Federal Circuit and Family Court of Australia
(DIVISION 1)
Charters & Webb (No 2) [2023] FedCFamC1F 7
File number(s): SYC 7278 of 2017 Judgment of: ALTOBELLI J Date of judgment: 18 January 2023 Catchwords: FAMILY LAW – COSTS – Where the applicant seeks costs following completion of a final hearing in which a finding was made in his favour – Application for indemnity costs – Where the respondent was wholly unsuccessful – Where the applicant made multiple offers of settlement – Costs ordered on an indemnity basis in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13(3)(b) and 12.17
Cases cited: Charters & Webb [2022] FedCFamC1F 527
Ebner v Official Trustee in [Bankruptcy] (2000) 205 CLR 337; [2000] HCA 63
Idoport Pty Limited v National Australia Bank & Anor [2007] NSWSC 23
Kazimierczak and Koch (1987) FLC 91-849; [1987] FamCA 19
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Lenova & Lenova (Costs) (2011) FLC 93-467; [2011] FamCAFC 141
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28
Division: Division 1 First Instance Number of paragraphs: 36 Date of last submission/s: 11 October 2022 Date of hearing: Determined on the papers Place: Sydney Solicitor for the Applicant: Mr Mewett of Acorn Lawyers The Respondent: Litigant in person ORDERS
SYC 7278 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WEBB
Applicant
AND: MS CHARTERS
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
18 January 2023
THE COURT ORDERS THAT:
1.Within 42 days of the date of these orders, the Respondent must pay the costs of the Applicant fixed in the sum of $18,800.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Charters & Webb has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
introduction
By way of an Application in a Proceeding…
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Details
- AGLC
- Charters & Webb (No 2) [2023] FedCFamC1F 7
- Case
- [2023] FedCFamC1F 7
- Decision Date
CaseChat Overview and Summary
In Charters & Webb (No 2), the applicant sought an order for costs following the dismissal of the respondent's application for access to her granddaughter. The substantive proceedings were dismissed on 22 July 2022, and the applicant filed this application within the prescribed time limits. The Court was not precluded from deciding this application under the doctrine of functus officio. The legal issues before the Court were whether the respondent's conduct warranted an indemnity costs order and, if so, the appropriate amount of costs.
The Court found that the respondent's conduct of the case caused it to take twice as long as it should have. The Court also found that the applicant made several offers of settlement that were not accepted, and the respondent's financial impecuniosity did not bar the making of a costs order against her. The Court concluded that the respondent's conduct warranted an indemnity costs order. The Court ordered the respondent to pay $18,800 within 42 days or as otherwise agreed between the parties. This amount represented the cost of the applicant's legal representation for four days of hearing. The Court was satisfied that the fees charged were fair, reasonable, and proportionate for the purposes of the Rules.
The Court's reasoning was based on the well-settled law relating to costs in family law proceedings. The Court considered the relevant factors set out in section 117(2A) of the Family Law Act 1975 (Cth) and found that the respondent's conduct of the case caused it to take twice as long as it should have. The Court also considered the financial circumstances of both parties and found that the applicant's financial circumstances did not preclude him from receiving the benefit of a costs order in his favour. The Court ordered the respondent to pay the applicant's costs for four days of hearing, which amounted to $18,800. The Court found that the fees charged were fair, reasonable, and proportionate for the purposes of the Rules.
The Court's decision was based on the well-established principles of costs in family law proceedings. The Court found that the respondent's conduct of the case caused it to take twice as long as it should have, and that the applicant made several offers of settlement that were not accepted. The Court concluded that the respondent's conduct warranted an indemnity costs order. The Court ordered the respondent to pay the applicant's costs for four days of hearing, which amounted to $18,800. The Court found that the fees charged were fair, reasonable, and proportionate for the purposes of the Rules.
The Court found that the respondent's conduct of the case caused it to take twice as long as it should have. The Court also found that the applicant made several offers of settlement that were not accepted, and the respondent's financial impecuniosity did not bar the making of a costs order against her. The Court concluded that the respondent's conduct warranted an indemnity costs order. The Court ordered the respondent to pay $18,800 within 42 days or as otherwise agreed between the parties. This amount represented the cost of the applicant's legal representation for four days of hearing. The Court was satisfied that the fees charged were fair, reasonable, and proportionate for the purposes of the Rules.
The Court's reasoning was based on the well-settled law relating to costs in family law proceedings. The Court considered the relevant factors set out in section 117(2A) of the Family Law Act 1975 (Cth) and found that the respondent's conduct of the case caused it to take twice as long as it should have. The Court also considered the financial circumstances of both parties and found that the applicant's financial circumstances did not preclude him from receiving the benefit of a costs order in his favour. The Court ordered the respondent to pay the applicant's costs for four days of hearing, which amounted to $18,800. The Court found that the fees charged were fair, reasonable, and proportionate for the purposes of the Rules.
The Court's decision was based on the well-established principles of costs in family law proceedings. The Court found that the respondent's conduct of the case caused it to take twice as long as it should have, and that the applicant made several offers of settlement that were not accepted. The Court concluded that the respondent's conduct warranted an indemnity costs order. The Court ordered the respondent to pay the applicant's costs for four days of hearing, which amounted to $18,800. The Court found that the fees charged were fair, reasonable, and proportionate for the purposes of the Rules.
