Bergman and Bergman (No. 2)

[2008] FamCA 414

FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN (NO. 2) [2008 ] FamCA 414

FAMILY LAW – COSTS – Costs of Interim Proceedings

APPLICANT: MR BERGMAN

RESPONDENT: MS BERGMAN

POTENTIAL THIRD PARTY: MR SARINSSON

POTENTIAL FOURTH PARTY: MR PORTER

FILE NUMBER: MLF 5245 of 2003

DATE DELIVERED: 30 MAY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 30 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ST JOHN SC

SOLICITOR FOR THE APPLICANT: CAROLINE COUNSEL FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT: Mr GEDDES QC with Ms JOHNS

SOLICITOR FOR THE RESPONDENT: MARSHALLS & DENT

THE POTENTIAL THIRD PARTY: IN Person

SOLICITOR FOR THE POTENTIAL THIRD PARTY : N / A

COUNSEL FOR THE POTENTIAL FOURTH PARTY: MS NIKOU SC

SOLICITOR FOR THE POTENTIAL FOURTH PARTY: CAREW COUNSEL PTY LTD

Orders

IT IS ORDERED:

1. THAT the Case Guardian, on behalf of the husband, be authorised to disclose and provide a true copy to the Victorian Police, Australian Federal Police or the Fiji Police of the:

   (a)email dated Friday 4 March 2005, 11.34 a.m., from Mr Porter to Mr Lewin; and

   (b)documents produced to this court by Mills Oakley, solicitors pursuant to the subpoena dated 4 April 2005 issued to Mr Porter.

2. THAT the operation of this order be stayed until 1 July 2008 or until the date of hearing and determination of any Full Court Appeal that may be filed, whichever date last occurs.

3. THAT this order and these Reasons for Judgment (containing the whole of the email document identified in Order 1 hereof) be likewise restricted from publication outside of this court or circulation until the last of such future dates identified in order 2 hereof occurs.

IT IS CERTIFIED

1. THAT pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including Senior Counsel for each of the parties in this hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5245 of 2003

MR BERGMAN

Applicant

And

MS BERGMAN

Respondent

And

MR SARINSSON
Potential Third Party

And

MR PORTER
Potential Fourth Party

EX TEMPORE REASONS FOR JUDGMENT

1. I have in the matter of Bergman and the potential third party, Mr Porter, heard argument and delivered written reasons for judgment and handed down orders this morning.  This matter was before me on 19 and 20 May 2008.  Senior counsel appeared without junior for both parties.  Instructing solicitors were in court for all or at least the great majority of the proceedings.  The orders that I have pronounced are or should be clear in their effect and meaning.  Certain documents subject to an appropriate stay are available for a police investigation though that, of course, does not require the police to take any particular action and they may be satisfied from their own investigations that there is or is not any action further required by them.  The issue before me however, with judgment delivered is whether there should be any quantum of legal costs paid consequent upon that judgment. 

2. Mr St John who appears as Senior Counsel for the case guardian of the husband, seeks an order for costs on a party-party basis and ultimately his breakdown of costs is that a sum of $17,416 should be ordered to be paid by Mr Porter to his solicitors on behalf of his client.  Ms Nikou SC opposes any order for costs, and in any event if an order for costs were to be paid, challenges the quantum.  In essence the submission of Ms Nikou is that her client would be prejudiced by a costs order, that he was under no original obligation to deliver the documents and in any event had a right to silence, did not know the significance of the document and it was not required of him to then put before the court a detailed explanation as is now in affidavit form for his actions.

3. In the context of the costs judgment I most certainly do not look behind the reasons that I have published.  In determining any costs application the relevant section of the Family Law Act 1975 is section 117. The primary rule is that parties are to pay their own costs save if the opinion of the court is such that there are circumstances which make it just for an order for costs to be paid. In considering what is just and what costs orders should, if any, be paid, subsection (2A) sets out the particular matters of concern. In this case I am only generally aware of the financial circumstances of the parties the subject of this judgment. I well appreciate that Mr Porter has proceedings before the court opposing joinder which are part-heard.

