Dalby & Jemmet (No 3)
[2023] FedCFamC2F 1350
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dalby & Jemmet (No 3) [2023] FedCFamC2F 1350
File number(s): ADC 2661 of 2021 Judgment of: JUDGE MCGINN Date of judgment: 20 October 2023 Catchwords: FAMILY LAW- COSTS – Application following trial and delivery of judgment – Subpoena objections – Interim hearing – Applications proceeded to judgment – Orders made Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021
Cases cited: Daines & Daines (Costs) [2014] FamCAFC 170
Hitch & Hitch [2012] FamCAFC 124
Parke & the Estate of the late A Parke [2016] FamCAFC 248
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & Anor [2005] FamCA 158
Division: Division 2 Family Law Number of paragraphs: 97 Date of hearing: 27 September 2023 Place: Adelaide Counsel for the Applicant: Mr Lindsay Solicitor for the Applicant: Purdie Wood Legal Pty Ltd Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Clelands Lawyers Adelaide Pty Ltd ORDERS
ADC 2661 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DALBY
Applicant
AND: MR JEMMET
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
20 OCTOBER 2023
IT IS ORDERED:
1.That pursuant to s 117 of the Family Law Act 1975 (Cth) the respondent do pay the applicant’s costs of the objection to subpoena filed 28 September 2021 and the applications heard at trial on 6 and 7 September 2022 and the Amended Application in a Proceeding sealed 14 August 2023 fixed in the sum of $25,266 (inclusive of GST).
2.That the costs pursuant to order 1 become payable not before 24 October 2023.
3.That the Amended Application in a Proceeding sealed 14 August 2023 and the Response to an Application in a Proceeding sealed 8 September 2023 do otherwise stand dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN:
In these reasons the reference to “Rules” is intended to be a reference to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) as to be applied by virtue of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth). The latter set of Rules will be referred to by their full title.
Before the Court is the applicant mother’s Amended Application in a Proceeding sealed 14 August 2023 which seeks, amongst other orders, that orders be made in her favour for costs of and incidental to:
(a)her application for interim and final orders of 3 June 2021;
(b)the dismissal of the respondent father’s Notice of Objection – Subpoena filed 28 September 2021 that came before the Court on 8 December 2021; and
(c)that Application in a Proceeding.
The applicant seeks a global amount of $54,728.50 by way of costs for those three applications.
The costs are sought on a party/party basis[1], that is, those costs said to be necessarily incurred in conducting the litigation.
[1] See Rule 12.17(1)(b) and (2); Rule 12.47(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth).
Whilst I have ultimately come to the view that an order for costs should be made, I have not acceded to the applicant’s claim for the amount sought.
As can be seen from the terms of the Application, there is some overlap between the grounds for the costs order in the sense that the subpoena application for which costs were sought, which had previously been reserved, was part of the application of 3 June 2021.
By the respondent father’s Response to an Application in a Proceeding of 8 September 2023 he seeks that the applicant’s Amended Application in a Proceeding be dismissed.
The Application is supported by the applicant’s affidavit of 28 July 2023. The Response is supported by the respondent’s affidavit of 8 September 2023.
Each party also filed a Financial Statement on 13 September 2023 (applicant) and 11 September 2023 (respondent) and case outline documents.
It is convenient to separately deal with each of the three processes which are the strata of the application for costs.
LEGAL PRINCIPLES
The applications for costs are made pursuant to s 117 of the Family Law Act 1975 (“the Act”).
Subsection 117(1) relevantly provides that subject to subsection (2) each party to proceedings under the Act should bear their own costs.
Subsection 117(2) provides that if in proceedings under the Act a Court is of the opinion that there are circumstances that justify it in doing so the court may subject to, again relevantly, subsection (2A) and the applicable Rules of Court, make such order as to costs as the court considers just.
Subsection 117(2A) says that a Court in considering what order for costs (if any) should be made under subsection (2) t should have regard to the matters listed in that subsection. Those matters can be summarised as:
(a)the financial circumstances of each of the parties;
(b)whether parties are in receipt of legal aid and the terms of that legal aid;
(c)the conduct of the parties to the proceedings;
(d)whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court;
(e)whether a party has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer to the other party in writing to settle the proceedings and the terms of that written offer; and
(g)such other matters as the Court considers relevant.
