Kirk & Mickelham (No. 3)

[2008] FamCA 764

FAMILY COURT OF AUSTRALIA

KIRK & MICKELHAM (No. 3) [2008] FamCA 764

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: MR KIRK

RESPONDENT: MICKELHAM SOLICITORS

FILE NUMBER: MLC 9289 of 2007

DATE DELIVERED: 28 AUGUST 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE RESPONDENT: MICKELHAM SOLICITORS

Orders

1. That the stay ordered by the Senior Registrar on 28 March 2008 is discharged.

2. That the applicant Mr Kirk pay to the respondent Mickelham Solicitors the sum of $3603.20 by way of costs.

IT IS NOTED that publication of this judgment under the pseudonym Kirk & Mickelham is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9289  of 2007

MR KIRK

Applicant

And

MICKELHAM SOLICITORS

Respondent

REASONS FOR COSTS JUDGMENT

1. On 1 August 2008 I made orders dismissing the application by Mr Kirk for an extension of time to enable him to challenge bills of costs rendered to him arising out of his professional relationship with Mickelham Solicitors.

2. In the orders that I made, I provided for each party to file written submissions in relation to costs should they desire to do so.  Any such costs application was to be filed and served by no later than 4.00pm on 15 August 2008.  Any respondent to such a submission was to file any response by 4.00pm on 22 August 2008. 

3. Mickelham Solicitors as the successful party filed a written submission on 15 August 2008.  No application was made by Mr Kirk.  By 4.00pm on 22 August 2008, Mr Kirk had not filed any submission in reply to the costs submissions of Mickelham Solicitors.

4. The application for costs by Mickelham Solicitors is on the scale and seeks $3603.20.

5. Pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”), each party is to bear their own costs unless the Court finds that there are circumstances justifying a departure from that rule in which case, the Court is obliged to look at the various factors set out in s 117(2A) of the Act.

6. This was a case in which the matter was initially determined by the Senior Registrar after it was comprehensively argued and upon which the Senior Registrar gave written reasons for his decision.  Mr Kirk reviewed that decision and the matter was fully argued by counsel on behalf of Mickelham Solicitors and the solicitor on behalf of Mr Kirk.

7. The dispute has always been about costs and as I pointed out in the reasons for judgment, there are also proceedings pending in the State Magistrates Court at Melbourne concerning the same professional relationship. 

8. Mr Kirk had the advantage of a decision from the Senior Registrar and exercised his right of review.  Importantly, leaving aside some technical issues associated with interpretation of the rules, he was seeking a significant indulgence.  The circumstances of this case therefore justify a departure from the principle that each party should pay their own costs.

9. Looking at the matters set out in s 117(2A) of the Act, I have taken into account that each party was represented and there is other litigation involved all of which strongly indicates a capacity to finance litigation. In addition, I was made aware of the financial background of Mr Kirk which related to a disputed family law proceeding.

10. I have taken into account that Mr Kirk has been wholly unsuccessful.

11. There are no questions of legal aid or conduct in this case that make any difference to the question of an order for costs.

12. Importantly, Mr Kirk has been on notice at all times that if he was unsuccessful in respect of the review, he would be at risk of paying costs.

13. In the exercise of discretion, it is appropriate that an order for costs be made. 

14. I am satisfied looking at the table provided in the submission dated 15 August 2008 that there is nothing unusual about the costs claimed. 

15. Accordingly, I order the applicant to pay the costs of Mickelham Solicitors in the sum of $3603.20.

16. In the submission it was also brought to my attention that the orders I made did not provide for the lifting of the stay ordered by Senior Registrar Fitzgibbon on 28 March 2008.  Having regard to the nature of the stay and the orders that I have made, it is appropriate for that stay to be discharged and I propose to do so.

I certify that the preceding Sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  27 August 2008