitioners in the administration of justice.

Her Honour considered the relevant principles in relation to costs as follows:

29. Generally, in this Court, each party bears their own costs unless there are circumstances that justify a costs order having regard to the matters contained in s 117 of the Family Law Act 1975(Cth) (“the Act”), ss 68(4) and 69(4)(d)-(e) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
30. It is uncontroversial that this Court also has power to order costs against a party’s lawyer.[5]
31. Section 117(2A) of the Act sets out the matters to which the Court must have regard, namely:

…(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

32. An additional source of power to award costs in an appropriate matter is to be found in s 69(4)(d) and (e) of the FCFCOA Act, which empowers the Court to award costs against a party to be assessed on an indemnity basis or otherwise.
33. There is an additional mandatory requirement created by s 68(4) of the FCFCOA Act which requires the Court to take into account any failure to comply with the duty imposed by ss 68(1) or (2), which require the parties and the lawyers for the parties to conduct the proceedings in a way that is consistent with the overarching purpose of the family law practice and procedures provisions of the FCFCOA Act. The overarching purpose is set out in s 67 and requires, among other things, for the proceedings to be conducted as “quickly, inexpensively and efficiently as possible”. The objectives of the overarching purpose include “the efficient use of the judicial and administrative resources”, “the efficient disposal of the Court’s overall caseload”, “the disposal of all proceedings in a timely manner” and “the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute”.
34. An applicant for costs bears no “additional or special onus” other than the establishment of “justifying circumstances”.[6]
35. As to the identification of such circumstances by the Court, the High Court of Australia in Penfold v Penfold[7] said the following:

Sub-section (2) [of s 117] does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised. Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

(Citation omitted)

36. Rule 12.15(1) of the Rules sets out circumstances in which the Court may make an order for costs against a lawyer, namely, if the lawyer has caused costs to be incurred by a party to be thrown away because of:

(a) a failure to comply with the Rules or an order;

(b) a failure to comply with a pre-action procedure;

(c) improper or unreasonable conduct; and

(d) undue delay or default.

37. A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has, among other things, failed to do any act necessary for the hearing to proceed (r 12.15(2)).
38. In Cassidy v Murray,[8] the Full Court considered several authorities in various jurisdictions relating to the circumstances in which a court might order costs against a lawyer and identified the following principles:

(a) The discretion to order costs against a lawyer should be exercised with caution;

(b) There is a need to balance the competing public interests involved, namely, the concern that lawyers should not be deterred from pursuing their clients’ interests for fear of being made personally subject to orders for costs, and the principle that innocent parties should not be occasioned costs, for which they would not otherwise be liable, as a result of the inappropriate conduct of lawyers;

(c) The Court may make an order for costs against a lawyer without the necessity to establish that the lawyer has been guilty of serious professional misconduct;

(d) The lawyer has a duty to the Court to promote the interests of justice whilst at the same time attending to the needs of the lawyer’s client;

(e) A mistake or error of judgement would not justify an order for costs against a lawyer. However, misconduct, default, or negligence, any of which are found by a Court to be of a serious nature, may be sufficient to justify an order; and

(f) The jurisdiction is compensatory not punitive.

39. In Z (A Solicitor) & Limousin,[9] the Full Court dismissed a solicitor’s appeal against a personal costs order. The case provides a comprehensive overview of the jurisprudence in this and other jurisdictions and considers the substantial amendments made to the Rules in 2004 including the addition of objects, principles, and responsibilities imposed on parties to litigation as well as their lawyers. The Full Court noted that the amended Rules included a ‘main purpose’, namely, “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. The same observations are equally applicable to the 2021 Rules and the ‘overarching purpose’ set out in the FCFCOA Act. The Full Court adopted the principles extracted from several cases by French J (as his Honour then was) in Ex Christmas Islanders Association Inc and Others v Attorney-General (Cth) (No 2)[10] including the following:[11]

(a) The need for caution when legal professional privilege has not been waived and the Court does not know the details and circumstances of a client’s instructions;

(b) While no comprehensive definition of ‘unreasonable’ conduct is possible it must be more than acting for a client who has little or no prospect of success. There must be something akin to an abuse of process e.g., having an ulterior motive for the proceedings or commencing or pursuing proceedings without any, or any proper, consideration of the prospects of success;

(c) Lawyers have a duty to their client and to the Court to be “competent in their conduct of legal business”.

