KEMP & WILKINSON (No.2)
[2015] FCCA 2268
•24 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KEMP & WILKINSON (No.2) | [2015] FCCA 2268 |
| Catchwords: FAMILY LAW – Costs – application for costs – costs of the day – quantum of costs – where one party previously represented – indemnity costs – solicitor-client costs – party and party costs – where counsel’s fees allowed. |
| Legislation: Family Law Act 1975, s.117 Federal Circuit Court Rules 2001, rr.21.15, 21.6, Part 1, Sch. 1 |
| Cases cited: Bixby & Bixby [2015] FCCA 816 Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90 Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248 Kemp &Wilkinson [2015] FCCA 1621 In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340 Neil v Nott [1994] HCA 23; (1994) 121 ALR 148; 68 ALJR 509 Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544 |
| Applicant: | MR KEMP |
| Respondent: | MS WILKINSON |
| File Number: | SYC 7637 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 5 August 2015 |
| Date of Last Submission: | 5 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2015 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
The husband is to pay to the wife’s costs of the day as ordered by the Order of 29 April 2014 in the sum of $2,560.00 within three (3) months of the date of this Order.
All other extant Applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kemp & Wilkinson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7637 of 2012
| MR KEMP |
Applicant
And
| MS WILKINSON |
Respondent
REASONS FOR JUDGMENT
Application in a Case
This is an Application by the Respondent wife in the substantive proceedings for an order for costs. The Applicant husband, by means of a Response filed on 27 July 2015, opposes the Application.
Regrettably, both the Application and the Response are misconceived to some extent.
In her Application, the Respondent seeks this order:
The Applicant is to pay the Respondent’s costs of hearing day on 29 April 2014 in the mount[1]of $10,580.30.
[1] sic
The Applicant, in his Response, states:
I would like to appeal against the cost order made on the 29 April 2014 reasons being that both parties argument/defence were not heard when the orders were made. As the father was very ill for 5 days, he had called the court clerk that morning to inform them that he was not able to attend the hearing. Furthermore, an email was also sent to the associate judge that morning, explaining his absence (appendix B). Ms Wilkinson was informed 1 day prior that the husband was ill and in fact could not even pick X up on 28 April, as per the parenting order. Relevant medical certificate has also been emailed to the associate judge (appendix C1-C3).
Both the Application and the Response are supported by affidavits.
In her affidavit, the Respondent wife deposes that she seeks the sum of $10,580.00 by way of costs and annexes copies of invoices from her former solicitors, Lavulo Lawyers, and a copy of a tax invoice from Patrick Lott, barrister, in the sum of $1,760.00, relating to his attendance at Court on 29 April 2014.
In his affidavit of 24 July 2015, the Applicant husband makes two points by way of submission:
4. The attached invoice (Appendix A) that has been provided by Ms Wilkinson clearly indicates the cost incurred on the 29 of April is $680. Therefore, all other cost dating back to one month prior to 29 of April that have been included in the application in case is irrelevant for this matter.
5. Section 117 of the Family Law Act 1975 states that each party to proceedings under this Act shall bear his or her own costs.[2]
[2] Affidavit of Mr Kemp 24.7.2015 at paragraphs [4]&[5]
Background
To put the matter into context, the original Application brought by the husband was for parenting orders and property orders. On 29 July 2013 the parties entered into Consent Orders finalising the parenting proceedings. On that same day, the property application was listed for final hearing on 29 April 2014.
When the Application came before the Court on 29 April 2014, there was no appearance by or on behalf of the husband. The wife attended accompanied by Mr Lott of Counsel. When there was no appearance by the husband, Counsel for the wife sought an order that the husband pay the wife’s costs of the day that had been thrown away due to the husband’s non-appearance to pursue his Application. The following Orders were made:
1. The Applicant is to pay the Respondent’s costs of today.
2. The Application is adjourned to 27 May 2014 at 10:00 am for further mention before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
The costs of the day were not fixed in an amount of money and still await assessment.
The substantive application was heard on a final basis on 21 October 2014. On 17 June 2015 final property orders were made, providing that the husband was to pay to the wife the sum of $45,352.42 within three months from the date of the orders. The parties would otherwise retain the property already in their possession[3].
[3] Kemp & Wilkinson [2015] FCCA 1621
Evidence and submissions
The wife relied on her affidavit of 6 July 2015, to which she annexed copies of tax invoices from her then solicitors, Lavulo Lawyers, and Mr Lott of Counsel, totalling $10,580.00.
The husband relied on his affidavit of 24 July 2015, to which he annexed a copy of an invoice from Lavulo Lawyers, in support of his contention that the only costs incurred by the wife on 29 April 2014 amounted to $680.00.
Consideration
Neither of the parties has legal representation and their documents are not drafted with the precision that the Court would expect from a lawyer. However, as the High Court held in Neil v Nott[4]:
A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[5]
[4] [1994] HCA 23; (1994) 121 ALR 148; 68 ALJR 509
[5] Supra per Brennan, Deane, Toohey, Gaudron & McHugh JJ at [5]
Despite the wife’s reference in her affidavit to the decisions of the Court on 29 April 2014 and 17 June 2015 (the date that the final property judgment was handed down[6]), it is clear that what she is seeking is a quantification of the costs of the day ordered on 29 April 2014. She is not seeking an order for her costs up to and including the final hearing, where Mr Fermanis of Counsel appeared on a direct brief. No order for costs was made in that decision.
