Coburn and Small

[2012] FamCA 1116

FAMILY COURT OF AUSTRALIA

COBURN & SMALL [2012] FamCA 1116

FAMILY LAW – COSTS – Where orders previously made that the applicant solicitor pay the respondent client’s costs – where there is a dispute regarding the amount owed – where the applicant seeks an extension of time within which to dispute the itemised costs account – where the applicant contends he did not receive a sealed copy of the orders and that is why he has delayed in filing the notice of dispute – where the applicant concedes he owes the respondent $20,000 – whether the extension sought by the applicant should be granted – orders made that applicant pay the respondent $20,000 together with the costs of this application – where extension granted.

Family Law Act 1975 (Cth)

APPLICANT: Mr Coburn

RESPONDENT: Mr Small

FILE NUMBER: BRC 577 of 2010

DATE DELIVERED: 17 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jensen-Peters

THE APPLICANT: Direct Brief

SOLICITOR FOR THE RESPONDENT: Mr Seery of Mylne Lawyers

Orders

IT IS ORDERED THAT

1. By not later than 4.00pm on 28 January 2013:

   (a)the applicant Coburn pay the respondent Small the sum of $20,000;

   (b)the applicant Coburn pay the respondent Small the additional sum of $768;

   (c)the applicant Coburn shall file and serve a Notice Disputing an Itemised Costs Account which sets out the basis of each such item disputed by him and if applicable any contrary contention as to either the item or its quantum.

2. In the event that all of the amounts referred to at paragraph 1 of these orders have not been paid by the time and date there specified the total of the amount specified in the Bill of Costs delivered by the respondent Small to the applicant Coburn be declared immediately due and owing. 

3. In the event that paragraph 1 of these orders has been complied with, but only in that event, the matter be referred to a taxing officer of this Court for determination of the amount owing in respect of the Bill of Costs. 

4. The applicant Coburn pay the respondent Small’s costs of and incidental to this application fixed in the sum specified at paragraph 1(b) of these orders. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Coburn & Small 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 BRISBANE

FILE NUMBER: BRC 577 of 2010

Mr Coburn

Applicant

And

Mr Small

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. For reasons which will follow, I make the following orders:

   1.        By not later than 4.00pm on 28 January 2013:

   (a)the applicant Coburn pay the respondent Small the sum of $20,000;

   (b)the applicant Coburn pay the respondent Small the additional sum of $768;

   (c)the applicant Coburn shall file and serve a Notice Disputing an Itemised Costs Account which sets out the basis of each such item disputed by him and if applicable any contrary contention as to either the item or its quantum.

   2.In the event that all of the amounts referred to at paragraph 1 of these orders have not been paid by the time and date there specified the total of the amount specified in the Bill of Costs delivered by the respondent Small to the applicant Coburn be declared immediately due and owing. 

   3.In the event that paragraph 1 of these orders has been complied with, but only in that event, the matter be referred to a taxing officer of this Court for determination of the amount owing in respect of the Bill of Costs. 

   4.The applicant Coburn pay the respondent Small’s costs of and incidental to this application fixed in the sum specified at paragraph 1(b) of these orders. 

2. Over five years ago the applicant in the current application before the court was held to be in contempt of court and was ordered to pay costs on a solicitor and own client basis.  Subsequently, a bill was delivered in an amount exceeding $40,000.  There were a number of difficulties in and about the procedural requirements of the Rules in respect of that bill.  Those difficulties resulted in applications before Registrars and, ultimately, in an application heard by Bell J in September 2010. 

3. In circumstances which do not have to be dealt with in detail in relation to the instant application, neither party attended at the proposed handing down of his Honour’s judgment in September. His Honour adjourned the handing down of his Honour’s reasons to 31 January 2011. At that time each of the applicant and respondent appeared.  They were each given a copy of his Honour’s orders and reasons for judgment. 

4. The applicant, Mr Coburn who was then representing himself says that he did not, at that time, nor subsequently, receive a sealed copy of the orders. That is said to found or be a reason for the delay in seeking to dispute the bill of costs that forms the foundation of the current application. 

5. The current application, as a result, is an application seeking an extension of time within which the costs assessment order made by Registrar Brooks on 29 September 2011 be set aside and that the applicant, in effect, have the capacity to file and be heard in respect of the dispute which he has in respect of the bill of costs. 

