Caetani & Caetani - [2008] FamCAFC 40

FAMILY COURT OF AUSTRALIA

CAETANI & CAETANI

[2008] FamCAFC 40

FAMILY LAW - APPEAL AGAINST DECISION OF FEDERAL MAGISTRATE – COSTS – Where the Federal Magistrate had made an order that the husband pay the wife’s costs arising out of property settlement proceedings but without issuing formal reasons for judgment in relation to that order – Reasons for certain components of the costs order ascertainable from the transcript of the hearing of the wife’s application for costs – Such components of the order not disturbed on appeal – Merit found in the husband’s appeal with respect to the Federal Magistrate’s failure to give reasons for granting the wife’s claim for costs incurred due to the husband’s alleged failure to make full and frank disclosure – That particular claim remitted to Federal Magistrate for re-hearing should the wife wish to pursue it – Wife’s application for the costs of the costs application dismissed as the husband is no longer wholly unsuccessful in the wife’s costs application.

FAMILY LAW - APPLICATION FOR EXTENSION OF TIME TO APPEAL – Allowed on basis that merit was found in the husband’s appeal and the husband has a reasonable excuse for the delay in filing his notice of appeal.

Family Law Act 1975 (Cth)

Gallo v Dawson (1990) 93 ALR 479
House v The King (1936) 55 CLR 499
Harris and Harris (1991) FLC 92-255
Penfold v Penfold (1980) FLC 90-800

APPELLANT:

Mr Caetani

RESPONDENT:

Ms Caetani

FILE NUMBER:

CAM

1009

2003

APPEAL NUMBER:

2006

DATE DELIVERED:

9 April 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn J

HEARING DATE:

14 November 2006

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 April 2006

LOWER COURT MNC:

REPRESENTATION

THE APPELLANT:	Appeared on his own behalf
THE RESPONDENT:	Appeared on her own behalf

Orders

That the husband be granted an extension of time until 4 September 2006 to file a notice of appeal against the order made by Federal Magistrate Brewster on 11 April 2006.
That the appeal by the husband against the order made by Federal Magistrate Brewster on 11 April 2006 be allowed in part.
That the order made by Brewster FM on 11 April 2006 be varied to read:
1.That the husband pay the wife’s costs in the sum of $3,912 comprising: the sum of $1,647 (being the reserved costs of the conciliation conference and directions hearing on 17 March 2004); the sum of $399 (being the costs assessed to be payable under the order for costs “thrown away” made by consent on 3 May 2004); the sum of $524 (being the reserved costs of an application for an adjournment on 3 February 2005); and the sum of $1,342 (being the wife’s costs of and incidental to the application filed by the husband on 14 December 2005).
That the application by the wife for costs incurred in relation to the husband’s alleged failure to make full and frank disclosure be remitted for re-hearing by Federal Magistrate Brewster, subject to the wife notifying the Associate to Federal Magistrate Brewster that she wishes to pursue that application.
That the application by the wife for the costs of her application for costs instituted by the response filed on 25 January 2006 be dismissed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 95 of 2006
File Number: CAM 1009 of 2003

Mr Caetani

Appellant

And

Ms Caetani

Respondent

REASONS FOR JUDGMENT

This is an appeal by the husband against an order made by Brewster FM on 11 April 2006 in relation to the costs arising out of property settlement proceedings between the husband and the wife (which his Honour had determined by orders made on 11 November 2005). The terms of the costs order made on 11 April 2006 are:
1. That the husband pay the wife’s costs in the sum of $10,833.00.
On 4 September 2006 the husband filed a notice of appeal against that order, together with an application to extend time to file the notice of appeal and a supporting affidavit.
The husband’s application for an extension of time came before me on 11 October 2006. On that date I made orders providing that the application for an extension of time be adjourned for hearing together with the hearing of the appeal.
On 14 November 2006 the application for an extension of time to appeal and the appeal came before me as a single Judge for hearing pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).
At the hearing on 14 November 2006 both parties appeared without legal representation. The matter was made more difficult for the reason that not only did his Honour not deliver any formal reasons for the costs order which he made on 11 April 2006, but also because the parties being both without legal representation were unable to offer any real assistance in relation to the material which was before his Honour when he made his decision. The parties’ lack of familiarity with such material would appear to have come about because the husband (although initially represented) had become unrepresented certainly by the time of the trial before his Honour in September 2005, and then did not participate fully in the costs proceedings which were conducted before his Honour in the period January – April 2006. So far as the wife was concerned, those costs proceedings, which were not without some complexity, had been conducted by her solicitor and their Canberra agents, and as I have said, by the time of the husband’s appeal, she too was unrepresented.
In these circumstances, I made directions at the conclusion of the hearing on 14 November 2006 for the parties subsequently to file any material which might be of assistance in the determination of the appeal.
No such material having to date been filed, it became necessary for me to endeavour to determine this appeal on the basis of material which the court file indicates the parties filed subsequent to 11 November 2005 (when the property settlement orders were made) and which the transcripts of hearings before his Honour on 21 March 2006 and 11 April 2006 indicate was before him on those occasions.

The application for an extension of time to appeal

Under the Family Law Rules 2004, the husband was required to file his notice of appeal within 28 days of the date of the costs order being made - that is, by 11 May 2006. However, as already mentioned, the husband’s notice of appeal was not filed until 4 September 2006, that is, some four months out of time.
In the affidavit filed in support of his application to extend time to appeal, the husband provided the following explanation for his delay:
On 11^th November, 2005 I was ordered to pay [the wife] the sum of $96,000.00 by way of property settlement. That amount plus interest was paid in March, 2006.
There was no order for the payment of costs included in the original order.
I later became aware that an application for costs was being made by [the wife] and I appeared at the court in Canberra in response to the application.
The matter was adjourned and around that time I was also the sole carer for my elderly parents, and I found it very difficult to respond formally to the application. In particular, my father was very ill and in fact passed away in May, 2006.
I believe that I have a valid defence to the application for costs and I seek leave to lodge an appeal against the decision to award costs.
As I noted in ex tempore reasons for judgment which I delivered on 11 October 2006 (in relation to my decision to hear the husband’s application to extend time together with the appeal), I recognise that following the death of a parent one’s own affairs will often be put on hold, so to speak. Accordingly, I do not find the delay of four months on the husband’s part in these circumstances to be unreasonable.
However, it is not sufficient for me to determine that the husband had a reasonable excuse for the delay in filing a notice of appeal. I must also consider whether the appeal is likely to have any substance. As I mentioned at the outset of these reasons, one of the difficulties in this case is that no formal written reasons for judgment were delivered (either on an ex tempore or reserved basis) by Brewster FM in relation to the costs order made on 11 April 2006. It is necessary to look to the transcript of the proceedings on that date to determine whether some reasons were in fact given by his Honour for the order made that day, and thus whether or not there is any basis on which an appeal court could or should interfere with his order.
Given that the appeal is also before me for hearing (in the event that the extension of time is granted), it will be most convenient in this case if I proceed first to determine whether there is merit in the appeal. If I find that there is merit in the appeal, then I will need to determine whether overall the interests of justice require that I grant the husband the extension of time to allow the appeal. (See Gallo v Dawson (1990) 93 ALR 479.)

