Debrossard and Carey and Ors
[2015] FCCA 2739
•14 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEBROSSARD & CAREY & ORS | [2015] FCCA 2739 |
| Catchwords: FAMILY LAW – Costs – applications for costs – where substantive Application dismissed as incompetent – party and party costs – indemnity costs – where one party wholly unsuccessful in the proceedings – where a party who is a solicitor seeks costs for doing part of the work in her own case – where the party against whom the orders for costs were sought did not file any affidavit in answer to the Applications. |
| Legislation: Family Law Act 1975 (Cth), ss.117, 121 Federal Circuit Court Rules 2001, Sch.1, Part 1 |
| Cases cited: A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690 Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248 Commonwealth Bank v Hattersley [2001] NSWSC 60 De Roma & De Roma [2013] FamCA 566 Debrossard & Carey & Ors [2014] FCCA 2915 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158; (2005) 33 Fam LR 109 Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited [1988] FCA 202; (1988) 81 ALR 397 Guss v Veenhuizen (No.2) (1976) 136 CLR 47 In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340 J-Corp Pty Limited v Australian Builders Labourers Federation of Workers – Western Australian Branch Federal Court of Australia, 1993, unreported Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544 |
| Applicant: | MS DEBROSSARD |
| First Respondents: | MS CAREY & MR MERRIL |
| Second Respondent: | MS NORMAN |
| File Number: | WOC 799 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing date: | Decided in Chambers |
| Date of Last Submission: | 22 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2015 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the First Respondents: | Mr Metlej |
| Solicitors for the First Respondents: | Craddock Murray Neumann Lawyers |
| Second Respondent: | In person |
| Solicitors for the Second Respondent: | Ms Norman & Co |
ORDERS
The Applicant is to pay the First Respondents’ costs fixed in the sum of $2,079.90.
The Applicant is to pay the Second Respondent’s costs fixed in the sum of $3,112.59.
The Applicant is allowed six (6) months to pay.
IT IS NOTED that publication of this judgment under the pseudonym Debrossard & Carey & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 799 of 2007
| MS DEBROSSARD |
Applicant
And
| MS CAREY & MR MERRIL |
First Respondents
| MS NORMAN |
Second Respondent
REASONS FOR JUDGMENT
Application
The Respondents to the substantive Application are applying for their costs as a result of the dismissal of the Application – Contravention filed by the Applicant. The Application was returnable on 1st December 2014 and summarily dismissed as incompetent that same day.[1]
[1] Debrossard & Carey & Ors [2014] FCCA 2915
The Respondents sought orders for their costs, so I ordered that they each file and serve within 21 days an affidavit setting out the amount of costs that they sought and the basis upon which those costs were sought. I also ordered that the Applicant should file and serve an affidavit in reply within a further period of 21 days.
On 12th December 2014 the Second Respondent filed an affidavit sworn on 11th December seeking an order for costs in the amount of $3,112.59.
On 22nd December the First Respondents filed an affidavit sworn by their solicitor, Khaled Metlej, on 19th December, seeking an order for costs in the amount of $2,079.90.
The Applicant has not filed any affidavit in reply.
Evidence and Submissions
The First Respondents rely on the affidavit of Mr Metlej to which has been annexed a copy of a tax invoice from his firm addressed to the Official Trustee in Bankruptcy in the sum of $2,079.90, including GST.
In the affidavit. Mr Metlej submits that:
a)The substantive Application seeking that the First Respondents should be dealt with for contravention was bound to fail because it did not specify an Order which had allegedly been breached by the Respondents;
b)A plain reading of subsection 121(8) of the Family Law Act 1975 (Cth), being the section in respect of which the Applicant claimed a contravention by the First and Second Respondents, would have revealed to the applicant that she required the permission of the Director of Public Prosecutions to commence proceedings for an alleged breach of that section, which the Applicant did not have;
c)The conduct complained of by the Applicant in respect of the First and Second Respondents was alleged to have occurred in about May 2012, when a Contract for the Sale of land was issued, but the Applicant did not commence proceedings until two and a half years later, a delay for which no satisfactory explanation was provided; and
d)Except for a breach of her privacy, the Applicant had not established that the conduct the subject of her complaint had caused her any loss or damage.
Mr Metlej also submitted that the Applicant had been given notice by the Respondents that the Court did not have jurisdiction to grant the relief she sought in that:
a)She was served with the first affidavit of Mr Metlej on 28th November 2014;
b)Both Mrs Adams, the solicitor acting for the Second Respondent, and Mr Metlej spoke to the Applicant at approximately 9:30am and advised her that:
i)They did not believe that the Court had any jurisdiction to make the Orders she sought; and
ii)They were both instructed to seek costs against her in the event that her Application was dismissed; and
iii)The Court gave the Applicant the opportunity to consult a Duty Solicitor about her Application but she pressed her Application in any event.
