EDWARDS & SIMPSON (No.2)
[2013] FCCA 315
•30 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDWARDS & SIMPSON (No.2) | [2013] FCCA 315 |
| Catchwords: FAMILY LAW – Costs – application for costs by respondent following dismissal of parenting application – parenting application dismissed applying rule in Rice & Asplund – whether justifying circumstances for costs – order for costs. |
| Legislation: Family Law Act 1975 (Cth) ss.117, 117, (2A) |
| Cases: Penfold v Penfold (1980) 144 CLR 311 Latoudis v Casey (1990) 170 CLR 534 Cassidy v Murray (1995) FLC 92-633 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & Anor [2005] FamCA 158 Brown & Brown (1998) FLC 92-822 I & I (No.2) (1995) FLC 92-625 Hitch & Hitch [2012] FamCA FC 124 Rice & Asplund (1979) FLC 90-725 Edwards & Simpson [2013] FCCA 14 |
| Applicant: | MS EDWARDS |
| Respondent: | MR SIMPSON |
| File Number: | DGC 3186 of 2008 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | On the papers |
| Date of Last Submission: | 16 May 2013 |
| Delivered at: | Dandenong |
| Delivered on: | 30 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Halliday |
| Solicitors for the Applicant: | Robert Halliday & Associate |
| Counsel for the Respondent: | Ms Jeffries |
| Solicitors for the Respondent: | Robin Harrison & Associates |
ORDERS
The applicant pay the respondent‘s costs in accordance with Schedule 1, of the Federal Circuit Court Rules 2001 fixed in the amount of $2,338.50 within 60 days.
IT IS NOTED that publication of this judgment under the pseudonym Edwards & Simpson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3186 of 2008
| MS EDWARDS |
Applicant
And
| MR SIMPSON |
Respondent
REASONS FOR JUDGMENT
These reasons for decision concern an application by Mr Simpson (“the father”) for costs arising from proceedings that were commenced by Ms Edwards (“the mother”).
On 18 April 2013 the Court made the following orders for the reasons set out in Edwards & Simpson [2013] FCCA 14:
“1.The application filed 23 November 2012 be dismissed.
2.The respondent file and serve any submissions in relation to costs within 14 days.
3.The applicant file and serve any submissions in reply 14 days thereafter.
4.Unless the parties request otherwise the application for costs will be dealt with on the papers in chambers.”
As indicated in the above orders, unless otherwise requested in the written submission the father’s costs application was to be dealt with on the papers in chambers. No request was made.
Background
In order to understand the father’s application for costs it is necessary to set out briefly some of the relevant background.
The mother is 40 years of age. The father is 45 years of age. The parties commenced a relationship in 1998 and separated in 2003. They are the parents of X, born (omitted) 2001 (“the child”).
On 17 December 2008 after a 3 day trial, final parenting orders were made for the child by Bender FM as Her Honour then was.
On 23 November 2012 the mother filed an initiating application seeking inter alia to discharge all previous parenting orders. The application was accompanied by an affidavit sworn on 31 October 2012. The father filed a response on 23 January 2013 accompanied by an affidavit sworn on 22 January 2013.
The matter first came before the Court on 30 January 2013. The mother’s application was opposed by the father. At the first Court date the father made clear he was seeking orders for the dismissal of the mother’s application based upon the principles set out in
Rice & Asplund(1979) FLC 90-725 (“Rice & Asplund”).
The proceedings returned to Court on 28 March 2013. The mother was represented by Mr Kent-Hughes of Counsel and the father was represented by Mr Trim of Counsel.
On 28 March 2013 the Court heard the parties’ oral submissions and at the end of the interim hearing the Court reserved its decision.
On 18 April 2013 the orders set out above at paragraph two were made for the reasons set out in Edwards & Simpson [2013] FCCA 315. The father now seeks his costs.
Application for costs
The normal rule in proceedings under the Family Law Act 1975 (“the Act”) is that each party pay their own costs (s.117(1)). However, the Court may make an order for costs if it is satisfied that in the particular circumstances of the case it should do so.