Issues raised by the husband on appeal

It will also be convenient to refer next to the husband’s complaints concerning the costs order made against him, and to do so before explaining the background to, and the circumstances surrounding, the making of the costs order.
In his notice of appeal, the husband sets out his grounds of appeal in the following way:
On the 11^th of November 2005, [Federal Magistrate] Brewster ordered me to pay $96,000.
I paid the full amount plus interest in March 2006. $99300 was paid to [the wife].
There was no order for me to pay the solicitor’s cost of [the wife] in the original order.
As far as I was concerned all dealings between myself and [the wife] were final, and the court did not require me to pay anything further.
I am appealing the order that was sent to me on 11 April 2006, requesting that I pay legal costs for [the wife] of $10883.
It was my understanding that all legal costs incurred were the responsibility of the party who incurred the costs. Therefore [the wife’s] costs are her responsibility.
My father passed away in May 2006, and I was his sole carer leading up to his death. This was a very difficult time and I was unable to respond formally to the demand to pay earlier, I did however call her solicitor, informing him that I would not pay. I feel that it is not my responsibility to pay her costs as she was the one who incurred the charges. I am not asking her to pay my costs. The legal costs owing to the solicitor is two thirds the amount I paid to her as required by court order, if she was expecting more that is her problem. If I was required to pay the legal fees incurred by [the wife] why wasn’t it included in the order issued on the 11^th November 2005. I have had to take out a 2^nd mortgage on my house and have no further equity available to fund the request to pay these costs.
The husband goes on to seek the following order:
That I do not have to pay the sum of $10833 as requested by Magistrate Brewster on the 11^th April 2006 as these costs were incurred by [the wife] and not by myself. This is not just and equitable.
In addition to the grounds set out in his notice of appeal, the husband prepared some short written submissions which he handed up at the hearing before me on 14 November 2006.
While the husband’s grounds of appeal are not set out in a conventional form, when considered together with his oral and written submissions, it is apparent that his essential complaints are as follows:
·that the costs order was made subsequent to the delivery of judgment by Brewster FM in relation to property settlement;
·that there were no reasons provided for the costs order made against the husband; and
·that the costs order was not just and equitable.

background to and circumstances of the making of the costs order of 11 april 2006

On 11 November 2005 Brewster FM delivered reasons for judgment and made orders in relation to property settlement proceedings between the husband and the wife following a one day hearing of the proceedings on 20 September 2005. The effect of his Honour’s orders was to divide property, which he found to have a net value of $384,700, seventy-five per cent to the husband and twenty-five per cent to the wife. Under his Honour’s orders, the husband was required to pay the wife the sum of $96,000 within 30 days.
Brewster FM’s judgment made no reference to the costs of the proceedings, and no order for costs was made by him at that time. I would at this point explain to the husband that this is not unusual. Indeed to the contrary, it is quite usual for an application for costs in relation to property settlement proceedings to be made after the delivery of the judgment in those proceedings. Thus there can be no substance in any complaint by the husband that his Honour did not refer to the matter of costs or make a costs order in his judgment of 11 November 2005.
The court file (to which, as already mentioned, I have had to resort in order to determine this matter given that both parties are now self-represented and able to provide me with virtually no background documents) reveals that on 14 December 2005 the husband filed an application apparently seeking a three-month extension of time in which to pay the wife the required sum of $96,000. This is made clear by an annexure to the supporting affidavit to the husband’s application in which he stated:
I … request the urgent court approval on a judgement handed down by Judge Brewster [sic] on the 11^th November 2005. This order requested that I pay the sum of $96,000 to [the wife] within 30 days. I received this on the 16^th November 2005. I am unable to pay the full amount by the due date, as I need to gain bank approval for a second mortgage.
I urgently ask the court to extend this period to within three months, thus allowing me time to organise a bank loan to pay this amount. I propose to pay the full amount on the 9^th March 2006.
Please contact me as soon as possible in regards to this request.
A copy of this letter will be posted today as well.
That application by the husband was given a return date of 30 January 2006 by the registry of the Federal Magistrates Court.
On 25 January 2006 the solicitor then acting for the wife (Mr Geddes) filed a response to the husband’s application filed 14 December 2005 (with supporting affidavit by Mr Geddes). A copy of the response was apparently sent to the husband under cover of a letter dated 24 January 2006. In summary, the orders sought on behalf of the wife in the response document were:
·    that the husband’s application (for an extension of time to pay the amount due under the property settlement orders) filed 14 December 2005 be dismissed with costs, and that the husband pay interest at the prescribed rate as from 9 December 2005 on the amount outstanding under the property settlement order;
·    that the husband pay the costs which were reserved on 17 March 2004 at what was apparently a conciliation conference for the property settlement proceedings and at which further directions were made;
·    that the husband pay certain “thrown away” costs which were the subject of a consent order made on 3 May 2004 at a time when the husband was represented;
·    that the husband pay costs allegedly reserved in the wife’s favour on 3 February 2005;
·    that the husband pay the wife’s costs “with respect to work required to be carried out by the wife’s solicitors due to the husband’s non disclosure in the substantive proceedings” and to the husband’s “refusing to co-operate as far as valuation of the matrimonial home”.
When the matter came before Brewster FM on 30 January 2006, there was, according to the court file, an appearance by a solicitor on behalf of the wife, but no appearance by the husband. His Honour adjourned the matter until 20 February 2006.
On 15 February 2006, the wife’s solicitor (Mr Geddes) filed a further affidavit in which more detail was provided in support of the claim for the costs incurred on account of the husband’s alleged non-disclosure and of the valuation disputes in the property settlement proceedings, and to which was also attached then recent correspondence between Mr Geddes and the husband.
When the matter came before Brewster FM on 20 February 2006 the husband appeared in person and a solicitor, Ms Simpson, appeared (as agent for Mr Geddes) on behalf of the wife. On that day orders were made by consent extending the time for the husband to pay the monies due under the property settlement order, but also providing for interest to be paid as from 20 February 2006. The wife’s application for costs was adjourned until 21 March 2006.
On 15 March 2005 yet another affidavit was filed by the wife’s solicitor, Mr Geddes, to which was annexed a schedule of the costs claimed, being in summary:
1.   17 March 2004 – costs reserved - $2,434,51.
2.   3 March 2004 – costs order in favour of the wife - $791.47.
3.   3 February 2005 – costs reserved - $998.02.
4.   Costs incurred due to husband not making a full and frank disclosure - $4,438.20.
5.   Costs sought in relation to husband’s application to extend time for payment of $96,000 due by way of property settlement - $3,555.34
_______________
Total:    $12,217.54
When the matter came before the court on 21 March 2006, Ms Simpson again appeared for the wife and the husband appeared by telephone. The husband had on that date filed a brief affidavit in which he can be read as effectively disputing any liability for costs.
It appears from the transcript of the hearing on 21 March 2006 that his Honour was concerned that the matter could not be adequately dealt with in the short time available to him that day. There were also concerns that the husband would not have seen the submissions which had been prepared in support of the wife’s claim for costs and which were before his Honour – although he was somewhat critical of their format.
It would be fair to say that the husband’s attitude on 21 March 2006 as to whether he wished to participate further in the costs proceedings was somewhat ambivalent, but ultimately it seems clear that he did not wish to participate and that is how his Honour understood the position (as is clear from the transcript of 11 April 2006). In the event, his Honour adjourned the proceedings on 21 March 2006 until 11 April 2006.
Prior to the adjourned hearing on 11 April 2006, the husband filed a one page submission, dated 30 March 2006, in which he stated that he had on 28 March 2006 paid to the wife the sum of $96,000 together with interest of $3,100. The balance of his submission can be read as indicating that he resisted having to make any further payment by way of costs.
Also prior to the hearing on 11 April 2006, the solicitor for the wife had filed detailed submissions, dated 4 April 2006, in support of the application for costs.

