KEMP & WILKINSON (No.2)

[2015] FCCA 2268

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

1. 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.

2. 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

1. 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.

2. Regrettably, both the Application and the Response are misconceived to some extent.

3. 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

4. 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).

5. Both the Application and the Response…