Frederick and Frederick - [2009] FamCAFC 156

FAMILY COURT OF AUSTRALIA

FREDERICK & FREDERICK

[2009] FamCAFC 156

FAMILY LAW – APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Husband appealed/sought leave to appeal the refusal to award costs thrown away – No merit in the grounds of appeal contended – Concern that Federal Magistrate may have denied husband’s counsel at the time an opportunity to make full submissions as to costs – No issue of this nature was raised on appeal – Justice would not be served by re-opening this issue – Question of whether a costs order is an interim order and required leave ultimately did not need to be determined – Application/appeal dismissed
COSTS – Wife sought order for fixed costs – Husband ordered to pay costs upon the conclusion of the proceedings for property settlement

APPELLANT:

Mr FREDERICK

RESPONDENT:

Ms FREDERICK

FILE NUMBER:

BRC

3198

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

28 August 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Justice Warnick

HEARING DATE:

26 August 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT ORDER DATE:

6 April 2009

REPRESENTATION

APPELLANT:

Appellant appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Fynes-Clinton (direct access brief)

Orders

That the application (and/or appeal) of the husband filed 27 April 2009 be dismissed.
That the husband pay the wife’s costs of and incidental to the application/appeal, fixed in the sum of $1,519.00, such payment to be made forthwith upon the resolution of the application of the wife for property settlement.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA38 of 2009
File Number: BRC3198 of 2007

