Donovan and Hargrave (No.5)

[2013] FCCA 1669

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONOVAN & HARGRAVE (No.5) [2013] FCCA 1669

Catchwords:
FAMILY LAW – Costs – amount of costs – party and party costs – indemnity costs – disbursements – application of scale of costs in Part 1 of Schedule 1 of Federal Circuit Court Rules 2001.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001, Rules 21.15, 21.16, Sch. 1, Part 1

Cases cited:
Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90
Colgate Palmolive Pty Ltd v Cussons Limited (1993) 46 FCR 225
Donovan & Hargrave (No.4) [2013] FCCA 521
Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105

Applicant: MS DONOVAN

Respondent: MR HARGRAVE

File Number: PAC 1122 of 2009

Judgment of: Judge Scarlett

Hearing date: Heard in chambers

Date of Last Submission: 26 July 2013

Delivered at: Sydney

Delivered on: 24 October 2013

REPRESENTATION

Solicitor for the Applicant: Ms Jamieson

Solicitors for the Applicant: Gibson Howlin Lawyers

The Respondent: In person

ORDERS

1. It is certified under r.21.15 that it was reasonable to employ an advocate to appear for the Applicant.

2. The Respondent is to pay the applicant’s costs fixed in the sum of $14,456.50.

3. The Respondent is allowed six (6) months to pay the costs.

IT IS NOTED that publication of this judgment under the pseudonym Donovan & Hargrave (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 1122 of 2009

MS DONOVAN

Applicant

And

MR HARGRAVE

Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant sought an order for costs in respect of her Application for leave to institute proceedings for division of matrimonial property under s.44(3) of the Family Law Act 1975 (Cth) and the Application for division of property itself. On 14 June 2013 I delivered a decision in favour of the Applicant (Donovan & Hargrave (No.4)[1]). I made the following orders:

   [1] [2013] FCCA 521

   (1)    The Respondent is to pay the Applicant’s costs of:

   (a)her Application for leave to institute proceedings for division of matrimonial property under subsection 44(3) of the Family Law Act 1975;

   (b)Her Application for division of matrimonial property under section 79 of the Family Law Act 1975.

   (2)The Applicant is to file and serve an affidavit setting out the costs sought in respect of Orders (1)(a) and (b) by 28 June 2013.

   (3)The Respondent is to file and serve an affidavit in reply by 12 July 2013.

Affidavits

1. The Applicant filed an affidavit of her solicitor, Ms Jamieson, on 26^th July 2013 with an explanation as to why it was filed later than the prescribed time. The Respondent has not filed a further affidavit.

2. The Applicant’s solicitor deposes that costs are sought for the following court events:

   a)13^th December 2011 – listing the Application for leave to commence property proceedings out of time, attendance by counsel and instructing solicitor;

   b)21^st May 2012 – mention, from 10:00am to 4:00pm, attendance by counsel and instructing solicitors (two solicitors at different times);

   c)12^th July 2012 – Conciliation Conference from 9:30am to 11:30am; mention before Court the same day, attendance by counsel; and

   d)24^th September 2012 – final hearing, one day, attendance by counsel and instructing solicitor.

3. The solicitor estimates her time charges at a total of $7,000.00 plus GST, made up as follows:

   a)13^th December 2012 – daily hearing rate         $2,720.00

   b)21^st May 2012 – attendance with counsel       $1,200.00

   c)Preparation for Conciliation Conference         $360.00

d)24^th September 2012 – daily hearing rate        $2,720.00

Total  $7,000.00

1. The solicitor also seeks Counsel’s fees as a disbursement, amounting to $8,222.25, including GST. Also annexed to the affidavit are copies of a Schedule of Fees and the Costs Agreement between the Applicant and her solicitors.

2. The Applicant therefore seeks an Order for Costs in her favour in the total amount of $15,222.25, inclusive of GST.

Orders for Costs

1. The amount of costs referred to above has been prepared on a solicitor-client basis, although Counsel’s fees have been prepared in accordance with the Schedule. It is the usual rule that costs are payable on a party and party basis rather than on an indemnity basis (Prantage & Prantage[2]) unless there is a special or unusual feature in the case that would justify a departure from the usual practice (Colgate Palmolive Pty Ltd v Cussons Limited[3]; see also Kohan & Kohan[4]).  

   [2] [2013] FamCAFC 105

   [3] (1993) 46 FCR 225

   [4] (1993) FLC 92-340

2. Where costs are assessed on a party and party basis, it is appropriate to follow the scale of costs set out in Part 1 (Family law proceedings and general federal law proceedings) of Schedule 1 of the Federal Circuit Court Rules 2001.

3. Where there is a claim for an advocate as well as an instructing solicitor, an advocacy loading is applied. This has been clearly explained by Raphael FM[5] in Colan Products Pty Ltd v Luxon Pty Ltd (No.2)[6] at [13]:

   In respect of the advocacy loading I would explain this as follows. Where it has been certified that the matter is fit for an advocate under Part 20.15[7] this means that the advocate is entitled to 150% of the daily hearing fee. In addition, the instructing solicitor is entitled to the daily hearing fee. The only exception is when the advocate and the instructing solicitor come from the same firm. In those circumstances (as set out in the Rules) only one fee of 150% of the daily hearing fee is payable. In this case counsel is therefore entitled to the advocacy loading on the daily hearing fee…This is all that counsel is entitled to. The applicant is not entitled to submit counsel’s fee note as a disbursement.

   [5] As his Honour then was

   [6] [2002] FMCA 90

   [7] Now Rule 21.15

The Costs payable

1. This is a case where it was reasonable to employ an advocate to appear for the Applicant under r.21.15. The amount payable for counsel to appear is the daily hearing fee and advocacy loading (see r.21.16).

2. Costs will be allowed as follows:

   a)Counsel:

   i)Application for leave:  $2,991.00

   ii)Conciliation conference     :                 $1495.50

1. Hearing of s.79 application:            $2,991.00

   Total  $7,477.50

   b)Solicitor:

   i)Application for leave:  $1,994.00

   ii)21^st May 2012 – daily hearing fee   $2,991.00

1. Hearing of s.79 application                 $1,994.00

   Total  $6,979.00.

1. No allowance has been made for GST.

2. The Court will allow the amount of $14,456.50 for costs.

3. In the circumstances, the Respondent will be allowed six months to pay.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  21 October 2013