FABINA & MANALO (No.2)
[2020] FCCA 3322
•7 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FABINA & MANALO (No.2) | [2020] FCCA 3322 |
| Catchwords: FAMILY LAW – Costs – costs of objection to subpoena hearing. |
| Legislation: Evidence Act 1995 (Cth), s.131 Family Law Act 1975 (Cth), ss.117 Family Law Rules 2004 (Cth), r.15.29; sch 3 Federal Circuit Court Rules 2001 (Cth), rr.1.05, 21.02, 21.03, 21.10, 21.11, 21.16; sch.1 |
| Cases cited: Penfold v Penfold (‘Penfold’) (1980) 144 CLR 311 Rajski v Scitech Corporation Proprietary Limited (Unreported, New South Wales Court of Appeal, Samuels JA, 16 June 1986) Latoudis v Casey (1990) 170 CLR 534 McDonald & McDonald [1994] FamCA 110 Colan Products Pty Ltd v Luxon Pty Ltd (No 2) [2002] FMC 90. PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Batey-Elton & Elton (Costs) [2010] FamCAFC 219, see especially [8]-[10]. Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 Sfakianakis v Sfakianakis [2019] FamCAFC 54 |
| Applicant: | MR FABINA |
| Respondent: | MS MANALO |
| File Number: | SYC 3632 of 2019 |
| Judgment of: | Judge Morley |
| Hearing date: | 7 April 2020 |
| Date of Last Submission: | 19 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Treherne |
| Solicitors for the Applicant: | Daniela Fazio Lawyers |
| The Respondent appeared on her own behalf. |
| Counsel for Mr B and Ms C: | Ms Otrebski of Counsel |
ORDERS
That the Wife pay the costs of Mr B and Ms C of the proceedings on 7 April 2020 in the fixed sum of $2,490, and that the time allowed for the Wife to pay is within 28 days of the making of final property orders.
That the Wife pay the costs of the Husband of the proceedings on 7 April 2020 in the fixed sum of $1,100 and that the time allowed for the Wife to pay is within 28 days of the making of final property orders.
IT IS NOTED that publication of this judgment under the pseudonym Fabina & Manalo (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3632 of 2019
| MR FABINA |
Applicant
And
| MS MANALO |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to parenting issues, property settlement and interim spousal maintenance between the applicant, Mr Fabina (“the husband”), and the respondent, Ms Manalo (“the wife”). There is one child the subject of the parenting issues proceedings, X, born in 2018.
These reasons relate to an objection to subpoena hearing conducted on 7 April 2020 involving the husband, the wife, and the husband’s parents, Mr B and Ms C as interested persons, being persons to each of whom a subpoena to produce was issued by the Court at the request of the wife, objection being made to each of those subpoenas by the person subpoenaed and by the husband.
The hearing also involved an objection by the husband to subpoena issued by the Court at the request of the wife to The Proper Officer of Transport for New South Wales Legal Branch.
Background
On 20 February 2020 a subpoena was issued by the Court at the request of the wife to Mr B, the husband’s father, requiring that he produce to the Court by 4 March 2020 documents referred to in the schedule to the subpoena. The schedule contained paragraphs 1 to 15 inclusive.
On 4 March 2020 a notice of objection to production of the documents referred to in paragraphs 2 and 3 and 5 to 15 inclusive was filed by Mr B.
On the same day a notice of objection to the subpoena, objecting to production of the documents referred to in paragraphs 2 and 3 and 6 to 15 inclusive was filed by the husband.
The annexure to each of the notices of objection listing the documents objected to and the basis of objection were different documents in that one was not simply a copy of the other.
On 20 February 2020 a subpoena was issued by the Court at the request of the wife to Ms C, the mother of the husband, setting out in the schedule to the subpoena documents to be produced as described in paragraphs 1 to 9.
On 4 March 2020 a notice of objection was filed by Ms C objecting to production of the documents described in paragraphs 2 and 3 and 5 to 9 inclusive in the schedule to the subpoena.
Also on 4 March 2020 a notice of objection was filed by the husband objecting to the production of documents described in the subpoena to Ms C in paragraphs 2 and 3 and 5 to 9 inclusive of the schedule to the subpoena.