The hearing and the orders made on 11 april 2006

At the hearing on 11 April 2006, Ms Simpson appeared for the wife, but there was no appearance by or on behalf of the husband. It can be seen from the transcript of the hearing that his Honour examined closely with Ms Simpson the submissions filed on behalf of the wife, and ultimately arrived at a sum of $10,833.00, which he then ordered that the husband should pay.
It will be seen from passages of the transcript of the hearing on 11 April 2006 (which I will later set out), that the amount of $10,833 comprised the following items:
·    $1,646.73 on account of an aborted conciliation conference on 17 March
2004.
·    $398.83     on account of a order for costs “thrown away” made by consent
on 3 May 2004.
·    $523.80     on account of an unsuccessful application by the husband on 3
February 2005 for an adjournment of the property settlement proceedings.
·    $4,438.20 on account of costs incurred by the wife on account of the
husband not making a full and frank disclosure and disputes concerning valuation.
·    $1,342.44 on account of costs associated with the husband’s application to
extend time to make the payment due under the property settlement order.
·    $2,482.75 on account of costs incurred by the wife in making the
successful application for costs.
_________
$10,832.75

As mentioned much earlier in these reasons for judgment, his Honour did not deliver any formal reasons for his order for costs made on 11 April 2006. It is thus necessary to resort to the transcript of the hearing to determine his Honour’s reasons for the order which he made, although the transcript and the passages from it which I will later set out, are only intelligible if read together with the wife’s written submissions which were before his Honour. I therefore annex to these reasons for judgment, a copy of those submissions.

Principles governing costs in the proceedings under the family law act

Before considering in detail the transcript of the proceedings of 11 April 2006 in order to ascertain whether his Honour may have been in error in making the order for costs which he made, I will endeavour to explain for the benefit of the parties the legal principles which govern both his Honour’s decision to order that costs be paid by the husband, and also my power, as an appeal court, to interfere with his Honour’s costs order.
The general rule in relation to costs in family law proceedings, as contained in s 117(1) of the Act, is that each party bears his or her own costs unless the court is of the opinion that there are circumstances which justify the making of a costs order, having regard to various factors contained in s117(2A).
The precise terms of s 117 are as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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.
A decision made by a trial Judge or Magistrate either to order that costs should be paid by one party or that there should be no order for costs, is what is known as “a discretionary decision”, and as such can only be interfered with by an appeal court in very limited circumstances (see House v The King (1936) 55 CLR 499 at 504-5). It is well recognised in this jurisdiction that a decision in relation to costs is particularly a decision which is within the discretion of the trial Judge or Magistrate and it is only in the rarest of cases that an appeal court should interfere (see Harris and Harris (1991) FLC 92-255).
In the present case the only basis on which an appeal court could, in my opinion, interfere with Brewster FM’s decision to make the costs order which he did, would be on the basis of two matters, which are in fact related, being the need for the court to be seen to have had some regard (even impliedly) to the provisions of s 117 of the Act and the need for the court to give adequate reasons for its decision – although the obligation to give reasons for a decision in relation to costs is limited (see Penfold v Penfold (1980) FLC 90-800).
It should also be explained that if an appeal court concludes that there has been an appealable error on the part of a Federal Magistrate, it may make the decision which in the opinion of the appeal court should have been made by the Federal Magistrate at first instance, or it may order a re-hearing (see s 94AAA(6) of the Act).

an examination of the federal magistrate’s reasons for the costs order of 11 april 2006

The transcript of the hearing on 11 April 2006 shows that his Honour dealt sequentially with the five items listed in the schedule attached to Mr Geddes’ affidavit filed 15 March 2005, and then finally as a sixth item the costs of the application for costs which was before him. It will be seen from the annexure to these reasons that that was also the sequence followed in the wife’s written submissions, and it will be the sequence which I will follow in examining his Honour’s reasons for the costs order which he made.

(1) The reserved costs of the conciliation conference/ directions hearing of 17 March 2004

The background to the wife’s claim for costs in relation to the proceedings which were before a Registrar on 17 March 2004, and in relation to which his Honour ultimately awarded the wife $646.73, was explained in the following way in the wife’s submissions which were before his Honour on 11 April 2006:
1.This was the third Conciliation Conference allocated to the parties in this matter with the husband seeking adjournments of the two prior Conferences. At that point, the husband still had not filed any documents in response to the wife’s Application, despite directions having been made on 8 September 2003, for the husband to file his documents within twenty-one days of that date.
2.The husband did not attend the conference, although solicitors acting as agents for the husband’s solicitors were present. The Conference could not proceed as the husband had not filed material or produced documents by way of discovery/ disclosure.
3.Detailed Directions were made on 17 March 2004, including that the husband was to file all documents within 21 days of that date.
4.The Wife’s Costs of the Conference were reserved.
I note here that the record of proceedings on the court file confirms what is asserted in the wife’s submissions as to what happened in the proceedings on 17 March 2004.
As the following passage of the transcript of 11 April 2006 shows, his Honour discussed at some length with the solicitor representing the wife this first claim for costs by the wife. Notwithstanding the length of the passage, it is necessary to set it out (Transcript pp 2 - 5):
FEDERAL MAGISTRATE: … Now, this is the first claim for 993.47.
MS SIMPSON: That's the professional element. Then there's disbursements, your Honour, on the next page, a total of - - -
FEDERAL MAGISTRATE: I'm sorry, I didn't catch what you said. You - - -
MS SIMPSON: Professional fees plus disbursements. The total is at paragraph 8 on the next page, 1646.73.
FEDERAL MAGISTRATE: Okay.
MS SIMPSON: I've treated our agency fees throughout, your Honour, as a separate disbursement.
FEDERAL MAGISTRATE: All right. Now, that relates to - - -
MS SIMPSON: It's all under the same date of the conciliation conference on 17 March 2004.
FEDERAL MAGISTRATE: Why is it - what puzzles me - I'd better have a look at Mr Geddes's annexure A of his first affidavit. The only thing that I wondered about that was - looking at it - was why such a large amount of time, 3.16 hours, was spent. The conferences were aborted.
MS SIMPSON: I go back a step, your Honour. It may not be clear. The charges detailed by Mr Geddes in his material have been based on the Family Court scale.
FEDERAL MAGISTRATE: Well, that's the way it has to be, yes.
MS SIMPSON: And our charges I've - as I said, have treated as disbursements and they've gone as to - - -
FEDERAL MAGISTRATE: Yes, I realise that but what I see at 5(iii)(c).
MS SIMPSON: Yes.
FEDERAL MAGISTRATE: 3.16 hours, where do we get that for aborted conferences?
MS SIMPSON: I've summarised Mr Geddes' detailed summaries and in fact if I can go back a step, your Honour, some of the summary charges claimed in here are less than Mr Geddes had originally had in his affidavit. This is effectively a summary of the work that Mr Geddes put forward as being undertaken by him.
FEDERAL MAGISTRATE: Well, where do I find the break-up of the 3.16 hours?
MS SIMPSON: I'll just refer back to the original affidavit, your Honour, in the hope that it was still there, annexure A, 24 January.
FEDERAL MAGISTRATE: Yes, I've got that in front of me. It doesn't have - it's - - -
MS SIMPSON: I've totalled them, your Honour.
FEDERAL MAGISTRATE: It's all these telephone calls and the like, right.
MS SIMPSON: Yes, I've totalled them in the different categories therefore in that summary so anywhere that Mr Geddes has made a charge with respect to his time I've summarised there, 36 minutes - - -
FEDERAL MAGISTRATE: 575, yes.
MS SIMPSON: - - - six minutes, six minutes, five minutes, five minutes, 38 minutes.
FEDERAL MAGISTRATE: Yes.
MS SIMPSON: 190 minutes was my total.
FEDERAL MAGISTRATE: Now - yes. What's the drafting about? I was just trying to figure that one out too.
MS SIMPSON: That would also be letters, your Honour.
FEDERAL MAGISTRATE: Well, the letters - but letters are dealt with in annexure A of the affidavit. 3(c) includes letters. It says "professional attendances" but a good deal of it is letters if you look at annexure A to Mr Geddes's affidavit.
MS SIMPSON: Yes. What I've - - -
FEDERAL MAGISTRATE: So I'm happy enough to deal with it though but if we're going to include letters, then what's the drafting?
MS SIMPSON: What I've tried to do, your Honour, is in that - in the submission that I prepared summarise the different categories of claim made by Mr Geddes. My concern was, your Honour, not - it's not so much in annexure A but in some of the others it includes earlier and postdates to the relevant - - -
FEDERAL MAGISTRATE: Well, what was drafted that's been thrown away?
MS SIMPSON: The drafting that I've detailed in 5(iii), your Honour, is any reference to folio - any drafting that Mr Geddes has summarised in Annexure A and I've just totalled the number of folio that he's claimed. So you'll see, your Honour, he has "letter to Mackenzie & Vardanega".
FEDERAL MAGISTRATE: Yes, but you're double-counting, are you not?
MS SIMPSON: I'm not sure that I'm following your Honour on that.
FEDERAL MAGISTRATE: Well, perhaps I - forgive me - - -
MS SIMPSON: He has "perusing letters - - -"
FEDERAL MAGISTRATE: I'll try again. In Annexure A Mr Geddes has charges for letters and telephone calls basically.
MS SIMPSON: Yes.
FEDERAL MAGISTRATE: There's a bit attendance on the client and some perusals but basically letters and telephone calls.
MS SIMPSON: Yes.
FEDERAL MAGISTRATE: In 5(iii)(c) - sorry, he charges 570 - well, okay, hang on, how do - maybe I'm getting his annexure A wrong when I look at it.
MS SIMPSON: Your Honour, I might - - -
FEDERAL MAGISTRATE: "Drafting letters, perusing letters" - this is Annexure A that's puzzling. I'm jumping around and I appreciate I'm probably being very confusing.
MS SIMPSON: No, I probably made it more confusing, your Honour. I'm submitting this submission as being the cost claimed. There are some matters that Mr Geddes has put in his original material before the Court which I was concerned weren't strongly arguable as matters that should be claimed against the husband so I've collated and summarised the charges that we seek under each heading.
FEDERAL MAGISTRATE: Okay. Sorry, I think I now understand Annexure A. Right, I see.
MS SIMPSON: So he's effectively done - - -
FEDERAL MAGISTRATE: In that case - no, I'm satisfied, looking at that, I've got it wrong. I'm satisfied that your claim of 993.47 for Mr Geddes's work is appropriate.
MS SIMPSON: Yes.
FEDERAL MAGISTRATE: Now, the disbursements are 653, which is your charges.
MS SIMPSON: Yes. In Annexure A1 Mr Geddes concluded the account, and again, your Honour, I've sought to summarise those which are most strictly applicable to the conciliation conference so - - -
FEDERAL MAGISTRATE: What - where - - -
MS SIMPSON: From 5 March - in paragraph 6 of my submission I say "for work performed in preparation for and at the conciliation conference". I then refer to Annexure A1 and I say, "We seek to be - the costs be paid with respect to work including 5 March and 19 March," so between those two dates.
FEDERAL MAGISTRATE: Yes, okay.
MS SIMPSON: Preparation and then reporting effectively.
FEDERAL MAGISTRATE: Yes, I'll allow that and the total then is 1643. So that's the first - excuse me a moment. The first amount of costs I allow is 1646.73. …
It will be seen from this passage of transcript that his Honour scrutinised extremely carefully the amounts which were claimed by the wife in relation to the proceedings on 17 March 2004. It has to be acknowledged, however, that his Honour did not make an express finding that the husband should be liable for the wife’s costs of that day, nor did he give any express reason why that should be so – although he did expressly refer on two occasions to the fact that the (conciliation) conferences had been aborted. It is clear from the court record that the conferences could not proceed satisfactorily because material was needed from the husband. This would certainly be a reason for making a costs order in view of the provisions of s 117(2A)(c) and (d).
I therefore conclude that, even were I to allow the appeal against this first component of his Honour’s costs order on account of his Honour’s failure to explain why, having regard to the provisions of s 1172A, the husband should be liable for such costs, on a re-exercise of the discretion, I would make the same order because of the conduct of the husband constituted by his failure to file the necessary material to enable the conciliation conference on 17 March 2004 to proceed. I would also be satisfied that the amount ordered to be paid was appropriate because of his Honour’s close scrutiny of the figures claimed.