40. The Full Court also adopted the following further observations of French J at [30]:

A solicitor or counsel may conceive of himself or herself as advancing the public interest or some moral cause in pursuing particular proceedings. Whether acting in the public interest or to advance a moral purpose, whether charging the highest fees or acting pro bono and whether counsel or solicitor, legal practitioners have a duty to the client and to the court to be competent in their conduct of legal business.

The Court summarised the oral evidence of the wife’s former solicitor as follows:

56. Mr AK is a former solicitor of the wife’s and appeared in answer to a subpoena issued at the request of the husband. Mr AK gave evidence on the first day and his evidence was not challenged by Mr P or GG Lawyers.
57. Mr AK was admitted to practice as a legal practitioner in 2009 and commenced working in litigation in 2011. He had the carriage of the wife’s case from early 2021 until MM Lawyers ceased to act for the wife in about early March 2023.
58. Mr AK received a letter from the husband’s lawyers dated 13 August 2024 which set out the topics of questions that he would be asked about at the costs hearing to assist him in his preparation.
59. I am satisfied that Mr AK did his best to prepare for the hearing as requested by the husband’s lawyers.
60. In early 2021, the wife gave three hard drives to Mr AK. During the time Mr AK acted for the wife he extracted 146 emails from the blue hard drive and stored them in what has been referred to in the case as Folder 1. These are the emails, that by their descriptors indicate that Mr AK or someone under his direction had made an assessment that they would be helpful to the wife’s case. (It remains unclear to me what other documents were reviewed by MM Lawyers in circumstances where the blue hard drive was a back-up of the two silver hard drives).
61. On 15 March 2023, Mr AK provided the wife’s file to GG Lawyers, including the emails in Folder 1 and six recordings. To the best of Mr AK’s recollection, he told Ms AL at that time that documents relevant to the proceedings had not been disclosed to the husband and other respondents.
62. Mr AK conceded that a recording that was identified by the descriptor “[Mr UU] and barrister” should have triggered in his mind the very real possibility that the recording was privileged.
63. Mr AK made several admissions against interest. In the context of the process of disclosure in litigation, he was candid in admitting his ignorance of his obligations as an officer of the Court, and in particular, of the need to guard against reviewing material that may be subject to legal professional privilege inhering in someone other than his client. It seemed to cause him some surprise that appropriate systems needed to be in place to manage such matters. Mr AK conceded that at the time of giving evidence he “now” considered that his failure to turn his mind to whether a document may be privileged was a dereliction of his professional duties.
64. Mr AK said there were about 30 emails exchanged between himself and Mr P in October 2021. In particular, he confirmed that he had sent emails to Mr P attaching documents which he or other members of his firm at his direction had identified as being relevant to the proceedings on 5 October 2021 and 11 October 2021.
65. Mr AK admitted that he had failed to disclose relevant documents to the husband and the other respondents. Mr AK said that he failed to disclose the documents on the advice of Mr P. The documents were not only relevant but assessed to be beneficial to the wife’s case. Mr AK said that he received advice from Mr P on more than one occasion not to disclose relevant documents.[27]
66. There was no challenge to Mr AK’s evidence.

In addition to reproducing some exchanges in cross-examination between the wife’s barrister and Mr Kelly KC, counsel for the husband, the Court summarised the wife’s barrister’s oral evidence as follows:

74. Mr P relies upon two affidavits in these costs’ proceedings. The first affidavit was filed on 13 December 2023 and a second affidavit was filed on 3 July 2024. The first affidavit was annexed to his second affidavit.
75. By way of context, it is common ground that Mr AK sent an email to Mr P dated 11 October 2021 with 29 attachments in which certain documents had been identified as being helpful to the wife’s case. The documents were not disclosed to the husband and other respondents until 19 July 2023.
76. Mr P contended that he had no recollection of receiving the email from Mr AK dated 11 October 2021 until searching for it in November 2023, in response to a letter from the husband’s lawyers. This is despite the controversy erupting during the trial about late disclosure and in particular surrounding one of the attachments to that email, a document relied upon by the wife in her case, being an email chain dated 14, 21 and 23 December 2012 (“the December 2012 email chain”). In Venter (No 6),I accepted that Mr P did not recall reading the 11 October 2021 email and attachments (other than the December 2012 email chain) but found that it was inconceivable that he did not do so.
77. In restraining the wife from continuing to retain, among others, Mr P and GG Lawyers, I found that some of the attachments were protected by legal professional privilege and should have been returned, unread, to the owners of those documents being variously, the husband and the other respondents or others.
78. Mr P purportedly forwarded Mr AK’s original 11 October 2021 email to two other barristers who were retained in the case for the wife at the time. Neither of those barristers provided an affidavit in the costs’ proceedings, but according to Mr P the two other barristers could not recall reading Mr AK’s 11 October 2021 email and its 29 attachments save for one attachment, namely the December 2012 email chain, which they read and which I later found to be protected by legal professional privilege; and therefore, should not have been read by the wife’s legal representatives.
79. Mr P holds, among other qualifications, a Bachelor of Laws, and a postgraduate qualification. Mr P was called to the Bar in 2011.