On 20 February 2020 the Court issued at the request of the wife a subpoena directed to The Proper Officer of Transport for New South Wales Legal Branch requiring production to the Court of documents described in paragraphs 1 to 5 inclusive of the schedule to the subpoena.
On 4 March 2020 a notice of objection to the subpoena issued to The Proper Officer of Transport for New South Wales Legal Branch by the husband, objecting to production of all and any of the documents described in paragraphs 1 to 5 in the schedule to the subpoena.
The hearing
The matter came before the Court for consideration of each of the five notices of objection relating to the three subpoenas for production of documents on 7 April 2020. Mr B and Ms C were represented by Ms Otrebski of counsel. The husband was represented by Ms Treherne of counsel. The wife appeared on her own behalf.
After hearing submissions from counsel for the interested parties, counsel for the husband and from the wife, I made orders, the oral reasons for which are represented by the transcript of the proceedings on that day.
In relation to the subpoena to The Proper Officer of Transport for New South Wales Legal Branch, the whole of the subpoena was set aside, and an order was made that any documents that may have been produced pursuant to that subpoena were to be returned. An order granting leave to the wife to file a subpoena for production to be issued by the Court addressed to The Proper Officer of Transport for New South Wales Legal Branch relating to a specified motor vehicle was made.
In relation to the subpoenas to produce documents issued to Mr B and Ms C, paragraph 1 of the schedule to each subpoena merely required the production to the Court of “a copy of this subpoena”. No issue was taken by the objectors to that document. Similarly, no issue was taken by the objectors to paragraph 4 in each of the subpoenas.
In relation to the subpoena issued to Mr B, an order was made setting aside paragraphs 2, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14 and 15 of the subpoena, and an order was made deleting certain of the words contained in paragraph 12 of the schedule. Accordingly, the subpoena, following the orders, required production of the documents described in paragraphs 1 and 4 of the schedule, and paragraph 12 as amended by order and did not require production of the documents referred to in paragraphs 2 and 3, 5 to 11 inclusive and 13 to 15 inclusive.
In relation to the subpoena to produce documents issued to Ms C, orders were made setting aside paragraphs 2, 3, 5, 7, 8 and 9 of the subpoena. An order was made amending the wording of paragraph 6 of the subpoena by deleting certain of the words. Accordingly, after orders the subpoena required production of the documents referred to in paragraphs 1 and 4 and paragraph 6 as amended by order.
Orders were made extending the time for compliance with the subpoenas issued to Mr B and Ms C to 21 April 2020.
At the conclusion of the hearing on the objections to subpoena, an oral application was made on behalf of the husband that the wife pay his costs of the day in an amount of $3,300. An order was made that:
The Court accepts the oral application made on behalf of the applicant husband that the respondent wife pay his costs of today in the amount of $3,300.
Also at the end of the hearing of the objections to subpoena, an oral application was made on behalf of Mr B and Ms C (hereafter referred to as “the interested parties”) that the wife pay their costs of the day in the amount of $3,740. An order was made that:
The Court accepts the oral application made on behalf of Mr B and Ms C as persons subpoenaed at the request of the respondent wife and who raised objections to those subpoenas, that the respondent wife pay their costs of today in the amount of $3,740.
Directions were then made for the filing and service of written submissions by the husband and by Mr B and Ms C in support of their applications for costs, by the wife in reply and then by the husband and Mr B and Ms C in reply to those of the wife.
These reasons relate only to those costs applications.
The law – costs
Costs in relation to matters under the Family Law Act 1975 (Cth) (‘the Act’) are governed by section 117 of the Act, which provides in subsection 117 (1) that the normal position in relation to costs in family law matters is that “each party to proceedings under this Act shall bear his or her own costs.”
Subsection is 117(2) provides for a departure from the usual rule in subsection 117(1) as follows:
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), (5) and (6) in 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 as follows:
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 proceedings in the terms of any such offer; and
(g) such other matters as the court considers relevant.
Pursuant to section 117(2), a finding by the Court of circumstances that justify the making of a costs order is the necessary preliminary to the making of an order and beyond that there is no additional or special onus on an applicant for a costs order.