Mr FREDERICK

Appellant

And

Ms FREDERICK

Respondent

REASONS FOR JUDGMENT

On 6 April 2009, Federal Magistrate Jarrett adjourned the trial of an application by Ms Frederick against Mr Frederick for orders by way of property settlement following the breakdown of their marriage and for an order for departure, by way of a lump sum payment, from a Child Support Assessment. Jarrett FM was ultimately persuaded to adjourn the matter, because to do so would enable the wife to obtain fresh legal representation. Her previous lawyers had declined to continue because of non-payment of her fees. Following the grant of the adjournment, Jarrett FM refused an application on behalf of the husband that the wife pay his costs thrown away.
These reasons relate to the husband’s application for leave to appeal against both the grant of the adjournment (however that application was not ultimately pursued) and the refusal of his application for costs. I doubt whether he needs to seek leave in respect of the costs order, but will say more of that later.
At the hearing before me, the husband accepted that there was no purpose in pursuing the application for leave to appeal against the grant of the adjournment, for two reasons
Prior to the trial being listed before Jarrett FM on 6 April 2009, it had been before Cassidy FM and she had made some orders in respect of the application for final orders. However, she became ill and at the time it was listed before Jarrett FM it was not clear when Cassidy FM might be able to resume the hearing. However, by the date of 30 April 2009, to which Jarrett FM adjourned the matter, Cassidy FM was available to sit again from about June 2009. Thus, Jarrett FM took the view that the matter was best continued before her Honour. Her Honour has made orders for the final hearing before herself.
Secondly, even if the husband satisfied me that Jarrett FM was wrong to grant the adjournment on 6 April 2009, that would make no difference to any issues concerning the refusal of costs thrown away, when in fact the trial was adjourned.
Two historical matters are pertinent to the challenges to Jarrett FM’s refusal of the husband’s request for costs. In November 2007, the husband had been ordered to pay costs of the wife, later assessed in the sum of $18,360.00 approximately. He had not paid any of that sum. Secondly, the trial had been adjourned on three previous occasions. Mr Fynes‑Clinton, counsel for the wife on 6 April 2009, (and on appeal) said in April that the matter had been adjourned on each earlier occasion because the husband had not produced financial documents. Ms Zande, then counsel for the husband, contested the proposition that all previous adjournments of the trial were because of default on the husband’s part.
The husband, who is not legally qualified and was unrepresented in the Leave to Appeal/Appeal, drew the (proposed) Notice of Appeal himself. The grounds are in something of a narrative form, but from the Notice, the husband’s Summary of Argument and his oral submissions, the challenges he makes to the refusal of his application for costs thrown away can be identified. They are numerous, but can be shortly dealt with and are best enumerated after consideration of the submissions on costs made to Jarrett FM and of his Honour’s reasons for refusing to make a costs order.
After giving his reasons of adjourning the trial the Federal Magistrate said to Mr Fynes-Clinton “why shouldn’t…your client pay the costs?”. Mr Fynes-Clinton submitted that:
…the reason why she no longer had representation until recently was that she could no longer afford to pay her lawyers. The amount she owed them was less than the amount of costs thrown away and therefore increased to her and paid by her as a result of what the Court found in November 2007 to be the husband’s default.
…
…In my respectful submission…if he had paid the costs he was ordered to pay, my client never would have found herself in the position in which she subsequently found herself.
Your Honour, that’s the gravamen of the submission. Obviously it’s not suggested there’s any question of my client having costs, but the submission is that in those circumstances, having regard to the full conduct of the parties and the particular reason – and I’ve drawn your Honour’s attention to a relatively well known extract from the case of Brown v Brown where the Court indicates that each factor is to be considered. But there may be cases where looking at the matter as a whole there’s one particular or obvious or outstanding feature in what’s happened that really dictates the way the costs order should go.
Ms Zande was then called upon to reply. She read an affidavit by her instructing solicitor. On objection, some parts of it were struck out and Ms Zande then indicated that the significant part of the affidavit upon which she relied was a tax invoice relating to the costs thrown away.
There was then quite some considerable discussion about the detail of the invoice and whether or not that detail represented costs thrown away. That discussion concluded as follows:
FEDERAL MAGISTRATE: …So given that some of this work isn’t in fact thrown away by reason of the adjournment, what part of the $8750 is in fact referable to the costs that are thrown away and which part isn’t?
MS ZANDE: Your Honour, if I could get some instructions? But it would be the time that the solicitor has spent and allocated to today and tomorrow.
FEDERAL MAGISTRATE: Why tomorrow?
MS ZANDE: Your Honour because the time has been allocated for my instructing solicitor to appear for a two day trial.
FEDERAL MAGISTRATE: What, so what’s he going to do tomorrow just have a holiday; not go back to his practise and do some work for which he would charge other people?
MS ZANDE: Your Honour, I need to get some instructions.
To this, the learned Magistrate responded as follows, a response which included his reasons for refusing the application on behalf of the husband for costs thrown away:
FEDERAL MAGISTRATE: Well, I’m not going to permit you to get any instructions because I think it would be a waste of time. The application for costs will be refused. It’s refused on this basis, ordinarily this sort of application would attract an order for costs. The wife’s conduct is itself nothing short of outrageous. She’s known for a long time now that this trial would not be ready to proceed before today, because of difficulties with her lawyers. And I am not satisfied that she has done everything that she possibly can to be in a position to proceed today.
Having said that, two matters of significance persuade me not to make an order for costs in the circumstances: the first is the submission that had the husband paid the order for costs that he is liable to the wife for, the wife wouldn’t find herself in this position. That’s a pretty compelling argument. He who seeks equity, should do it. And in circumstances where he’s been ordered to pay an amount by way of costs and or whatever reason has chose not to do so, then that’s something in respect of which he might bear the consequences; second of all the application for costs is so poorly prepared that I’m not prepared to entertain it.
I am not satisfied that the exhibit SP6 is a true reflection of the costs thrown away by the adjournment, as the bill purports to be. If that is in fact a bill by this solicitor to his client for costs thrown away by this adjournment, then this is clearly a case that needs to be investigated by the Legal Services Commissioner, because on any view of it the work that is set out in the tax invoice cannot be properly said to be costs thrown away by the adjournment, or at least not entirely. It is nothing short of a try on and I’m not prepared to count that as a try-on. See you at 10 o’clock on 30 April.
I am concerned that Ms Zande may not have received fair opportunity to make all of the submissions she wished to make on the question of costs, before the Federal Magistrate disposed of the husband’s application. I will say more of that concern later. No submission or ground of appeal raised any such concern.
The husband’s contentions in support of his (proposed) appeal can be grouped as follows:
A
·during the course of the hearing the Federal Magistrate made strong references to the husband’s lack of credibility in the proceedings, which references were prejudicial to the husband;
·placed excessive weight on the wife’s allegation in submissions that the husband had been the main offender in having the matter repeatedly delayed;
B
·that Jarrett FM failed to give weight to the financial circumstances of both parties and that the wife’s entire legal fees had been funded by borrowing from the marital property pool and from the sale of marital assets whereas the husband’s legal fees had been funded in their entirety from post-separation funds;
·that the wife has a greater earning potential than the husband;
·that Jarrett FM failed to give proper weight to the husband’s financial circumstances where he did not have the means to pay the 2007 order;
·that Jarrett FM failed to give weight to the husband’s costs thrown away by the adjournment;
C
·in deciding not to order costs, the Federal Magistrate wrongly regarded the detail of the costs claimed as going beyond costs thrown away when, because of the need for the husband to obtain new counsel for the rescheduled hearing, costs charged were thrown away;
·in so far as Jarrett FM placed some reliance on the unsatisfactory nature of the bill from the husband’s solicitors, the Federal Magistrate failed to consider the alternative of fixing costs;
·that when making the 2007 costs order, the court could have ordered costs be paid prior to proceedings being concluded, but chose not to;
D
·that the Federal Magistrate failed to consider evidence that the wife had not fully accounted for marital assets;
E
·that Jarrett FM placed excessive reliance on the wife’s allegation in submissions that had the husband paid the outstanding costs order, the outstanding legal fees of the wife would have been paid and she would have not been in the position where she had been left without legal representation;
F
·that because ultimately when the matter came back before him on 30 April 2009, Jarrett FM disqualified himself on the basis that Cassidy FM was part-heard, all references by his Honour to costs not being thrown away because of the trial being adjourned to 30 April 2009 are invalid. In short, that the matter would have to have been adjourned anyway.
G
·that the consequence of the Federal Magistrate’s refusal of the husband’s application for costs thrown away was that he now could not afford lawyers to represent him;
H
·that Jarrett FM failed to place sufficient weight on the wife’s failure to give earlier notice of her request for an adjournment;

