Harrell and Nesland (No.3)

[2019] FCCA 1794

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRELL & NESLAND (No.3) [2019] FCCA 1794

Catchwords:
FAMILY LAW – Costs – intention of the court clarified contextually – orders accordingly.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.16(2), 16.05, 21.11

Family Law Rules 2004 (Cth), r.19.21

Applicant: MS HARRELL

Respondent: MR NESLAND

File Number: BRC 6489 of 2012

Judgment of: Judge Egan

Hearing date: 22 May 2019

Date of Last Submission: 22 May 2019

Delivered at: Brisbane

Delivered on: 22 May 2019

REPRESENTATION

Solicitor for the Applicant: Mr M. Love, Solicitor of Matthew Love Family Lawyers

Solicitor for the Respondent: Mr R. Hirst, Solicitor of Hirst & Co Lawyers

ORDERS

1. Pursuant to Rule 16(2) of the Federal Circuit Court Rules 2001, paragraph 1 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules.

2. Pursuant to Rule 16.05(2) of the Federal Circuit Court Rules 2001, paragraph 2 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules 2004.

3. Paragraphs 1 – 6 of the orders sought by the Applicant in her Response to Application in a Case filed 10 May 2019 be dismissed.

4. There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Harrell & Nesland (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 6489 of 2012

MS HARRELL

Applicant

And

MR NESLAND

Respondent

REASONS FOR JUDGMENT

1. On 3 December 2018, the respondent filed an application in a case which sought orders:

   (a)That the respondent de facto husband’s costs, pursuant to the order of Egan J, dated 19 April 2018, be assessed pursuant to schedule 3 of the Family Law Rules 2004 (Cth) (‘Family Law Rules’).

   (b)Pursuant to rule 1.14 of the Family Law Rules, the respondent de facto husband be given leave to serve his itemised costs account on the applicant de facto wife outside of the time period specified in rule 19.21 of the Family Law Rules;

   (c)The applicant de facto wife pay the respondent de facto husband’s costs of and incidental to this application;

   (d)Such further or other order as this Honourable Court may deem necessary.

2. The hearing date for that application in a case was set for 15 April 2018.  It transpired that the application was heard on 18 April 2018.  At that time, Mr Love, a solicitor, appeared on behalf of the applicant, and Mr Hirst, solicitor, appeared on behalf of the respondent. On 19 April 2018, the Court made orders on a final basis as follows:

   “1. That the Applicant pay the Respondent’s costs of and incidental to the proceedings – excluding the costs of appeal – on and from 27 August 2014 until 10 January 2018, to be assessed on a party-party basis.

   2. That the Applicant pay the Respondent’s costs of and incidental to the Respondent’s Application in a Case filed on 13 February 2018, including the costs of appearance on 18 April 2018, such costs to be assessed on a party-party basis.

   3. That the Applicant’s response to an Application in a Case filed on 17 April 2018 be dismissed and there be no order as to costs in respect thereof.”

3. The Court further made an order until further order as follows:

   “4.That paragraph 2(a) of the order of His Honour Judge Baumann (as he then was) be stayed pending the making of further submissions as to whether or not the Howard Street property should be the subject of a charge, or some other form of security, for the purpose of the payment to the Respondent of the amount of party-party costs assessed as payable to him pursuant to these orders.”

4. In its terms, the application in a case filed on 3 December 2018 clearly sought an order that the de facto husband’s costs ordered to be paid be assessed pursuant to schedule 3 of the Family Law Rules. In an attempt at specificity, the application in a case was amended by the filing of an amended application in a case on 7 May 2019. That amended application in a case has further been amended by the granting of leave to the respondent de facto husband to file a further amended application in a case, a copy of which has been received by the Court, on the undertaking of the solicitor for the de facto husband to file a copy of that document entitled “Further Amended Application in a Case” as opposed to “Amended Application in a Case” as it now stands.

5. The application in a case filed on 3 December 2018 was filed because it was asserted by the applicant de facto wife that the order made by the Court on 19 April 2018 correctly reflected an intention of the Court to order that costs be payable in accordance with parts 1 and 2 of schedule 1 of the Federal Circuit Court Rules 2001 (Cth)(‘FCC Rules’). That is in part based on the submission that rule 21.10 of the FCC Rules provides that unless the Court otherwise orders, a party is entitled to such costs in accordance with schedule 1 of the FCC Rules.

6. The question of costs, which was before the Court on the hearing of the matter on 18 April 2018, was an application for the payment of costs, firstly on an indemnity basis, secondly for costs to be assessed on a party/party basis, and thirdly, for costs to be assessed in accordance with schedule 1 of the FCC Rules. It is clear from the reasons of the Court handed down on 19 April 2018 that the Court was not minded to make an order for the payment of the respondent’s costs on an indemnity basis.

7. It is further clear that the Court was not persuaded to make an order that costs be paid in accordance with schedule 1 of the FCC Rules. The order as made reflected the order as sought in paragraph 2(b) of the application filed on 13 February 2018. The order as made, though it did not make an order for the assessment of costs pursuant to rule 21.11 of the FCC Rules, was nevertheless an order which clearly was intended to be so made pursuant to rule 21.11(2)(a) of the FCC Rules.

8. Rules 21.10 and 21.11 respectively are as follows:

   “21.10 Costs and disbursements

   Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:

   (a) costs in accordance with Parts 1 and 2 of Schedule 1; and

   (b) disbursements properly incurred.