If, having considered the matters referred to in subsection 117(2A) the court is of the opinion that the circumstances justify a departure from the usual rule, that each party bear his and her own costs, then the Court must determine the quantum of the costs to be awarded.
In Penfold v Penfold,[1] the High Court discussed section 117 of the Act and said:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the 2 provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgement under appeal that an order can only be made under s. 117 (2) in “a clear case”.[2]
[1] Penfold v Penfold (‘Penfold’) (1980) 144 CLR 311 (per Stephen, Mason, Aickin and Wilson JJ).
[2] Penfold (1980) 144 CLR 311, 315.
The Court’s discretion in relation to costs is broad and the considerations listed in subsection 117(2A) are not restrictive.[3] There is nothing to prevent any one factor in this subsection being the sole determinant for an order for costs.[4] It is a matter of the weight to be accorded to each factor by the Court as no one factor listed in section 117(2A) prevails over another.[5]
[3] Penfold (1980) 144 CLR 311.
[4] PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, 130.
[5] Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664.
Costs are compensatory not punitive in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.[6]
[6] Latoudis v Casey (1990) 170 CLR 534.
The Full Court of the Family Court of Australia recently summarised the basic law on costs orders under the Family Law Act in Sfakianakis:[7]
[7] Sfakianakis v Sfakianakis [2019] FamCAFC 54.
[9] The ordinary position in proceedings under the Family Law Act 1975 (Cth) (the Act) is that each party is to bear his or her own costs (s 117(1)). Where the Court is of the opinion that circumstances justify it in doing so, the Court may make such order as to costs as it considers just (s 117(2)). Thus, an order may be made for the payment of costs on an indemnity basis, although such orders are exceptional (In the Marriage of L and C L Kohan (1992) 16 Fam LR 245 at 259; (1993) FLC 92-340 at 79,614; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCa 1178; D and D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64).
[10] It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs … as the court considers just” permit the Court to fashion an (2019) 59 Fam LR 419 [2019] FAMCAFC 54 at 421 order that is apt to the circumstances. One such well-known example is assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order. For convenience, in these reasons we shall refer to such orders as a “special costs order”.
[11] Decisions as to the appropriate basis for any costs order are, of course, guided by principle. In applications under s 117 of the Act for costs of whatever kind, the Court must have regard to the considerations set out in s 117(2A). Paragraph (g) requires the Court to take into account any relevant matter.
[12] As the decision in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233–4; 118 ALR 248 at 256–7; 28 IPR 561 at 569–70 (Colgate-Palmolive) and the extensive authorities referred to in it make clear, the categories for the making of special costs orders are not closed and may be made whenever the particular facts and circumstances warrant it. That position is reflected in s 117(2) of the Act.
[13] It is necessary to consider first whether there should be an order for costs before turning to whether the quantum of the costs should be left to the application of the scale contained within Sch 3 of the Rules or assessed or fixed on some other basis.
……
[40] ……. the Court is not bound only to make an order on a party and party basis or on an indemnity basis. It may take an intermediate course if that is the order that is just in all of the circumstances. A special costs order may be assessed by reference to a particular period of time or set of events. Alternatively, the Court may fix a sum for costs that exceeds party and party costs but falls short of an indemnity.[8]
[8] Sfakianakis v Sfakianakis [2019] FamCAFC 54, [9]-[13], [40].
Rule 21.02 in Part 21 – Costs, Division 21.2 – Orders for costs of the Federal Circuit Court Rules 2001 (Cth) (‘the FCC Rules’) provides:
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter
19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceedings is
concluded.
Rule 21.10 of the FCC Rules provides:
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to;
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.[9]
[9] Federal Circuit Court Rules 2001 (Cth) r 21.10.
I note here that though rule 21.10 provides that costs ordered by the Court be in accordance with Parts 1 and 2 of Schedule 1 to the FCC Rules, rule 21.11(2) provides that if costs in the Court are taxed the taxing officer must apply the scale of costs set out in Schedule 3 to the Family Law Rules 2004 (Cth) (‘the Family Law Rules’) for family law or child support proceedings, with Schedule 1 of the FCC Rules being composed of “composite amounts” for stages in the proceedings and Schedule 3 in the Family Law Rules being composed of per item of work or per hour amounts.