…

112. Mr P denied telling Mr AK not to disclose relevant documents to the respondents. Mr P denied telling Mr AK not to disclose the emails on the hard drives. Mr P denied that he was involved in the process of disclosure.
113. The documents in question had been assessed to be helpful to the wife’s case and were provided to Mr P to assist in the drafting of the amended Points of Claim and when drafting the subpoena to VV Lawyers. Folder 1 contained documents which on their face were privileged. Mr AK told Ms AL during a handover that the documents in Folder 1 had not been disclosed.
114. During the costs’ hearing, objection was taken to any further questioning of Mr AK about the substance of the advice given by Mr P to Mr AK. The wife’s counsel was given leave to confer with Mr AK to ascertain what the substance of the advice was and if it was subject to privilege by the wife. The wife claimed privilege and the matter was not pursued. It was posited that it might have been the case that Mr P gave advice not to disclose the documents “until next week” and as such the advice would not have been improper.
115. Mr P argues that “[Mr AK’s] evidence should be understood as rejecting the proposition that [Mr P] gave any improper advice regarding the discharge by [the wife] of her duty of disclosure”.
116. I reject this contention and accept the husband’s submissions that “[t]he Court is being asked to accept that [Mr P] gave proper advice in relation to the discovery of relevant documents (despite there being no subsequent discovery until approximately 18 months later), after he denied giving such advice”. It seems to me that Mr P cannot have it both ways. He denied giving the advice not to disclose relevant documents. While it is argued by Mr P that Mr AK appeared to give conflicting evidence about whether that advice was given on more than one occasion, Mr AK was definite in his response that advice not to disclose was given by Mr P.
117. Mr P went further than merely denying he had given the advice; in his affidavit, he deposed to having had no involvement in the disclosure process.
118. Mr P said in his affidavit filed 3 July 2024 at [16]–[19]:
     16. In relation to this present matter, and in accordance with my usual experience in practice as a barrister, I was not briefed to consider whether the Wife had disclosed all documents which the Wife had a duty to disclose.
     17. I was not briefed to advise or provide assistance to the Wife to assist her to comply with her disclosure obligations or to review the disclosure that had been given by the Wife to advise whether or not it was complete.
     18. I understood that [MM Lawyers] had commenced the disclosure process and that [GG Lawyers] continued the process when the matter was transferred to that firm. I was not briefed to engage in the disclosure process.
     19. Accordingly, I did not make enquiries of which documents had and had not been disclosed in the proceeding.
119. Mr P does not say, for instance, that he gave some limited advice about some documents but, as the wife had not waived privileged, he was unable to state what that advice was.
120. Mr P was categoric in his denial of giving advice to Mr AK not to disclose relevant documents. In those circumstances it cannot be submitted on his behalf that he did give advice, but his advice was not improper.

In relation to the barrister’s liability for costs thrown away by the adjournment for the part-heard trial the Court found as follows:

173. Mr P sought to distance himself from the debacle that was disclosure. He suggested that he was not involved at all in that process even eschewing the concept that a barrister would have any role to play in the process of disclosure in litigation. Mr P is wrong. Counsel must, at the very least, take all reasonable steps to ensure that documents identified as helpful or unhelpful to a case have been disclosed in a timely manner. Not only did Mr P not do so in this case, he advised Mr AK not to disclose relevant documents.
174. There was nothing in Mr AK’s evidence that was inherently improbable or contrary to uncontradicted evidence or documents. Indeed, Mr AK’s evidence was not challenged in any respect by Mr P or GG Lawyers. Mr AK impressed as someone attempting to finally do the right thing by making admissions against interest and making appropriate concessions. I accept his evidence that Mr P advised him not to disclose relevant documents.
175. On 27 March 2023, Mr P was aware or made no reasonable attempt to find out that documents helpful to the wife’s case had still not been disclosed. Mr P was silent as to any potential impediment to the trial proceeding when the matter was set down for trial in July for ten days.
176. On 11 July 2023, Mr P informed the registrar at a compliance hearing that the wife had complied with her obligations of disclosure when he knew or made no reasonable attempt to find out whether this information was correct.
177. On 25 July 2023, Mr P misled the Court on a very serious matter that went to the very heart of whether he or any of the wife’s legal representatives were compromised by their access to privileged material. Mr P’s explanation for misleading the Court is that when he gave the repeated assurance to the Court that no other document in Folder 1, over which any claim for privilege might be made, had been read by him or anyone else acting for the wife, he did not mean to convey what he said but was instead intending to convey some narrower concept relating to a letter received from the husband’s lawyers on the morning of the 25 July 2023. I reject Mr P’s evidence. Mr P gave a categoric assurance to the Court. There was no caveat added to the assurance e.g., to the best of his recollection, or limiting himself to the particular matters raised in the letter. Mr P did not ask to stand down to check whether what he assured the Court was indeed accurate.
178. Indeed, Mr P took no steps to check whether the information he had categorically provided to the Court on 25 July 2023 was accurate. It was not until 23 November 2023, in response to a query by the respondents’ solicitors, that Mr P even checked his emails and then conceded that he had received the 11 October 2021 email from Mr AK attaching 29 documents, eight of which were subject to privilege and that he had forwarded that email and attachments to two other junior barristers. It was not until 3 December 2023, again in response to a query from the respondents, that he again checked his emails and conceded that he had received the emails (in fact he said it was only one email) dated 5 October 2021 which had attached 86 documents some of which were potentially privileged.
179. At the very least, Mr P’s conduct evinced a reckless indifference to the truth of the representations given to the Court and to his ethical and professional obligations more broadly. His conduct was exacerbated by the failure to correct the record promptly upon becoming aware that he had misled the Court. Further, Mr P did not volunteer to the respondents that his assurances to the Court on 25 July 2023 were wrong. The falsity of the claims was only uncovered as a result of the respondents’ persistence.
180. Had Mr P met his professional obligations on 25 July 2023 by checking that his assurances to the Court were correct, he would have discovered the falsity of his representations and the trial could have been adjourned then and there.
181. As to Mr P’s confident assertion on 25 July 2023, that “there was no way privilege could attach” to the December 2012 email chain, it became apparent during Mr P’s evidence, that there was no proper basis for his assertion to that effect. Further, having identified that the December 2012 email chain as an important document in the wife’s case, it was not disclosed until 18 months later.
182. The proper course of action in relation to the December 2012 email chain was for Mr P not to read the documents that he conceded were, on their face, subject to a possible claim of legal professional privilege, and return them to the respondents. Mr P contended that this was his own protocol. Having ignored his protocol, he should have at the very least, once he read the documents, disclosed that fact to the other parties, informed them that he had formed a view that the documents were not privileged and the reasons therefore, and if there was a dispute about his conclusion, have the Court decide the issue. That could have occurred in October 2021 and if Mr P was found to be incorrect in his conclusion (as he ultimately was) he would have been required to withdraw.
183. During the aborted part-heard trial in 2023, Mr P sought to overcome the deficiencies in the wife’s disclosure by assuring the Court that he intended to rely only on the documents annexed to the wife’s reply affidavit and to a tender bundle which had not been disclosed. Such a suggestion completely overlooked the whole purpose of the obligation to disclose documents relevant to an issue in the proceedings. Namely, there is an obligation to disclose all documents that may assist one’s own case or damage one’s own case. As it turned out, during the process of disclosure that occurred before the matter was adjourned, the wife did discover a document that may well be very helpful to her case. This was a written agreement dated April 2013 referred to in the proceedings as the “side agreement”. The side agreement was signed by the wife. This demonstrates the folly of ignoring the obligations of disclosure not only to the other parties but also to one’s own client. Mr P argues that the disclosure of the side agreement was itself a reason why the trial was adjourned because the respondents felt they may need to file “correcting evidence”. While this is in part correct, the fact remains that the issue only arose because of the late disclosure.
184. Mr P did not correct the misleading statement contained in his former solicitor’s letter, sent on his instructions on 6 December 2023, that only one email was sent by Mr AK to Mr P on 5 October 2021. He failed to make the correction despite having been aware of it for some time. It was not until he was cross-examined about it, that he conceded it was incorrect.

