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,…
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- AGLC
- Gin & Hing (No 4) [2022] FedCFamC1F 760
- Case
- [2022] FedCFamC1F 760
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the father's unsuccessful application for leave to subpoena justified an order for costs against him under s 117(2A) of the Family Law Act. The father argued that while one element of the statute needed to be satisfied for a costs order, the court should consider all elements. However, the court found that a costs order could be made if only one element was met, in line with the holding in Fitzgerald v Fish. The court also had to consider whether any order made would be just, as per In the Marriage of Hogan.
The court held that the father's unsuccessful application for leave to subpoena did indeed satisfy one of the elements of s 117(2A). The father's conduct in preparing the subpoena without investigating Ms C's vocational status or contacting her beforehand was deemed unreasonable. The court concluded that making a costs order was just in the circumstances, given the father's lack of foresight and courtesy. The judge found that the father's arguments for resisting the costs order were unpersuasive and that the costs sought by the mother and the ICL were not indemnity costs, but rather ordinary costs.
The final orders of the court were that the father was to pay the costs of the mother and the ICL as ordered. The court did not reserve the costs or order indemnity costs, but rather found that the ordinary costs were justified given the circumstances of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.