(2) The costs order already made by consent on 3 May 2004

The second aspect of the wife’s claim related to the costs that the husband should be assessed to pay under an order made by consent on 3 May 2004, whereby the husband (or his then legal representative on his behalf) agreed to pay the wife’s costs thrown away that day. His Honour was prepared to assess these costs at $398.83.
The court file contains orders made by consent by Brewster FM on 3 May 2004 in circumstances where the husband had not filed documents which he had been earlier required to file, thus necessitating an adjournment of what was apparently a directions hearing before his Honour. Included in those orders made by consent is the following presently relevant order:
3.That the respondent pay the costs thrown away in relation to the appearance in the Federal Magistrates Court Canberra on 3 May 2004 as taxed or agreed.
Thus, it must be emphasised to the husband, that his then legal representatives had agreed that he should pay the costs “thrown away” on 3 May 2004 because the directions hearing scheduled for that day could not proceed for the reason that he (or his legal representatives) had not filed the required documents. In relation to this matter, his Honour did not have to decide that the husband should be liable for the costs. That fact had been agreed by the husband’s legal representatives.
In the wife’s written submissions to his Honour on 11 April 2006, he was asked only to assess the costs payable under the consent order of 3 May 2004 since there had been no agreement as to the amount to be paid.
It will be seen from the following passage of the transcript (at p 5) that his Honour adopted the submission that he should assess the costs to be paid under the consent order, and that he assessed those costs at the submitted amount of $398.83:
FEDERAL MAGISTRATE: … Mention, didn't file any documents, yes, I - okay. Then the next - - -
MS SIMPSON: Paragraph - - -
FEDERAL MAGISTRATE: 69.93, that's fine.
MS SIMPSON: Yes.
FEDERAL MAGISTRATE: I adopt your submissions, and then there's disbursements and so we go down to 15 which summarises - that's 398.83.
MS SIMPSON: Yes, your Honour.
FEDERAL MAGISTRATE: Which I allow, 398.83. …
Given the existence of the order made by consent on 3 May 2004, and given also his Honour’s express adoption of the wife’s submissions which provide a reason for the amount which should be paid under that order, there is no basis on which I could interfere with this determination by his Honour.

(3) The application for an adjournment on 3 February 2005

The wife’s written submissions before his Honour on 11 April 2006 explain her claim in respect of costs incurred on 3 February 2005, which his Honour ultimately allowed in the sum of $523.80, in the following way:
16.The matter was set down for final hearing on 8 and 9 February 2005. The husband applied to have the final hearing adjourned. The husband (at that time unrepresented) had written direct to the Court seeking an adjournment of the final hearing and the matter was (presumably) listed in response to that approach.
17.The husband was unsuccessful in his application to adjourn the final hearing.
18.The wife’s costs that day were reserved and the wife now seeks an Order that the husband pay those costs.
The transcript of 11 April 2006 (at p 5) shows that his Honour read these submissions, and that he did say in relation to this matter, that he was satisfied that costs should be paid:
FEDERAL MAGISTRATE: Which I allow, 398.83. Mention directions on 3 February, let me read your submissions there and I'll just - - -
MS SIMPSON: Thank you, your Honour.
FEDERAL MAGISTRATE: I think I was happy enough with that when I glanced through it. I'm satisfied that costs should be paid as claimed of 523.80. Excuse me, I'm just reading your written submissions - - -
MS SIMPSON: Yes, thank you, your Honour.
Again it is true that his Honour did not give any reasons for his conclusion that costs should be paid. But, in my view, his decision should not be interfered with, if only for the reason that were I to re-exercise the discretion, the provisions of s 117(2A)(c) and (d) would again apply to justify the award made by his Honour. I mention also that the record of proceedings on the court file supports the version of events outlined in the wife’s submissions.