It was established by the decision of Raphael FM (as His Honour then was) in Colan Products Pty Ltd v Luxon Pty Ltd (No 2)[10] that, when applying the scale provided by the FCC Rules, counsel’s fees are not claimable as a disbursement, and what is to be claimed is the advocacy loading on the daily hearing fee. That is applicable in this matter as what is sought by way of costs on behalf of the applicant husband is the cost of attendance before the Court by counsel to conduct an interim hearing.
[10] Colan Products Pty Ltd v Luxon Pty Ltd (No 2) [2002] FMC 90.
Whilst section 117(1) of the Act setting out the general rule in relation to costs confines itself to the parties to the proceedings, section 117(2), which enables the Court to make such order as to costs as the Court considers just if the Court is of the opinion that there are circumstances that justify it in doing so, is not confined to parties to the proceedings.[11]
[11] McDonald & McDonald [1994] FamCA 110.
There is no doubt that the Court has power to order costs involving non-parties to the litigation, both by way of a cost order requiring the non-party to pay the costs of a party and cost orders requiring a party to pay the costs of a non-party.[12]
[12] Batey-Elton & Elton (Costs) [2010] FamCAFC 219, see especially [8]-[10].
Accordingly, the costs application made on behalf of the interested persons falls to be determined in accordance with section 117 of the Act.
In relation to any cost order made, pursuant to rule 21.02(2) of the FCC Rules, the Court may:
a)Set an amount of the costs;
b)Set the method by which the costs are to be calculated;
c)Refer the costs for taxation under chapter 19 of the Family Law Rules; or
d)Set a time for payment of the costs which may be before the proceeding is concluded.[13]
[13] Federal Circuit Court Rules 2001 (Cth) r 21.02(2).
Perhaps because any taxation of costs is pursuant to chapter 19 of the Family Law Rules, rule 21.11 of the Federal Circuit Court Rules provides that upon a taxation the applicable scale cost to be applied are those set out in schedule 3 to the Family Law Rules, not the schedule to the FCC Rules.
Discussion
In accordance with the directions made for the filing and service of written submissions, I received submissions on costs on behalf of the interested parties prepared by their counsel, submissions on behalf of the husband prepared by his counsel, submissions in reply prepared by the wife, submissions in reply to the wife prepared by counsel for the interested parties and submissions in reply to the wife prepared by counsel for the husband.
The oral applications for costs were made at the end of the hearing on 7 April 2020. No documents were tendered to the Court and accordingly no additional evidence was admitted for consideration by the Court in relation to the cost applications. Orders were then made for written submissions. Evidence is not normally received by the Court during oral submissions and, if tendered, is subject to each other party to the proceedings having the opportunity to inspect and consider the tendered document for the purpose of making any objection. Any such objections must be considered before such document is either rejected or admitted into evidence. No tenders were made prior to written submissions in this matter.
However, documents were tendered to the Court with the written submissions of the husband. Those documents were attached to and, presumably, served with the written submissions of the husband on the wife, thereby affording her an opportunity to consider them and to raise any objection to them being admitted into evidence. However, the wife is self-represented and no explanation was given to the wife by the Court at the hearing in relation to tender of documents and the process of objection. The wife had entered into a process of tender and opportunity for objection at an interim hearing of the proceedings on 5 November 2019, but that was five months prior to the hearing the subject of these reasons and she could not be expected to have had the tender and objection process in her mind when receiving and considering the written submissions of the husband.
The documents relate to a course of correspondence between the parties addressing the issue of the objections to subpoena. Though negotiations by parties are usually not admissible into evidence pursuant to section 131 of the Evidence Act 1995 (Cth), there is an exception to the prohibition in that section in relation to consideration of costs applications. Nevertheless, for the reasons mentioned, I do not accept into evidence the documents inferentially tendered with the submissions of the husband.
For the same reason, I do not accept into evidence documents tendered by the wife in her submissions in reply. Those documents were presumably served with her submissions in reply and so were available for consideration by counsel for the interested parties and counsel for the husband, and those documents are objected to in paragraph 4 of the written submissions in reply provided by Ms Otrebski on behalf of the interested persons, and objected to by Ms Treherne in paragraph 3 of her submissions in reply on behalf of the husband.
