Forster and Forster (Costs) - [2010] FamCAFC 242

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (COSTS)

[2010] FamCAFC 242

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – PROCEDURE – where the husband sought an adjournment to file written submissions – adjournment refused.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – COSTS – costs sought by the wife in relation to the husband’s application for an extension of time to appeal – where an extension was granted – where the wife limited her claim for costs to avoid the need for taxation – where the husband’s documents in support of the application were prolix and difficult to understand – where the wife was justified in opposing the extension application – where the application was necessary due to the husband’s failure to file his appeal within time – where there are circumstances justifying an order for costs – order for the husband to pay the wife’s costs.

Family Law Act 1975 (Cth) s 117

APPELLANT:

Mr Forster

RESPONDENT:

Ms Forster

LITIGATION GUARDIAN OF THE

APPLICANT:

Public Trustee

FILE NUMBER:

ADC

3359

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

1 November 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

1 November 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 October 2008,

19 December 2008 &

16 March 2009

LOWER COURT MNC:

[2008] FMCAfam 1075 &
[2008] FMCAfam 1536

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mrs West

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks & Co Lawyers

COUNSEL FOR THE LITIGATION GUARDIAN:

Ms Dickson

SOLICITOR FOR THE LITIGATION GUARDIAN:

Crown Solicitor’s Office

Orders

Within 28 days of the date hereof the husband pay to the trust account of the solicitor for the wife the sum of SEVEN THOUSAND THREE HUNDRED AND THIRTY TWO DOLLARS AND FORTY EIGHT CENTS [$7,332.48] by way of costs
The oral application for costs made by the wife be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Forster & Forster (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 44 of 2010
File Number: ADC 3359 of 2007

