Coulson and East (Costs Application)

[2010] FamCA 1246

FAMILY COURT OF AUSTRALIA

COULSON & EAST (COSTS APPLICATION) [2010] FamCA 1246

FAMILY LAW – COSTS – application in connection with an application for an anti-suit injunction – costs sought on a party/party basis

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms J Coulson

RESPONDENT: Mr East

FILE NUMBER: SYC 4243 of 2007

DATE DELIVERED: 3 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

DEALT WITH BY WRITTEN SUBMISSIONS

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moorhouse

COUNSEL FOR THE RESPONDENT: Mr Foster

Orders

1. The respondent, Mr East, is to pay the costs and disbursements of Ms J Coulson of and incidental to his application for an anti-suit injunction, and this application for costs, as agreed or assessed within three (3) months of their agreement or assessment.  Such costs are to be determined on a party/party basis.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4243 of 2007

MS J COULSON

Applicant

And

MR EAST

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application by Ms J Coulson (“Mrs Coulson”), who is the husband’s current wife, that Mr East (who is the second respondent in the substantive proceedings) pay her costs incurred in relation to an anti-suit injunction unsuccessfully sought against her.

2. Mr East made an Application for an anti-suit injunction restraining

   
   

   Mrs Coulson from continuing proceedings in the Industrial Court of New South Wales (“the Industrial Court”).  That application was dismissed by the Court on 27 July 2010.  The Court’s Judgment on that occasion should be read as part of this Judgment.

3. Mrs Coulson seeks an order in the following terms:

   “Mr [East] pay the costs and disbursements incurred by Mrs [Coulson] in connection with the application for anti-suit injunction made by Mr [East], including the costs and disbursements associated with Mrs [Coulson’s] application for costs, in the amount of $52,073.04.  Such amount to be payable forthwith.

   Or, in the alternative:

   Mr [East] pay the costs and disbursements incurred by Mrs [Coulson] in connection with the application for anti-suit injunction made by Mr [East], including the costs and disbursements associated with Mrs [Coulson’s] application for costs.  Such costs and disbursements to be on a party/party basis as agreed between the parties or if not agreed as determined under the Rules of Court and payable forthwith.”

4. The application is opposed by Mr East on a number of grounds, including that Mrs Coulson was involved in a form of duplicitous conduct with the husband in these proceedings.

5. It is argued by Mr East that through the husband Mrs Coulson has duplicated the proceedings in the Industrial Court in making a claim for unpaid wages.  The Court, however, accepts the submission made by Mrs Coulson that the proceedings before the Industrial Court are ones for variation of the terms of a contract of employment and the claims adumbrated in these proceedings about her employment relate to sums allegedly due to her under the contract already existing.

6. Mrs Coulson argues, and the Court agrees, that the reality is that the costs sought were incurred by reason of the application for an anti-suit injunction by Mr East.  That was a discrete application brought by a stranger to the marriage, against a stranger to the marriage.  The application failed in its entirety.

7. Mr East says that in the event that the Court was minded to make an order for costs it should be subject to a stay pending an order in either the Industrial Court proceedings or in these proceedings, when the rights as between

   
   

   Mr East and other the parties to these proceedings are determined.

8. It is argued by Mrs Coulson that her involvement in these proceedings other than as a witness has only been in connection with the application brought by Mr East.  It thus appears to the Court that there is no reason why there should be any delay other than one which might permit the assembly of funds for payment of those costs, pending the resolution of these or other proceedings.

9. In addition, submissions are made by Mr East for orders as to the basis on which the costs might be determined and the manner of their determination.

10. The Court is of the view that it is appropriate that the costs be either as agreed or, in the absence of agreement, be subject to assessment in accordance with the Family Law Rules 2004 (Cth) (“the Family Law Rules”).

11. It is the Court’s intention to make an order that the Costs as agreed or assessed be payable within three months of their assessment or agreement.

Section 117 considerations

1. The Court has a broad discretion as to the orders that it makes for costs and that discretion is set out in section 117(2) of the Family Law Act 1975 (“the Act”). In the consideration of the exercise of that discretion I am obliged to consider the matters set out in section 117(2A) of the Act. Those matters are set out in the following sub sections of that section namely:

(a)      the financial circumstances of each of the parties to the proceedings

1. Information before the Court places the financial position of each of the parties to the application at a modest level.  It is asserted that the resources of

   
   

   Mrs Coulson should be assessed in the light of her husband’s property.  The Court does not agree that the husband’s property should be taken into account, other than perhaps to some extent as a financial resource of Mrs Coulson.

(b)      whether any party to the proceedings is in receipt of legal aid and, if so, the terms of the grant of that assistance to that party

1. There is no evidence that either party is in receipt of legal aid.

(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

1. There is no conduct of the parties to the proceedings in relation to the matters of pleadings, particulars, discovery, inspection, directions to answer questions admissions of facts, production of documents or similar matters which are exceptional or should be the subject of consideration.

2. It is noted that application for an anti-suit injunction was pursued notwithstanding clear authority at a Federal Court level to the contrary and that well before the major costs were incurred the respondent was put on notice of the basis of the argument of the applicant.

3. The assertion is made by the Mr East that Mrs Coulson was involved in duplicitous conduct.  However, as considered earlier in these Reasons the claim made for amounts said to be due under an existing contract and adumbrated in affidavits filed in this Court is different from the claims made by Mrs Coulson for review of the contract in the Industrial Court.

(d)      whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. This is not applicable.

(e)      whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Mr East has been wholly unsuccessful in the application he made.

   (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

2. There is no evidence of any such offer but the Court notes that the applicant was made aware of the respondent’s arguments prior to the hearing taking place.

   (g)such other matters as the Court considers relevant

3. There are a number of objections raised by Mr East as to the appropriateness and quantum of amounts specified in an itemised bill filed in Court by

   
   

   Mrs Coulson.  It is appropriate that these objections be determined in the usual way and I propose to so order.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  3 December 2010