Ahmed and Abdou
[2018] FamCA 648
•17 August 2018
FAMILY COURT OF AUSTRALIA
| AHMED & ABDOU | [2018] FamCA 648 |
|
| APPLICANT: | Mr Ahmed |
| RESPONDENT: | Ms Abdou |
| FILE NUMBER: | PAC | 5203 | of | 2017 |
| DATE DELIVERED: | 17 August 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | By Written Submission |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Withstand Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Ross Hill & Associates |
Orders
That the wife pay the husband’s costs of and incidental to the application determined by order made on 1 June 2018 and of this costs application such costs to be as agreed within one month from this date or otherwise as assessed.
That such costs be paid by the wife to the husband or as he may otherwise direct in writing within one month from the date of final orders for property adjustment.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahmed & Abdou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5203 of 2017
| Mr Ahmed |
Applicant
And
| Ms Abdou |
Respondent
REASONS FOR JUDGMENT
The application for determination is the husband’s application for costs arising from an order made on 1 June 2018 dismissing the wife’s application that sought an order restraining the husband’s solicitors from continuing to act for him.
These reasons for judgement assume familiarity with reasons for judgement delivered on 1 June 2018 in respect to that application: Abdou & Ahmed [2018] FamCA 396.
Costs
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are as follows:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party has legal aid and the terms of any grant of aid;
(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 answers, 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.
In Collins & Collins (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.
In Greedy & Greedy (1982) FLC 91-250 and Luadaka & Luadaka (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:
17.With respect to the application of the section, in Penfold v Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".
Sub-section (2) 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 (Kent v Kent). 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.
(footnotes omitted)
18.The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) which states:
Method of calculation of costs
(1)The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the court said at [10] that the court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.
Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748:
130.If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
As to the relevant considerations referred to above:
a)the parties are presently engaged in contested property proceedings and neither contends impecuniosity such as would be a consideration in the context of the present application for costs. The wife however asserts that her present circumstances reveal an incapacity to pay. Such would not be the case following the conclusion of property proceedings;
b)neither party is in receipt of a grant of legal aid;
c)neither party makes complaint as to the conduct of the other in the general conduct of the application;
d)neither party asserts non-compliance with any previous court orders;
e)the husband contends in the context of the discrete application for determination that the wife was wholly unsuccessful in her application to restrain the husband’s solicitors from further acting. Such is indeed the case. The Reasons for Judgement referred to above include the following:
30. It is not readily apparent in the circumstances of this matter that the solicitors fall within any category referred to in Osferatu (supra) such as would require the Court to restrain them from acting for the husband or that the solicitors have breached any of their legal or ethical obligations as to the avoidance of bias or conflict of interest.
31. There is no submission from the wife that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioners should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
32. Indeed, as the authorities emphasise, the relief sought by the wife is exceptional and is to be exercised with caution.
33. The wife may feel offended that friends of both her and the husband choose to act for her husband. Such is not a disqualifying circumstance.
f)there are no relevant offers of settlement; and
g)there are no other relevant matters for consideration.
In all of the circumstances it is appropriate that there be an order that the wife pay the husband’s costs of and incidental to the subject application on a party/party basis. The order for costs as ultimately assessed will be a charge as against the wife’s ultimate property entitlement.
The husband seeks an order for costs “exceeding but say $10,000” together with counsel’s fees totalling $6,875 being in all the sum of $16,875. It would appear that such quantum is in the circumstances of this discrete application excessive such as would warrant the quantum being determined by way of assessment in the normal way.
There will be an order that the wife pay the husband’s costs of and incidental to the application determined by order on 1 June 2018 either as agreed between the parties within one month of the order or as ultimately assessed with such payment to be made within one month of the conclusion of the parties’ property proceedings.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 August 2018.
Legal Associate:
Date: 16 August 2018
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