Grieves and Tully (No 2)

[2011] FamCA 715

FAMILY COURT OF AUSTRALIA

GRIEVES & TULLY (NO 2) [2011] FamCA 715

FAMILY LAW – COSTS – What is just – Offset part of the wife’s costs as against the issue of delay so as to reduce her award of costs as claimed

Family Law Act 1975 (Cth) – s 117

APPLICANT: Mr Grieves

RESPONDENT: Ms Tully

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4331 OF 2009

DATE DELIVERED: 2 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 2 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Shannessy

SOLICITOR FOR THE APPLICANT: Donaldson Trumble Lawyers

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT: Adrian Abrahams Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

ORDERS

1. THAT the husband pay the wife’s costs of and incidental to the hearing before me on 15 August 2011 in the sum fixed at $10,000.

2. THAT the costs be paid within twenty-eight (28) days and in default interest be thereafter paid at the rate prescribed from time to time pursuant to the Family Law Rules.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

IT IS NOTED that publication of this judgment under the pseudonym Grieves & Tully has approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3431 of 2009

Mr Grieves

Applicant

And

Ms Tully

Respondent

REASONS FOR JUDGMENT

1. I have delivered reasons for judgment on 24 August upon the application to restrain from practising in the proceedings and thereby disqualifying the husband’s then solicitor Mr Collins and the firm Westminster Lawyers.  That matter was argued before me by Mr O’Shannessy of Counsel for the husband and Ms Stewart of Counsel for the wife.  Those reasons for judgment have been delivered and I do not intend to canvass any of the matters contained therein, save where relevant as to the issue of costs. 

2. What I did in delivering those reasons for judgment was to provide each party the opportunity to file written submissions on the costs aspect and further to certify for the attendance and advocacy of Counsel in that matter.  Those written submissions are now filed and I have carefully read each of the documents.  The Counsel who then appeared in the matter are not before the Court in the continuing matter this day.  There are no further submissions to be made by present Counsel for the husband or wife on the costs issues.  The Independent Children’s Lawyer was an interested party but not an active participant in the application previously decided and they have indicated that they make no submission for costs and do not seek costs and do not wish to be heard on any aspect of the costs order as between the husband and wife.

3. The Family Court has a power to award costs provided in section 117 of the Family Law Act 1975 (Cth). The overarching principle is that each party to proceedings bear his or her own costs. That, however, is subject to the provisions of subparagraph (2) thereof, which provides that where the Court is of the opinion that there are circumstances that justify it in so doing, then the Court may, in its discretion and subject to the further subsections thereof, make such an order as to costs as it considers just.

4. The basis upon which the justice of any award of costs are considered and the relevant matters thereto are identified in subparagraph (2A) thereof.  In particular they identify, insofar as they are relevant to the matters in these proceedings, the following:

   §the financial circumstances of each of the parties to the proceedings;

   §the conduct of the parties to the proceedings generally, and in particular in relation to the court documents filed and material prepared and relied upon; 

   §whether any party to the proceedings has been wholly unsuccessful in the proceedings;  and

   §such other matters as the Court considers relevant.

   I have balanced each of those factors in the determination of a just costs order.

5. On behalf of the wife, costs in the sum of $13,386 are sought, or, in the alternative, costs as agreed or otherwise costs as taxed.  The essence of the submissions of Ms Stewart is that the wife was wholly successful.  She does not have any financial assistance by way of Legal Aid.  Her financial circumstances were known and disclosed to the Court.  It is said that the conduct of the proceedings was such that both the husband and his then solicitor should have realised that it was inappropriate for them to continue to act in the proceedings, all past matters considered.

6. Those written submissions of the wife are prepared within the context of various findings that I have made in my considered reasons for judgment and as expressed in paragraph 103 of those reasons for judgment, that a fair-minded, reasonably informed lay observer would consider that the proper administration of justice, the integrity of the judicial process and the appearance of justice required both the solicitor and the firm to be restrained from acting in the proceedings.