In giving consideration to the application now before the Court, I accept that:
(a)other than as prescribed by statute,[2] there are no categories of proceedings that by reason of that categorisation receive special consideration;
(b)subsection 117(1) expresses a general rule that is not paramount to subsection (2);
(c)the making of an order for costs is only confined to “clear” cases;
(d)all though all matters in subsection (2A) must be taken into account and balanced, a court can be satisfied that one factor may justify an order or costs.[3].
[2] See s 117(1) of the Family Law Act 1975 (Cth).
[3]PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & Anor [2005] FamCA 158; Hitch & Hitch [2012] FamCAFC 124
In the circumstances of this matter, some of the criteria identified in subsection 117(2A) can be addressed as regard can be had to them in respect of each of the applications for costs of the three court events identified in the application. Those matters relate to the financial circumstances of the parties and the fact that neither of them is in receipt of legal aid.
In addition to s 117 of the Act, The Court in determining the question of costs and the assessment of the amount of any order for costs must have regard to the various provisions of Chapter 12 of the Rules.
FINANCIAL CIRCUMSTANCES OF THE PARTIES
The Financial Statements filed by each party is indicate that their claimed current incomes are not largely dissimilar with the applicant being in receipt of about $116,000 per annum and the respondent being in receipt of $120,000 per annum.
The applicant’s Financial Statement discloses an excess of assets over liabilities of approximately $212,000 and superannuation of about $142,000.
The respondent’s Financial Statement discloses an excess of assets over liabilities of approximately $600,000. In addition, the respondent discloses he holds about $78,000 in superannuation.
The responding material indicates he is expecting the proceeds of settlement upon the sale of property on 24 October 2023.
Each party has the benefit of full-time employment.
It is to be borne in mind that neither impecuniosity nor the inability to meet an order for costs per se is determinative of whether an order for costs ought to be made.[4]
[4] Daines & Daines (Costs) [2014] FamCAFC 170 at [40]
I do not consider that the financial circumstances of the parties in this case should preclude an order for costs being made and, in particular, that the respondent’s financial position as set out in his Financial Statement should preclude the making of an order for costs against him.
LEGAL AID
As noted above, neither party is, nor has been, in receipt of legal aid.
OTHER FACTORS
In this matter the applications for costs focused upon the question of the parties’ conduct, the extent of success and the nature of offers in writing and, perhaps, “other matters” as permitted by s 117(2A)(g).
THE APPLICATION IN RESPECT OF THE NOTICE OF OBJECTION
On 16 September 2021, the applicant issued a subpoena to produce documents to a principal of a school at which the children of the parties had attended seeking production of records in relation to the respondent.
On 28 September 2021, the respondent filed a Notice of objection - Subpoena in relation to that subpoena claiming the subpoena was irrelevant, oppressive, constituted “fishing”, was a vexatious and an abuse of process.
On 19 October 2021, the matter of the objection came before a Registrar who listed the matter for interim hearing before a Judicial Registrar, made directions for the filing of case outlines and minutes of orders sought and reserving the question of costs of attendance at Court that day. The notation to the order indicates that the respondent questioned whether a Judicial Registrar had power to deal with the objection.
On 19 November 2021, the question of objection was relisted by an order in chambers before me on 8 December 2021.
The applicant mother filed a case outline in respect of the question of objection on 6 December 2021 at 11:04am (ACT time) which not only sought that the Notice of objection be dismissed but that the applicant’s costs be paid in the amount of $266 within 14 days direct to the wife’s solicitors trust account.
That amount of $266 was consistent with the scale of costs then identified in Schedule 3 of the Rules in relation to counsel’s attendance for less than 3 hours.
The respondent filed a case outline on 7 December 2021 at 1:05pm (ACT time) seeking that the subpoena be “discharged” and that the respondent’s costs of and incidental to the hearing on 8 December 2021 be paid by the mother on an indemnity basis and, in the alternative, be calculated in accordance with Schedule 3 of the Rules.
