ARNOT & RANCE

[2015] FCCA 889

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARNOT & RANCE [2015] FCCA 889

Catchwords:
FAMILY LAW – Costs – self represented litigant – cost scale not appropriate.

Legislation:

Family Law Act 1975

Federal Circuit Court Rules 2001

Applicant: MS ARNOT

Respondent: MR RANCE

File Number: MLC 1862 of 2011

Judgment of: Judge McGuire

Hearing date: 7 April 2015

Date of Last Submission: 7 April 2015

Delivered at: Melbourne

Delivered on: 24 April 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Solicitors for the Respondent: Self Represented

ORDERS

1. Mr Rance pay Ms Arnot’s costs of these proceedings to be fixed in the sum of $1,070.45 such payment to be made within 28 days of the date of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Arnot & Rance is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1862 of 2011

MS ARNOT

Applicant

And

MR RANCE

Respondent

REASONS FOR JUDGMENT

1. The application before me is by Ms Arnot seeking costs against the respondent, Mr Rance, in a quantum of $15,061.45. The costs claim relates to two separate applications, firstly being the applicant’s application to discharge parenting Orders with respect of the parties’ one child, [X] born [in] 1997 (age 17 years) (“the child”) and secondly, the most recent of numerous contravention applications brought by

   
   

   Mr Rance and dealt with by this Court.

2. Effectively, the application is based on Mr Rance’s non-prosecution of his last contravention application on 20 November 2014 and

   
   

   Ms Arnot’s substantive application which proceeded undefended on 23 February 2015. That application was to dismiss all extant parenting Orders in respect of [X].

3. It is proper to note in these reasons that the proceedings in respect of [X] have been regular and frequent since she was an infant. I myself have dealt with numerous contravention applications between these parties. As indicated, [X] will soon turn 18 years and it is not unfair to observe that her childhood has being highlighted by litigation between her parents.

4. In the two relevant applications grounding the current costs application Ms Arnot has represented herself. She says, however, that she bases the quantum of cost sought on the scale set out in the Federal Circuit Court Rules 2001. She says that she has expended some $600,000 overall in costs in respect of family law matters.

5. Ms Arnot relies on an affidavit sworn 16 March 2015 in support of this application.

6. The application for costs is opposed. Mr Rance has also filed an affidavit affirmed on 2 April 2015.

The Relevant Law

1. Matters of costs are dealt with under section 117 of the Family Law Act 1975 (“the Act”). S.117(1) provides a general rule that each party to proceedings shall bear his or her own costs subject to s.117(2), s.117AA and s.118.

2. S.117(2) gives discretion in the Court to make an Order for costs if there are circumstances justifying it doing so.

3. S.117(2A) sets out the matters that the Court shall have regard to in determining what, if any, Order for costs is to be made. These are mandatory considerations to be referenced in any exercise of the Court’s discretion. They 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, admission 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. The authorities make it clear that the Court has a wide discretion when determining an application for costs subject to making findings of justifying circumstance. Nevertheless, there is no particular onus on the applicant for a costs Order convincing the Court to make any preliminary findings of special or exceptional circumstances.

Consideration and findings.

1. The applicant says that a costs Order is justified on the basis of her being required to defend and prosecute the respective applications without the applicant either prosecuting his own application to its conclusion or actively defending the substantive application.

2. The wife is employed as a [occupation omitted] and admits to an income of some $190,000 per annum. The husband is employed as a part time legal practitioner and university law lecturer. His admitted income allows me to find that he has the capacity to meet any award for costs in the quantum sought by the applicant.

3. Neither party is in receipt of legal aid.

4. The applicant relies in her application to a large degree on the conduct of the respondent. She says in respect to each of the applications the respondent, as a legal practitioner, might have given both the Court and her the courtesy of advising that he did not intend to defend/prosecute the application. She says that this caused her cost in preparation of her arguments and utilised Court time that might have been made available to other litigants.

5. Significantly, the applicant at all times acted for herself in respect of the two relevant applications. The Court file does not disclose her affidavits being prepared or settled by legal practitioners. Ms Arnot’s affidavit, however, deposes that she obtained legal assistance in preparation of her materials and arguments and “engaged legal Counsel by direct access brief to attend to these matters”.[1] She says that her actual incurred and paid legal costs and disbursements amount to $32,220.50 but she now claims only in accordance with the scale as set out above.

   [1] Affidavit (Ms Arnot) sworn 16 March 2015, paragraph 5

6. Mr Rance concedes that he did not attend at Court to prosecute his own application or to defend that of Ms Arnot. He says that he was suffering stress from the ongoing and lengthy litigation involving his daughter.

7. Ms Arnot argues that she was wholly successful in respect of both relevant applications.

8. This is not a matter in which offers of settlement are relevant.

“Other Matters”

1. I agree with Ms Arnot that the failure of the husband as a legal practitioner to attend Court and without explanation is something that the Court should consider in respect of public policy and the use of the Court’s scarce resources.

2. There is some merit to Ms Arnot’s application. She was successful in having the contravention application brought by Mr Rance being dismissed and also in respect of her own substantive application, both on an undefended basis. There is some culpability, in my view, to the behaviour of Mr Rance, and particularly as a legal practitioner, in simply not prosecuting his own application or giving notice that he did not intend to defend Ms Arnot’s application. Court resources are limited and the public purse is impacted by any application coming on for Trial. Put simply, both of these matters could and should have been settled prior to the listing dates. As such, there are circumstances which would justify the making of a costs Order against Mr Rance.

3. Nevertheless, I have some difficulties in quantifying the costs sought by Ms Arnot. She has clearly not engaged a solicitor on the record to act in these proceedings. The affidavit material does not disclose affidavit material being prepared or settled by a legal practitioner. The Bar Practice Rules might cause some difficulty in her justifying any “direct brief” arrangement with a member of the independent bar. In this sense, and noting that the scale for costs in the Rules is perhaps more a guideline than a mandatory award, I am offered little assistance in quantifying Ms Arnot’s costs by reference to those scales. Those scales clearly envisage work by a solicitor or Counsel. Further, however, there is no material before me with any particularisation as to the costs incurred by Ms Arnot and hence it is not possible to be satisfied as to the justification of the claimed costs. Ms Arnot simply provides me with an in globo figure. In my view, where costs of legal representatives are claimed and particularly given the unusual aspects of this matter where there is no solicitor on the record, there is an obligation on the applicant to justify the costs claimed. I cannot be satisfied on the evidence before me that such costs are justified and, in any event, they were unparticularised. Any Order for costs must be justified and it is not for the Court to arbitrarily allocate a figure. In this respect, I understand the cost scale (relied on by Ms Arnot) to relate to the relationship between solicitor and client. Certainly the scale does operate as a “compensatory” mechanism for effort or time spent by a lay person who is self-represented.

4. Consequently, I do not feel able to make an award for costs in favour of Ms Arnot for any work completed on her behalf by legal representatives.

5. There remains, however, the issue of the disbursements claimed. They are particularised in her affidavit and by annexures as a filing fee ($410), setting down fee ($560) and the scale fee for photocopying (287 pages- $100.05). The filing fee and setting down fees are set by the Court. The photocopying costs are reduced from the scale fee of 69 cents per page to a claimed 35 cents per page. I consider this to be a reasonable expenditure.

6. I am satisfied that it is appropriate that there should be a costs Order whereby Mr Rance pay the disbursements incurred by Ms Arnot in respect of the two relevant applications in a total quantum of $1,070.45.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  24 April 2015