Koca and Koca and Anor (SSAT Appeal) (No.2)
[2016] FCCA 1863
•21 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KOCA & KOCA & ANOR (SSAT APPEAL) (No.2) | [2016] FCCA 1863 |
| Catchwords: FAMILY LAW – Child Support – Costs – application for costs by Child Support Registrar – where Appellant did not attend Court – where Appellant did not file any submission in opposition to the application for costs. |
| Legislation: Child Support (Registration and Collection) Act 1998 (Cth), ss.105, 110B Family Law Act 1975 (Cth), s.117 Federal Circuit Court Rules 2001 rr.21.02, 21.10, Sch.1 |
| Cases cited: |
| Appellant: | MR KOCA |
| First Respondent: | MS KOCA |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 5565 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 21 March 2016 |
| Date of Last Submission: | 21 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2016 |
REPRESENTATION
| Appellant: | No appearance |
| First Respondent: | No appearance |
| Solicitor for the Second Respondent: | Ms Buchanan |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The Appellant is to pay the Second Respondent’s costs of the Appeal fixed in the sum of $4,000.00.
I allow one (1) month to pay.
IT IS NOTED that publication of this judgment under the pseudonym Koca & Koca & Anor (SSAT Appeal) (No.2) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5565 of 2013
| MR KOCA |
Appellant
And
| MS KOCA |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Application in a Case
This is an Application for costs brought by the Second Respondent against the Appellant, arising out of an Appeal against a decision of the Social Security Appeals Tribunal. On 24th June 2015 the Court dismissed the Appeal and affirmed the decision of the Social Security Appeals Tribunal.
Orders were made that:
a)written submissions in support of any application for costs and any affidavits setting out the way in which the costs sought are quantified were to be filed and served within 28 days of the date of the Order dismissing the Appeal; and
b)any written submissions in opposition to any application for costs were to be filed and served within a further period of 14 days.
On 22nd July 2015 the Child Support Registrar filed an Application in a Case supported by an affidavit seeking the following order:
The Appellant pay the Second Respondent’s costs fixed in the amount of $4,000.00.
The Child Support Registrar also filed a written submission on costs on 22nd July 2015.
The Appellant did not file or serve any submission in opposition to the Application.
The Application in a Case was given a return date of 21st March 2016. Ms Buchanan, solicitor, appeared for the Second Respondent, the Child Support Registrar.
Evidence and Submissions
The Registrar relies on an affidavit affirmed by Louise Bernadette Buchanan, a solicitor, on 22nd July 2015. In her affidavit, Ms Buchanan deposes that the professional fees incurred by the Second Respondent amounted to $4,920.50 for work done, along with disbursements of $24.42, making a total of $4,944.92.
However, Ms Buchanan acknowledged in her affidavit that this figure would not be fully allowable on a party and party basis and stated that the Registrar sought a fixed costs order of $4,000.00.
The Registrar also relies on a written submission filed on 22nd July 2015.In that submission Ms Buchanan states that by the operation of s.105 of the Child Support (Registration and Collection) Act 1988 (Cth), costs in proceedings under s.110B of that Act are governed by s.117 of the Family Law Act 1975 (Cth) (see Hendy v Deputy Child Support Registrar & Anor[1]at [112]-[117]; Penman & Child Support Registrar & Anor (No.2).[2]
[1] (2001) 164 FLR 236
[2] [2013] FCCA 1045
It was further submitted that the general principles that govern the Court’s discretion to award costs under s.117 of the Family Law Act 1975 were explained by the High Court of Australia in Penfold v Penfold[3] at 315 (see also Child Support Registrar & Kanavos[4] at [65]).
[3] (1980) 144 CLR 311
[4] (2011) 44 Fam LR 422
The weight to be attached to the considerations in s.117(2A) of the Family Law Act is wholly discretionary and while no single factor outranks any other, there is nothing to prevent one or other of them from being the sole foundation for a costs order (PBF & TRF[5] at [41]). In the absence of any countervailing consideration, the fact that a party was “wholly unsuccessful” will ordinarily justify the making of a costs order against a party (Laurie & Child Support Registrar[6] at [123]-[126]).