I reject the tender of those documents.
I have carefully considered all of the submissions made on behalf of the husband, the interested parties and the wife.
As the wife is self-represented I will indicate to her that her reference to rule 15.29 of the Family Law Rules is inapplicable in these proceedings as these proceedings are governed by the FCC Rules unless those rules “are insufficient or inappropriate” in which case the Court may apply the Family Law Rules in whole or in part and modify or dispense with as necessary.[14] The FCC Rules are neither insufficient nor inappropriate for this matter, and therefore the Family Law Rules do not apply.
[14] Federal Circuit Court Rules 2001 (Cth) r 1.05(2).
Further, the failure to comply with that rule in the Family Law Rules asserted by the wife against the interested parties is incorrect. While the rule relates to production, the rule does not require production “regardless of any objections filed” and in this matter, the objections to each of the subpoenas issued to the interested parties were objections to production.
Further, the wife’s reference in paragraph 38 of her submissions to rule 21.03(2)(a) and (c) as presenting a ground upon which the Court should find that the interested parties cannot seek costs is also misconceived. That subrule addresses the circumstance set out in subrule 21.03(1) where a Court has made an order specifying the maximum cost that may be recovered on a party/party basis by an order at the first Court date made of the Court’s own motion or on the application of a party.
Application by the interested parties
In relation to the costs application made by the interested parties, I must have regard to the matters set out in section 117(2A) of the Act:
(a) The financial circumstances of each of the parties to the proceedings.
The references to the financial circumstances of each of the parties to the proceedings. I am referred by the wife in her submissions to her financial statement filed 13 February 2020 (in relation to the spousal maintenance interim hearing conducted 20 February 2020) and I have therein evidence as to the wife’s financial position at that time. The wife includes updated asserted factual information in relation to her financial position in her written submissions, but I cannot pay regard to that material as it is not evidence, not being contained in affidavit or exhibit. In particular I note the wife’s evidence in her financial statement of having, at that time, a total sum of $40,475 in savings.
The interested parties are not parties to the proceedings and in any event I do not have any evidence as to their financial circumstances.
(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.
Not relevant.
(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, omissions of facts, production of documents and similar matters.
I do not regard the success or otherwise of the interested parties and the wife respectively in relation to the upholding of or defeating of objections as going to conduct in the proceedings. There is no evidence of anything on the part of either the interested parties or the wife that I would consider relevant for consideration under this heading.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.
Not relevant.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings.
The interested persons did not contest paragraphs 1 and 4 of the relevant subpoenas, but did contest all other paragraphs. All other paragraphs were, in the event, struck out except that paragraph 12 in the subpoena to Mr B and paragraph 6 in the subpoena to Ms C were amended by deleting certain words therefrom, both of those paragraphs being in exactly the same terms. In that regard I regard the wife as having 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.
As I have not admitted the documents tendered with the written submissions into evidence, I have no evidence of any offers made.
(g) Such other matters as the Court considers relevant.
I bear well in mind, as the wife stressed in her written submissions, that she is self-represented. However, I note the inclusions in the written submissions in reply on behalf of the interested parties prepared by Ms Otrebski of the comments by Samuels JA in Rajski v Scitech Corporation Proprietary Limited[15] that the Court must:
…prevent distractions [to litigants in person] from the traps which our adversary procedure offers to the unwary and untutored. But the Court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent…an unrepresented party is as much subject to the rules as any other litigant.[16]
[15] Rajski v Scitech Corporation Proprietary Limited (Unreported, New South Wales Court of Appeal, Samuels JA, 16 June 1986).
[16] Rajski v Scitech Corporation Proprietary Limited (Unreported, New South Wales Court of Appeal, Samuels JA, 16 June 1986).
The wife chose to be unrepresented. The interested parties chose to be represented and incurred legal costs.
I find that it is appropriate that an order be made that the wife pay the costs of the interested parties for the proceedings on 7 April 2020. The amount claimed for the interested parties is $3,740. No evidence is presented of how that figure is arrived at or component parts and in submissions in paragraph 31 Ms Otrebski advises that:
The sum of $3740 encompasses the taking of instructions, perusing the documents filed in the proceedings, the preparation for and the attendance at the hearing on 7 April 2020 on a direct access basis. The actual fees exceeded this amount.