6. In the proceedings before me the applicant who is today represented by Mr Jensen of Counsel, accepts that his Honour’s orders and reasons were intended to effectively provide, as it were, a clean slate so that the justice of the issue of the proper amount of costs owing to Small as contended for by Coburn could be ascertained. 

7. A number of assertions attend the handing down of those reasons and the subsequent orders. Principal among them is the assertion by the applicant Mr Coburn that he did not receive a sealed copy of the orders. That, he says, provides the foundation for his inactivity in respect of them.  He also instructs his counsel that he believed that the silence from the solicitors for the respondent was indicative of the claim being abandoned.  I was not impressed by either of those assertions. 

8. Counsel properly and frankly conceded that his client did not deny that Mr Small had an entitlement to costs and that, accordingly, Small had a right to obtain some costs. 

9. Mr Jensen also properly and frankly conceded that no money at all had been offered in respect of any costs said to be owing to Small and at no time had his client suggested an amount alternative to that contained in the bill of costs.  I asked Mr Coburn a number of times through his counsel how much was contended to be owed. Ultimately, Mr Coburn indicated through his counsel that “as much as 50 per cent” is asserted as not owing. 

10. The corollary is that there is admitted by Mr Coburn an amount owing to Small of at least $20,000. 

11. Mr Jensen frankly concedes that this admission, although made before me, is not contained in the affidavit material nor, as I have said, has any offer to pay that amount, or indeed any lesser amount, ever been made by Mr Coburn despite his admissions both that the amount is owing and that it has been for a number of years. 

12. It is submitted that, when one looks at the chequered litigation path that led to the orders made by Bell J; the misunderstandings surrounding the orders made, which included, unfortunately, his Honour issuing the wrong orders initially (a matter which subsequently had to be corrected) and the inaction on the part of Mr Small for approximately 11 months since those orders were delivered, the interests of justice when balanced, nevertheless, require that Mr Coburn be afforded some opportunity to make legitimate points in respect of amounts that are said not to be owing.  In that respect, it is again emphasised that as much as half of the bill is contested. 

13. As counsel acknowledges, the central issue in this case is the balancing of the right of a party who has had an order for costs made in their favour to receive an amount properly owing as referenced to the appropriate scale and, on the other hand, the ascertainment of an accurate amount representing those costs. 

14. If permitted, the indulgence sought by Mr Coburn, ought come at a cost.  Although the word “punishment” was used during the course of submissions by Mr Jensen it is important to understand that any such requirement in the orders, to which I have earlier referred, are not in any way designed as a punishment.  Rather, in circumstances where there is an admission made to the court that a significant sum of money is owing to another party pursuant to a costs order, and has been owing for some time, that the indulgence which otherwise the interests of justice might require, at the same time, merit to be shown in those mooted attacks on the bill of costs by the payment of an amount admitted to be owing. 

15. So, too, absent from Mr Coburn’s current material is a detailed listing of all of the matters said to constitute the disputes on the bill of costs.  If the disputes are to be seen as having bona fides, Mr Coburn should be put on a tight timetable with respect to filing and serving the Notice Disputing Costs and to provide within it sufficient detail as to the attack made so as to properly identify that which is contended in substitution for the amount claimed in the bill. 

16. It seems to me that requiring the applicant to pay the sum of $20,000 together with the application of a tight timetable with respect to filing all necessary documents to have his asserted legitimate claims heard is an appropriate means of balancing the interests of justice.

17. So much was ultimately effectively conceded by Mr Seery, the solicitor for Mr Small having taken his client’s instructions in response to my question to his attitude to such an order. 

18. For those reason, then, I make the orders earlier referred to. 

19. Mr Seery sought an order for costs of and incidental to the application before me.  When pressed, Mr Seery, nominated six hours as the number of hours that, he assessed, had been taken by him in the preparation of this matter. 

20. It seems to me appropriate to order that Mr Coburn pay the costs of this application. The conduct of the proceedings and the circumstances to which I have earlier referred where an order has, on its face, not been complied with and an indulgence is sought from the court are particularly important matters by referent to s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”).

21. I am not prepared to allow a yet further round of toing and froing to occur with respect to the quantum of those costs.  I propose to fix the amount. 

22. It seems to me that the quantum should be fixed by reference to the number of hours taken by the solicitor in preparation and appearance. He has nominated six in total and that seems reasonable.

23. Six hours work reasonably done by a solicitor at the scale rate of $138 an hour is a total of $768. That is the amount fixed by me which is provided for in the orders.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 17 December 2012.

Associate: 

Date:  22 January 2013