Jabbar and Gade (No.10)

[2017] FCCA 3404

FEDERAL CIRCUIT COURT OF AUSTRALIA

JABBAR & GADE (No.10) [2017] FCCA 3404

Catchwords:
FAMILY LAW – COSTS – Mother ordered to pay costs arising out of unsuccessful applications for contempt and contravention.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Act s.17

Cases cited:

Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245

Applicant: MS JABBAR

Respondent: MR GADE

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 28 July 2017

Date of Last Submission: 28 July 2017

Delivered at: Newcastle

Delivered on: 28 July 2017

REPRESENTATION

Counsel for the Applicant: Mr Weightman

Solicitors for the Applicant: NLS Law

Appearance for the Respondent: In person

ORDERS

1. The applicant shall pay the respondent’s costs of and incidental to the Application for Contempt filed on 22 July 2016, the Application for Contempt filed on 29 August 2016 and the Application for Contravention filed on 9 March 2017 fixed in the amount of $7,378.00.

2. Further consideration of a date for payment of this amount is adjourned to a date to be advised pending the delivery of reasons in the property matter.

IT IS NOTED that publication of this judgment under the pseudonym Jabbar & Gade (No.10) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MS JABBAR

Applicant

And

MR GADE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. Yesterday I heard two applications for contempt and an application for contravention which were brought by the mother.

3. Because of the different standards of proof which applied to each type of matter, I decided to deal with the contempts first and the contravention second. The mother gave evidence in the contempt applications. At the end of her evidence a no-case submission was made. I was satisfied she had not established a prima-facie case and both applications were dismissed.

4. The mother then elected to withdraw her contravention application and it was marked “withdrawn and dismissed”.

5. The father’s counsel then made an application for costs. He sought $11,966.50 which were the actual costs incurred by his client. He said that on the scale his client would be entitled to $17,642.50 but he sought the actual amount incurred.

6. The mother opposed the application for costs.

7. Pursuant to s. 117 of the Family Law Act each party in family law proceedings normally bears their own costs but s. 117(2) provides that if the court considers that there are circumstances justifying it doing so it may awards costs. The circumstances do not have to be special or exceptional; they just have to be circumstances justifying the award of costs.

8. In considering whether a cost order should be made I must consider the matters in section 117(2A). Due to the word “must” it is prudent to consider all of those matters.

9. The first matter I must consider is the financial circumstances of the parties. I have no recent sworn evidence from either party about this but my knowledge of the matter suggests that the father is a high-income-earner. He is a (occupation omitted) and from memory he earns over $300,000.00 per annum. The mother has a (qualifications omitted) but she is currently working as a (occupation omitted). I have previously been told that she is earning around $20,000.00 per annum. Whether this represents the totality of her income-earning capacity I am unable to say.

10. I must consider whether either party is in receipt of legal aid, but neither party is.

11. I must consider issues to do with the conduct of the proceedings but there are no relevant issues in that regard in relation to the applications I heard yesterday.

12. I must consider whether the proceedings have been necessitated by the failure of a party to comply with orders. The mother said this about the contravention application but it was ultimately withdrawn so that was not established on the evidence.

13. I must consider whether either party has been wholly unsuccessful. The mother has been wholly unsuccessful.

14. I must consider any offers in writing to settle the matter. There were none as such save that the mother was invited by the father’s solicitor prior to the hearing to withdraw her applications.

15. I also have to consider any other relevant matter.

16. The mother repeatedly stated during the hearing that she did not have legal qualifications. She said that whenever she asked for an indulgence by the court. However that cannot be used as an excuse to visit consequences on the father.

17. The mother was aware from a Full Court decision handed down in this matter only a few weeks ago if nothing else, that being unsuccessful in an application to the court could lead to an award of costs. It was suggested to her by this court some months ago that she withdraw her contempt applications. She was informed that the issues she wanted to raise could be raised during the parenting hearing and that remains the case. The fact that the contempt or contravention applications have been finalised does not mean that the issue of the validity of the text messages or the videos or whether the father contravened the spend time with order cannot be examined in the context of the parenting hearing which is due to take place in only a couple of weeks.

18. The mother had other avenues to pursue her complaints about things she said the father had done. She chose to pursue them by running the contempt and contravention applications and she was unsuccessful in relation to those.

19. In my view I should award costs in this matter. The mother was wholly unsuccessful and the court has to ensure that its resources are properly used. She chose to run the applications even though this was not the only means of ventilating her concerns about the text messages and the videos or even about compliance with the spend-time-with order. She has been wholly unsuccessful. The father has been put to the cost of defending the applications and the fact that the mother is in a less robust financial position is not determinative.