[6] Kemp & Wilkinson [2015] FCCA 1621
What the husband appears to be seeking is:
a)A discharge of the Order for costs made on 29 April 2014; and
b)No order for costs, based on the principle in s.117(1) of the Family Law Act 1975 (Cth), which provides that:
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.
The husband raised the issue of the costs order of 29 April 2014 in the final hearing and I declined to discharge the Order, holding at [18] that:
[18] The husband neither appealed against the costs order made on 29 April 2014 nor applied under rule 16.05 to have the order set aside. Orders cannot be made purely on the basis of a written submission.[7]
[7] Kemp & Wilkinson [2015] FCCA 1621
In my view, the time has passed for the consideration of setting aside that Order. It was considered in the judgment of 17 June 2015 and it is inappropriate for it to be revisited.
What does appear clear is that both parties have misconceived the meaning of the order that the husband was to pay the wife’s costs of the day.
The wife, in her affidavit, appears to believe that the Order covers all of her costs, on a solicitor-client basis, from the commencement of the proceedings up till and including 29 April 2014. She has annexed to her affidavit copies of the following invoices:
a)Invoice dated 26 March 2014 from Lavulo Lawyers, covering their costs of acting for her from 22 March to 26 March 2014 in the sum of $5,770.00;
b)Invoice dated 8 April 2014 from Lavulo Lawyers, covering their costs of acting for her from 27 March to 7 April 2014 in the sum of $1,467.40;
c)Invoice dated 23 April 2014 from Lavulo Lawyers, covering their costs of acting for her from 8 April to 22 April 2014 in the sum of $297.00;
d)Invoice dated 28 April 2014 from Lavulo Lawyers, covering their costs of acting for her from 28 to 29 April 2014 in the sums of $521.40 and $764.50; and
e)Invoice from Patrick Lott, barrister, covering his fee for attending Court on the proposed hearing of 29 April 2014, in the sum of $1,760.00.
The wife’s Application is misconceived for two reasons.
First, she is seeking all of her costs from the commencement of the proceedings to 29 April 2014, when the Order that was made was for costs of the day, that is, 29 April 2014. The order was neither intended nor stated to be for her entire costs to date. The only costs thrown away by the husband’s failure to appear were those directly relating to the hearing date.
Second, the wife is seeking her costs on an indemnity, or solicitor-client, basis, not on a party and party basis. Indemnity costs have been described by the Full Court of the Family Court in Prantage & Prantage[8] at [17] as:
an entitlement to costs, including costs under a costs agreement, for all costs incurred, other than costs that are unreasonable in amount or that have been incurred unreasonably.
[8] [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544
The Full Court reaffirmed the principle that costs on an indemnity basis, rather than costs on a party and party basis, i.e. according to the scale of costs provided by the Rules of Court, are the exception to the normal principle that costs are awarded on a party and party basis (see also Colgate Palmolive Co v Cussons Pty Ltd[9]; In the Marriage of Kohan[10] ).
[9] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
[10] [(1992) 16 Fam LR 245; (1993) FLC 92-340
The husband submitted that the only claim for costs referable to the appearance on 29 April 2014 was the amount of $680.00 set out in the invoice from Lavulo Lawyers at Annexure “D” of the wife’s affidavit. This amount was claimed for a solicitor attending court to instruct Counsel at the hearing.
The husband’s submission is clearly misconceived as it ignores the invoice from Mr Lott of Counsel in the sum of $1,760.00 for his appearance for the wife on 29 April 2014.
Conclusions
In my view, the wife should be entitled to claim the costs of her solicitor attending court to instruct counsel in accordance with Item 13 of Part 1 of Schedule of the Federal Circuit Court Rules 2001. Noting the time involved, I consider it appropriate to allow the amount prescribed for a half day hearing, namely $1,024.00.
As for counsel’s fees, whilst there is authority that counsel’s fees would not be allowed as a disbursement where the advocacy loading applies (Colan Products Pty Ltd v Luxon Pty Ltd (No.2)[11], I have previously held in Bixby & Bixby[12] that there are circumstances where counsel’s fees may be allowed. Rule 21.15 allows the Court or a Registrar to certify that it was reasonable to employ an advocate to appear for a party in a proceeding, and Rule 21.16 provides that where Counsel is employed as an advocate, the amount payable for counsel to appear is the daily hearing fee and advocacy loading in accordance with Parts 1 and 2 of Schedule 1.
[11] [2002] FMCA 90
[12] [2015] FCCA 816
In my view, it was reasonable for counsel to be employed as an advocate, noting that this was an Application for final orders and the wife’s first language is one other than English.
The daily hearing fee and advocacy loading in accordance with Item 13 will amount to $1,536.00.
Consequently, the amount to which the wife is entitled as costs of the day on 29 April 2014 will be fixed at $2,560.00, being counsel’s fees of $1,536.00 and costs of the solicitor to instruct at $1,024.00.
An order will be made that the husband is to pay the wife’s costs of the day as ordered on 29 April 2014 fixed in the amount of $2,560.00. I will allow three months to pay.
All other Applications will be dismissed and the Application will be removed from the list of cases awaiting finalisation.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 24 August 2015
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