Dimmick & Harrison (No 2)

[2023] FedCFamC1A 51

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dimmick & Harrison (No 2) [2023] FedCFamC1A 51

Appeal from:	Dimmick & Harrison [2022] FedCFamC2F 1329
Appeal number:	NAA 14 of 2023
File number:	SYC 4298 of 2021
Judgment of:	AUSTIN J
Date of judgment:	26 April 2023
Catchwords:	FAMILY LAW – APPEAL – Costs – Where the respondent’s review application was dismissed and the question of costs was reserved – Where the respondent, her solicitor, and her barrister made separate written submissions – Where the respondent’s lawyers objected to any order fixing them with personal responsibility for the appellant’s costs because they acted on the respondent’s informed instructions – Ordered the respondent pay the appellant’s costs of and incidental to the review application in a fixed sum.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.15
Cases cited:	Dimmick & Harrison [2023] FedCFamC1A 30
Number of paragraphs:	9
Date of hearing:	Heard by way of written submissions
Place:	In Chambers
Solicitor for the Appellant:	G & D Lawyers
Counsel for the Respondent:	Mr Galapo
Solicitor for the Respondent:	Jenman Lawyers

ORDERS

NAA 14 of 2023
SYC 4298 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DIMMICK

Appellant

AND:

EXECUTOR ESTATE OF THE LATE MS HARRISON

Respondent

order made by:	AUSTIN J
DATE OF ORDER:	26 APRIL 2023

THE COURT ORDERS THAT:

1.The respondent shall pay the appellant’s costs of and incidental to the Application in an Appeal filed on 17 March 2023 in the fixed sum of $1,291.45.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dimmick & Harrison (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J:

1. On 22 March 2023, the respondent’s interlocutory application in the appeal was dismissed.

2. The appellant sought costs of the interlocutory dispute against the respondent, but the prospect of the respondent’s lawyers bearing personal responsibility for such costs was expressly contemplated, so costs were reserved for determination on the papers in chambers.

3. The respondent, her solicitor, and her barrister all made separate written submissions, to which the appellant responded.

4. The appellant should have his costs for successfully defending the interlocutory application because, as was observed in the substantive reasons for judgment (Dimmick & Harrison [2023] FedCFamC1A 30):

   18.The appellant's application for costs should likely be granted because his financial circumstances are modest and the review application was wholly unsuccessful. In fact, the application was hopelessly misconceived. The appellant quantified his scale party/party costs at $1,291.45, with which quantum the executor took no issue.

5. The respondent’s lawyers submitted the costs application should be dismissed because there is no evidence the appellant’s financial circumstances are modest, but the submission is rejected. Inferentially, the appellant’s financial circumstances are modest but, whatever may be the precise state of his financial circumstances, the imprudence of the respondent’s review application is reason enough to justify costs.

6. As to the quantum of the appellant’s claimed costs, the respondent’s solicitor submitted the appellant’s true scale party/party costs should be properly calculated at only $764.58. Despite the solicitor’s gratuitous commentary upon the accuracy of the appellant’s schedule of costs and her assumptions about what the appellant’s lawyer did or did not do, there is no patent flaw in the appellant’s filed schedule of costs, which is accepted as being correct. The quantum of costs is therefore fixed at $1,291.45.

7. It was formerly anticipated that the respondent’s lawyers had conceived the idea of the interlocutory application, but it was actually the respondent. The respondent said this in his submissions, waiving the confidentiality over her client/lawyer communications:

   6.On the 15th march 2023 I had a teleconference with my legal team…

   7.During the same teleconference I was advised that as the court had already given the transcript to the other side and it could not be taken away from them. I was also advised that it was unlikely that the court would make an order that the other side would pay for the transcript and the court book.

   8.After receiving the advice in the teleconference I was asked what my instructions were. Given that I strongly believed what happened wasn’t fair and was aware that [the appellant] works full time as a brick layer , I instructed my legal team go ahead and file an application in an appeal.

   (Emphasis added)

8. Understandably then, the respondent’s lawyers objected to any order fixing them with personal responsibility for the appellant’s costs pursuant to rr 12.15(1)(c) and 12.15(4)(d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). They should not bear such costs if they acted on the respondent’s informed instructions. The liability for the appellant’s costs must rest with the respondent.

9. The respondent shall pay the appellant’s fixed costs of $1,291.45.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       26 April 2023