Section 117(2) of the Act provides that in an appropriate case the Court may make an order for costs against one or other parties notwithstanding the general rule in s.117(1). Section 117(2A) of the Act sets out the factors to which the Court shall have regard when considering an order for costs.
“In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(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 the terms of any such offer; and
(g) such other matters as the court considers relevant.”
The High Court in Penfold v Penfold (1980) 144 CLR 311 has said that the wording of that section does not create an onus on either of the parties and that it is a matter for the Court in each case to consider, having regard to the matters in section 117(2A) of the Act, whether in a particular case to exercise discretion to order costs or not to order costs.
The authorities also make it clear that an order for costs is compensatory in the sense that it is awarded to indemnify the successful party against expense to which he or she has been put by reason of the legal proceedings (see Latoudis v Casey (1990) 170 CLR 534; Cassidy v Murray (1995) FLC 92-633).
In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & Anor [2005] FamCA 158 the Full Court (per Kay, Warnick and Boland JJ) referring to s117(2A) said at 130:
“A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.”
Finally s.117(2) of the Act requires a finding of justifying circumstances as an essential preliminary to the making of an order for costs.
Consideration of the application
I now turn to deal with the factors set out above having regard to submissions made by each of the parties in respect of those matters.
The financial circumstances of each of the parties
The father submitted that:
“The Father does not know of his own knowledge the Mother’s financial circumstances. The Father works as a casual (omitted) and casual (omitted). In the financial year ended 30/06/2012 he earned $30,000. He anticipates his taxable income for the financial year ended 30/06/2013 to be in the amount of $45,000.”
The mother submitted that:
“5.2.The Mother is a disability pensioner. The Pensioner Concession Card commenced 8 October 2002 is indicative of long term unemployment. The Mother has no savings, no assets and resides in a rental premises. Annexed hereto is a true copy of the Mother’s Pensioner Concession Card. This is relevant pursuant to S. 117(2A)(a) of the Family Law Act 1975.
5.3.The Father deposed in paragraph 55 of his affidavit filed
23 January 2013 that he works as a casual (omitted) and as a casual (omitted). The father further deposes in this paragraph that he has the support of his mother in the care of X who continues to be involved in assisting him meet X’s needs.”
Given the principles set out above and how modest both parties’ financial circumstances are, in the face of the parties submissions I am not satisfied this factor tells against an order for costs.
Whether either party is in receipt of legal aid
The father submitted that:
“7.3.1.The Father does not know of his own knowledge whether the Mother was in receipt of Legal Aid to initiate and pursue her application. Nor does he know, if the Mother was in receipt of Legal Aid, the terms and conditions of that assistance.”
The mother submitted that:
“5.5.The Mother received a limited grant of legal assistance from Victoria Legal Aid. The liability of the applicant to repay Victoria Legal Aid in part and on what terms depends upon a change in the Mother’s financial position. At the time the application for legal assistance was made the Mother was not assessed to make a contribution towards the legal aid assistance extended on her behalf. There is no information to suggest that this has changed or is likely to change. This is relevant pursuant to s.117(2A)(b) of the Family Law Act 1975.”
It might be assumed that if a party has a grant of legal aid then that party has limited capacity to meet an order for costs. That of itself, like in the case of a party in a difficult financial situation, would not lessen any justification for ordering costs, but it is a factor to take into account and it has been.
Conduct of parties to proceedings
The father submitted that:
“7.2.The Mother’s conduct in relation to the proceedings justifies an Order for costs as follows:
7.2.1.Part of the Mother’s application was that she was no longer diagnosed as suffering schizophrenia. She proffered no medical evidence to support her contention despite being altered to the need to do so (by paragraph 35 of the Father’s Affidavit filed 23/01/2013).
7.2.2.The Mother persisted in claims that the child’s various conditions were not being managed by the Father, despite medical evidence (annexed to the Father’s Affidavit filed 23/01/2013) which made plain that no such mismanagement was occurring.