A. During the course of the hearing the Federal Magistrate made strong references to his lack of credibility in the proceedings, which references were prejudicial to the husband;

placed excessive weight on the wife’s allegation in submissions that the husband had been the main offender in having the matter repeatedly delayed;

During submissions on the application by the wife to adjourn the trial, the Federal Magistrate said to Ms Zande:
FEDERAL MAGISTRATE: …it’s a mealy mouthed of your client, isn’t it, to come along here and want the wife to proceed, given the history of this case? Mr Fynes-Clinton is quite right, isn’t he, when he says, “Look, this is just another stamp in these proceedings because neither of these parties are ever ready for a trial when a trial is set down and the husband’s been the worst offender up till now”. I mean that’s the history of the case, isn’t it?
Ms Zande commenced to take issue with the Federal Magistrate’s proposition and to give some explanation but the Federal Magistrate interrupted saying, “Well, that’s my reading of the file, I’ve go to tell you, all three boxes of it.”
One might be concerned if, based on the matters referred to so far, the Federal Magistrate acted on any conclusions about the husband’s “default” on prior occasions. However, in an affidavit of the wife filed 2 April 2009, she deposed to the husband being unready on each of the three previous occasions when the matter was set for trial and the wife was not cross-examined about that. While the husband contends before me that in the affidavit which he had sought to file in relation to his opposition to the adjournment, but which Jarrett FM refused to receive, the husband had contested the wife’s version of the reasons for the previous adjournments, the fact is that there was no contrary evidence before the Federal Magistrate.
In any event, while these observations militate against finding merit in these complaints by the husband, a shorter and clearer reason why the complaints lack merit is that the Federal Magistrate did not rely upon the allegations against the husband in relation to earlier conduct as one of his reasons for refusing the husband’s application for the costs thrown away.