(4) Costs claimed by the wife due to the husband’s alleged failure to make full and frank disclosure

It will be seen from paragraphs 24 to 37 of the annexed copy of the wife’s submissions, which were before his Honour on 11 April 2006, that the wife sought to recover from the husband costs in the sum of $4,438, which had been incurred by her on account of the husband’s alleged failure to make full and frank disclosure of his financial affairs throughout the proceedings and the consequent need to issue a number of subpoenae to various third parties and to obtain additional assistance from real estate valuers. In support of this claim the wife relied on certain adverse findings made by his Honour in relation to the husband’s credit, in paragraphs 2 and 14 of his property settlement judgment of 11 November 2005.
Ultimately his Honour allowed this claim by the wife for $4,438.20 following the following relatively brief discussion with the solicitor representing the wife:
FEDERAL MAGISTRATE: … Excuse me, I'm just reading your written submissions - - -
MS SIMPSON: Yes, thank you, your Honour.
FEDERAL MAGISTRATE: - - - to see if I have any queries to make. I'll just go to paragraph 35. I just want to check Mr Geddes's - you refer in paragraph 35 to - I'm sorry.
MS SIMPSON: And to the second affidavit, yes.
FEDERAL MAGISTRATE: No, the second affidavit. Sorry, I misread that. I've got to now go to these annexures I think. Why there - I'm a bit puzzled as to why there's such significant agency fees. This is really a stoush between Mr Geddes and the husband.
MS SIMPSON: As so often happens though, your Honour, once subpoenas are issued - - -
FEDERAL MAGISTRATE: You'd have to come down - - -
MS SIMPSON: - - - there would have been many attendances by our office, running back and forth and then inspecting whatever was produced - - -
FEDERAL MAGISTRATE: Yes, of course, that's true. That's true, okay, all right. Well, he's not - so the husband is not here. This is proceeding undefended and I can in the circumstances I think take a reasonably liberal view of the matter. I don't propose to do a detailed taxation in a global sense having regard to all of those matters and all the subpoenas, et cetera, and I am prepared to allow the claim in the amount as claimed of 4438.20. …

It is clear from the above passage of transcript that his Honour considered the wife’s written submissions and at least some of the supporting material in the affidavits from Mr Geddes (referred to earlier in these reasons), and it has to be assumed that he accepted what was contained in that material, or at least the claim for $4,438. Unfortunately for the wife, however, his Honour did not give any indication of the reasons why he accepted this claim or the material put in support of it. He did not even say that he accepted or adopted the wife’s submissions (as he did in relation to a number of her other claims).
Given the large amount of this particular item in the wife’s claim relative to the amounts of the other items in her claim, and given the rather general but serious matters apparently covered by this part of her claim, it was essential, in my opinion, that his Honour provide some indication of why he was accepting this part of her claim.
My concerns regarding this aspect of his Honour’s decision are increased first by the fact that his Honour appears himself to have some concerns as to whether some aspects of this particular matter arose out of a conflict between the husband and the wife’s solicitor, Mr Geddes. And secondly by the fact that at least some aspects of the husband’s failure to comply with the requirements to file material concerning his financial position would appear to have been covered by the first two components of the wife’s claim earlier discussed.
His Honour’s failure to provide any satisfactory indication of his reasons for granting this part of the wife’s claim is, in my view, an error which requires appellate interference. Unlike other aspects of this case, this particular claim is not one which I could re-determine. I simply do not know enough about the background to the matter – much of which would be within the particular knowledge of Brewster FM who determined the property settlement proceedings and many of the preceding interlocutory proceedings.
In these circumstances, I would propose to allow the appeal in respect of the amount of $4,438.20 included in the costs order on account of costs incurred because of the husband’s alleged non-disclosure, and to provide for that part of the wife’s claim to be re-determined by his Honour should the wife consider it worth pursuing. It may well be that given what I have said about this matter in this judgment, the wife will not pursue it further. For this reason I will also vary his Honour’s costs order to delete any reference to this item. Such a varied order would not preclude a further order being made in relation to the costs of the alleged non-disclosure should the wife choose to pursue that claim further before his Honour.

(5) The costs of the husband’s application to extend time to pay the amount due under the property settlement orders

The wife’s submissions in support of her claim for costs incurred in relation to the husband’s application (filed on 14 December 2005) to extend time to pay the amount which he was required to pay under his Honour’s property settlement orders can be seen at paragraphs 38 to 46 of the annexed copy of her submissions. His Honour was prepared expressly on the basis of these paragraphs of the wife’s submissions, to allow her claim of $1,342.44 as can be seen from the following passage of the transcript (p 6):
FEDERAL MAGISTRATE: … his application to extend time.
MS SIMPSON: Yes.
FEDERAL MAGISTRATE: That was ultimately resolved by consent, wasn't it?
MS SIMPSON: On the second occasion, your Honour, it was, on 20 February.
FEDERAL MAGISTRATE: However, had he paid the money in a timely fashion, and I think I gave him 30 days in the orders which in my view is sufficient to - - -
MS SIMPSON: And he didn't start agitating about it until the time was almost up, your Honour, and yes, some additional time did pass before – I wasn't aware, your Honour, that the money had been paid. My principals hadn't advised me that as contained in [the husband’s] letter to the Court.
FEDERAL MAGISTRATE: Yes. Yes, on the basis of the material contained in paragraphs 38 to 46 I'm prepared to allow the amount as claimed, 1342.44. …
Thus, his Honour provided reasons for granting this component of the wife’s claim by his reference to the relevant paragraphs of the wife’s submissions. It is unnecessary that I refer to the content of those paragraphs other than to say that, although it is stated in paragraph 40 of the submissions, that the husband had still not paid the amount due under the property settlement orders as at the date of the submissions (being 4 April 2006), that error can be seen from the transcript as having been corrected before his Honour.
Even though the husband’s application to extend time to make the property settlement payment was ultimately consented to by the wife on 20 February 2006 on conditions as to the payment of interest, where a litigant seeks from the court an extension of time to do something which he or she is required to do, it would be quite usual for that litigant to have to pay the costs occasioned by that application to the other party to the proceedings. There is therefore no basis which would justify my interference with this part of his Honour’s award.

