H & H

[2006] FamCA 257

[2006] FamCA 257

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA84 of 2004

(No. BRM 2949 of 2002)

BETWEEN:
  H
  R D W
  Appellant Husband

AND:
  H
  S J L
  Respondent Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

(Costs)

Dates of Submissions:                1 August 2005, filed by the wife

Date of Judgment:  6 April 2006

H and H  NA84/04 (BRM2949/02)

Heard:                By way of written submissions on costs
Delivered:           6 April 2006

COSTS – Application for costs against the husband based on the failure of his appeal – Wife unrepresented on appeal – In her application for costs, the wife claimed (a) interest on the payment of money due under the orders appealed; (b) the wife’s travel and parking expenses involved with attending court for the hearing; and (c) the costs associated with preparing and running the appeal – Interest on unpaid moneys due is to be recovered through enforcement avenues, not via a costs orders by an appellate court – An unrepresented litigant is not able to recover as costs, reimbursement for time spent in preparation and arguing an appeal – Travel costs and parking fees are not recoverable by an unrepresented litigant as the wife would not have been entitled to such costs had she been represented

1. On 11 July 2005, I dismissed an appeal by the appellant husband against orders made by Baumann FM in property settlement proceedings between the parties.  I also then made orders providing for applications by way of written submission in respect of costs of the appeal.

2. The husband was represented by solicitor on the appeal, the wife appeared in person.

3. The wife filed an application for costs on 1 August 2005.  A file note refers to an affidavit of service filed 30 August 2005 establishing service of the application on the then solicitors for the husband, on 3 August 2005.  The affidavit of service is not on file.  There is no response from the husband to the application for costs.

4. In view of the conclusion to which I have come, I determine the application.

5. While couched as an application for costs, the bases of the wife’s claim are:

   (a)interest on the payment of money due under the orders of the Federal Magistrate;

   (b)the costs of the wife travelling to court and parking fees on five separate occasions in relation to the hearing of the appeal;

   (c)the costs of her preparation for and attendance at the hearing of the appeal.

6. In my view, none of the above bases are appropriate for an award of costs.

7. In the Family Law Rules 2004 costs are defined as:

   “An amount paid or to be paid for work done by a lawyer, and includes expenses.”

8. Rule 19.01 provides:

   “1)    Subject to subrule (3), this Chapter applies to costs for work done for a case paid or payable by:

   (a)a client to a lawyer; or

   (b)if paragraph (a) does not apply — one person to another person.

   (2)     A party may only recover costs from another party in accordance with these Rules or an order.

   Note    A self-represented party is not entitled to recover costs for work done for a case (except work done by a lawyer) but, if so ordered, may be entitled to recover some payments.

   …”

9. That an unrepresented litigant is not able to recover as costs, reimbursement for time spent in preparation and arguing an appeal was confirmed in B and P [2000] FamCA 392. The irrecoverability of the balance of travel costs and parking fees is demonstrated through the observation that had the wife been represented, she would certainly not have been able to recover such outgoings as costs.

10. Finally, the Family Law Rules separately provide for interest on unpaid monies due pursuant to a judgment and the recovery of such monies and interest is a matter for enforcement, not a basis for an order for costs.

11. Accordingly, as there is no proper basis for an order for costs in the wife’s favour, I intend to dismiss the application.

ORDER

1. That the application filed 1 August 2005 be dismissed.

   I certify that the preceding 11 paragraphs

   are a true copy of the Reasons for Judgment

   herein of the Honourable Justice Warnick.

   ………………………………….
     Associate

   Date:  6 April 2006