Findlay and Daniels (No 2)

[2011] FamCA 278

FAMILY COURT OF AUSTRALIA

FINDLAY & DANIELS (NO 2) [2011] FamCA 278

FAMILY LAW – COSTS – Indemnity costs awarded against applicant

APPLICANT: Ms Findlay

RESPONDENT: Mr Daniels

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 7 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 7 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Hannan

SOLICITOR FOR THE APPLICANT: Caroline Counsel Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Tulloch

SOLICITOR FOR THE RESPONDENT: Holt & Macdonald

Orders

1. That the wife shall pay the husband’s indemnity costs in relation to her Stay application filed on 23 March 2011, fixed at $2,792, following her discontinuance of that application.

IT IS NOTED that publication of this judgment under the pseudonym Findlay & Daniels (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1996 of 2008

Ms Findlay

Applicant

And

Mr Daniels

Respondent

REASONS FOR JUDGMENT

1. Now, this matter was before me last week, on 1 April.  I had before me two applications filed by Ms Findlay, both on 23 March 2011.  The case was adjourned. 

2. It was adjourned, as I noted in my reasons given that day, specifically because extremely late in the piece on the day before the hearing, Ms Findlay had chosen to instruct a solicitor and senior counsel.  Those legal representatives were not in a position to argue the case for her.  They were able, however, to convey Ms Findlay's instructions that all her applications, except for an application to stay the orders made by me on 21 January 2011, would be withdrawn.  The case was to return before me today for the stay application to be argued, and Ms Findlay was to file supporting material. 

3. In the event, she did not file the material, and the case has not been argued before me because, late yesterday, a Notice of Discontinuance of the outstanding application was filed on her behalf.  I should say there was an attempt to file the document.  It was not accepted by the Registry.  But by around 4 o'clock yesterday, it seems that the husband's solicitor had notice that the proceedings would be discontinued. 

4. This morning, Mr Hannan has, properly and courteously, appeared on behalf of Ms Findlay, indicating that the matter is to be discontinued.  Ms Tulloch has appeared on behalf of Mr Daniels.  She seeks costs both as to the outstanding costs in relation to the application itself, and as to her fee for appearing today.  She seeks costs on an indemnity basis.  She has produced the costs agreement that exists between her instructor and Mr Daniels.  The solicitor's charge out rate is $330 per hour.  On that basis, she seeks costs of $812 on the application, and her brief fee of $1980.

5. Mr Hannan for Ms Findlay has argued strenuously against any costs order, and particularly against an indemnity costs order, and has argued too that in the event that I am against him in relation to a costs order being made, that the quantum of costs should be greatly reduced to reflect proper scale costs. 

6. Costs are determined under s 117 of the Family Law Act.  Primarily, each party is to pay his or her own costs unless in the Court's discretion there is a reason to make a costs order.  A decision to order indemnity costs is also a matter of discretion.  Although there is authority that indemnity costs should not be ordered in the ordinary course, and that there should be some exceptional reason for them, the authorities are also clear that there is no finite category that dictates when indemnity costs should or should not be ordered.

7. I am satisfied in this case that Mr Daniels should obtain not only his costs, but indemnity costs. 

8. First, he has been put to the expense of preparing for an application which ultimately did not proceed, and it was discontinued at such a late stage that it required the attendance of counsel this morning, if for no other reason than to argue the very costs issue that is still live before me.  It was clear last week when I ordered costs in his favour to cover his counsel's brief fee wasted that day, that at that point I was not addressing the other costs incurred by the husband in relation to this application.  That is why it was genuinely an outstanding issue for today.

9. Secondly, the reason that I am satisfied indemnity costs are appropriate is that under s 117, I need to look at the conduct of parties. Mr Hannan has argued everything he could possibly argue on behalf of Ms Findlay, but I disagree when he argues that I should look at this application in isolation from the history. Her conduct is a continuous course of conduct, and not one that I can look at in simple isolation. This is not the first time that an application has been withdrawn or discontinued by her. In a long and ugly history, that has occurred previously.

10. I can, however, put that to one side, and look simply at the history of this last round of litigation commenced by her in January this year and can point to the fact that initially she sought seven orders across two applications, five of which were crossed out.  Then, last week, through counsel, she withdrew one particular aspect she had sought in each application, and then at the eleventh hour - an expression I note that I used last week as well - again at the eleventh hour, she discontinued the one matter that had been due to be dealt with today.  And from those points of view, it is simply unfair - indeed, unconscionable, for Mr Daniels to suffer any expense in the preparation that has been done for this hearing.

11. I consider not only Ms Findlay’s conduct and the unfairness to Mr Daniels, but also the parties’ respective financial positions.  Although Ms Findlay instructs counsel that she is of modest means and that the implications to her of paying costs will be very difficult indeed, this round of litigation comes at the end of a property case where I have ordered that each party receive exactly the same amount.  Neither party is in a better or worse position than the other, save that there are other costs orders against Ms Findlay, all incurred because of her own actions for reasons that have been given by myself or another Judge.  There is no reason why Mr Daniels’ financial position should not be taken into account now as well as Ms Findlay’s, and, as I said, they each stand to receive an equal amount under the property orders.

12. For those reasons, I propose an order for indemnity costs as sought.  I have seen the costs agreement.  I am satisfied that the statement handed up today by Ms Tulloch on Mr Daniels’ behalf sets out the amount that is properly and reasonably reflected in that costs agreement.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 7 April 2011.

Associate: 

Date:  7 April 2011