B. That Jarrett FM failed to give weight to the financial circumstances of both parties and that the wife’s entire legal fees had been funded by borrowing from the marital property pool and from the sale of marital assets whereas the husband’s legal fees had been funded in their entirety from post-separation funds;

that the wife has a greater earning potential than the husband;

that Jarrett FM failed to give proper weight to the husband’s financial circumstances where he did not have the means to pay the 2007 order;

that Jarrett FM failed to give weight to the husband’s costs thrown away by the adjournment;

As to the comparative sources from which each party had paid legal fees, while that may well be something for which adjustment is made at a final property hearing, it may carry little if any weight in deciding the merit of an application for costs thrown away by an adjournment.
As to the question of weight to be given to the financial circumstances of both parties, including the assertedly greater earning potential of the wife, and the husband’s means to pay the 2007 order, the husband argued that the Federal Magistrate could and should have gleaned details from his reading of the file and acted upon them when deciding the issue of costs. I do not accept that submission. The application for final orders had been listed before the Federal Magistrate for trial and in preparation for that he may well have perused the material on file. However, that material is not before me and, notwithstanding what the Federal Magistrate said of an impression he had gained about responsibility for previous adjournments, the material cannot be regarded as being placed before him by either party on the question of costs thrown away.
As to the question of the husband’s costs thrown away by the adjournment, true it is that the Federal Magistrate did not refer to the fact that the husband would bear them himself if the wife was not ordered to pay them. But that is an obvious consequence.
Moreover, the reasons for the orders made in this matter were given orally both during the process of and at the conclusion of, a relatively short hearing and submission. In such a case, the Federal Magistrate might be taken to have well in mind the circumstances of, and the submissions in, the matter. The submission put on the wife’s behalf as to the “gravamen of the matter” was clearly accepted by Jarrett FM as such and taken by him to have been the most significant of factors bearing on the question of costs.

C. In deciding not to order costs, the Federal Magistrate wrongly regarded the detail of the costs claimed as going beyond costs thrown away when, because of the need for the husband to obtain new counsel for the rescheduled hearing, costs charged were thrown away;

in so far as Jarrett FM placed some reliance on the unsatisfactory nature of the bill from the husband’s solicitors the Federal Magistrate failed to consider the alternative of fixing costs;

that when making the 2007 costs order, the court could have ordered costs be paid prior to proceedings being concluded, but chose not to;

The terms of the tax invoice from the husband’s solicitors was very broadly cast, as follows:
To our: PROFESSIONAL COSTS of and incidental to this matter thrown away as a result of the adjournment, including all conference with you and Counsel in preparation for Trial; perusal of all documentation from you; obtaining and perusal of updated valuation from Planet Valuations; drafting, filing and serving Case Outline and Affidavit material; preparation of trial brief and further Affidavit material; all necessary telephone conferences and correspondence; in excess of but say
Our fees: $8,750.00
In my view, it would have been impossible for the Federal Magistrate to form a view of what was and what was not thrown away even taking account of a need for fresh counsel to be brought in on the date to which the trial was adjourned.
In my opinion, the view that costs sought went beyond those thrown away was well and truly open.
As to the availability of the alternative of fixing costs, I am not satisfied that the mere fact that that was an alternative, particularly in the absence of an itemised bill means it was one of which it could be said it was wrong of the Federal Magistrate not to take it up.
The proposition that, in 2007, the court making the order for the husband to pay costs might have made some order prescribing that payment be made before further proceedings were taken, is not one that affects the obligation of the husband to make payment. The orders indeed provided that the husband, within 35 days of its date (3 December 2007):
1(g) Pay the Applicant’s costs thrown away as agreed or assessed.