The Second Respondent deposed in her affidavit that she had sought legal advice from a solicitor practising primarily in Family Law although she herself prepared the necessary court documents. Annexed to her affidavit is a document particularising her claim of $3,112.59, which includes a total of $1,149.59 for disbursements, the largest of which is an amount of $1,000.00 to Hamish Cumming, solicitors, for legal fees.
Costs in Family Law Proceedings
Costs in family law proceedings are governed by the provisions of section 117 of the Family Law Act 1975. Whilst subsection 117(1) provides that each party to proceedings under the Act shall bear his or her own costs, this subsection is subject to the provisions of s.117(2), which states:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), 4A) and (5) and the applicable rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Subsection 117(2A) provides that in considering what order (if any) should be made under subsection (2), the Court shall have regard to the matters set out in paragraphs (a) to (g) of the subsection. In summary, those matters are:
a)the financial circumstances of the parties;
b)whether any party to the proceedings is in receipt of assistance by way of legal aid;
c)the conduct of the parties to the proceedings in relation to the proceedings;
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
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
g)such other matters as the court considers relevant.
It is the usual case that where costs are ordered against a party they are ordered on a party and party basis. Costs would normally be ordered in accordance with the Court scale, which in this case is contained in Part 1 of Schedule 1of the Rules.
Costs will only be ordered on an indemnity basis where there are unusual or exceptional circumstances (Colgate Palmolive Co v Cussons Pty Ltd[2]; In the Marriage of Kohan[3]; Prantage & Prantage[4]).
[2] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
[3] (1992) 16 Fam LR 245; (1993) FLC 92-340
[4] [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544
Conclusions
The first matter to decide is whether to make an order for costs at all. Considering the matters in s.117(2A), it is clear that:
a)the Court has no information about the financial circumstances of the parties;
b)no party claims to have been in receipt of a grant of legal aid;
c)the Application was dealt with on the first return date and no party failed to appear or file the court documents required of them;
d)no party failed to comply with a previous Order of the Court;
e)the Applicant was wholly unsuccessful in the proceedings, as her Application was dismissed for want of jurisdiction on its first day in court; and
f)no party made a written offer of settlement.
It can be seen that the one factor that stands out is that the Applicant was wholly unsuccessful in the proceedings. It has been held that there is nothing to prevent any one factor in s.117(2A) of the Act being the sole foundation for an order for costs (PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [5]; De Roma & De Roma[6].
[5] [2005] FamCA 158; (2005) 33 Fam LR 109 (reported as PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL)
[6] [2013] FamCA 566
I am of the opinion that the above factor constitutes a circumstance that justifies the making of an order for costs in favour of the Respondents.
The First Respondents seek an order for their solicitors’ costs. The Second Respondent, who is herself a solicitor, seeks an order not only for her solicitors’ costs and disbursements, but for her own costs of preparing the documentation as well. It is clear that the Second Respondent instructed her solicitors to appear for her at Court but relied on her own efforts to correspond with the Applicant and draw her own affidavit and Application in a Case.
In my view, it is permissible for a solicitor to seek her costs for her efforts in conducting litigation where she does not have lawyers acting for her. There are several authorities to support this view, including Guss v Veenhuizen (No.2)[7], A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd[8] and Commonwealth Bank v Hattersley.[9]
[7] (1976) 136 CLR 47
[8] [2006] FCA 690
[9] [2001] NSWSC 60
The Respondents each seek an order for costs on an indemnity basis. It is usually the case that costs will be awarded on a party and party basis, but where there is some special or unusual feature in the case the Court may, in its discretion, award costs on an indemnity or solicitor-client basis (Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited[10]), where an application has been commenced or continued where the applicant, properly advised, should have known that he or she had no chance of success. Again, in J-Corp Pty Limited v Australian Builders Labourers Federation of Workers – Western Australian Branch[11], French J held at [5]:
It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.
[10] [1988] FCA 202; (1988) 81 ALR 397
[11] Federal Court of Australia, 1993, unreported
The case brought by the Applicant was clearly a hopeless case as the Court had no jurisdiction to make the orders sought. If the Applicant had sought legal advice beforehand she would have known that her case had no chance of success. Indeed, it is clear from the affidavit of Mr Metlej that he and Mrs Adams, who appeared for the Second Respondent, told the Applicant before Court started that morning that her case must be dismissed for want of jurisdiction.[12]
[12] Affidavit of K. Metlej 19.12.2014 at paragraph [6]
In my view, the fact that the Applicant brought such a meritless case and persisted with it during the morning of the first return date until its inevitable summary dismissal is a clear indication that the costs payable to the Respondents should be assessed on an indemnity basis.
Orders will be made that the Applicant is to pay the First Respondents’ costs fixed in the sum of $2,079.90 and the Second Respondent’s costs fixed in the sum of $3112.59. I will allow six months to pay.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 14 October 2015
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