7.2.3.The mother made and persisted in claims the child’s very “life (is) at risk”: (paragraph 2 of the Mother’s Affidavit filed 3/02/2013) which made plain that no such risk, let alone a risk of the magnitude alleged by the Mother, existed.
7.2.4.The Mother made applications for Orders which had no reasonable prospect of succeeding as follows:
7.2.4.1.She sought an Order that the child live with her and made it clear, that were that Order to be made she proposed that the child attend a different school. This application was made despite:
(a)The evidence establishing that the child was performing well at her present school; and
(b)The failure of the Mother to ensue that the child attended school regularly during the period of time when the child was cared for by the parents on an equal time basis.
7.2.4.2.She sought Orders that the child live with her alleging changes of circumstances which did not constitute changes at all let alone of the nature required by the principle in Rice & Asplund eg:
(a)that the Father failed to assist with transportation; and
(b)that the child has been diagnosed on the autism spectrum in circumstances where her limitations were known at the time of trial (if not given a name at the time).
7.2.5.The Mother generalised allegations:
7.2.5.1.Containing opinion “I am concerned…” throughout the Mother’s Affidavits)
7.2.5.2.Which had no basis in fact “The father did not advise (omitted) Primary School of X’s epilepsy” paragraph 15 of Mother’s Affidavit filed 23/11/2012.
7.2.5.3.Deliberately misinterpreted the Father’s evidence – he said he had never seen X have a seizure (but had clearly proceeded on the basis that the child had epilepsy). The Mother interpreted this as his “fail(ure) to recognise X having a seizure” paragraph 25 of Mother’s Affidavit filed 8/02/2013.”
The mother submitted that:
“5.6.The Mother initially sought to engage in Victoria Legal Aid’s Round Table Dispute Management on 22 June 2012. On 18 September 2012 Ms O issued a Certificate by family dispute resolution practitioner stating “Ms Edwards did not attend family dispute resolution with me and the other party or parties to the proceedings but that person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend.” Annexed hereto are true copies of correspondences from Victoria Legal Aid’s Round Table Dispute Management dated 21 August 2012 (confirming the shuttle teleconference mediation on 3 September 2012) and 31 August 2012 (cancelling the mediation)and the s.60I Certificate which was attached to the Initiating Application filed 23 November 2012). This is a relevant factor pursuant to Section 117(2A)(c).
…
5.7.The Father did not comply with the directions made on 30 January 2013. The Amended Response was treated by the Court as abandoned. This is relevant pursuant to s.117(2A)(c) of the Family Law Act 1975.
…
5.13.It is the Mother’s contention that the Father had failed to keep her advised of all relevant medical professionals, particularly in light of the onset of epilepsy. The child’s obesity and the Epilepsy Foundation document evidencing the Father’s omission that the Mother be included on the list of persons to whom information can be provided. This a relevant factor pursuant to s.117(2A)(c).
…
5.16.The Father had not provided the Mother with the medical evidence he annexed to his affidavit filed 23 January 2013. In her affidavit material the Mother made allegations which remain untested that the Father engaged in activities with the child which put her at risk including leaving the child to catch public transport instead of driving the child, at paragraph 40 of the mother’s affidavit filed 23 November 2012. The mother annexed as an exhibit to her affidavit “KE11” the Epilepsy Management Plan dated 28 June 2012 demonstrating her exclusion from being an emergency contact. This is relevant pursuant to s.117(2A)(c) and (g) of the Family Law Act 1975.
…
5.23.It is inappropriate for the Father to allege that no compromise short of complete concession to the Mother’s application had any reasonable prospect of being accepted. This is speculation at best. The Father has prevented the discussion of the relevant issues by failing to attend mediation, and by seeking the matter be dismissed. Accordingly there was no opportunity for the matter to proceed to family mediation or s.11F report. The father was served on 11 December 2012. (The Acknowledgement of Service was filed on 17 December 2012). The father’s documents were served upon the Mother on 24 January 2013 providing very limited time for the mother to consider them, and formulate her proposals thereafter prior to the hearing on 30 January 2013. The father’s intention as borne out by his application that the Mother’s application be dismissed, that she not initiate further proceeding in relation to the child or against the Father without the leave of the Court, that she pay the father’s costs. The father’s actions demonstrate that no compromise short of complete concession to the father was possible This is relevant to s.117(2A)(c) of the Family Law Act 1975.”