On 8 December 2021, the upholding or dismissal of objection was argued and I ruled that the Notice of Objection - Subpoena was to be dismissed, granting leave to the parties to seek by way of joint correspondence to my chambers an order for permission to inspect and copy documents produced in answer that subpoena. On the day, I also made an order reserving the question of the wife’s costs in relation to the notice of objection. In reserving those costs the matter was certified as fit for junior counsel pursuant to Rule 12.28 in relation to the attendance before the Court that day.
The respondent was wholly unsuccessful with respect to his seeking that the notice of objection be upheld.
I do not consider that it is proper that the applicant should now be permitted to seek another or further amount in respect of the notice of objection as suggested by the applicant’s affidavit filed 28 July 2023 and in particular, annexture -6 to that affidavit.
Taking into account the financial circumstances of the parties and the fact that the respondent husband can be regarded as being wholly unsuccessful in relation to his notice of objection, I come to the opinion that there are circumstances that justify the making of an order for costs in the amount as set out in the applicant’s case outline filed in respect of that apart of the proceedings fixed in the sum of $266 inclusive of GST.
THE APPLICATION IN RELATION TO INTERIM AND FINAL ORDERS PROCEEDINGS COMMENCED BY THE MOTHER BY WAY OF APPLICATION FILED ON 3 JUNE 2021
In support of this aspect of her application, the applicant refers to the respondent being wholly unsuccessful in respect of the interim hearing of 20 December 2021.
It is said by the applicant that the orders made that day are consistent with the terms proffered on her behalf by letter of Friday, 17 December 2021. The offer made in that letter lapsed at the close of business that day.
This letter followed the provision of a Family Assessment Report (dated 15 December 2021) of 19 pages on Thursday, 16 December 2021.
That letter put forward an offer which was said to adopt the Family Assessment Report Writer’s recommendations as to the living arrangements for the parties’ children and the parent’s participation in sporting or extracurricular activities.
Given the length of the Family Assessment Report, the date of its delivery and the limited period of the letter of offer of 17 December 2021, I would not attach any weight to the fact of the offer in the letter of 17 December 2021. I would consider that the time provided within which to consider the offer afforded insufficient opportunity for the respondent to have reasonably considered either the Report or the letter of offer.
A similar observation is to be made of the minutes of order said to have been proffered on behalf of the applicant to the respondent at the commencement of the hearing on 20 December 2021. In any event, that minute of orders was not an offer as such but rather a minute of the orders that were being sought that day.
The mother’s application before the Court on 20 December 2021 came to be there as a result of orders made 13 September 2021. The interim orders sought by the mother were those sought in her Amended Initiating Application of 27 August 2021. That application included an application for costs.
The minutes of orders made 20 December 2021 did not reflect the interim orders found in the Amended Initiating Application and went beyond those set out in the minute of order. The mother was successful, insofar as the orders made that day, as to the most substantive matters being consistent with the minute of order produced.
As part of the orders made that day, all of the interim applications of the parties were dismissed. There was no reservation of the question of costs in respect of those applications and no application for costs agitated at the hearing of 20 December 2021 nor at the earlier hearing of 13 September 2021 with respect to the interim proceedings.
In so far as the present application seeks to reagitate that application I would dismiss it.
Having regard to the matters concerning the interim applications determined on 20 December 2021 referred to above and taking them into account together with the financial circumstances of the parties, I am not persuaded that an order for costs should be made in relation to the interim applications that were concluded by the orders of 20 December 2021.
THE COSTS OF THE PROCEEDINGS GENERALLY
The applicant instituted these proceedings on 3 June 2021.
The application, and the response to it, resulted in a judgment being delivered.
The applicant was substantially successful, largely achieving orders that she ultimately sought in respect of what remained outstanding and in dispute from her Further Amended Initiating Application of 15 August 2022.
The respondent’s application for orders as sought in his Case Outline at trial in respect of outstanding matters was wholly unsuccessful.
This is a matter which weighs in the applicant’s favour for the making of an order for costs.
The parties resolved many aspects of their competing applications by way of consent orders made 21 July 2022.