20. As was pointed out during submissions, the parties have property settlement proceedings on foot as well and while the pool is modest, it will provide a source of funds from which a costs order could be met.

21. I am satisfied the mother should be ordered to pay costs and the issue is the quantum of the costs and that again becomes a little difficult.

22. The Federal Circuit Court Rules provide that the scale in the Schedule to the Federal Circuit Court Rules should apply unless the court otherwise orders.

23. The interesting aspect of this case was that the father’s counsel handed up a calculation of costs in accordance with the Schedule and on its face it indicated that the costs calculated by applying the Schedule exceeded the actual costs incurred by the father in defending the mother’s applications.

24. I am not sure though that the way the father’s counsel applied the Schedule to the matter – and I am not suggesting he did this deliberately - was an appropriate way to apply it. The way he applied it in relation to things such as preparation was to treat each contempt separately and in my view that was warranted only to a degree. It was warranted to a degree because separate affidavits needed to be prepared by the father to be ready to deal with each separate contempt in case a case to answer was found but there was also a considerable overlap between the matters.

25. I just digress to say that this matter involved a very interesting issue as to the court’s jurisdiction. The contempt applications were not brought pursuant to section 112AP of the Family Law Act because they did not allege that an order had been breached. They could only have been brought pursuant to s. 17 of the Federal Circuit Court Act which is the equivalent of s. 35 of the Family Law Act.

26. S. 17 provides that the Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court. That section is often used to punish contempt in the face of the court but it has been used in other circumstances and in one particular case it was used when parties in a family law matter disseminated material alleging that a judicial officer was corrupt.

27. Here the contempts alleged were that the father gave false evidence to the court in an affidavit during an interim hearing.

28. It is not easy to find authority on that point and there is no authority on that point in the family law context. The father’s counsel however came up with Lane & Registrar of Supreme Court of New South Wales, a 1981 High Court case in which the High Court said that the expression “contempt of court” is often popularly misunderstood.[1]

    [1] Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245

29. It went on to say:

    In a case such as the present, the offence consists not in affronting the dignity of the court but in interfering with the due administration of the law. In the present case the charges against the appellant are that he wilfully procured Mr Kuzumaski or the Bank of Tokyo not to produce the handwritten memorandum or the typewritten memorandum on a return of subpoena.

30. The father’s counsel said that a parallel could be drawn between the mother’s allegations and that set of circumstances and he accepted that the mother’s allegations that the father had given false evidence to the court in an affidavit in an interim proceeding could found an application for contempt of court.

31. The matter therefore involved a little bit of research and an interesting issue but that is to digress and I go back to the quantum of costs.

32. In my view charging separately for each of the contempts, which is the way the scale was applied by the father’s counsel in respect of some of the items in the scale, leads to an outcome where the costs which could on their face be justified under the scale are in fact excessive.

33. The father’s counsel conceded that given that the actual costs incurred were $11,966.50, in other words almost $5,000.00 less than the amount he came to on applying the scale, it would be inequitable to apply the scale and visit a much greater amount on the mother. He however sought to receive the entire $11,966.50 which his client had incurred in defending the matter, in other words he sought an order for costs on an indemnity basis. He provided a copy of his costs agreement and the costs agreement of the solicitors instructing him to enable the court to satisfy itself that the costs charged were reasonable in terms of the provisions of the costs agreements.

34. I do not consider that in all the circumstances of this case that it is appropriate to award costs on an indemnity basis.

35. It is a very finely balanced issue. It could be argued that the applications for contempt were doomed to fail given that the evidence in support of them in the mother’s affidavit was extremely slight and I question the wisdom of the mother running the applications when the same issues can and no doubt will be ventilated at trial in only two weeks.

36. However on balance I am not satisfied that it is appropriate to make an award of indemnity costs. In my view the appropriate course is for me to somehow grapple with the scale and I intend to do that by treating everything that happened yesterday as one event.

37. It is always very difficult to apply the scale in these circumstances. Because of the nature of the applications, I am not going to treat them as an initiating or opposing application as the father’s counsel did. I am going to treat them as in the nature of an interim or summary-hearing event.

38. I am going to allow $1,801.00 pursuant to item 3 of the scale. I am going to allow an amount of $2,875.00 which is the equivalent of preparation for final hearing for a one-day matter. The matter was listed for two days, but it ultimately only took half a day so I am going to allow the $2,875.00 which is half of the amount in item 7. I am going to allow $1,081.00 for the father’s solicitor to appear and $1,081.00 and a $540 advocacy loading for the counsel to appear and the total of that is $7,378.00.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:       14 May 2018