Gin & Hing (No 4)
[2022] FedCFamC1F 760
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gin & Hing (No 4) [2022] FedCFamC1F 760
File number(s): MLC 4528 of 2010 Judgment of: WILSON J Date of judgment: 5 October 2022 Catchwords: FAMILY LAW – COSTS – mother’s application for costs in relation to the father’s failed application for leave to file a subpoena – costs to be assessed in default of agreement on a party party basis. Legislation: Family Law Act s 117(2A)(e)
Federal Circuit and Family Court of Australia (Family Law) Rules rule 6.27
Cases cited: Fitzgerald & Fish (2005) 33 Fam LR 123
Gin & Hing (No 2) [2022] FedCFamC1F 750
In the Marriage of Hogan (1985) 10 Fam LR 453
In the Marriage of Kohan (1992) 16 Fam LR 245
Limousin v Limousin (Costs) (2007) 38 Fam LR 478
Medlow & Medlow(No 6) (2015) 54 Fam LR 1
Stasiuk & Guild [2021] FamCAFC 62
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 30 September 2022 Place: Melbourne Solicitor for the Applicant: GR Lawyers Counsel for the Respondent: Mr F. Dixon SC Solicitor for the Respondent: Clancy And Triado Counsel for the ICL: Mr D. Whitchurch Solicitor for the ICL: Macgregor Solicitors ORDERS
MLC 4528 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GIN
Applicant
AND: MS HING
Respondent
INDEPENDENT CHILDREN’S LAWYER
Intervener
order made by:
WILSON J
DATE OF ORDER:
5 October 2022
THE COURT ORDERS THAT:
1.I order the father to pay the wife’s and the ICL’s costs of and incidental to the father’s application for leave to file a subpoena addressed to Ms C, the subject of my reasons in Gin & Hing (No 2) [2022] FedCFamC1F 750, such costs to be assessed in default of agreement on a party party basis.
2.I direct a registrar of this court to assess those costs prior to 10 February 2023 and then to provide me with the amount so assessed.
3.I direct the registrar who is appointed to assess those costs to report to my associates by 1 February 2023 on the progress of that assessment, it being the clear requirement of these orders that the registrar appointed to assess costs in accordance with these orders must do so by the date ordered unless I otherwise so order.
4.I direct that this file is referred forthwith to the National Assessment Team for allocation of a registrar to perform the costs assessment in accordance with these orders
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gin & Hing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
Following my refusal of leave to the father to issue a subpoena to Ms C,[1] the wife sought costs of that refusal, relying on s 117(2A)(e), that is to say contending that the father was wholly unsuccessful.
[1] Gin & Hing [2022] FedCFamC1F 750.
On behalf of the wife Mr Dixon SC relied on observations of the court in Fitzgerald & Fish[2] in contending that a party seeking costs need invoke one sub-section only of s 117(2A) as the sole foundation for an order for costs.
[2] (2005) 33 Fam LR 123 (at [41]).
Mr Dixon SC sought a costs order against the father in the total sum of $8,108 being the fees of the wife’s solicitor and counsel.
Mr Dixon SC argued that the father ought to have known of the requirement of rule 6.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules. Mr Dixon further submitted that the application for leave to issue the subpoena was doomed to fail because the father was unable to point to any evidence that may have led the court to a point of satisfaction that the apparent relevance test has been satisfied. Instead, so Mr Dixon argued, the father prepared a broad-based subpoena for which he was reminded he needed leave to issue, in the hope that he may unearth notes from Ms C’s records in which Ms C said favourable things about the father. Mr Dixon contended that even if Ms C’s notes had been obtained, she ceased jointly assisting the parties so many years ago that the issues about the best interests of the child now, in late 2022, were well beyond the ambit of Ms C’s notes.
Mr Whitchurch for the ICL supported Mr Dixon’s costs application. He sought $1,642 being counsel’s fee. He argued that Ms C was not shown the courtesy of being contacted by the father prior to the father preparing his subpoena to Ms C and serving it on her. It was relevant to observe that Ms C herself filed a notice of objection to the subpoena.