4. Nevertheless he instructed his solicitor and counsel to contest the subpoena issue and to that extent has submitted to the court and its jurisdiction and is certainly liable, as I would find, for any costs order that may be just.  As to the financial circumstances I am generally aware of the W development, the quantum of dollars that are identified in various payments or transactions, and there is nothing in this case which would make me think that an appropriate, indeed a somewhat modest order for costs in the totality of this case could not be paid. 

5. Ms Nikou has highlighted that the husband is a man of very substantial financial means and would intend to say to the court that costs are unnecessary or unwarranted in his favour.  I bear that submission in mind but there is a lack of detailed financial evidence to support that scenario.  Clearly no party has Legal Aid.  I am aware of the conduct of proceedings.  I limit my observation to the specific subpoena issue that was the subject of this interim judgment.  There are many, many interim judgments to date and many more to come as this matter meanders through the court in complex interim and one day final legal issues.  My many previous extempore judgments have urged a level of commonsense, financially, upon the parties and others but that has had little or no impact and is not particularly a matter of relevance in this interim costs determination.

6. A requirement to consider the success in subparagraph (e) thereof, highlights the requirement to have regard to any outcome where a party has been wholly unsuccessful.  In that context I am particularly alert to the orders that I have pronounced.  In my considered judgment it is just that an order for costs be made. 

7. The more specific issue is as to the quantum.  I propose to fix a sum and not to send this matter to taxation.  To do so would be expensive and create significant further financial conflict and legal hearings.  I am also aware that the amended Rules now provide the facility to the court to certify for senior counsel in appropriate proceedings.  In this case senior counsel were engaged on both sides and in the orders earlier pronounced I did determine to certify for senior counsel.

8. As to quantum, Mr St Johns submission is that as senior counsel he should be allowed the Family Court top of scale quantum of $5,300 per day.  He seeks two days costs.  Ms Nikou submits that whilst the matter was listed on two days, there were other matters within the overall fabric of this case which were heard and addressed and which took time and that it would be inequitable to apportion the whole of two days for this particular hearing within this case.  Generally I think there is some merit in Ms Nikou's response.  I am particularly aware of the release of the wife and Mr Sarinsson and time in those issues, and on balance what is just is to allow one and a half days for Senior Counsel.  I propose to make that allowance, so that I will ultimately as part of these orders allow $7,850 in Senior Counsel costs of appearance. 

9. Generally, I want to record the fact that I am referring to schedule 3 to the Family Law Rules and in the 26th edition of the Cth Family Law Act (1975) consolidated to 8 August 2007. There appears a scale of charges that seemingly differs somewhat from the Butterworths publication and from what counsel have read and submitted therefrom. This 26th edition also differs from that which I have earlier read in the 25th edition. I proceed on the basis that the allowance for scale for senior counsel is the range of $1,749-$5,300. Similarly in respect of preparation I proceed on the basis that the range of recommended fees between $371-$636 per hour, Mr St John claims six hours, a total of $3,816. I am aware that the paragraphs in the written submissions dealing with the subpoena were extremely modest and were identified in the judgment. I am aware that this is one of a number of issues, and I propose to allow $1,000 only as a contribution to the costs that Mr St John might charge in that regard.

10. As to solicitors I again accept that this was a matter proper for solicitors to be in court to instruct senior counsel.  If the scale is $192 an hour, I will allow $2,300 for solicitors together with $300 for drafting and the incidental two hours as identified at $385.  On that basis and if my quick arithmetic is correct, the all up is $11,835, in lieu of the $17,416 as charged.   

11. In any event, and as a general overview I propose to order costs and to determine that a just and equitable amount, irrespective of the schedule of charges, but having regard to the conduct of the matter is as to the sum of $11,835.  I will order that amount to be paid by Mr Porter to the solicitors for the husband through his case guardian and stay the operation of that payment for a period of 60 days.

12. If it were there paid within that, or on that 60 day period I would make it perfectly clear that there would be no other applicable interest to that sum. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 17 June 2008