Conclusion
I find that it is proper that an order be made that the wife pay the costs of the interested parties in a fixed sum of $2,490 and that the time allowed to the wife for payment be 28 days from the making of final orders in the property settlement proceedings currently before the Court between the wife and the husband.
Application by the husband
In relation to the husband’s application for costs, I must consider the matters set out in section 117(2A):
(a) The financial circumstances of each of the parties to the proceedings.
Just as I have evidence referred to in the wife’s submissions in relation to her financial circumstances as set out in her financial statement filed 13 February 2020, I have evidence in relation to the husband’s financial circumstances as set out in his amended financial statement filed 17 February 2020 (also for the spousal maintenance interim hearing on 20 February 2020). The financial position of each of the husband and wife does not weigh against an order being made that the wife pay the husband’s costs of 7 April 2020.
(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.
Irrelevant.
(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, omission of facts, production of documents and similar matters.
I repeat the comments I made above in my consideration of this aspect in relation to the costs application of the interested parties.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with the previous orders of the Court.
Not relevant.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings.
On the same basis as my finding under this heading above in relation to the interested parties, I find that the wife was wholly unsuccessful in relation to the hearing of the husband’s objection to the subpoenas.
(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.
As outlined above, I have no evidence in relation to any such offers.
(g) Such other matters as the Court considers relevant.
I repeat my comments in relation to the wife’s submissions directed toward her position as a self-represented litigant.
However, I also consider the following as a relevant consideration.
Objections to the subpoenas issued to Mr B and Ms C were made by each of those interested parties and by the husband.
Though the objections were prepared separately and argued separately, it is abundantly plain in this matter that the interested parties are ‘in the camp of the husband’ in that they are all members of the same household and their financial affairs are to some extent mingled on the basis that the husband pays to his parents a sum of $600 per week by way of board and represents in his amended financial statement that he has no expenditure for food or utilities or any of those normal living expenses by his omission from that amended financial statement of particulars required in part N of the document, given that the document was prepared for use in proceedings relating to spousal maintenance.
The objections of the interested parties and the husband were mirrored in relation to the subpoenas to the interested parties in that they each objected to the same paragraphs. In those circumstances, there was no need for objection by both the husband and the interested parties to be heard, as the hearing of either objection would have resolved the issues.
As I have found it appropriate to make an order for the wife to pay the costs of the interested parties in a fixed amount, I do not consider that it is appropriate to make an order that the wife pay the husband’s costs relating to his objection to the subpoenas issued to Mr B and Ms C.
In relation to the subpoena issued at the request of the wife to The Proper Officer of Transport for New South Wales Legal Branch, the husband was wholly successful and the wife was wholly unsuccessful. I consider that it is appropriate to make an order that the wife pay the husband’s costs relating to the litigation of the husband’s objection to that subpoena.
The husband sought that the wife pay his costs in an amount of $3,300. In written submissions on behalf of the husband, Ms Treherne of counsel asserts that such fixed cost sum sought by the husband “reflects only part of his counsel’s costs in preparing and attending the subpoena objection hearing on 7 April 2020” and that “the amount claimed is less than the scheduled costs of such an application under the rules” being a reference to rule 21.10 and 21.16 and schedule 1 of the FCC Rules
Ms Treherne asserts that the applicable schedule costs would total an amount $3,547. Despite those submissions, there is no indication as to how the amount claimed in the fixed sum of $3,300 is composed, and I bear in mind that I have found that it is not appropriate to make an order that the wife pay the husband’s costs in relation to his objections to the subpoenas directed to the interested parties, but only in relation to his objection to the subpoena directed to The Proper Officer of Transport for New South Wales Legal Branch.
Conclusion
Accordingly, I find that it is appropriate to make an order that the wife pay the husband’s costs in the fixed sum of $1,100 and that the wife be allowed time to pay, being 28 days after the making of final orders in the property settlement proceedings between the husband and the wife.
Accordingly, I make the orders as set out at the start of these reasons.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 7 December 2020
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