[5] [2005] FamCA 158, also reported as Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish & Anor (2005) 33 Fam LR 123
[6] [2009] FamCAFC 183
It was further submitted that several features of this case warrant the making of a costs order against the Appellant under s.117(2) of the Act, in particular:
a)With respect to the financial circumstances of the Appellant (s.117(2A)(a)), the Social Security Appeals Tribunal found that the Appellant had an adjusted taxable income for child support purposes of $150,000.00 per year for the period 1 March 2012 to 10 July 2016. The decision of the SSAT was affirmed by the Court.
b)The Appellant is not in receipt of legal aid (s.117(2A)(b)).
c)With respect to the conduct of the Appellant in relation to the proceedings (s.117(2A)(c), the Registrar noted the weakness of the Appellant’s grounds of Appeal. In particular, the Appellant sought to challenge the decision of the SSAT on the basis of there being no evidence to support its findings but without filing any evidence on which the Court could make such findings.
d)As the decision of the SSAT was affirmed, it can only be assumed that the Appellant was “wholly unsuccessful in the proceedings” (s.117(2A)(e)).
Ms Buchanan referred to Rule 21.02 which permits the Court to set the amount of costs, or the method by which the costs are to be calculated and set a time for payment of the costs.
Further, Rule 21.10 provides that a party entitled to costs in a proceeding is entitled to costs in accordance with Parts 1 and 2 of Schedule 1 to the Rules. Ms Buchanan points out in her submission that the scale of costs in Schedule 1 to the Rules is a fixed event based scale and the usual form of such an order for costs would be for costs to be paid in a specified amount (Pratt v Latta (No.2)[7]at [5]-[6]; Piersons Pro-Health Pty Ltd v Silvex Nominees Pty Ltd (No.3)[8] at [38]-[43]).
[7] [2002] FMCA 43
[8] [2010] FMCA250
It was further submitted that the prescribed amount of costs according to the scale unless the Court otherwise orders is $6,581.00. However, as the Registrar has not incurred that amount of costs on a party and party basis, the Registrar only seeks the lower amount of $4,000.00.
Conclusions
The Appellant did not attend Court or file any submissions. Thus, the Registrar’s claim for an order for costs is unopposed.
Subsection 117(2) of the Family Law Act 1975 provides that if the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection 117(2A) of the Act, make such order for costs as the Court considers just.
Subsection 117(2A) contains eight separate maters to be considered, but not all of them are relevant in this case.
I consider that the following matters are relevant:
a)the Appellant’s financial circumstances;
b)the fact that the Appellant was not in receipt of a grant of legal aid;
c)the weakness of the Appellant’s case on Appeal; and
d)the fact that the Appellant was quite clearly wholly unsuccessful in the proceedings.
It is noteworthy that the Tribunal set the Appellant’s adjusted taxable income at $150,000.00 per annum for the period 1st March 2012 to 10th July 2016.
The Appeal was dismissed on 24th June 2015 and the decision of the Social Security Appeals Tribunal was affirmed. It is fair to say that the Appellant was wholly unsuccessful in the proceedings.
In my view, these reasons of themselves are sufficient for the Court to form the opinion that the circumstances justify an order for costs against the Appellant.
The lumps sum fee provided by the Court in division 2 of Part 2 of Schedule 1 to the Rules is $6,581.00. However, the Child Support Registrar seeks a lesser amount, namely $4,000.00. It was submitted that the Registrar’s solicitor/client costs only amount to $4944.92. Accordingly, the Registrar is only seeking the sum of $4,000.00 on a party and party basis.
Bearing in mind that it would have been open to the Child Support registrar just to seek the scale fee of $6,581.00, the lesser sum of $4,000.00 appears to be more than reasonable in the circumstances. This again appears to be an occasion where the Commonwealth is acting as a model litigant (see Kendrick & Child Support Registrar & Anor (No.2)[9]at [45]).
[9] [2016] FCCA 1757
Orders
I propose to grant the Application. I will order that the Appellant is to pay the Child Support Registrar’s costs, fixed in the sum of $4,000.00.
The Appellant has not sought any time to pay the costs. I will allow one month to pay.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 21 July 2016
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