7. The issue that perhaps arises with Ms Stewart’s submissions is that she discloses the costs agreement in paragraph 8 and summarises, but with no detail, the charging calculations therefrom as between both solicitor and counsel, the total of which is $13,386, as provided for in paragraph 10 of the written submissions.  The actual costs agreement is not annexed to the submissions.  More particularly, the actual charging, on an hourly basis or a brief fee basis, are not particularly itemised, and what is provided is a summary statement of the outcome thereof. 

8. True it is in paragraph 1 the submissions is put in the alternative, that is, costs as agreed between the parties, and realistically, in this case, the chance of such an issue being agreed is remote in the extreme.  Otherwise there is the option of taxation.  I have carefully reflected on the procedural aspects and I do not intend to direct this matter to taxation, as the further costs incurred are likely substantial when weighed in the context of the total costs application sought. 

9. The first aspect in dealing only with the wife’s claim is that in the exercise of my discretion I find it is just for there to be an order for costs.  As a general approach, and bearing in mind my understanding of the proceedings before me and the way they were argued and the documentation that I have read leading up to the hearing, I do not form a view adverse to the sum of $13,386.  That however is as a general overview and of course without the itemised and specific breakdown.  I conclude, however, that it is reasonably a sum that could or should have been expected to be paid by the wife for such representation and is likely a just sum.

10. The second ambit of the costs consideration is, however, the submissions of Mr O’Shannessy on behalf of the husband.  The submissions are carefully drafted and structure the costs application in two specific time periods, the first being from 16 March until 1 August of this year – that is, when the wife filed her application – and, secondly, from that date, 1 August, until judgment.  However they do not convince me as to the second part of those submissions, that is, paragraphs 14 – 21 of the written submissions.  I am wholly unconvinced by those submissions in that period and I would not award any costs to the husband for that period, nor would I use any offset against the wife’s costs that I will find to be just for that period.

11. The costs in the period 16 March till 1 August do raise the issue of delay.  In paragraph 10, Mr O’Shannessy argues as follows:

    But the simple fact is that the significant delay in the objection to the solicitor acting in these proceedings has put the husband to unnecessary expense in having to retain a new solicitor. Provided the result is within the requirements of section 117, he should be compensated with a costs order for those costs.

12. In my reasons for judgment, I have considered the question of delay, commencing at paragraph 61 – 65 (inclusive) and thereafter in paragraph 105.  Ultimately I agreed with the submission of Mr O’Shannessy that the wife’s solicitors could and should have raised the conflict issue in correspondence at an earlier date than they did.  This they failed to do.  I conclude that there is substance to the submission of Mr O’Shannessy limited to that aspect of his submission.  What I intend to do is to take both a commonsense and pragmatic view and offset a sum which I regard to be just as against the wife’s costs. 

13. In particular, however, I am mindful of the overall result and the need for justice and to have the wife’s costs substantially paid, as she was wholly successful on the outcome, albeit with some level of tardiness on her behalf and those representing her, certainly between May and August.  I well understand the wife represented herself in the period March, April and early May, and I make no criticism of nor any discount of her costs for that period.  I really do concentrate upon the May to August period. 

14. What I intend to do is to discount - and what I find to be just and appropriate – the wife’s costs to the sum of $10,000.  That provides, effectively, an offsetting payment of $3386 as against the wife for the lack of timing in bringing to Mr Collins the objection in a more forceful and meaningful manner, and of course in waiting until the 1 August filing date for issues to be formally before the Court.  I have concluded that a payment of costs by the husband to the wife, through their respective solicitors, of the sum of $10,000 is a just conclusion in the exercise of my discretion to all costs issues of and incidental to that application now determined and made pursuant to the costs reservation in my orders of 24 August 2011.  I will so order. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 2 September 2011.

Associate: 

Date:  2 September 2011