Director of Public Prosecutions and Portelli and Anor

[2008] FamCA 1223

FAMILY COURT OF AUSTRALIA

DIRECTOR OF PUBLIC PROSECUTIONS & PORTELLI AND ANOR [2008] FamCA 1223

FAMILY LAW – COSTS – costs incurred when counsel is unavailable for reasons that are not explained – who bears the costs

APPLICANT: Director Of Public Prosecutions

1^st RESPONDENT: Ms Portelli

2^nd RESPONDENT: Mr Portelli

FILE NUMBER: MLC 8720 of 2007

DATE DELIVERED: 25 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 25 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr E.G. De Zilwa

SOLICITOR FOR THE APPLICANT: Office of Public Prosecutions

COUNSEL FOR THE 1^ST RESPONDENT: Mr P.J. Haag

SOLICITOR FOR THE 1^ST RESPONDENT: Meier Dension Guymer

COUNSEL FOR THE 2^ND RESPONDENT: No Appearance

SOLICITOR FOR THE 2^ND RESPONDENT: Victor C Andreou

Orders

IT IS ORDERED:

1. That the matter be listed on 17 March 2008 at 10:00am and on 20 March 2008 at 10:00am.

2. That the first respondent wife pay the applicant’s costs fixed in the sum of $450.00 on or before 25 April 2008.

IT IS NOTED that publication of this judgment under the pseudonym Director of Public Prosecutions & Portelli and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 8720 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

And

MS PORTELLI

First Respondent

And

MR PORTELLI

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. An application is made by the DPP for costs incurred for an attendance today at court by the solicitor with conduct of the matter on behalf of the applicant and counsel whom he instructs.  The costs claimed are $450.

2. On 22 February 2008, I made the following orders:-

   IT IS ORDERED:

   1.That the hearing on 28 & 29 February 2008 and the listing of this matter for hearing on 3 March 2008 (then estimated to take 5 days) be vacated. 

   2.That all extant applications be adjourned for final hearing at 10:00am on 17 March 2008. 

   3.That I reserve liberty to the respondent wife to apply to vacate the final hearing date providing that:-

   4.The court and the applicant are given notice of any such application by not later than 12 noon on Monday 25 February 2008;

   5.That application can be made to be on 25 February 2008 when if requested I will sit outside normal court hours in order to hear the application. 

3. The proceedings have been re-listed because Mr Haag says that he is unavailable to appear on 17 March 2008 for 5 days with the consequence, he contends, that the listing must be changed.

4. On behalf of the DPP, it is contended that today's costs would not have been incurred had Mr Crabtree had adequate instructions on 22 February 2008.  In particular, Mr Crabtree was unable to say when Mr Haag could appear on a recommencement of the matter or the nature of the commitment which precluded him doing so, and whether his commitment was due to a part-heard case.

5. Section 117 of the Act provides that, subject to section 117(2), each party in a proceeding should bear their own costs.  Section 117(2) provides that orders may be made for costs if the court is of the opinion that circumstances justify an order for costs.  The matters which the court is required to take into account are set out in section 117(2A). 

6. Whilst those seven matters in subsection (2A) may be relevant to the case, it is not all which must be relevant and it is well settled that one factor may outweigh another factor. 

7. The factors include the financial circumstances of each of the parties to the proceedings.  In this case, the respondent wife has some property.  I do not recall that she has any income from personal exertion.  The applicant is a statutory body.  Of the two parties, I am satisfied that the DPP is in a better position to absorb his costs of today than is the wife.  However, that is one only one factor which I take into account.  A relatively inferior financial position does not translate to an immunity against the imposition of a costs order.

8. I can have regard to whether any party to the proceedings is in receipt of assistance by Legal Aid, but that does not apply here. 

9. I can have regard to the conduct of the parties in the proceedings, in particular in relation to discovery and the like, but that does not apply here. 

10. Likewise, I look to see whether the proceedings were necessitated by the failure of a party to comply with the previous orders of the court, but that does not apply here. 

11. I am directed to take into account whether any party to the proceedings has been wholly unsuccessful.  Mr Haag has come to court saying now that he is not available on the 18th and 19^th.  It appears that a fair construction of what the wife’s representative said last week was that Mr Haag was available on 17 March and 20 March.  However, the wife’s representative was not able to say last week whether Mr Haag was unavailable due to the recommencement of a part heard matter or for some other reason.  Some time was spent by Mr Crabtree (for the wife) trying to contact Mr Haag and their instructing solicitor, without success.  It transpires that the dates on which Mr Haag is allegedly unavailable are not dates on which Mr Haag is part heard in another case. Accordingly, I do not consider that Mr Haag is unavailable in the sense that the listing should be interfered with to accommodate his convenience or the convenience of his clients in other matters.  That said, counsel for the DPP is prepared to fall in with Mr Haag’s other commitments and to accept that the remainder of the hearing be split between 17 and 20 March 2008. In face of that concession, I have acceded to their joint request and have vacated the previous listing.  The further hearing will now take place on 17 and 20 March 2008 with such further dates as may then be required being found later in the calendar.

12. So, whereas the wife has been successful in having the original hearing vacated, that was only possible with the concession offered by counsel for the DPP.

13. There are no offers of which I am aware.  In this vein, there is no indication that counsel for the DPP had notice of Mr Haag’s actual position until the matter proceeded today.

14. Essentially, Mr Haag contends that an order for costs in the sum sought of $450 is unfair and inconsistent and not in the spirit of the manner in which these proceedings should be conducted.  He submits that there should “be cooperation between counsel”.  I have difficulty with that submission because it is only by the cooperation of his opponent that he secured the result he obtained today.  Cooperation is one thing, expecting that another party to proceedings should bear costs incurred in order to clarify why Mr Haag may, or may not, be unavailable is another thing entirely.

15. I am satisfied that the applicant has incurred costs today because, on the last occasion, the wife and her representatives could not impart relevant and comprehensive information about Mr Haag’s actual availability.  I am satisfied that the DPP should have its costs of today paid by the wife.

16. Mr Haag did not address me on the issue of quantum so I assume that he has nothing to say.  That is not surprising because when I look at the appropriate family law scale, the amounts claimed are less than those to which the applicant could reasonably be entitled to claim. 

17. Nothing in today's order affects any rights that the wife may have against her solicitor to recover or be indemnified for such costs.  I do not exclude the possibility that there may be an agreement or a determination subsequently that there is a basis for the solicitor, rather than the wife, to be personally responsible for the costs of the DPP thrown away today.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  5 May 2008