Mr Forster

Appellant

And

Ms Forster

Respondent

And

Public Trustee

Litigation Guardian of the Applicant

EX TEMPORE REASONS FOR JUDGMENT

I delivered reasons for judgment on 24 September 2010 in relation to an Application in an Appeal filed by the husband on 27 July 2010 seeking an extension of time to file a Notice of Appeal against a number of orders made by Federal Magistrate Lindsay. I determined that there should be an extension of time granted and I made orders to that effect on 24 September 2010. The wife, who was the respondent to that application, has now sought an order for costs in her favour against the husband and the matter was adjourned to today specifically to deal with that application.
Mrs West has appeared for the wife today and has provided me with oral submissions in support of the application for costs. In addition, she has handed up a costs’ schedule detailing the costs sought, and they total $8,381.83, comprising both solicitor’s fees and counsel fees. The solicitor’s fees have been calculated on the basis of applying the Family Court scale. With counsel fees, Mrs West has indicated they are not calculated on that scale but, coincidentally, it seems that they are within that scale.
The husband opposes the application for costs. I should mention that the husband also seemed to be wanting an adjournment of this application. He suggested written submissions should be required of the wife or her legal advisors so that there was something that he could formally respond to.
I indicated to Mr Forster that I would not be adjourning the matter to require the wife to provide written submissions. The wife’s legal advisors have chosen to make oral submissions to me and that is as far as that can go.
In further discussion with Mr Forster he seemed then to be seeking an adjournment to enable him, in any event, to file written submissions. He said he had researched cases and he wanted the opportunity to put submissions as to the law to me, but he did not have the research with him. However, it subsequently transpired that what Mr Forster was wanting to make submissions about was to support an application seeking that the costs be paid by the litigation guardian.
Doing the best I can, and recalling his submissions and the tenor of them, he seemed to be referring back to his claim that I had considered in my reasons for judgment that his woes and his current position should all be laid at the feet of the litigation guardian and that his fundamental rights had not been observed. That seemed to be the context of what he said was an application for the litigation guardian to pay the costs.
I indicated to him that there was no such application before me and there could not be such an application before me in this matter. If Mr Forster wishes to seek orders against the Public Trustee in the capacity of litigation guardian and including orders for costs in relation to their alleged conduct in the course of the proceedings before the Federal Magistrates Court, then he should make such an application to that court and not to this court.
However, Mr Forster, with all due respect to him, did not seem to understand that and I reached a point where I required Mr Forster to indicate that if I granted an adjournment, as I frankly was disposed to do, to allow him to provide me with written submissions limited to the application for costs of the wife that is currently before me, then he would limit his submissions to that topic. But Mr Forster indicated that he was not prepared to do that and he only wanted to file written submissions in support of a claim which he says he has against the litigation guardian. In those circumstances, I indicated to Mr Forster that I was not prepared to grant the adjournment, and the matter has proceeded.
Mr Forster’s submission in relation to the application is that he opposes it. He referred obliquely to the issue of conduct and the success of his application, but I must say that I have not been assisted by what Mr Forster has put to me in that regard.
I perhaps should also note that in relation to the costs schedule which was handed up to me today, Mrs West’s instructions are that that was forwarded to Mr Forster by email on Friday. Mr Forster says that he did not receive it and he has not seen it. In subsequent comments he made from the bar table though, he said that he has two email addresses and it might have come to one of them. Thus I am not satisfied that Mr Forster has not received this schedule. Whether he has looked at it or not is another matter but, in any event, he has had the opportunity, as I have, to peruse the schedule today, and he and I did that at the same time. Initially he made no submissions to me in relation to it, but he subsequently queried the relevance of, for example, letters to the Crown Solicitor contained in the schedule. I have indicated to him that I am not a taxing officer, that if there is any dispute or issue about these items being relevant and appropriate in the context of the proceedings, then that is a matter for a taxing officer and I will not be making any decisions about that today, and if I am to order costs the amount would need to be referred to taxation.
As a result of that intimation, the wife has now amended the costs schedule and reduced the amount of costs that she seeks by limiting the items in that schedule to those items which it is suggested that I am able to adjudicate upon and in respect of which I would have relevant knowledge, namely, and in summary, the attendances at the hearings before me, including today, counsel’s fees in relation to that, solicitor’s fees in relation to that, and solicitor’s fees in relation to the perusing of the relevant documents served upon the respondent by the applicant, and solicitor’s fees in relation to the drafting and production of responding documents.
Perhaps to put the other side of the coin, in that exercise what is now not pursued are what I could perhaps term the costs of solicitor/client interactions and internal processes, i.e., attendances upon the client, save and except in respect of one item and that is attendance upon the client to swear an affidavit, but also not pursuing the costs of the preparation and forwarding of letters and the like to counsel and to the Court and perusing responses to that correspondence.
Mr Forster has been provided with the amended costs schedule and he still opposes any costs being awarded to the wife. He suggests that some of these costs relate to affidavit material which, in itself, relates to hearings that have been adjourned. I assume what Mr Forster is referring to there is that his notices seeking to appeal against orders made by the Federal Magistrate have been put in abeyance pending the hearing of his appeal against the orders appointing the litigation guardian.
Dealing with that issue, I do not accept that submission, and it is quite apparent to me, from my knowledge of this matter and my involvement in it, that the items now claimed in the costs schedule are all relevant and appropriate items in relation to the Application in an Appeal which I have now heard.
Any application for costs is governed by s 117 of the Family Law Act1975 (Cth). The relevant parts of that section provide:
Section 117
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) 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) and (5) and 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.
(2A) 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 onus, in effect, is on the applicant to establish that there are circumstances here that justify an order for costs and, in that regard, Mrs West initially relied on paragraph (d) of s 117(2A) but, in the end result, relied on paragraphs (c) and (g). Paragraph (c) refers to the conduct of the parties and paragraph (g) is a catchall, namely, such other matters as the court considers relevant.
In terms of the other paragraphs of s 117(2A), I need though to mention two paragraphs, namely, paragraphs (a) and (e).
In relation to paragraph (a), I am in the fortunate circumstance of having read the reasons for judgment delivered by the Federal Magistrate in relation to the disputed property settlement applications that were before the Federal Magistrates Court and that, together with the documents filed in relation to that application, provides me with a picture of the financial circumstances of the parties.
However, it is the end result of that property settlement application which is significant and, in summary and in general terms, it seems that the Federal Magistrate found that the net assets of the parties were worth something in excess of $600,000. He determined that an appropriate division was an equal division between the parties and thus each of the parties is entitled to something in excess of $300,000 by way of assets.
Some monies have just been released to the wife by way of partial property settlement, and specifically an amount of $70,000. The majority of that has gone to meet her legal costs but there is, as I understand it, about $10,000 left in the trust account of her solicitor.
In any event, the long and the short of the consideration of the financial circumstances of the parties is that there is nothing there which would prevent or indeed impact in any way upon either the making or the refusal of an order for costs.
With paragraph (e), the proceedings were of course an application by the husband for an extension of time and that was opposed by the wife. Thus she has been wholly unsuccessful in respect of that application. However, it is not as simple as that and it is necessary to look at the circumstances of the application and specifically and obviously my reasons for judgment in extending the time.
The husband had failed to file his Notice of Appeal within time. He had also failed to file his application seeking an extension of time within a reasonable time. Indeed, there were many, many months that went by before Mr Forster filed his application seeking an extension of time. In my view, and it should be apparent from my reasons for judgment, the wife was perfectly justified in opposing the application. I found that there was no adequate explanation for the delay and no adequate explanation for the failure to file the Notice of Appeal in time. However, at the end of the day I determined that in the interests of justice the application should be granted and one of the prime reasons for me doing that was the prospects of the husband being successful in an appeal against the orders appointing the litigation guardian.
I also observe, and I have referred to this in my reasons for judgment, that it was extremely difficult as a result of the documentation that the husband eventually did file to make head nor tail of why there should be an extension of time. It was only at the hearing itself when I was able to tease out with the husband who appeared in person the history of the matter and how the proceedings had developed.
The wife, with the assistance of her legal representatives, had to try and deal with that and, in particular, the prolix affidavit material that the husband filed and which contained, as I found in my reasons for judgment, irrelevant material. In my judgment I said it was difficult for me to make some sense of the husband’s application. I fully expect that it was equally as difficult for the wife and her legal representatives to do so.
In that context, the prolix documents filed by Mr Forster has led to the level of costs which the wife now seeks by way of an order. It is perfectly understandable that the wife would have needed to incur those costs in responding to and dealing with the application that Mr Forster has made.
Of course the other relevant factor in terms of a justification for an order for costs is that in seeking the extension of time, Mr Forster is seeking an indulgence of the Court. It was necessary for him to make the application and it was then necessary for the wife to respond to it appropriately. Thus the only reason why the wife has had to respond to this is because the husband failed to file the Notice of Appeal in time and then failed to file an application within a reasonable time. Thus in my view, there are ample circumstances justifying an order for costs in this case.
In terms then of what that order should be, I will not repeat what I have said as to the schedule that is now before me, save and except to note that the costs now sought in total are $7,332.48. That includes now the costs of the hearing today. As I have said already, I consider that the work done and which is represented in the items of the schedule which are being proceeded with was necessary. I understand, and I have confirmed this, that the amounts sought for solicitors’ fees are within the Family Court scale and equally, as I said earlier, counsel’s fees are also within that scale or close enough to it for any difference not to matter.
As I have said and I repeat, I always have two options in making an order for costs – well, actually, I have three. One is to send the matter off to taxation. One is to make a decision as best I can on the basis of any itemised bill that is presented to me. The third option is to fix on a lump sum amount without considering in any detail the specific items that go to make up that lump sum. I prefer, if possible – and I consider it is always in the interests of the parties – to avoid the taxation process. However, where there is a legitimate issue raised as to any item of costs sought, as to its relevance or whether the work done was appropriate, then, in my view, the matter should be sent off to taxation. Here, as I have indicated, the wife has now limited her claim to those items which can readily be seen as necessary and appropriate in terms of how the respondent would have needed to respond to this case. I am satisfied that the costs sought are costs that should be allowed. Thus I propose to make an order for costs in the sum of $7,332.48.
Having indicated that I propose to make an order for costs in the amount sought, I inquired of Mr Forster as to how long he sought to pay those costs and his response is he proposes to appeal so it does not matter how long he is given. In those circumstances I propose to fix what I will call the “usual” 28‑day period.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 1 November 2010.

Associate:

Date: 3 December 2010