In resisting the costs application brought against him, the father relied on several propositions. They included the following –
(a)Ms C’s daughter lives in Suburb O who could have assisted Ms C to comb through her files in answering the subpoena;[3]
(b)the father could have avoided the requirement of having Ms C sifting through her records had he requested her to produce the entirety of her file;[4]
(c)the father filed the subpoena in June 2022 after a Senior Judicial Registrar ordered the parties to attend joint session;[5]
(d)in June 2022 the father learned that the mother had allegedly contravened certain orders already made;[6]
(e)a costs order is not justified;
(f)while Fitzgerald v Fish may well state an applicant for costs need rely only on one element in s 117(2A) of the Family Law Act, nevertheless s 117(2A) provides that the court shall have regard to all the elements of s 117(2A);
(g)he conceded several times that he was wholly unsuccessful in his application for leave to issue the subpoena addressed to Ms C;
(h)the costs sought by the wife and by the ICL are, in reality, indemnity costs;
(i)costs should be reserved;
(j)or they should be assessed but it would be wrong to order indemnity costs.
[3] No evidence was before me about that submission.
[4] Ibid.
[5] Ibid.
[6] Ibid.
Consideration
There can be no dispute that the father failed in his application for leave to subpoena the documents from Ms C.
As such, s 117(2A)(e) of the Family Law Act was enlivened.
The father was wrong when he submitted that despite the observations in Fitzgerald v Fish I am required to trawl though all other elements of s 117(1A) before making a costs order. One element only in s 117(2A) needs to be satisfied before a costs order may be made, as was held in Fitzgerald v Fish.
Nevertheless, according to the holding in In the Marriage of Hogan,[7] any costs order must be just. In my view, the making of a costs order in the circumstances of this failed application by the father is in fact just.
[7] (1985) 10 Fam LR 453.
The father had no idea when he prepared the subpoena to Ms C what her notes would say. He hoped, as he told me, that they would show that Ms C, at least at some stage, formed a favourable attitude towards the husband. He did not give Ms C the courtesy of contacting her prior to preparing the subpoena for her. He made no investigation of her vocational status, especially whether she was retired and if not, what disturbance it would cause Ms C if she were ordered by the court by subpoena to fossick through her records in order to produce a dossier of documents that responded to the subpoena. And even if documents were in fact produced, at its highest the father may have been able to put the contents of those documents to Ms N (depending on what the documents said) so as to endeavour to obtain Ms N’s responses in the hope that Ms N might – repeat, might – be persuaded to admit in cross-examination that Ms C spoke favourably of the father such that Ms N should do likewise.
One might be forgiven for thinking that it would take the cross-examination skills of the late Mr Neil McPhee QC to achieve that result.
In my view the father’s last minute attempt to obtain leave to subpoena Ms C’s file was doomed to failure, as Mr Dixon correctly submitted. It is just to make an order under s 117(2) in reliance upon s 117(2A)(e).
As to the quantum of the costs that may be ordered, the combined effect of the costs applications by the wife and the ICL results in an application for costs in the vicinity of $10,000. If I were to accede to Mr Dixon’s contentions, the basis of the order would be indemnity, the lion’s share of which was referrable to the wife’s solicitor who sought $5,600. The father has a point in contending that no basis has been shown for ordering indemnity costs, requiring as it does, the demonstration of the existence of exceptional circumstances.[8] In my view there is nothing in this failed interlocutory application to warrant the imposition of indemnity costs. In those circumstances, costs must be assessed by a registrar of this court on a party party basis.
[8] Medlow & Medlow(No 6) (2015) 54 Fam LR 1; Limousin v Limousin (Costs) (2007) 38 Fam LR 478, In the Marriage of Kohan (1992) 16 Fam LR 245 and Stasiuk & Guild [2021] FamCAFC 62.
Orders
I order the father to pay the wife’s and the ICL’s costs of and incidental to the father’s application for leave to file a subpoena addressed to Ms C, the subject of my reasons in Gin & Hing (No 2) [2022] FedCFamC1F 750, such costs to be assessed in default of agreement on a party party basis.
I direct a registrar of this court to assess those costs prior to 10 February 2023 and then to provide me with the amount so assessed.
I direct the registrar who is appointed to assess those costs to report to my associates by 1 February 2023 on the progress of that assessment, it being the clear requirement of these orders that the registrar appointed to assess costs in accordance with these orders must do so by the date ordered unless I otherwise so order.
I direct that this file is referred forthwith to the National Assessment Team for allocation of a registrar to perform the costs assessment in accordance with these orders
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 5 October 2022
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