In Edwards & Simpson [2013] FCCA 14 the background to the mother’s application and the final parenting orders was set out. The father sought that application be dismissed relying on the rule in
Rice & Asplund. That rule exists to prevent “continuous litigation over a child” as that is “generally not in their best interests”. As was noted in Edwards & Simpson [2013] FCCA 14 at paragraphs 33 to 35 the bulk of the mother’s affidavit contained complaints about the father. The Court was not satisfied there was a real likelihood that a change to the final orders for the child would follow or that it was of such scope to warrant the imposition of further litigation. Notwithstanding the mother’s submissions I am satisfied given the particular circumstances of the matter, that this factor favours an order for costs.
Whether proceedings necessitated by failure to comply with court orders
The father made no submissions in relation to this factor.
The mother submitted that:
“5.18.The matter was necessitated by the father’s prior refusal to properly communicate with the mother about the child’s health and to involve the mother in X’s treatment contrary to paragraph 12 of the Final Orders of 17 December 2008. The father’s medical evidence attached and exhibited to his affidavit filed 23 January 2013 were reactive to the mother’s endeavours through mediation and litigation. This is relevant to s.117(2A)(d).”
Whilst the proceedings weren’t necessitated by a failure to comply with a court order, the mother’s application was dismissed after a jurisdictional hearing.
Whether any party has been wholly unsuccessful
The father submitted that:
“7.1.The mother’s application was wholly unsuccessful and this justifies an Order for costs.”
The mother submitted that:
“5.8.In a disputed parenting case such as this one, the fact that the applicant did not succeed, does not necessarily mean that her position was unmeritorious. This is relevant pursuant to S. 117(2A)(e) and (g) of the Family Law Act 1975.”
In Edwards & Simpson [2013] FCCA 14 the background to the mother’s application and the final parenting orders was set out. The father sought that application be dismissed relying on the rule in Rice & Asplund. The mother’s position at the interim hearing was noted in Edwards & Simpson [2013] FCCA 14 at paragraphs 17 to 21 whilst the father’s position at paragraphs 22 to 23. The Court found in favour of the father’s jurisdictional objection to the mother’s application. Notwithstanding the mother’s submissions, I am satisfied given the particular circumstances of the matter, that this factor favours an order for costs.
Were there any parties to the proceedings who made an offer in writing to settle the proceedings
The father submitted:
“7.5.Neither party in this proceeding made an offer in writing to settle the matter. The nature of the Mother’s application was such that it was clear to the father that no compromise short of complete concession to the mother’s application had any reasonable prospect of being accepted.”
There were no submissions made by the mother on this issue. There is no evidence of any offer in writing to settle the proceedings.
Any other matters as the Court may consider relevant
The father made no submissions in relation to this factor.
The mother submitted that:
“5.4.The Mother is the sole carer of a child namely Y born (omitted) 2010. The ability of the Mother to re-enter the work force is substantially undermined by her disability (physical), her duty to care for and maintain a young child, and the necessity for retraining to re-enter the paid work force. This is relevant pursuant to S. 117(2A)(g) of the Family Law Act 1975.
…
5.8.In a disputed parenting case such as this one, the fact that the applicant did not succeed, does not necessarily mean that her position was unmeritorious. This is relevant pursuant to S. 117(2A)(e) and (g) of the Family Law Act 1975.
5.9.The submissions of the Father in relation to s. 117(2A)(c) have not been tested on evidence. The Mother’s claim that the child’s life is at risk is due to the nature of the child’s health conditions, whereby epileptic seizures take place involving the risk of oxygen deprivation. The assertion by the Father in paragraph 7.2.3 in support of an Application for Costs is to be tested by medical evidence and is not a matter for opinion. This is relevant pursuant to S. 117(2A)(g) of the Family Law Act 1975.