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202. I find Mr P’s conduct to have been improper and unreasonable in many respects. His conduct caused delay and considerable disruption to the orderly conduct of the Court’s own processes.
203. I find GG Lawyers’ conduct to have been improper and unreasonable in many respects. Their conduct caused delay and considerable disruption to the orderly conduct of the Court’s own processes.
204. I conclude that the circumstances do justify a costs order against Mr P and GG Lawyers and that the circumstances are extraordinary such as to warrant indemnity costs for the costs thrown away by the adjournment of the part-heard trial. Mr P and GG Lawyers should be liable for the wasted costs jointly and severally.

In relation to quantum, the Court found:

234. I find that not all costs claimed can be categorised as costs thrown away. While I accept that much of the preparation undertaken for the trial will have been wasted, I do not accept that all of it will have been wasted. Further, the first day was occupied with objections to evidence and on the second day, one witness commenced his evidence in chief.
235. I consider an appropriate fixed sum for the husband’s costs thrown away to be $400,000 and for the other respondent’s costs thrown away to be a fixed sum of $550,000.
236. I consider an appropriate fixed sum for the husband’s costs of the restraint application to be $150,000.
237. The other respondents were unsuccessful in their application to have the wife’s case against them dismissed. Their alternative application was to restrain the wife from retaining her lawyers. In those circumstances, I consider an appropriate fixed sum for their costs of the restraint application to be $150,000.
238. The costs claimed for the costs application while it occupied more time than the restraint application and the summary dismissal application, is an extraordinarily higher sum claimed in relation to the latter applications. It is not apparent to me why that would be the case.
239. I consider an appropriate fixed sum for the husband’s costs of the costs application to be $200,000 and for the other respondents a fixed sum of $250,000.
240. The total costs payable to the husband will $750,000 and the total costs payable to the other respondents will be $950,000.
241. As the husband first raised a claim for costs for the balance of the proceedings in his written submissions no application for those costs will be considered. As the costs sought against the wife were only if costs were not awarded against the legal practitioners, the balance of the applications will be dismissed.

In summary the Court held as follows:

244. I have found that Mr P and GG Lawyers engaged in improper and unreasonable conduct which caused significant costs to the husband and other respondents for which they should be liable jointly and severally. The conduct also caused significant waste of Court time and resources. Ironically, the conduct has also delayed the wife’s application from finalisation and the possibility of an award in her favour.
245. It is most troubling that several of the lawyers who have acted for the wife have such a muddled and incorrect understanding of the fundamental legal concepts of disclosure in litigation and legal professional privilege. It is even more troubling that the lawyers concerned have considerable experience in the law, either as a senior junior barrister, a partner or special counsel in a law firm. One can only ponder how it is that lawyers can advance so far into their careers with such a misapprehension of the fundamentals of litigation practice.
246. The administration of our justice system depends upon the integrity of legal practitioners and an understanding of basic principles in the litigation process. Lawyers have obligations to the courts, to their clients and to their opponents, to ensure that their clients understand and comply with their obligations to disclose information and documentation that is relevant to an issue in the proceedings in a timely manner. If the client rejects advice to do so, then the legal practitioner has no option but to withdraw.
247. If a document on its face appears to be protected by legal professional privilege, then it should not be read, it should be returned to the owner of the document immediately, all copies destroyed, and an enquiry should be made of other side if the document is relevant to an issue in the proceedings and if so whether privilege is claimed or waived. When claiming privilege, it is imperative that the description of the document provides sufficient detail to identify that the claim has a proper basis.
248. Despite my reasons for judgment in Venter (No 6), which I assume were read by Mr P and Ms AL, their evidence continued to demonstrate an extraordinary misapprehension of their obligations as lawyers.
249. I consider it appropriate to refer Mr P, GG Lawyers, Mr AK, and the legal practitioners listed in the order made on 28 February 2024, to the appropriate professional regulatory bodies for consideration of what, if any, investigations or disciplinary or educational process should be undertaken for those legal practitioners.
250. While Mr AK failed to fulfil his professional obligations when acting for the wife, he at least appeared to have learnt something from the experience that will hopefully stand him in good stead in the future. Mr AK was diligent in his preparation for giving evidence by reviewing the documents he was asked to by the husband’s lawyers. Mr P did not. That is regrettable. I do not accept his evidence that he did not have time to do so in circumstances where he was requested to review the documents in a letter from the husband’s lawyers dated 19 July 2024.

Link to the full decision is here.