Clifford & Alban and Anor (Costs)

[2007] FamCA 1648

FAMILY COURT OF AUSTRALIA

CLIFFORD & ALBAN AND ANOR (COSTS) [2007] FamCA 1648

APPEAL – Dismissed

APPLICATION IN A CASE – Dismissed

COSTS – Appellant asked for costs – Appellant resists an order for costs – Appellant on disability pension - Appellant ordered to pay costs fixed at $3000 to each respondent

APPLICANT: MR CLIFFORD

FIRST RESPONDENT:

SECOND RESPONDENT:

MR ALBAN

MS MOUNTFORD

FILE NUMBER: BRF 1681 of 2007

APPEAL NUMBER: NA 27L of 2007

DATE DELIVERED: 12 December 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 12 December 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Clifford appears on his own behalf

SOLICITOR FOR THE FIRST RESPONDENT: Mr Anderson

SOLICITOR FOR THE SECOND

RESPONDENT:

Ms Ritchie

Orders

1. That the application in a case filed 30 March 2007 is dismissed.

2. That the notice of appeal filed 30 March 2007 is dismissed.

3. That the appellant pay the costs of the first respondent fixed at the sum of $3000, such costs includes those costs orders on 19 June 2007 and 27 July 2007, and pay the costs of the second respondent fixed in the sum of $3000 to be deducted from the net sale proceeds of the [property] […] located in the State of Victoria. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

MR CLIFFORD

Appellant

And

MR ALBAN

First Respondent

MS MOUNTFORD

Second Respondent

REASONS FOR JUDGMENT

1. After giving judgment an application for costs was made on behalf of the first and second respondent.  The appellant resists an order for costs and, in fact, asks that he receive his costs.  A letter was received on his behalf dated today's date from Mr Greene, where he says the appellant has incurred various costs and totals them at $67,800.  One curious part of this is that, at least it was my impression that Mr Greene was assisting Mr Clifford without cost and there is a claim for $9000 for Mr Greene.

2. In any event, the solicitor for the first respondent who is from the Australian Government Solicitor, and appears for Mr Alban, the first respondent, submits that an order for costs should be made.  By reference to the provisions of s.117(2A), he submits that the appellant has been wholly unsuccessful and has the capacity to meet an order for costs.  His instructions are that the house which Mr Clifford owns is worth between $200,000 and $240,000 and is unencumbered.  The solicitor for the first respondent further submitted that pursuant to the orders made by Baumann FM on 30^th of October 2003 the sum now payable by the appellant to the second respondent is $63,154.80. There were also some orders made by Jarrett FM for costs.  The net result therefore, if those sums are deducted, would be that the appellant would have, when the house is sold, an amount of something in the vicinity of $170,000 left.

3. The solicitor for the second respondent submits that seven years has passed since the first order was made.  I should observe, however, as Mr Clifford said himself, he has hardly been inactive.  He has really attempted to resist as much as he could the original judgment of Rimmer FM.  He has appealed, but he has continuously been unsuccessful. 

4. The solicitor for the second respondent is correct in observing that there have been many extensions of time and many adjournments.  Her calculations are that in total 60 orders have been made by the Federal Magistrates Court and Family Court.  Ms Mountford's circumstances are that she is entirely dependent on Social Services.  She has a carer's pension and her husband is on a sickness benefit.

5. Throughout this matter the application has been supported by Legal Aid and the estimate is that it has cost the Legal Aid Office some $20,000.  The term of the grant of legal aid is that Ms Mountford will need to repay some sum and it is thought that that may be something in the order of 20 per cent of $60,000.  The costs as estimated by the solicitor for the second respondent are $6722. I should mention that the cost, as estimated by the solicitor for the first respondent, is the sum of $3879.90.  He provided to me an outline of those costs which include costs already ordered by me on 19 June 2007 and 27 July 2007 in the sum of $800.

6. Mr Clifford, as I mentioned, says he also has incurred substantial expense.  He emphasises his view that all this goes back to a serious error made by Rimmer FM many years ago.  As to his financial circumstances, he has another child to support.  He has numerous health problems, arising in part from a motor vehicle accident, and he is unable to work.  His only income is a disability pension.  So it can be seen that his circumstances, apart from the home in which he lives, are really quite poor.

7. It is unnecessary to repeat the history of this application already set out in some detail in my judgment delivered earlier today, and certainly in previous judgments.  Clearly the failure of the appellant to obtain funds to be represented was a significant difficulty for him in this matter.  The attempts made by the appellant to obtain assistance were futile, and each adjournment must have caused the other parties considerable inconvenience and cost.  Cost orders were made, as I have already mentioned, on 19 June 2007 and 27 July 2007.  The costs of 31 August 2007 were reserved.

8. As to the question of costs generally, a consideration of s 117(2) would demonstrate that there are circumstances that justify an order for costs in this case. However, the appellant's financial circumstances are poor and he is obliged to pay the two costs orders that I have already made. 

9. Bearing in mind the obligation to pay costs orders made both by me and in the Federal Magistrates Court, and his financial circumstances, he should pay some of the costs, the amount suggested should be somewhat reduced: as to the first respondent, the costs that should be paid must recognise that Mr Alban was obliged to take the steps that he has done as required by the Court and to resist this appeal and the order I intend to make is that the sum payable by the appellant to the first respondent be fixed at the sum of $3000.  That sum of $3000 includes those costs of $1600 already ordered to be paid on 19 June and 27 July 2007; as to the costs of the second respondent, I am extremely mindful of the fact that the mother's action is being supported by Legal Aid, and that she was obliged to resist this appeal and that the costs, no doubt, as described by the solicitor for the second respondent have been incurred, and I would also order that the sum of $3000, being approximately half of the costs that are asked, be paid by the appellant.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May

Associate: 

Date: 21.02.08