…
5.11.A significant change in circumstances was established. The assertion by the Father in paragraph 7.2.4.2 in support of an Application for Costs is incorrect. This is relevant pursuant to S. 117(2A)(g) of the Family Law Act 1975.
5.12.The assertions by the Father in paragraphs 7.2.4.1, 7.2.5.1 and 7.2.5.2 in support of an Application for Costs have not been tested on evidence. The Mother was not afforded the opportunity to run her case. The views of the child have not been given the opportunity to be made known. The reasons for the child’s absence from school for 21 days in 2011 and 35 days in 2012 have not been tested on evidence. This is relevant pursuant to S. 117(2A)(g) of the Family Law Act 1975.
…
5.14.In the event an Order for Costs is made, and pursued there is no ability of the Mother to pay it and the consequences of her inability to satisfy the debt may adversely affect her ability to obtain rental accommodation in a tight rental market. This is relevant pursuant to S. 117(2A)(g) of the Family Law Act 1975.
5.15.In having regard to the impact upon a person of limited means, limited housing opportunity, work opportunity, the care and responsibility of a dependent child, the impact of any order for costs would be unduly oppressive and result in unintended consequences. This is relevant pursuant to S. 117(2A)(g) of the Family Law Act 1975.
5.16. The Father had not provided the Mother with the medical evidence he annexed to his affidavit filed 23 January 2013. In her affidavit material the Mother made allegations which remain untested that the Father engaged in activities with the child which put her at risk including leaving the child to catch public transport instead of driving the child, at paragraph 40 of the mother’s affidavit filed 23 November 2012. The Mother annexed as an exhibit to her Affidavit “KE11” the Epilepsy Management Plan dated 28 June 2012 demonstrating her exclusion from being an emergency contact. This is relevant pursuant to S. 117(2A) (c) and (g) of the Family Law Act 1975.
5.17. The Mother’s concerns about the Father’s care of X have not been tested on evidence, and it is inappropriate for the Father to assert they do not have merit. The child’s views have not been heard. This is relevant pursuant to S. 117(2A)(g) of the Family Law Act 1975.”
Whilst the mother seeks to criticise the father in submissions as to costs about allegations or evidence not being tested her own submissions on costs contain the very vice she takes issue with in the father’s submissions. I am not satisfied the mother’s submissions in relation to this factor tell against an order for costs.
Should an order for costs be made
In submissions made on her behalf the mother’s position was:
“5.20.The applicant made an effort to resolve the matter through exchange of correspondences, willingness to attend Victoria Legal Aid’s Round Table Dispute Management and undertaking the intake process of same. Annexed to the Mother’s Affidavit filed 23 November 2012 were exhibits numbered “KE14” and “KE12” being correspondence sent to the respondent to facilitate the issues to be discussed through mediation.
5.21.It is submitted that this was also a matter requiring the consideration of a Judge as to how the welfare of the child be best served. The matter required consideration by this Honourable Court given the applicant’s concerns about the child, the changed circumstances, the lack of communication by the father and refusal to attend mediation in relation to the Mother’s concerns of the child’s welfare and development.
5.22.It is appropriate for the respondent to bear his own costs following his disregard for participation in Victoria Legal Aid’s Round Table Dispute Management, the father’s subjective belief “no compromise short of complete concession” (as stated in paragraph 7.5 of the Submission on behalf of the respondent father in support of an application for costs), and the inability of the parties to subsequently attend a S.11F report and/or mediation. There was ample opportunity to explore the issues at a preliminary stage which was delayed by the respondent (between June to September 2012) and to which he ultimately refused.
5.24.With the relevant matters taken into account, overall circumstances do not justify the making of an order for costs. In the matter of I and I (No 2) (1995) FLC ¶92-625 Nicholson CJ, Ellis and Buckley JJ held “…the other relevant matters referred to in s.117(2A) must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs…”
However, as Kay J said in Brown & Brown (1998) FLC 92-822 at 85,347:
“In many cases there will be an outstanding feature…that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other s.117(2A) considerations.”