(6) The costs of the costs application

It will be seen that in paragraphs 47 to 52 of her submissions the wife also sought that she be awarded the costs of her application for the various categories of costs already discussed. His Honour ultimately granted that application in the total sum of $2,482 for the reasons which emerge from the following passage of the transcript (pp 6 – 8):
FEDERAL MAGISTRATE: … Now, there has been, I take it, no offer made by [the husband] to pay the costs of your - costs, to pay costs?
MS SIMPSON: No, your Honour.
FEDERAL MAGISTRATE: Right.
MS SIMPSON: Your Honour has seen [the husband’s] responses he's filed and - - -
FEDERAL MAGISTRATE: Yes, I would be surprised if there had been.
MS SIMPSON: Yes.
FEDERAL MAGISTRATE: To put it at its lowest. So I have made an order for costs. Indeed you've been wholly successful, he's been wholly unsuccessful. I propose to make an order that he pay the costs of the application for costs.
MS SIMPSON: Would that be quantified, your Honour?
FEDERAL MAGISTRATE: Yes. You have quantified it, haven't you?
MS SIMPSON: I haven't totalled it, which I discovered just before coming over. There's the 1439.25 figure plus the 907.50, which on my figures came to 2346 - - -
FEDERAL MAGISTRATE: Yes, and plus - - -
MS SIMPSON: Plus whatever today.
FEDERAL MAGISTRATE: Okay. So it's - 6 is 1439.25 plus 907.50. Now, as far as Court attendances are concerned, have you - - -
MS SIMPSON: I didn't stipulate anything in that regard.
FEDERAL MAGISTRATE: Let's just have a - let me just look at this by the way. Yes, right. There's been two I think, has there not, or perhaps there have been more including today?
MS SIMPSON: The previous ones, your Honour, I've included in those figures that your Honour has already allowed.
FEDERAL MAGISTRATE: Yes. The Bench sheets say that the matter came before me on 20 February. I think that was in relation to the application for extension of time and - - -
MS SIMPSON: Mr Geddes had also filed but your Honour has now allowed for that attendance as part of the application to extend time so I wouldn't seek to double count - - -
FEDERAL MAGISTRATE: Yes, so that's counted and you did - so I'm working out. I've already - you're quite right, that's been allowed for separately. It was adjourned to 21 March.
MS SIMPSON: Yes.
FEDERAL MAGISTRATE: And - - -
MS SIMPSON: At paragraph 51 I've said "proceeded briefly, say, 15 minutes" and then adjourned to today.
FEDERAL MAGISTRATE: Yes, today, which will be about - half an hour the nearest so 45 minutes should cover that, 182, so $136.
MS SIMPSON: What was that figure, your Honour? Sorry, I didn't have that.
FEDERAL MAGISTRATE: Attendance is 136, about three-quarters of an hour all-up.
MS SIMPSON: Thank you.
It will be seen that in relation to this part of the wife’s claim his Honour made a clear statement to the effect that he proposed to make an order that the husband pay the costs of the application for costs on the basis that the husband had been “wholly unsuccessful” in relation to that application (which is a matter which under s 117(2A)(e) would justify an order for costs).
Were it not for the fact that I have determined that there is one item in his Honour’s costs order which cannot be permitted to stand, there would be no basis on which I could interfere with his Honour’s decision to award the wife an amount of $1342.44 on account of her successful claim for costs.
However as a result of my determination that one item included in his Honour’s costs order cannot be permitted to stand, it can no longer be said that the husband was “wholly unsuccessful” and the wife “wholly successful” in relation to the costs application. Thus the basis for this part of his Honour’s order no longer exists, and it would become necessary for me to re-determine this part of the wife’s claim.
On a re-exercise of the discretion in relation to the wife’s claim for the costs of her now only partially successful costs application, I would not make any order for costs as I am not persuaded that there are any circumstances which would justify a departure from the general rule in the Act that each party should pay their own costs. For this reason I would also in allowing the appeal in part, delete from his Honour’s overall award the further amount of $2,482.75, and dismiss the wife’s application for the costs of her costs application.

Conclusion

I have thus determined that there would be some substance or merit in the husband’s appeal on account of his Honour’s failure to give reasons for granting the wife’s claim for $4,438 on account of costs incurred by her because of the husband’s alleged failure to give full and frank disclosure during the property settlement proceedings, and also on account of the consequent fact that the award of $2.482.75 on account of the wife’s costs of the costs application could no longer stand because the husband could not be said to have been wholly unsuccessful in that application.
Given that I have found some merit or substance in the appeal, and given also that I concluded at the outset of these reasons that the husband’s four month delay in filing his notice of appeal was not in the circumstances unreasonable, I consider that on balance the interests of justice require me to grant the husband the necessary extension of time to appeal. In reaching this decision I do not overlook the fact that the husband failed to participate fully in the costs proceedings before his Honour. But such non-participation by the husband did not, with respect, relieve his Honour from the necessity of being seen to apply the provisions of s 117 to all aspects of the wife’s claim for costs.
Accordingly, I propose to grant the husband an extension of time to file his notice of appeal; to allow the appeal to the extent necessary to vary his Honour’s order to require the husband to pay the wife the sum of $3,912.05 instead of $10,833.00 and to specify the items which are included in the sum to be paid. I will also remit the wife’s application for costs incurred in relation to the husband’s alleged failure to make full and frank disclosure for re-hearing by Brewster FM, but only to be reheard if the wife notifies the Associate to his Honour that she wishes to pursue that claim.

Costs of the appeal

As neither party was legally represented at the hearing on 14 November 2006, and as the husband did not have to provide the transcripts of the hearings before Brewster FM, nor prepare the appeal books, it is unlikely that either party would have incurred costs which could be the subject of an application for costs or for the grant of a certificate under the Federal Proceedings (Costs) Act 1981. But if either party considers that they would be entitled to make any such application they should do so in writing within 30 days of the date of delivery of these reasons for judgment.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 9 April 2008

FEDERAL MAGISTRATES PROCEEDINGS CAM 1009/03

SUMMARY OF COSTS CLAIMED BY THE WIFE CONCILIATION CONFERENCE ON 17 MARCH 2004

1. This was the third Conciliation Conference allocated to the parties in this matter with the husband seeking adjournments of the two prior Conferences. At that point, the husband still had not filed any documents in response to the wife's Application, despite directions having been made on 8 September 2003, for the husband to file his documents within twenty-one days of that date.

2. The husband did not attend the conference, although solicitors acting as agents for the husband's solicitors were present. The Conference could not proceed as the husband had not filed material or produced documents by way of discovery/disclosure.

3. Detailed Directions were made on 17 March 2004, including that the husband was to file all documents within 21 days of that date.

4. The Wife's Costs of the Conference were reserved.

5. The wife now seeks an Order that the husband pay her costs relating to that Conciliation Conference:

(i)     Refer to Affidavit of Ian Geddes, sworn 24 January 2006 at Annexure A;
(ii) The wife seeks costs as detailed in that Annexure from 12 January 2004 until 17 March 2004, being all the costs relevant to the Conciliation Conference on that date.
(iii)    The costs so claimed:
a.    Drafting— 21 folio @ $17.85 per folio $374.85.
b.    Perusing letters — 6 folio @ $7.25 — $43.50.
c.    Professional attendances by the wife's solicitor including in person and by telephone, 190 minutes or 3.16 hours @ $182 per hour = $575.12.

(iv) Total professional fees claimed $993.47,

6. The wife also seeks disbursements, being agents fees (then Chris Crowley and Associates), for the work performed by them in preparation for and at the Conciliation Conference on 17 March 2004.

7. Refer to Annexure "A 1" of the Affidavit of Ian Geddes, sworn 24 January 2006 being the account to Cater and Blumer from Chris Crowley and Associates, dated 22 March 2004:

(i)      The wife seeks payment for the charges from and including 5 March 2004, as relating to the Conciliation Conference on 17 March 2004;
(ii)     The charges incurred between 5 March and 19 March 2004 are $630.30 inclusive of GST and $22.96 for faxes received and telephone charges;
(iii)   The total relevant agents' fees sought are $653.26.

8. The total claimed by the wife for the Conciliation Conference on 17/3/04 is $1,646.73

MENTION / HEARING ON 3 MAY 2004

9. On this date the husband still had not filed documents, contrary to previous directions. The wife sought to proceed with her Application on an undefended basis. Mr Crowley appeared as agent for the wife and at first instance, there was no appearance by or on behalf of the husband. Mr Cameron subsequently appeared as agent on behalf of the husband's solicitors.

10. Consent Orders were subsequently agreed upon that day, including that the husband pay the wife's costs of the day thrown, away, as agreed or taxed.

11. There has been no agreement reached with respect to the costs claimed by the wife. It is submitted that it would be an unreasonable additional burden upon the parties to require them to participate in taxation at this point (if such were available in this Court), given the matters currently before the Court and an opportunity at this time to resolve this costs issue.

12. The wife seeks the following costs:

(i)     Refer to Annexure "B" of the Affidavit of Ian Geddes, sworn 24 January 2006.
(ii)     The wife claims costs from 3 May to 13 May 2004 inclusive, as follows:
a.    Perusing of correspondence — 4 folio @ $5.35 = $21.40.
b.    Professional attendances by the wife^'s solicitors including by telephone — 16 minutes @ $182 an hour = $48.53.

