Dalrymple and Dalrymple (Costs)
[2011] FamCAFC 63
•25 March 2011
FAMILY COURT OF AUSTRALIA
| DALRYMPLE & DALRYMPLE (COSTS) | [2011] FamCAFC 63 |
| FAMILY LAW - APPEAL – COSTS OF APPEAL – no order for costs. |
| Family Law Act 1975 (Cth) s 117 |
| APPELLANT: | Ms Dalrymple |
| RESPONDENT: | Mr Dalrymple |
| FILE NUMBER: | ADC | 2406 | of | 2008 |
| APPEAL NUMBER: | SA | 12 | of | 2010 |
| DATE DELIVERED: | 25 March 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 3 September 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 931 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In Person |
Orders
There be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Dalrymple & Dalrymple (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 12 of 2010
File Number: ADC 2406 of 2008
| Ms Dalrymple |
Appellant
And
| Mr Dalrymple |
Respondent
REASONS FOR JUDGMENT
On 13 December 2010 I delivered my reasons for judgment and made orders dismissing the appeal. I also made the following orders in relation to costs:
3. The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:
(a)on behalf of the respondent within twenty-eight [28] days hereof;
(b)on behalf of the appellant in response thereto within fourteen [14] days thereafter;
(c)on behalf of the respondent in reply thereto within seven [7] days thereafter; and
(d)that each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
On 6 January 2011 the husband filed documents in purported compliance with my orders. These documents comprised a statement from the husband’s solicitors dated 5 October 2010 identifying outstanding accounts totalling $3,552.30 and requiring payment, a trust account statement dated 1 March 2010 showing a nil balance, and a covering letter which read as follows:
FAMILY COURT OF AUSTRALIA
RE [DALRYMPLE] SA12 OF 2010 FROM ADC 2406 OF 2008
Enclosed are statements to the cost of the appeal in the Family Court.
Statement of the Trust Account. This was paid prior my Lawyer attendance and used prior court hearing. $3,424.60.
Further legal fees incurred leading up to the hearing and final attendance. This amounted to a final balance of $3, 552.70 which is still required to be paid.
Total Legal Fees for attendance to the appeal is $6,977.30.
I ask if these fees can be awarded to me as the respondent as the appeal was dismissed in my favor [sic].
I also lost income from attendance as i [sic] am self employed.
Loss income approx $1,500.00 in time taken to attend lawyers and court.
This seems to represent a claim by the husband for costs of $6,977.30 on the basis that the appeal was unsuccessful.
Apparently there was an issue about service of these documents on the wife, and she did not file her purported submission until 7 February 2011. This submission took the form of setting out a schedule of expenses and suggesting that because the husband was unreasonable, more transcript was obtained than was necessary. The wife also complained about having to take unpaid leave because the date of the hearing did not coincide with her available days.
It seems that the wife is seeking some sort of order recompensing her for miscellaneous expenditure and transcript costs. It is unclear though what the basis of this claim is.
Then finally, on 14 February 2011 the husband forwarded further statements from his solicitors allegedly identifying further costs incurred of $5,893.60. However, it was not apparent how these statements fit in (if at all) with the previous statements, and there was no indication of what ultimately the husband was seeking. In any event, under the orders the husband had the opportunity to file a reply (to the wife’s submission), but it was not an opportunity to simply put in material that had no relevance to the wife’s submission and that should have been put as part of the husband’s initial submission.
In the circumstances I do not propose to make any order for costs. Neither party has complied with the order and made intelligible submissions as to the costs of the appeal. Save and except one comment by the husband, there was also no attempt by either party to satisfy the legislative requirements, and in particular to refer to s 117 of the Family Law Act 1975 (Cth). Although the husband did say in his initial covering letter that he sought the costs he says he identified because the appeal was dismissed, from his documentation I am not able to discern what costs he has incurred. Clearly, the wife was wholly unsuccessful and the husband would have incurred some costs because he was represented by counsel at the hearing of the appeal, but there are more factors than the success or otherwise of the application before the Court that are relevant and need to be considered. For example, there is the financial circumstances of the parties, but nothing was said about this.
With the wife’s submission, the less said the better. There is nothing in that submission that justifies an order for costs in her favour.
In these circumstances, and to repeat, I propose to make no order for costs.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 25 March 2011.
Associate:
Date: 25 March 2011
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