Moreover as noted earlier in PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & Anor [2005] FamCA 158 the Full Court (per Kay, Warnick and Boland JJ) referring to s.117(2A) said at 130:
“A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s.117, is there any prescription that more than one factor must be present before an order for costs if made nor the comparative weight of the factors set out in subs (2A). AS a consequence, there is nothing to present any factor being the whole foundation for an order for costs.”
The mother’s submissions referred to the decision in I & I (No.2) (1995) FLC 92-625. However, as the Full Court noted in Hitch & Hitch [2012] FamCA FC 124:
“54.As a discretionary decision, the weight to be given to a particular consideration under s.117(2A) is a matter for the judge. However in I & I (No.2) (1995) FLC 92-625 it was held that the relevant matters in s.117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs.
55.That is not to say that one single matter may not ultimately be determinative, as was confirmed in TRF v LKL (as child representative for A (Legal Aid Commission of Tasmania)) and Another (2005) 33 FamLR 123…” [emphasis added]
I refer to and repeat the observations made at paragraph 27. These proceedings could have been compromised and the father’s expense in opposing the mother’s application avoided.
Having weighed all of the relevant matters set out in s.117(2A), I am satisfied the father has demonstrated justifying circumstances for the Court to make an order for costs against the mother.
What orders for costs should be made?
The father sought the following orders:
“1.1.The Mother pay the Father's costs of and incidental to these proceedings. (This was an Order sought in paragraph 4 of the Final Orders sought in the Father's response filed 23 January 2013).
1.2.Those costs (inclusive of disbursements) be fixed in the sum of $6739.76.
…
The father’s costs were particularised as follows:
ANNEXURE A
Stage of Matter
Amount
Stage 1: Initiating or opposing application up to completion of first court day:
Lump sum plus
$1873
Court attendance Short Mention
$255
Stage 2: Interim or Summary Hearing - as a discreet event (this stage applies to an interim application, or a summary proceeding of a type not otherwise addressed in this fee structure. Does not include the Stage 1 or 1A component):
Lump sum plus
$1559
Court attendance 1/2 day hearing + 50% advocacy loading
$1404
Stage 6: Final hearing cost for solicitor:
Attendance at hearing
$936
To take judgment and explain orders
$255
Total Costs
$6282
Disbursements
Filing fee
$ 305
Photocopying 228 pages @ $0.67
$ 152.76
Total Disbursements
$ 457.76
Total Costs and Disbursements
$ 6739.76
The mother sought the following orders:
“1.1.That the Respondent Father’s application for costs be dismissed.
1.2.That there be no order as to costs.”
Conclusion
The circumstances that brought the parties back to Court over parenting issues occurred against the background of final parenting orders having been made in 2008.
As was made clear in Edwards & Simpson [2013] FCCA 14 the application made by the mother was dismissed on jurisdictional grounds.
In light of the consideration of the s.117(2A) factors and the finding of justifying circumstances the Court has clearly the power to make an order for costs calculated in accordance with Division 21.2 of the Federal Circuit Court Rules 2001.
There are no circumstances that warrant the matter being determined on any other basis than in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 (“the Rules”). The appropriate order is that the father has his costs calculated in accordance with Schedule 1 of the Rules. The father’s submissions on the calculation of his costs by reference to Schedule 1 were set out at Annexure A to his submissions. In the particular circumstances of this matter stage 2 is the appropriate event with an advocacy loading only. The inclusion in those submissions of claims for stage 1 and 6 is in the circumstance of this matter not appropriate given the findings as to reasons for the order for costs. There is no evidence regarding disbursements and in the circumstances I am not satisfied that would be an appropriate order.
I will order that costs calculated as follows be paid within 60 days.
Stage of Matter
Amount
Stage 2
$1559
Advocacy loading
$779.50
Total Costs
$ 2338.50
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 30 May 2013
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