   Note: For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 14 of the Federal Circuit Court (Bankruptcy) Rules 2016.

   21.11 Taxation of costs

   (2) When taxing a statement of costs, a taxing officer must apply:

   (a) for a family law or child support proceeding – the scale of costs set out in Schedule 3 to the Family Law Rules; and

   (b) for a general federal law proceeding – the scale of costs set out in Schedule 2 to the Federal Court Rules.

   (3) In this rule:

   “taxing officer” means a Registrar.”

9. An application has now been made for orders, pursuant to rule 16.05(2) of the FCC Rules, for the variation of the order made by the Court on 19 April 2018, such order having been amended on 20 April 2018. Rule 16.05 provides as follows:

   “Setting aside or varying judgments or orders

   (1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered.

   (2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

   (a) it was made in the absence of a party; or

   (b) it was obtained by fraud; or

   (c) it is interlocutory; or

   (d) it is an injunction or for the appointment of a receiver; or

   (e) it does not reflect the intention of the Court; or

   (f) the party in whose favour it was made consents; or

   (g) there is a clerical mistake in the judgment or order; or

   (h) there is an error arising in the judgment or order from an accidental slip or omission.

   (3) This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.

   Note: See sections 57 and 58 of the Family Law Act in relation to rescission of a divorce order.”

10. Mr Hirst, who appears on behalf of the respondent husband, makes that application for the variation of the order based upon either rule 16.05(2)(e) or (h) of that rule.

11. The Court did not have the intention of denying to the respondent husband the benefit of an order for the assessment of costs, as made in the application filed on 13 February 2018, pursuant to rule 21.02 of the FCC Rules, for the payment of costs under chapter 19 of the Family Law Rules. It was not the Court’s intention, by the omission of reference to taxation, pursuant to rule 21.11(2) (a) of the FCC Rules, to deny the respondent husband the benefit of such order.

12. The order, accordingly, is varied in accordance with the further amended application filed by leave today, in paragraphs 1, 2 and 3 thereof.

13. The applicant filed a response to the application in a case on 10 May 2019.  The orders sought in that response are as follows:

    “1. Pursuant to Rule 16.05(2) of the Federal Circuit Court Rules, paragraph 1 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules.

    That the Applicant pay the Respondent’s costs of and incidental to the proceedings excluding the costs of appeal on and from 27 August 2014 until 10 January 2018, to be assessed on a party-party basis pursuant to Schedule 3 of the Family Law Rules (2004).

    The Respondent de facto Husband’s costs pursuant to the order of His Honour Judge Egan dated 19 April 2018 be assessed pursuant to Schedule 3 of the Family Law Rules (2004).

    2.Pursuant to Rule 16.05(2) of the Federal Circuit Court Rules, paragraph 2 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules.

    That the Applicant pay the Respondent’s costs of and incidental to the Respondent’s Application in a Case filed on 13 February 2018, including the costs of appearance on 18 April 2018, such costs to be assessed on a party-party basis pursuant to Schedule 3 of the Family Law Rules (2004).

    3. Pursuant to Rule 1.14 of the Family Law Rules, the Respondent de facto Husband be given leave to serve his Itemised Cost Account on the Applicant de facto Wife outside of the time period specified in Rule 19.21 of the Family Law Rules.

    4. The Applicant de facto Wife pay the Respondent de facto Husband’s costs of and incidental to this Application.

    5. The orders sought by the Applicant de facto Wife in the Response filed 10 May 2019 be dismissed.

    6. Such further or other order as this Honourable Court may deem necessary.”

14. As to each of those applications: 

    i)the Court has found against the applicant on the issue as to what the Court properly intended in terms of the making of an order on 19 April 2018, and, accordingly, that application is dismissed.

    ii)Order 4 of the orders made by the Court on 19 April 2018 was an order made to, in part, protect the respondent in respect of the payment of any costs order made against the applicant.  No such costs have to date been assessed or taxed, and, accordingly, that order, and the efficacy of making that order, remains today as binding as it was when made on 19 April 2019.  The application to discharge that order is accordingly dismissed.

    iii)By reason of the making of the orders today, the application that the Court assess the wife’s costs in an amount as per application 3 is also accordingly dismissed.

    iv)The application sought in paragraph 4 of the response seeks an order that the respondent husband pay to the applicant wife all moneys “…due to her pursuant to the indemnity provided by order 7 of the order of Baumann J made 10 January 2018.”

15. The application, in that regard, is misconceived.  Order 7 of the order of Judge Baumann (as he then was) made on 10 January 2018 was an order that the respondent husband “…be responsible for, and indemnify the applicant and hold her indemnified in relation to, any liability of the respondent…”

16. Mr Love, on behalf of the applicant, sought to raise an issue concerning some possible breach of that order by the applicant, but there is no material which has been filed on behalf of the respondent enabling the Court to properly address that matter.  Nor does the Court consider that it is an application which, in any event, was open to be made, due to the fact that the misconception upon which it was based disqualified such application being made in any event.  The application in that regard is also therefore dismissed.

17. The application relates to an application for costs based on order 7 of the order of Judge Baumann made on 10 January 2018 and therefore, likewise, is misconceived and is dismissed. 

18. This application relates to order 6, an order that the respondent husband pay the wife’s costs of the application.  On the question of the costs of the application as amended filed on behalf of the respondent husband, and in respect of the response filed on behalf of the applicant de facto wife, I will hear submissions.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 27 June 2019