The applicant says that the respondent in conducting the proceedings is not only taking his application forward but is doing so on the basis of factual matters which, at trial, he was unsuccessful in establishing constitute “conduct” which can and should be taken to account for the purposes of s 117(2A)(c).
The “conduct” identified in s 117(2A)(c) is not confined to forensic steps or procedures undertaken in the course of the proceedings but can relate to other types conduct in relation to the proceedings. Should I be wrong about that, such non-forensic conduct can otherwise be taken into account pursuant to s 117(2A)(g).[5]
[5] Parke & the Estate of the late A Parke [2016 FamCAFC 248.
The Court was taken, in the course of the applicant’s oral submissions, to a series of findings made by the Court that were adverse to the respondent’s case at trial and it was said that in pressing on with his application to trial comprised conduct to which regard was to be had in considering and determining that order for costs be made. I accept that submission.
This is a matter which weighs in the applicant’s favour for the making of an order for costs.
The parenting orders made with the consent of the parties on 21 July 2022 contained a notation as to what remained in dispute and which was to be brought to trial. That notation read:
B.The parties remain in dispute with respect to the discrete issue of whether an injunction should be granted on a final basis restraining them each from:
B.1. Attending upon the children’s school grounds at times the children are not in their care in accordance with the terms of this order save and except for the purposes of attending school functions, presentations, parent / teacher interviews or other such events to which parents are usually invited; and
B.2. Attending at any extra-curricular activity the children are participating in at times the children are not in their care pursuant to the terms of this order including but not limited to weekly tuition or training sessions and competitive events.
Further orders were also made that day to ready the matter for the trial hearing including the filing of amended applications and case outlines on behalf of each party, and the attendance of the Family Assessment Report Writer.
Trial affidavit material came to be filed pursuant to orders made 21 July 2022 on 15 August 2022 by the applicant and on 12 August 2022 by the respondent.
Following the consent of the parties to the order made 21 July 2023 the proceedings in my view then became, to adopt a word from the applicant’s submissions, “granular”.
I accept, in part, the applicant’s submission such that, I am of the view that the more granular a dispute, greater circumspection that should be brought to bear relation to incurring of costs. This should not be regarded as an appropriate observation to be made in every case but is applicable to the present case.
It was noted in the judgment that a substantial proportion of the applicant’s affidavit was determined to be inadmissible.[6]
[6] Judgment of 4 July 2023 at [242].
On the same day, a letter was sent on behalf of the wife to the husband’s solicitors.
That letter, found at annexure “-5” of the applicant’s supporting affidavit of 28 July 2023, was referred to in written submissions as a “Calderbank” letter. It is not. That letter concludes with the words “This letter is open correspondence and should be treated as such”.[7]
[7] The offer appears to be an open offer under Rule 4.06
The offer in that letter is found at page 3 of it. The relevant portion of the letter says:
Against this background, and before the parties are put to the expense of preparing for a final hearing in this matter, I am instructed to provide your client with a final opportunity to agree to the making orders [sic] in terms of the injunctions described in recital B to the final parenting orders made by consent this day [sic]
This letter comprises an offer for the purposes of Rule 4.06 and an offer in writing for the purposes of s 117(2A)(f).
The applicant subsequently filed on 15 August 2023, a Further Amended Initiating Application seeking parenting orders in terms (after allowing for the reference to the order of 21 July 2022) of notation B of the orders of 21 July 2022.
The letter of 21 July 2022 did not offer any concession upon what came to be brought forward in the Further Amended Initiating Application and in this sense was not an offer of compromise on the applicant’s position but rather, a statement or notice of what was to be sought by the applicant at trial.
The offer in the letter was no more than an offer to arrive at the applicant’s claimed position without the need for trial processes to be undertaken. The letter was designed to do no more than trigger costs sanctions.
Accordingly, in my view, this letter, whilst regard can be had to it for the purposes of s117(2A)(f), does not add any significant weight to the other considerations that arise under s 117(2A) but does add context to them.
There is weight in the argument that the orders that came to ultimately be made in this matter were close to being entirely consistent with those sought by the applicant, although they did not entirely match the orders that came to be made by the Court. The fact that the relief that ultimately came to be granted by the Court was close to that sought by the applicant is a matter that is of weight and can be brought to account pursuant to s 117(2A)(g).
