Jenkins & Lowe (No 2)

[2012] FamCA 438

FAMILY COURT OF AUSTRALIA

JENKINS & LOWE (NO. 2) [2012] FamCA 438

FAMILY LAW – COSTS - Counsel for applicant not initially instructed to attend at hearing – Late filing of further court documents by the respondent necessitated his attendance – Fees charged being reasonable – Just that an order is made – Consideration of s 117(2) and (2A)

Family Law Act 1975 (Cth)

APPLICANT: Ms Jenkins

RESPONDENT: Mr Lowe

FILE NUMBER: MLC 3107 of 2011

DATE DELIVERED: 4 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 4 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Mark Morgan

COUNSEL FOR THE RESPONDENT: Mr Mellas

SOLICITOR FOR THE RESPONDENT: Aitken Partners

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jenkins & Lowe (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 3107 of 2011

Ms Jenkins

Applicant

And

Mr Lowe

Respondent

REASONS FOR JUDGMENT

1. I have before me an application for costs arising out of the dismissal of the interim application, which I have dismissed by my earlier reasons this day.  Again, this is an ex tempore judgment, given without departing the bench.

2. Mr Davis seeks costs fixed in the sum of $1,500.  He carefully explains that that sum is the difference between what his solicitor would have charged his client, had he attended for procedural matters, that is, approximately $1,000, and what his brief fee is marked for the hearing this day, that is, $2,500.  That difference is $1,500.

3. Mr Mellas, on behalf of his client, opposes any order for costs.  He does so on the basis that this matter was to be listed today in any event.  It was listed to ascertain that it was or would be ready for trial;  that there had been compliance with valuations and discovery;  and that both parties were on the timetable of filing their documents over the next few weeks.

4. Were that the case there would have been no order for costs.  However, I was today presented with an application and supporting affidavits and leave has been granted to file those documents today.  As I understand, it was late last week when Ms Jenkins’ solicitor was advised of the intended hearing of an application to obtain a medical report of her client.

5. That has been the subject of a separate assessment and I have pronounced orders dismissing that application.

6. Mr Davis was not to be here today, but he is here because of the filing of the document, and, therefore, the need to hear and determine that interim application.

7. I do understand, because it is contained within Mr Lowe’s affidavit, that a preliminary report was sought from Dr M.  I refer to paragraph 8.  The report is dated 14 May.

8. Mr Mellas’s point is that it was not received on that day, but was received only on 30 May, and, therefore, they have given as much notice as they reasonably could to Ms Jenkins’ solicitors.

9. The notation that I had made to my earlier orders of 19 April, envisaged issues arising about medical evidence and expert witnesses.  Very clearly, the obligation was upon Mr Lowe and his solicitors to have that information in a timely manner.

10. Whatever occurred on or after 19 April, the obligation to ascertain whether they were going to be seeking a further report, the clock was running from that date.  To make the request on or about 30 May, which was Wednesday of last week, and/or to convey that to the other solicitors and then finally to Mr Davis is just all too late in time.  It reasonably could be expected that the filing of that application would require someone to argue the matter.

11. Under the Family Law Act costs are intended to be paid by each party. That, however, is subject to the provisions of section 117 (2) and (2A), which provides the discretion to the court to make an order that is just. The various factors are clearly enunciated, including the financial circumstances of the parties, which has been the subject of Mr Davis’s submission, and, otherwise, the conduct as contained with subparagraph (c) thereof. I reflect on all of those matters. But, overwhelmingly, the untimely filing of the matter today and the late notice has given rise to an expenditure of money by Ms Jenkins that was otherwise unnecessary and she has been successful and in the context of the (2A) factors Mr Lowe has been unsuccessful.

12. It is just therefore to award costs and I do so.

I certify that the preceding Twelve
(12) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 4 June 2012

Associate: ……………………………………………………………

Date:  …………………………………………………………………