Hall and Hall (Costs)

[2014] FamCA 404

FAMILY COURT OF AUSTRALIA

HALL & HALL (COSTS) [2014] FamCA 404

FAMILY LAW – COSTS – Discretion – husband filed application seeking to restrain a solicitor from acting for the objectors – application withdrawn on day of hearing – circumstances justify order – husband pay costs of the solicitor of and incidental to the application.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Hall

RESPONDENT: Mr Simons

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 17 June 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Shannessy

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: Mr Whitington, QC

SOLICITOR FOR THE RESPONDENT: Simons Law Firm

Orders

1. The husband pay the costs of the solicitor Mr Simons of and incidental to the application by the husband for Mr Simons to cease to act for the subpoenaed parties, such costs to be agreed and failing agreement within fourteen [14] days as determined by a Registrar.

2. Certify fit for senior counsel.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3671  of 2013

Mr Hall

Applicant

And

Mr Simons

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 13 March 2014 the husband filed an Application in a Case in which he sought orders:

   1.That [Mr Simons] be and is hereby restrained from acting on behalf of [the mother], [Mr C S], [Ms D S], [Mr E S] and/or [Mr F S] in this proceedings.

   2.Such further and/or other order as this Honourable Court deems appropriate.

2. That matter was listed for hearing before me on 14 March 2014.  At the commencement of the hearing the Application in a Case filed by the husband was withdrawn and therefore dismissed.  Costs were sought.

3. I made directions to the husband and Mr Simons to file and serve written submissions in relation to the costs.  Those written submissions have been received.

4. Mr Simons had filed documents, including an affidavit filed on 20 February 2014 in which he had described himself as the solicitor acting for Mr C S in his capacity as executor of the estate of the late Mr G S, deceased, (the wife’s late father).

5. In November 2013 subpoenas had issued directed to the wife’s mother and brothers (being a subpoena issued on behalf of the husband) seeking particulars in relation to the wife’s late father’s estate.  Notices of Objection had been filed to those subpoenas on 10 January 2014.  (See judgment in relation to subpoena issue).

Submissions

1. In the written submissions filed on behalf of the husband on 20 March 2014, the husband sought an order that each party bear their own costs with respect to the application of the husband filed on 12 March 2014 which was dismissed on 14 March 2014.  In relation to that submission it was conceded on behalf of the husband that the application was withdrawn very late. 

2. On behalf of the husband it was then submitted that the Court should consider other authorities which related to the basis upon which the solicitor might have been ordered not to continue to act.  It was submitted that the withdrawal of the application by the husband was to enable the hearing in relation to the subpoena to be heard rather than adjourned.

3. The submission maintained that the fact that Mr Simons had previously acted on behalf of the husband was not in dispute, that he had received information and documentation from the husband “which the husband considers and regards as confidential”.  On that basis it was argued that prima facie the husband’s application to restrain the solicitor from acting in the Family Law proceedings was not unreasonable. 

4. It was argued on behalf of the husband that all of the circumstances should be taken into account, particularly, that the withdrawal of the application enabled the subpoena issue to be heard and not adjourned.

5. The submissions on behalf of the solicitor, Mr Simons, were received on 24 March 2014.

6. The detailed submissions rely primarily upon the husband having been entirely unsuccessful in his application.  I accept the submissions that the allegations concerning the husband’s motivation in withdrawing the application is not established but merely inferred.

7. The submission also took issue with the claim that the husband had demonstrated that it would be inappropriate for the solicitor to continue to act because he had received any confidential information.

8. The issues were not determined because the husband withdrew the application.

9. In the current circumstances the withdrawal of the Application in a Case brings about a situation in which the merits of the application have not been determined.  It is not appropriate to draw conclusions from the inferences now raised by the husband.

10. It is submitted on behalf of the solicitor that “the only just order (and the usual order on the authorities) is that he (the husband) should pay the solicitor’s costs of and incidental to the application”.

The Law

1. Section 117 of the Family Law Act 1975 (“the Act”) states:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.”

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in        relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with       previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

   (g)such other matters as the court considers relevant.

2. Sub-section 70NFB(1) and sections 117AA, 117AC and 118 do not apply to this matter.

3. The Application in a Case filed by the husband sought orders against Mr Simons and thus he became a party to that part of the proceedings.  The provisions of sub-section (1) are subject to sub-section (2) which provides that where the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to certain sub-sections and the Rules of Court, make such order as to costs as the Court considers just.  The Court is therefore required to consider whether there are circumstances that justify making an order for costs, taking into account the provisions of sub-section (2A).

4. For the purposes of these proceedings the most significant considerations, to which the Court must have regard, are the provisions of sub-section (2A)(c) and (e).

5. These require the Court to have regard to the conduct of the parties to the proceedings and whether any party of the proceedings has been wholly unsuccessful in the proceedings.

6. The authorities indicate that s 117(2A) does not require more than one of a listed factors to be applicable, nor that there is any greater or less weight to be given to any of the factors. There is an overall discretion to be applied.

7. The application made by the husband in relation to the solicitor was made late, considering the timing of the application and the hearing listed for the determination of the subpoenas.

8. The withdrawal of the application was made very late, after the matter had been set for hearing and the solicitor had prepared to oppose the order and instructed counsel.

9. The conduct of the husband in relation to these proceedings (being the proceedings against the solicitor) is a significant factor.  Another significant factor is that the husband has been wholly unsuccessful in these particular proceedings.

10. Taking all of the factors into account, it has been clearly established that there are circumstances which justify the Court making an order for costs and that such an order is just.  It would be just and appropriate if the order is made in relation to the costs incurred by the solicitor, but limited to the costs of and incidental to the application by the husband for him to cease to act for the subpoenaed parties and not for any costs related to the subpoenas.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 June 2014.

Associate: 

Date: 17 June 2014