Orders
Orders of the court
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Background
Background to the litigation
The application for costs was filed within time pursuant to r 12.13(3)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). This Court is not precluded from determining this application under the doctrine of functus officio; see Kazimierczak and Koch (1987) FLC 91-849 at 76,418–76,419. background On 22 July 2022, the substantive proceedings concerning an application by the maternal grandmother (the respondent in this application) to spend time with her granddaughter, the applicant’s oldest child, was dismissed. Extensive reasons for judgment were provided following an eight day hearing; Charters & Webb [2022] FedCFamC1F 527 (“reasons for judgment”). To the Court’s knowledge, no appeal was filed in relation to the orders made on 22 July 2022. There is some suggestion in material filed by the respondent that an appeal may have been filed but was ultimately withdrawn. Where it is relevant, various passages from the reasons for judgment will be referred to or reproduced.evidence In support of his case, the applicant relied on the following material:(a)Application in a Proceeding filed 22 August 2022;(b)His affidavit filed 22 August 2022;(c)Financial statement filed 21 September 2022;(d)Acorn Lawyers Summary Report & Tax Invoices Issued between 31 October 2017 and 29 June 2022;(e)Schedule 3 – Estimates of costs;(f)Reasons for judgment delivered on 25 July 2022, Charters & Webb [2022] FedCFamC1F 527;(g)Written submissions served on 21 September 2022, filed on 11 October 2022; and(h)Written submissions in reply filed 11 October 2022. In support of her case, the respondent relied on the following material:(a)Response to Application in a Proceeding filed 5 October 2022;(b)Application in a Case filed 12 January 2018;(c)Her affidavit filed 20 February 2018;(d)Her affidavit filed 26 September 2018;(e)Financial Statement filed 26 September 2018; (f)Her affidavit filed 5 October 2022;(g)Affidavit of Mr F filed 5 October 2022;(h)Affidavit of Ms O filed 5 October 2022;(i)Financial Statement filed 5 October 2022; and(j)Written submissions filed 5 October 2022.THE APPLICABLE LAW The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that: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), (4A) and (5) and the applicable Rules of Court, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. Section 117(2A) sets out the matters that the Court is to have regard to: (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.
Evidence
Evidence Before The Court
On 22 July 2022, the substantive proceedings concerning an application by the maternal grandmother (the respondent in this application) to spend time with her granddaughter, the applicant’s oldest child, was dismissed. Extensive reasons for judgment were provided following an eight day hearing; Charters & Webb [2022] FedCFamC1F 527 (“reasons for judgment”). To the Court’s knowledge, no appeal was filed in relation to the orders made on 22 July 2022. There is some suggestion in material filed by the respondent that an appeal may have been filed but was ultimately withdrawn. Where it is relevant, various passages from the reasons for judgment will be referred to or reproduced.evidence In support of his case, the applicant relied on the following material:(a)Application in a Proceeding filed 22 August 2022;(b)His affidavit filed 22 August 2022;(c)Financial statement filed 21 September 2022;(d)Acorn Lawyers Summary Report & Tax Invoices Issued between 31 October 2017 and 29 June 2022;(e)Schedule 3 – Estimates of costs;(f)Reasons for judgment delivered on 25 July 2022, Charters & Webb [2022] FedCFamC1F 527;(g)Written submissions served on 21 September 2022, filed on 11 October 2022; and(h)Written submissions in reply filed 11 October 2022. In support of her case, the respondent relied on the following material:(a)Response to Application in a Proceeding filed 5 October 2022;(b)Application in a Case filed 12 January 2018;(c)Her affidavit filed 20 February 2018;(d)Her affidavit filed 26 September 2018;(e)Financial Statement filed 26 September 2018; (f)Her affidavit filed 5 October 2022;(g)Affidavit of Mr F filed 5 October 2022;(h)Affidavit of Ms O filed 5 October 2022;(i)Financial Statement filed 5 October 2022; and(j)Written submissions filed 5 October 2022.THE APPLICABLE LAW The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that: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), (4A) and (5) and the applicable Rules of Court, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. Section 117(2A) sets out the matters that the Court is to have regard to: (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.
Decision
Reasons for decision
Perhaps the most significant finding by the Court was at [100], the effect being that the respondent’s conduct of the case caused the case to take twice as long as it otherwise should have.conclusion The applicant’s case is established. The respondent was entirely unsuccessful in the proceedings. The manner in which she conducted the case caused it to take twice as long as it should have. The applicant made several offers of settlement that were not accepted but which should have been. The respondent’s financial impecuniosity is not a bar to the making of a costs order against her. The applicant’s financial circumstances are not such as to preclude him receiving the benefit of a costs order in his favour. The conduct of the respondent in particular warrants an indemnity costs order. The applicant’s total costs amounted to $80,462.27. Having regard to the Court’s finding that the respondent’s conduct of the hearing caused it to take twice as long as it should have been, that is eight days instead of four days, the costs payable by her will be limited to the cost of the applicant for four days of hearing. The evidence before the court about the applicant’s costs made it very difficult to ascertain with precision what those daily costs might be. Doing the best the Court can, this seems to amount to $3,500 per day for counsel, and $1,200 per day for his solicitor; totalling $18,800 for four days. The court is satisfied that the fees charged are fair, reasonable and proportionate for the purposes of r 12.08 of the Rules. Thus, pursuant to r 12.17(a) of the Rules, the court orders this amount payable. The respondent will be ordered to pay that amount within 42 days, or as otherwise agreed between the parties.
Ratio Decidendi
Legal Principle Established
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