(iii) Total professional fees claimed $69.93

13. The wife also seeks disbursements being agent's fees in preparing for and attending the hearing on 3 May 2004.

14. Refer to Annexure “B 1” of the Affidavit of Ian Geddes, sworn 24 January 2006:

The wife seeks agency fees of $328.90.

15. The wife seeks total costs for 3 May 2004 of $398.83

MENTION/ DIRECTIONS ON 3 FEBRUARY 2005

16. The matter was set down for final hearing on 8 and 9 February 2005. The husband applied to have the final hearing adjourned. The husband (at that time unrepresented) had written direct to the Court seeking an adjournment of the final hearing and the matter was (presumably) listed in response to that approach.

17. The husband was unsuccessful in his application to adjourn the final hearing.

18. The wife's costs that day were reserved and the wife now seeks an Order that the husband pay those costs.

19. Refer to Affidavit of Ian Geddes, sworn 24 January 2006 at Annexure "C".

20. The wife seeks the husband pay for the costs incurred by the wife from 2 February 2005 to 3 February 2005 inclusive as follows:

a.15 minutes of professional attendance, including telephone attendances @ $182 an hour = $45.55.

b. Perusing correspondence— 3 folio @ $7.25 = $21.75.
c. Drafting of correspondence — 4 folio @ $17.85 = $71.40.

d. Total professional fees claimed $138.70

21. The wife also seeks the husband pay the disbursements incurred by the wife in having her agents prepare and appear on 3 February 2005.

22. The incorrect account was annexed to the Affidavit of Ian Geddes of 24 January 2006. Annexed hereto and marked with the letter "A" is a true copy of the account from Crowley Clifford Simpson to the wife's solicitors dated 8 February 2005.

23. The wife seeks that the husband meet those agency costs from 2 February 2005 through to 3 February 2005 inclusive, being the total of $246.40 (inclusive of GST).

The wife seeks total costs for 3/2/05 of $523.80

COSTS CLAIMED BY THE WIFE DUE TO THE HUSBAND NOT MAKING A FULL AND FRANIC DISCLOSURE TRROUGHOUT THE FROCEEDLNGS AND PRIOR TO THE FINAL HEARING

24. In Annexure "A" of the Affidavit of fan Geddes sworn 13 March 2006, the wife claims the sum of $4,438.20. Also, refer to Annexure "D^" of the Affidavit of Ian Geddes, sworn 24 January 2006.

25. The total sum claimed includes professional fees incurred on behalf of the wife by her solicitors between May 2005 and September 2005 plus various disbursements (including conduct money and production fees arising from the issue of various Subpoenas) and accounts forwarded to the wife^'s solicitors by Crowley, Clifford and

Simpson (which accounts are Annexures ^"DI^" and ^"D2" of Mr Geddes Affidavit of 24 January 2006.)

The husband's uncooperative approach to making full and frank disclosure continued throughout this matter. As detailed previously in these submissions, the husband repeatedly failed to file his documents in contravention of several directions made by this Court.

The issue of non-disclosure by the husband was placed before the Court repeatedly on behalf of the wife, including on 3 February 2005. At the Conciliation Conference on 17 March 2004, very detailed directions were made with respect to the filing of financial material by the husband.

A range of Subpoenas were issued on behalf of the wife on 8 June 2005. The Subpoena to First Accounting Services sought production of the husband's taxation returns and profit and loss and other financial documents concerning the farming business or partnership in which the husband had an interest. Arguably, all such documents were within the possession, custody or control of the husband and should have been produced by him. The wife instead was compelled to incur additional costs in seeking those documents.

A Subpoena to [a club] was issued on 8 June 2005 on behalf of the wife, seeking particulars of the husband's wages. Again, this information arguably could have been and should have been produced by the husband.

A Subpoena was issued to Mackenzie & Vardanega, Solicitors, on 8 June 2005 seeking information with respect to the sale of the family farming property and with respect to the transfer of that property front the husband's father to the husband and his brothers. Again, this information arguably was at all times within the possession, custody or control of the husband and should have been and could have been produced by him.

On the same date, a Subpoena was issued to the National Australia Bank seeking documents concerning the husband's bank accounts and mortgage accounts. Again, this information could have been and should have been produced in full by the husband.

Similarly, on 8 June 2005 a Subpoena was issued directed to the RTA seeking particulars of vehicles registered in the husband's name and historical summaries of disposal of other vehicles by the husband. Again, this information could have been and should have been produced by the husband.

A number of appearances were required to follow-up production of documents by the various persons or entities to whom Subpoenas had been addressed. The wife incurred further disbursements (agency fees) in this regard all of which were necessitated as a result of the husband's uncooperative attitude to the proceedings.

a. Refer to the Affidavit of Ian Geddes sworn 24 January 2006 at paragraph 7, the Affidavit of Ian Geddes sworn 13 February 2006, at paragraphs 2 through to 11 and 14 through to 19 and paragraphs 21 and 22 inclusive concerning non-production of documents by the husband, the issue of Subpoenas and the Notice to Produce.

Some of the professional costs incurred on behalf of the wife also relate to attempts by the wife to properly value the relevant real estate. It is submitted on behalf of the wife that the husband thwarted this process. The husband sought to rely upon a valuation of the relevant real estate he had obtained previously in the proceedings. The wife's solicitors directed their valuer to attempt to gain further access to the property to review the valuation (which was frustrated) and to thereafter meet with the husband's valuers.

Refer to the Affidavit of Mr Geddes sworn 24 January 2006 at paragraph 3 and his Affidavit sworn 13 February 2006 (at paragraphs 12, 13, 15, 16, 19 and 20).

Ultimately, this process did not occur and at the time of the hearing, the wife's valuation evidence (of that property) was accepted. The steps taken prior to that point however were necessary and reasonable in preparation of the case for final hearing on behalf of the wife and would not have been required if the husband had acted more diligently in the discharge of his obligations.

In his Judgment of 11 November 2005, at paragraph 2, Federal Magistrate Brewster stated, "I did not find the husband to be a credible witness^". The difficulties experienced by the wife in clarifying the husband's interests in the family property continued at the hearing. At paragraph 14 of the Judgment, Federal Magistrate Brewster said "The evidence in relation to this is most unsatisfactory...As I have said, I did not find the husband to be a credible witness and I am in considerable doubt as to the true picture. In the circumstances I believe I am justified in attributing to the husband the sum of $100,000 as his share of the sale. That is the amount conceded by him at the conciliation conference".

The wife seeks payment of professional less of $2,175.30

The wife seeks payment of disbursements of $1,558.88 (agency fees) and of $704.02 for other disbursements

The wife's total claim for costs in this category is $4,438.20

COSTS ARISING FROM THE HUSBAND'S APPLICATION TO EXTEND TIME FOR PAYMENT TO THE WIFE, AS REQUIRED UNDER THE ORDERS OF 11 NOVEMBER 2005.

The husband's Application for an extension of time was filed on 14 December 2005, noting that the payment to the wife was due on or around 13 December 2005 (thirty days from 11 November 2005).

The husband's Application first came before the Court on 30 January 2006 and the husband did not appear that day. The matter was then adjourned to 20 February 2006. Time was spent at Court that day by the wife's solicitor's agents and negotiations occurred. A Consent Order was agreed upon and filed that day with respect to extending time for the payment by the husband to the wife, plus interest to be paid by the husband to the wife on the outstanding amount.