D. That the Federal Magistrate failed to consider evidence that the wife had not fully accounted for marital assets;

There was no evidence before Federal Magistrate Jarrett to support the husband’s assertion in this regard.

E. That Jarrett FM placed excessive reliance on the wife’s allegation in submissions that had the husband paid the outstanding costs order, the outstanding legal fees of the wife would have been paid and she would have not been in the position where she had been left without legal representation;

Before Jarrett FM the wife deposed that she owed her previous solicitors a balance of $8,921.44. As earlier seen, the husband owed the wife over $18,300.00 under the 2007 order. In my view the inference that Jarrett FM drew was well open to him.
Again, having regard to the breadth of discretion, in my view it was also well open to the Federal Magistrate to place the weight on this factor which he did.

F. That because ultimately when the matter came back before him on 30 April 2009, Jarrett FM disqualified himself on the basis that Cassidy FM was part-heard all references by his Honour to costs not being thrown away because of the trial being adjourned to 30 April 2009 are invalid. In short, that the matter would have to have been adjourned anyway.

Even if this contention is so, a likely consequence would have been that there be no order for costs.
In any event, the circumstances in which Federal Magistrate Jarrett adjourned the matter on 6 April 2009 were earlier described and, importantly, include aspects beyond the contention contained in this complaint, which is inaccurately based.

G. That the consequence of the Federal Magistrate’s refusal of the husband’s application for costs thrown away was that he now could not afford lawyers to represent him;

I am not satisfied that anything was put before the Federal Magistrate to make this asserted consequence apparent to the Federal Magistrate.

H. That Jarrett FM failed to place sufficient weight on the wife’s failure to give earlier notice of her request for an adjournment;

As seen, in his reasons for refusal of the husband’s application for costs thrown away, the Federal Magistrate was strongly critical of the wife’s conduct leading up to the hearing, although he did not specifically refer to the aspect of late notice to the husband. I refer to what I said earlier about the contemporaneity of the Federal Magistrate’s reasons for decision with the hearing. The question then is simply one of whether or not he gave that factor sufficient weight. The discretion in regard to costs is broad. I am not satisfied that the result to which the Federal Magistrate came was outside a reasonable range of discretion.

Conclusion

I find no merit in any of the contentions argued.
However, I return to my concern about the opportunity given to Ms Zande on 6 April 2009 to make submissions on costs.
As earlier indicated, no question of this nature was raised during the appeal hearing. It is a matter about which I became concerned on a re-reading of the transcript. I have given serious thought, particularly since the husband is unrepresented, to whether or not the appeal hearing ought be re-opened and the questions of whether this issue arises and if so, whether it ought be addressed be put to the parties.
However, having considered the arguments which the husband now puts forward as to why the decision was wrong, the lack of foundation for most of those arguments and that at best others raise discretionary factors, I have concluded that justice would not be served by a re-opening. A likely result of finding merit in an appeal argument would, whether on re-exercise of discretion or remission, be that his application for costs thrown away on 6 April 2009 be again refused.

Leave to appeal/right of appeal

In view of the conclusion that I have reached in relation to the (proposed) grounds of appeal, the result would be the same whether the husband appeals as of right or requires leave.

Costs of the appeal

In the event, namely that the appeal/application for leave will be dismissed, Mr Fynes-Clinton sought costs to be fixed in the sum of $1,519.00. I am satisfied that that is an appropriate amount and in view of the failure of the application/appeal, the husband ought pay those costs notwithstanding that he says he is presently unable to do so. I intend to order that the costs be paid upon the conclusion of the proceedings for property settlement. The husband advises that he expects to receive an award in that application.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:

Date: 28 August 2009