ALEXANDER & INGRAM (No.2)

[2015] FCCA 3246

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALEXANDER & INGRAM (No.2) [2015] FCCA 3246

Catchwords:
COSTS – Family Law proceedings – application for costs – contravention proceedings – where Applicant in contravention proceedings wholly unsuccessful – where Application summarily dismissed – where written submissions made – parties’ financial circumstances considered – party and party costs ordered.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules Sch. 1, Part 1

Cases cited:
Alexander & Ingram [2015] FCCA 2194
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158; (2005) 33 Fam LR 109
Penfold v Penfold (1980) 144 CLR 311; FLC 90-800

Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544

Applicant: MR ALEXANDER

Respondent: MS INGRAM

File Number: BRC 8104 of 2008

Judgment of: Judge Scarlett

Hearing date: Considered in Chambers

Date of Last Submission: 2 September 2015

Delivered at: Sydney

Delivered on: 8 December 2015

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Mr Donaldson

Solicitors for the Respondent: BurnsLaw

ORDERS

1. The Applicant is to pay the Respondent’s costs fixed in the sum of $5,676.61 within six (6) months of the date of this Order.

IT IS NOTED that publication of this judgment under the pseudonym Alexander & Ingram (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

BRC 8104 of 2008

MR ALEXANDER

Applicant

And

MS INGRAM

Respondent

REASONS FOR JUDGMENT

Application for Costs

1. This is an Application for costs by the Respondent to an Application-Contravention, which was summarily dismissed by Order of this Court on 17 August 2015 (Alexander & Ingram[1]). The Respondent had sought her costs in the sum of $5,676.61, and, on dismissing the Application, I also made this Order:

   Within fourteen (14) days of the date of these Orders the Applicant is to file and serve a written submission setting out why he should not be required to pay the Respondent’s costs fixed in the sum of $5,676.61.

   [1] [2015] FCCA 2194

Submissions

1. The Applicant filed a written submission on 28 August 2015.

2. The Respondent’s solicitors wrote on 2 September 2015, objecting to the Applicant attempting to introduce further evidence.

3. In his submission, the Applicant asserted that the Respondent’s solicitor had erroneously claimed that there was no Order 15 in the Consent Orders that the Applicant sought to enforce. He went on to claim that the Respondent’s solicitor:

   “denied the existence of Order 15 during the court hearing on many occasions and falsely convinced the court in believing the same that the assertion was a mere fabrication. This argument carried a lot of weight in discrediting my contravention application before the court”.[2]

   [2] Applicant’s submissions page 2 at paragraph [3]

4. Also in his submission the applicant offered an explanation for his delay of 11 months between signing his application and filing it at the Court. He stated that he originally sought to file the Application at the Brisbane Registry but was advised to file it at the Sydney Registry instead. He was then told that he needed to apply for dispute resolution before the Court could hear the matter. 

5. Further, and more relevantly, the Applicant submitted that he does not have the financial means to pay costs amounting to $5,676.61. He wrote that he has credit card debts exceeding $35,000.00 and owes a further $637.00 to the New South Wales State Debt Recovery Office. He asserted that he is unable to renew the registration on his car or purchase new tyres for it.

6. The Applicant also stated that he pays child support at the approximate rate of $1,404.00 per month. He is repaying an overdraft of $500.00 per fortnight to the (omitted) Bank and pays rent in the amount of $900.00 per fortnight.

7. By comparison, the Applicant claims that the Respondent has over $20,000.00 in a fixed deposit account “and has the financial capacity to hire a solicitor”.

8. The Applicant claims that being required to pay an amount of costs in the sum of $5,676.61 would be likely to send him bankrupt and asks the Court to consider paragraph (a) of subsection 117(2A) of the Family Law Act 1975 (Cth), which requires the Court to have regard to:

   (a)    the financial circumstances of each of the parties to the proceedings.

9. The Respondent’s solicitors objected to the Applicant attempting to introduce further evidence into the substantive proceedings and sought the opportunity to file further submissions if the Court were not of a mind to make an order for costs.     

The law to be applied

1. The question of costs in proceedings under the Family Law Act 1975 is governed by the provisions of s.117 of the Act. Subsection 117(1) contains a general statement that, subject to certain other considerations, each party to proceedings under the Act should bear his or her own costs. However, subsection 117(2) provides that if the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection (2A) (and other subsections that are not relevant in this matter) and the applicable Rules of Court, make such order for costs as the Court considers just.

2. It should be noted that the High Court has held in Penfold v Penfold[3] at [12] that subsection (1) is not paramount to subsection (2) and must yield “whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs”.

   [3] [1980] HCA 4; (1980) 144 CLR 311; FLC 90-800

3. Subsection 117(2A) provides that in considering what order (if any) should be made under subsection (2), the Court shall have regard to the matters set out in paragraphs (a) to (g) of the subsection. Those matters are:

   (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.

4. It should be noted that there is nothing to prevent any one factor in s.117(2A) being the sole foundation for an order for costs (see PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL[4].

   [4] [2005] FamCA 158; (2005) 33 Fam LR 109

5. If the Court decides that there are circumstances that justify it in making an order for costs, what must then be decided is the quantum, or amount of costs to be awarded. It is the usual case that where costs are awarded against a party they are awarded on a party and party basis. Costs would normally be awarded in accordance with the Court scale, which in this case is contained in Part 1 of Schedule 1 to the Rules.

6. Costs will only be awarded on an indemnity basis (also known as a solicitor-client basis) where there are unusual or exceptional circumstances (see Colgate Palmolive Co v Cussons Pty Ltd[5]; In the Marriage of Kohan[6] and Prantage & Prantage[7] ).

   [5] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248

   [6] (1992) 16 Fam LR 245; (1993) FLC 92-340

   [7] [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544

Consideration

1. I note that there is an assertion by the Applicant that the Respondent is in a more favourable financial position than he is. This will be taken into account.

2. Neither party is in receipt of assistance by way of legal aid.

3. The Applicant took some time to file his Application and had some difficulties with procedural aspects, but no more than would be expected of a self-represented litigant.

4. Although the Applicant asserted that the Respondent had failed to comply with an earlier order of the Court, this was not established and his Application was dismissed.

5. The Application was summarily dismissed. The Applicant was wholly unsuccessful in the proceedings.

6. There is no evidence of any written offer to settle the proceedings and no other matters appear to be relevant.

7. The fact that the Applicant was wholly unsuccessful in the proceedings is sufficient, to my mind, to justify an order for costs.

8. What has to be considered now is the quantum of those costs. The Respondent seeks costs in the sum of $5,676.61, calculated in accordance with the scale of costs set out in Part 1 of Schedule 1 to the Rules. The Respondent is not seeking indemnity costs but party and party costs. The costs have been calculated correctly and there does not appear to be any reason why costs should not be awarded in that amount.

Conclusions

1. I note that the Applicant claims that he is in straitened financial circumstances. That is not, to my mind, a reason for costs not to be awarded but is a reason why the Applicant should be allowed time to pay.

2. I propose to order that the Applicant should pay the Respondent’s costs fixed in the sum of $5,676.61 and I will allow six months to pay.    

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 8 December 2015