The applicant can, however, be regarded as being substantially successful in respect of her application. This is a matter which weighs in her favour for the making of an order for costs.
The award of costs is not punitive but compensatory and the awarding of costs in this matter is not made, as the applicant’s submissions put it, to be somehow regarded as condign if by that submission it was meant to imply that the respondent should be punitively sanctioned for his lack of success in the proceedings.
The father’s Costs Notice of 6 September 2022 relating to the trial disclosed costs to the end of trial could be anticipated to be about $ 62,800 (inclusive of GST). The costs of trial component was anticipated to be about $15,950 (inclusive of GST).
The equivalent costs notice of the mother filed 15 August 2022 indicated anticipated costs to the end of trial of at least about $63,406 (inclusive of GST). The mother’s trial component was anticipated to be about $24,090 (Inclusive of GST).
Neither of the costs advices appear to allow for the costs of written submissions.
The costs notices should be given regard to in informing (but not exclusively) what costs, if any, might be considered as fair, reasonable and proportionate in the circumstances of the proceedings as required by Rule 12.08(1).
Taking all of these matters into account, I am of the opinion that there are circumstances that justify the making of a further order for costs in favour of the applicant for the applicant’s costs sustained in respect of the proceedings on and from 15 August 2022 and including the present application which has been brought as a consequence of the matter running to trial.
The quantum of costs to be awarded must be consistent with that permitted by the Rules and consistent with the principles set out in Division 12.4.1 of the Rules.
It is open to the Court to simply make the order for costs and leave the quantum then to be agreed within a particular period and then in default of agreement run to assessment. However, I consider it is appropriate that I fix the amount of costs to be paid so as to save the time, delay and expense associated with the assessment processes.
The Applicant has annexed to her supporting affidavit a schedule of the costs claimed.
The Respondent in his submissions called into question the schedule generally and, in particular, the amount associated with the preparation of written submissions of $11,509.
Those submissions ran to about 8,500 words over 22 pages.
I shall turn to the question of the amount to be allowed for that item of work shortly.
Rule 4.01(1) of the Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021 permits the use of either Schedule 3 of the Rules or Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021. There are no criteria as to which is to be preferred and under what circumstances.
In this case, I consider that Schedule 1 utilised by the applicant is appropriate given the detail and consequent complexity in which the matter went forward at trial and is otherwise identified by the Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021 as appropriate.
As to the claimed written submissions, a figure of $11,509 was charged by reference to item 15 of Schedule 1 but at the rate specified for senior counsel. Junior counsel appeared at trial and prepared the submissions. Why the figure has been put forward at senior counsel rates is not apparent. I will allow $6,137 for the written submissions.
On a similar basis, I would reduce the amount sought in respect of the replying submissions to $1,444 and the settling of case outline to $722.
I would only allow half of the claimed fee for the preparation of the costs notice, certificate of readiness and undertaking as to disclosure.
I would otherwise allow the following:
(a)the setting down and daily hearing fee;
(b)the solicitor’s fees as to the preparation of the case outline document;
(c)the preparation for final hearing fee;
(d)two full day fees for counsel and the associated advocacy loading;
(e)the expert witness fee;
(f)the fee for reading the final judgment and their explanation to the parties; and
(g)half of the costs claimed for the costs of the present application subject to an allowance for the inadmissibility of material contained in the trial affidavit.
In all of the circumstances, I would round and fix the amount of costs to be paid by the respondent to the applicant to the sum of $25,000 inclusive of GST in respect of this aspect of the proceedings.
This amount of costs should be paid in addition to that which I have determined should be allowed in relation the subpoena hearing.
The orders should therefore be that in respect of the applications for costs made upon the Amended Application in a Proceeding sealed 14 August 2023 that the respondent do pay the applicant’s costs fixed in the sum of $25,266 inclusive of GST.
Taking into account the respondent’s financial circumstances and that he has the sale of property appearing likely to settle on 24 October 2023 with funds appearing to be available to him by that date, the costs shall become payable not before that date.
There shall be orders as appear at the beginning of these reasons.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 20 October 2023
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