Darcy and Darcy and Ors

[2008] FamCA 915

FAMILY COURT OF AUSTRALIA

DARCY & DARCY AND ORS [2008] FamCA 915

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

Penfold v Penfold (1980) FLC 90-800

APPLICANT: Ms Darcy

RESPONDENT: Mr Darcy

INTERVENERS: Mr and Mrs Darcy (Snr)

FILE NUMBER: MLF 3110 of 2005

DATE DELIVERED: 30 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: By way of written submissions

WRITTEN SUBMISSIONS RECEIVED FROM

THE APPLICANT: In person

Orders

1. That the application of the wife for costs against the interveners is declined.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3110 of 2005

MS DARCY

Applicant

And

MR DARCY

Respondent

MR AND MRS DARCY (SNR)

Interveners

REASONS FOR COSTS JUDGMENT

1. On 1 August 2008, I delivered judgment in respect of the property proceedings between the husband and the wife.

2. In paragraph 12 of the orders, I said:

   That should any parties seek costs arising out of these orders, that application be by way of written submission.  Any such written submission shall be filed by 4.00pm on 15 August 2008 by email transmission to my Associate…

3. I received a written submission from the wife but no other party.  The wife prepared the submission herself.

4. The wife referred to paragraph 60 on page 13 of my judgment in which I said:

   Costs are not intended as a punishment.  Costs are intended to ameliorate the loss incurred as a result of a party being brought into litigation unnecessarily.  That is exactly what has occurred here.  In the circumstances, and in the exercise of discretion, it is appropriate that at least the costs of the wife in briefing counsel on the return date in May should be covered.  Accordingly I propose to make an order for $2200 and that it be jointly and severely the liability of the husband’s mother, father and grandmother.

5. The reference to paragraph 60 alone would not give the context.  The wife’s sought costs against interveners and in the judgment, I said:

   55.Turning then to the question of the costs sought by the wife.  This was an order sought specifically against the husband’s mother, father and grandmother.  Whilst each of those persons was not specifically heard on the question of an order for costs, the mother’s position as I understand it was that she simply opposed the order being made.  There is no question that this Court has the power to make an order for costs against a person who is not a party to the proceedings.  Each must have contemplated the inconvenience that they had caused by lodging the caveats requiring the wife subsequent to the closure of the evidence, to seek to have the orders that were clearly intended not only by me but also by Brown J in March 2007 implemented.

   56.Section 117 of the Act says that each party in proceedings shall bear their own costs unless the circumstances justify a court departing from the principle. If the court determines that it is just to depart from the principle then the question of the matters set out in s 117(2A) must be considered.

   57.I do not know the financial circumstances of the husband’s extended family members in any detail.  It is important to note however that they were the purchasers of the [P] properties.  I have presumed that they are financially comfortable.

   58.The husband’s extended family members had the benefit of legal advice for some days in May when the matter was listed before me so I am entitled to conclude that they have some level of affluence and understand the costs involved in litigation.

   59.The wife on the other hand having gone through a trial in January was entitled to expect that there would be no impediment to the orderly conduct of the sale set out in the orders of March 2007 and my orders in January 2008.  She has incurred significant legal costs unnecessarily as a result of the conduct of the husband’s parents and grandmother.

   60.Costs are not intended as a punishment.  Costs are intended to ameliorate the loss incurred as a result of a party being brought into litigation unnecessarily.  That is exactly what has occurred here.  In the circumstances, and in the exercise of discretion, it is appropriate that at least the costs of the wife in briefing counsel on the return date in May should be covered.  Accordingly I propose to make an order for $2200 and that it be jointly and severely the liability of the husband’s mother, father and grandmother.

   61.In respect of the costs thrown away in July, the husband and the wife were involved in significant negotiations to resolve all of their matters and there was the issue of the subpoena to the Commonwealth Bank.  The wife accordingly would have incurred significant legal costs for that occasion in any event.  In those circumstances, it is not appropriate to make an order for costs other than that to which I have just referred.

6. It will be seen therefore that I determine the issue of the costs against the intervener.

7. Paragraph 12 of my orders dated 1 August 2008 related to the substantive proceedings.

8. In her written submissions, the wife said:

   I seek costs orders against the interveners in accordance with paragraph 60 page 13 of his honors (sic) ‘Reasons for Judgment’ – 1^st August 2008.

9. The letter (rather than submission) of the wife went on to say that the sum that I ordered of $2200 was only a small fraction of the total cost of her legal fees since the interveners were granted the opportunity to be joined in the matter.  She pointed to a total cost of $22,959.50.

10. Unfortunately for the wife, those issues were not argued before me when I determined the intervener costs issue.

11. I am not in a position to re-open that matter.

12. The letter of the wife complained that the fees of Mr Szabo were substantially higher above the family law scale but she was referred there by her previous lawyer on the basis that Mr Szabo was a family law specialist.

13. The wife then went on to say that I might consider a matter differently in the future of a similar nature if it occurred.  I only need to repeat what I earlier said about the submission that was put to me at the time.

14. The last paragraph of the letter of the wife says:

    I provide for you below a table summarising my legal costs since the commencement of proceedings.  Highlighted in RED are costs since the involvement of the ‘interveners’.

15. The table attached to the letter of the wife says that her costs amounted to $76,108.80.  Those figures appear to include a number of legal practitioners going back to August 2005.

16. I have delayed the delivery of these reasons on the basis that I had anticipated that something more might be received in relation to the question of a submission concerning costs.  Nothing further has been received.  Accordingly, I propose to determine the matter on the basis of what information I have. 

17. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) sets out that each party shall pay their own costs.  The exception to that rule is where the court says that there is a justification for departing from the principle.

18. I do not have sufficient information in this case apart from the fact that I can understand the anguish of the wife and her frustration at the matter not resolving, to properly determine whether I can say that there is a justification for departing from the principle that each party pays their own costs.

19. In Penfold v Penfold (1980) FLC 90-800 in the joint judgment of Stephen, Mason, Aicken and Wilson JJ it was said at 75,053:

    It is an accurate description of s 117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s 117(2). As sub-sec (1) is expressed to be subject to sub-sec (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

    Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order.

20. As I have said, I have given everyone ample time to put matters that would enable me to determine the matter on the basis of the provisions in s 117 of the Act and I have heard nothing of substance.

21. In those circumstances, I have declined to make any order.

I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 October 2008