The matter remains before the Court. The husband has at this time still failed to make the payment to the wife despite his representations to the Court that he would do so.
The wife seeks costs with respect to the Application brought by the husband as follows:

a.Refer to the Affidavit of Ian Geddes, sworn 13 March 2006 at Annexure "B". The summary contained therein on pages 1 and 2 of Annexure "B" appears to include costs claimed by the wife with respect to making her Application for costs, which will be dealt with further in this submission. Also, pages 3 and 4 of Annexure "B" appear in part to duplicate the matters contained in pages 1 and 2 of that Annexure.
b.By way of summary, the wife seeks the husband meet the following costs incurred by the wife in considering and responding to the husband's Application for an extension of time:

Perusal of the husband's Application and Affidavit - 3 folio @ $7.25 - S21.75.
Briefing agents to appear at the hearing on 30 January 2006 - 3 folio @ $17.85 = $53.55.
24 January 2006, letter to the husband - 3 folio $17.85 - $53.55.
27 January 2006, reading letter from Crowley, Clifford and Simpson - 3 folio @ $7.25 = $21.75.
30 January 2006, letter to Crowley, Clifford and Simpson - 3 folio @ $17.85 (say 2 folio relevant to the extension of time) = $35.70.
30 January 2006, telephone attendance upon Ms Simpson - 5 minutes @ $182 per hour = $15.16.
30 January 2006, reading letter from Crowley, Clifford and Simpson - say 1 folio relevant to the extension of time = $7.25.
1 February 2006, reading letter from Crowley, Clifford and Simpson - say 1 folio relevant to the extension of time = $7.25.
7 February 2006, letter to the husband advising of adjourned date - 1 folio = $17.85.
10 February 2006, attend upon the client to advise of progress - 18 minutes @ $182 per hour = $54.60.
20 February 2006, telephone attendance upon Crowley, Clifford and Simpson -5 minutes @$182 per hour = $15.17.
22 February 2006, telephone attendance upon Crowley, Clifford and Simpson -5 minutes @ $182 per hour = $15.17.
22 February 2006, read letter from Crowley, Clifford and Simpson - 10 folio @ $7.25 -, $72.50.
23 February 2006, letter to the wife - 3 folio @ 17.85 = $53.55.
8 March 2006, telephone call from the husband - 10 minutes @ $182 per hour $30.34.

(xvi) 13 March 2006, letter to Crowley, Clifford and Simpson — 2 folio @ 17.85 = $35.70.

Total professional fees $510.84.

The wife also seeks that the husband meet the wife's disbursements (agents to appear in response to the husband's Application for an extension of time).

At Annexure "B^" to the Affidavit of Ian Geddes sworn 13 March 2006 is Annexed a copy of an account date of 22 February 2006 from the agent solicitors for the wife. That account includes some charges relating to the wife's costs Application. The wife seeks the husband pay that portion of the agent's account that relates to his Application for an extension of time.

The wife submits that the charges incurred for 25 January 2006 partially relates to the Costs Application and should be reduced by half to $60.

The wife does not press the charge of 30 January 2006, nor the charge of 15 February 2006.

The total sought by the wife with respect to agent^'s fees on 30 January and 20 February 2006 is therefore $831.60 inclusive of GST.

Total agent's fees sought $831.60.

Total claim for costs of extension of time Application $1,342.44.

COSTS ASSOCIATED WITH THE WIFE'S APPLICATION FOR COSTS

In the event the wife is successful in obtaining Orders that the husband meet certain of the costs incurred by the wife in these proceedings, the wife also seek that the husband pay her costs of that Application. Annexure "B" of the Affidavit of Ian Geddes, sworn 13 March 2006 (pages 1 and 2 of that Annexure) summarises the costs incurred by the wife through her solicitors in bringing the Costs Application.

As detailed previously, some of the charges claimed in that Annexure also relate to other matters dealt with in this submission. The following are the costs applicable to the Costs Application by the wife:

Drafting wife's Response/Application — 3 hours @ $182 per hour = $546.
Drafting Affidavit of Ian Geddes of 24 January 2006 — 10 folio @ $1555-$155.50.
13 February 2006, drafting Affidavit of Ian Geddes — 13 folio @ $15.55 = $202.15.
13 February 2006, reviewing file to obtain Annex-urea for Affidavit — 1 hour = $182.
13 February 2006, letter to the husband — 1 folio = $17.85.
13 February 2006, letter to the Court — 1 folio $17.85.

13 February 2006, letter to Crowley, Clifford and Simpson — 1 folio = $17.85.
13 February 2006, letter to the husband — 1 folio -$17.85.
13 March 2006, preparing summary of costs and final account — 1 hour = $182.
13 March 2006, preparation of further Affidavit of Ian Geddes — 3 folio @ $15.55 - $46.65.
13 March 2006, letter to the husband — 2 folio @ $17.85 = $35.70.
13 March 2006, letter to the Court — I folio — $17.85.

The total sought by the wife with respect to professional fees is therefore $1,439.25.

The wife also seeks disbursements of her agent appearing in this matter and the costs of preparation by that agent with respect to the Costs Application generally.
It is submitted in addition to the costs previously detailed, that additional time spent reviewing the most recent Affidavit material (including the Affidavit of the husband), general preparation for the hearing on 21 March 2005 and preparation of this Submission, fu^rther charges for 2.5 hours of professional time are reasonable.
The matter proceeded briefly at Court (say fifteen minutes) at 2.1Spm on 21 March 2006 and was adjourned f o r hearing on 11 April 2006 at 4.15pm.
The wife seeks an allowance of $907.50 (inclusive of GST), plus any time at Court, on 11 April 2006.

GENERAL SUBMISSIONS AS TO COSTS

It is acknowledged on behalf of the wife that there has been some delay in bringing her Application for Costs following the conclusion of the hearing between the parties on 11 November 2005. This is in part explained by Mr Geddes in his Affidavit of 24 January 2006 at Paragraph 10. Mr Geddes takes responsibility for the delay (as a result of other commitments and leave taken over the Christmas break). It is submitted that it would be unfaⁱr to the wife to refuse this Application for matters largely out of her control.
The Application is also brought in the context of proceedings which arc effectively not yet finalised as a result of the husband's failure to make the payment to the wife as ordered by the Court and his subsequent Application to extend time for that payment.
Under those circumstances, it is arguable that then: has been no hardship to the husband as he has at all times retained an opportunity to respond to and answer the Costs Application brought by the wife. The financial relationship between the parties has not yet been severed. In any event, on 21 March 2006 the husband indicated that he would take no Outlier part in the Costs Application being brought by the wife.
The husband's general attitude to this Application and to the actions taken on behalf of the wife are well known to the Court in particular, please refer to the Affidavits of Mr

Geddes to which have been attached a number of pieces of correspondence from the husband to Mr Geddes.

The wife's Application for Costs and these submissions must be placed in the context of the husband's ongoing disregard for the Court Orders, including his failure to make the required payment to the wife even contrary to the Consent Orders entered into by the husband on 22 February 2006 (allowing an extension of time).

The husband's attitude to the proceedings generally and the Final Orders made by Federal Magistrate Brewster on 11 November 2005 is further evidenced in his letter to Mr Geddes, dated 29 November 2005, at Annexure 14" to the Affidavit of Mr Geddes sworn 13 February 2006.

It is submitted the Court has a broad discretion to allow the wife to proceed with her Costs Application at this time. It is submitted that absent Costs Orders in her favour, serious injustice will befall the wife in that she has incurred considerable additional expenditure by way of legal fees (and disbursements) as a result of the husband's inaction and attitude to these proceedings generally.

This Submission has not been prepared in accordance with the Federal Magistrates Court Scale of Costs. It is submitted that Division 21.02 and 21.10 of the Federal Magistrates Corm Rules provides discretion to the Court to determine how costs should be calculated or to set the amount of any costs so Ordered.

In the event the Court was to determine that costs in accordance with the Scale should apply in this matter, it is submitted that it is reasonable and appropriate that the disbursements incurred by the wife be allowed in full (and as provided in Division 21.10(b)).

DATED 4 APRIL 2006.

Dianne Simpson

Agent for Wife's Solicitors