Carbonne and Carbonne and Anor

[2015] FamCA 782

FAMILY COURT OF AUSTRALIA

CARBONNE & CARBONNE AND ANOR [2015] FamCA 782

FAMILY LAW – COSTS – application dismissed – where law firm was named as a respondent in application that was ultimately dismissed – where applicant commenced proceeding without a proper understanding for the basis of claim - where law firm actively engaged in the litigation – where law firm failed to mitigate matter

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Carbonne

RESPONDENT: Ms Carbonne

OTHER: B Partners

FILE NUMBER: TVC 46 of 2009

DATE DELIVERED: 14 September 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 14 September 2015

REPRESENTATION

THE APPLICANT: In person

SOLICITORS FOR THE RESPONDENT: Everett’s Family Law

SOLICITORS FOR THE OTHER: SR Wallace & Wallace

Orders

1. The Application in a Case filed 29 June 2015 by B Partners is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carbonne & Carbonne and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 46 of 2009

Mr Carbonne

Applicant

And

Ms Carbonne

Respondent

AND

B Partners
Other

ex tempore

REASONS FOR JUDGMENT

1. This is an application for costs by B Partners.  That firm was engaged to undertake some valuation work for the parties.  Subsequent to them having discharged their retainer to prepare the relevant material, the husband in these proceedings filed an Amended Initiating Application which named B Partners as a respondent.  When the matter eventually came before me, he explained to me that the only purpose of joining them was to obtain a copy of the valuation which they had prepared. 

2. Mr Carbonne appears for himself.  He has no legal qualifications or legal experience outside of these proceedings, although perhaps he has some experience with criminal law.  He is naïve when it comes to the processes of the court and as to the means by which documents can be obtained. 

3. As it transpires, in fact a copy of the valuation that he sought to obtain by commencing proceedings against B Partners had been previously provided to his former solicitor, however that was not available to him because that solicitor had ceased acting for him and was holding onto the file pursuant to their solicitor’s lien.  When it was finally pointed out to Mr Carbonne that he could obtain a copy of the valuation that he wanted by other means, he conceded that he did not need to press on any further in relation to B Partners, and the proceedings against them were dismissed. 

4. The costs jurisdiction is governed by section 117 of the Family Law Act. Ms Allen, who appears for B Partners, concedes that section 117 governs her costs application. By s 117(1), the starting position is that each party to proceedings under this Act shall bear his or her own costs. However, subsections (2) and (2A) provide that a court can, if it is of the opinion that there are circumstances justifying doing so, make such order as to costs as it considers just. Subsection (2A) sets out the matters to which I am obliged to have regard to. I will deal with those individually.

5. The first is the financial circumstances of each of the parties to the proceedings.  Neither party (in the sense of the husband and B Partners) have put on any material as to their financial circumstances.  Nonetheless, given the general background of this case, in which has the husband complains that he has been wholly cut out of the finances that previously prevailed in his family, I am satisfied that he is in a somewhat parlous financial situation, at least in relation to assets.  He probably has a car, some chattels, and not much else.  He appears to have recently obtained employment.  The circumstances of that are not known to me.  B Partners has not filed any material as to their financial circumstances.  Notwithstanding the complete absence of such material, I am satisfied that it is likely that that business has financial circumstances substantially superior to those of the husband, and perhaps dramatically superior. 

6. The second matter is whether any party is in receipt of Legal Aid; neither of the parties to this application are. 

7. The third matter is the conduct of the parties to the proceedings, as to which there are several matters that are relevant.  The first is that the husband commenced the proceedings against B Partners without a proper understanding of the basis of that claim, or what he needed to do to get the information that such a claim was directed towards obtaining.  The second matter is that B Partners became aware of the application against them prior to it being served upon them.  Rather than waiting for the application to be served upon them, they chose to actively engage in the litigation.  In essence, they went out looking for a fight that may never have come to them.  The third matter is that notwithstanding the fact that the father was self-represented and appeared to have no reasonable cause of action against B Partners, no solicitor or member of B Partners contacted the father to point out the likely error into which he was plunging.  Rather, there was correspondence sent to the father which threatened costs in the event that he was unsuccessful.  It was an aggressive tone that was struck by B Partners’ solicitors in that correspondence, and, indeed, generally.  The final matter is that when the father had pointed out to him the folly of these proceedings insofar as they dealt with B Partners, he rapidly acceded to the suggestion from the court that they cease being a party to the proceedings. 

8. The fourth matter is whether the proceedings were necessitated by the failure of a party to comply with previous orders; that is not relevant here.  The fifth matter is whether any party to the proceedings has been wholly unsuccessful.  Whilst it is true that the husband has not proceeded to any litigious success against B Partners, nonetheless, he did manage to obtain the valuation which was ultimately the motivation for him joining B Partners to the litigation.  True it is he had already obtained that via his solicitor in the past, but he did not have access to it.  Therefore, whilst it is true to say that he wholly failed in relation to B Partners, nonetheless he did obtain the document that he was looking for by joining them erroneously into these proceedings. 

9. The sixth matter is whether either party has made an offer in writing to settle. There was correspondence which I have already adverted to, sent to the husband by B Partners’ solicitors which threatened the father with an application for a costs order if he did not withdraw his application, however, I am not satisfied that that is an offer of a kind to which section 117(2A)(f) should attach, or if it is, that it is deserving of any weight.

10. I have identified the other matters that I consider relevant in the context of my earlier discussion of the facts. 

11. Weighing those matters in the balance, I am not persuaded that there are circumstances that justify departure from the ordinary rule established by s 117(1). The Application in a Case filed by B Partners for costs filed 29 June 2015 will be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 14 September 2015.

Associate: 

Date:  14 September