Gitane and Velacruz

[2007] FamCA 627

FAMILY COURT OF AUSTRALIA

GITANE & VELACRUZ [2007] FamCA 627

FAMILY LAW - LEGAL PRACTITIONERS - Costs

APPLICANT: MR GITANE

RESPONDENT: MS VELACRUZ

FILE NUMBER: HBF 851 of 1997

DATE DELIVERED: 14 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Cann

COUNSEL FOR THE RESPONDENT: Mr Beattie

Orders

1. That the firm TEMPLE-SMITH PARTNERS of D  and TERRENCE JOHN MCGUIRE a partner of the said firm shall be and are hereby restrained from representing the respondent wife in these proceedings being the Enforcement Application filed by the respondent wife on 17 August 2005 and the Application by the respondent husband filed on 31 March 2006.

2. That the wife shall pay the husband’s costs of this application fixed at $2,800 within 28 days.

3. That the husband’s Form 2 application filed 10 may 2007 shall be otherwise dismissed.

4. That the case shall be referred to the Registrar in the Hobart Registry to fix for hearing the substantive proceedings.

NOTATION

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as GITANE & VELACRUZ

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBF 851  of 1997

MR GITANE

Applicant

And

MS VELACRUZ

Respondent

REASONS FOR JUDGMENT

1. I have given reasons for judgment in this matter this morning and will restrain Mr McGuire and the firm of Messrs Temple Smith Partners from acting on behalf of the wife. 

2. Mr Cann for the husband now seeks costs and Mr McVeity for the wife seeks an order that those costs be reserved.

3. Costs are determined under s 117 of the Family Law Act. Section 117(1) of the Act makes it clear that parties will be responsible for their own legal costs. Pursuant to s 117(2) however, the court has the discretion as to whether one party will be ordered to pay the other party's costs. I am required to take into account the various factors in s 117(2A) of the Act.

4. I agree with the submissions for the husband in relation to costs.  It is quite simple and straightforward.  As soon as the husband's legal representatives were informed as to who had been briefed on behalf of the wife he made the proper objection.  Thereafter, this application was necessitated because Mr McGuire and the firm would not cease from acting for the wife.  The husband has succeeded entirely in this application. 

5. I do not accept that submission that costs should be reserved to be part of the overall case depending on the merits of that case.  This particular application is a complete diversion, and one that would not have been necessary but for the fact that when given the opportunity to withdraw, that opportunity was not taken up on behalf of Mr McGuire. 

6. I propose ordering costs in favour of the husband and I do not propose staying the order.  The husband deserves to have his costs within a reasonable time, and any other costs arguments following the merits of the substantive proceedings can be dealt with in due course.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  14 June 2007