Lappin and Alwood (No 2)

[2009] FamCA 928

FAMILY COURT OF AUSTRALIA

LAPPIN & ALWOOD (NO. 2) [2009] FamCA 928

FAMILY LAW – COSTS – Arising out of a s 44(3) application – Consideration of s 117 of the Act

Family Law Act 1975 (Cth)

APPLICANT: MR LAPPIN

RESPONDENT: MS ALWOOD

FILE NUMBER: MLC 6971 of 2009

DATE DELIVERED: 17 SEPTEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 SEPTEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR STAINDL

SOLICITOR FOR THE APPLICANT: CLANCY & TRIADO

COUNSEL FOR THE RESPONDENT: MR ARNOLD

SOLICITOR FOR THE RESPONDENT: ROCHELLE BELCHER

Orders

IT IS ORDERED:

1. THAT within thirty (30) days the husband pay to the wife’s solicitors, on behalf of the wife, her costs of and incidental to the proceedings before the Court on 4 September 2009 fixed in a sum of $2,500.

2. THAT any payment of interest upon such fixed costs order be stayed for thirty (30) days and thereafter, if unpaid, be paid quarterly in arrears on such quantum of costs as remain outstanding from time to time and be paid at the rate prescribed from time to time pursuant to the Family Law Rules and Regulations.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

4. THAT the initiating application filed 7 August 2009 and the further application in a case filed 14 August 2009 be consolidated and each be listed in the Judicial Duty List on 22 September 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6971 of 2009

MR LAPPIN

Applicant

And

MS ALWOOD

Respondent

REASONS FOR JUDGMENT

1. Before me are competing costs applications in the matter of Lappin and Alwood in which matter I delivered reasons for judgment on 10 September 2009. I had heard legal submissions and argument in the matter on 4 September at which time Mr Staindl of counsel, with him Mr Strum, appeared for the husband applicant and Dr Ingleby of counsel appeared for the wife respondent. By the orders I pronounced on that day leave was granted to the husband pursuant to section 44(3) of the Family Law Act 1975 (Cth) to institute proceedings out of time for an alteration of property interests.

2. I pronounced further orders that the husband pay to the wife her reasonable legal costs and disbursements to be assessed and otherwise dismissed certain other matters before the court but not the anti‑suit injunction which remains as yet unheard.  Pursuant to paragraph 5 of my orders that day I directed that any issue of costs of or incidental to the actual hearing before me on 4 September be reserved to myself and be listed for argument on the basis of oral submissions this day.

3. Mr Staindl appeared as counsel for the husband this day and sought, in the alternative, an order for the wife to pay the husband’s costs of and incidental to that proceeding or otherwise that there be no order as to costs or otherwise that the costs of both parties be reserved to a further determination or to the trial judge if and when the proceedings are, on a section 79 basis, before this court.  Mr Arnold of counsel today appeared for the wife and previously I had been advised that Dr Ingleby was overseas and unable to continue his representation of his client.  Mr Arnold primarily sought an order that the husband pay the wife’s costs of and incidental to those proceedings and very much as a fallback situation would have entertained a reservation of costs pending further hearing or order in this court.

4. Section 117 of the Family Law Act prescribes in subparagraph (1) thereof that each party to the proceedings shall bear his or her own costs.  Subsection (2) provides to the court the discretion that, if it is of the opinion that there are circumstances that justify it in so doing, the court may make an order as to costs as it considers just.  Subsection (2A) details the matters to be considered by the court in determining what is a just order and in particular I have regard to subparagraphs (a), (c) and (e) thereof. 

5. In summary, each of those three subparagraphs direct the court to have an understanding of the financial circumstances of each of the parties, the conduct of the parties to the proceedings and whether either party has been wholly unsuccessful.  These are matters that I have carefully considered and evaluated and of which I have particular knowledge because of the prior hearing and my reasons for judgment.  I proceed on the basis that neither party is in receipt of any legal aid or assistance.

6. I do strictly understand that the proceedings in this court are necessary because the husband did not comply with a time period in which to file proceedings for alteration of interests pursuant to section 79 but strictly speaking, and within subparagraph (d) thereof, it was not a failure to comply with any previous order and I take a realistic and proper approach to that issue. 

7. Under the umbrella of subparagraph (g), that is such other matters as the court considers relevant, I have all of the background knowledge that I have detailed in my reasons for judgment as to other proceedings in the Supreme Court of Victoria as to the costs generally expended and as to the matters of conduct of those proceedings and of course as to the orders that I have made conditional to the section 44(3) grant of leave to institute proceedings in this court.

8. I am of the view that it is proper that I have regard to those particular matters and facts of and incidental to the Supreme Court proceedings and to my qualified order when I determine what is a just order in this application now before me.  I will not reserve costs of and incidental to the hearing before me on 4 September 2009.  I am of the view that I should properly determine costs issues and not reserve that matter either to another day, to the trial judge if indeed the trial is in this court or otherwise to a judicial duty list where the matter may come before another judge.  My responsibility to the parties and to the court is to hear the costs application this day and that I will do.

9. Mr Staindl seeks, as his primary submission, an order for costs on the basis that his client was strictly successful in that application on the basis that leave to institute proceedings was, conditionally, granted to his client as provided for in paragraph 1 of my orders of 10 September 2009.  On that basis he would argue either that his client was successful and thereby the wife wholly unsuccessful in opposing that interlocutory application.  That has a limited measure of accuracy given the qualified nature of the order but I do proceed on the basis that there was leave granted pursuant to the primary application of the husband. 

10. The husband’s case is largely proffered upon the basis that this court should hear and determine what is said to be a matrimonial dispute that the wife and the legal advice that she received in this regard could have consented to that application and the matter could or should be in this court.  That does involve a determination of matters within the Supreme Court of Victoria and strictly and presently outside of my determination and issues before the court.  I am certainly aware that there remains a further interlocutory proceeding before this court to determine the husband’s application for an anti­‑suit injunction but that remains for another day, and perhaps before another judge.

11. The husband has submitted to the court that his conduct was appropriate, that his financial circumstances are somewhat limited, and as a result of the outcome of the proceeding he should be awarded his costs.  Mr Staindl is unable to quantify those costs with precision though he has highlighted the required work of his instructing solicitor in preparing a substantial affidavit in support of the primary application and then further a subsidiary affidavit in support of the application for the urgent hearing filed 14 August 2009.

12. He submitted to the court that the wife had adequate or indeed more than adequate time to consider and/or respond out of court to those applications and could have and he would say should have consented to the merits of the application for leave to institute proceedings. I am also fully aware of my requirement for the husband to pay costs in the Supreme Court as outlined in my reasons for judgment and as are yet to be quantified. That is a matter that is relevant under the financial circumstances of the parties’ considerations within subparagraph (2A) of section 117 of the Act to which I do give proper balance.

13. In dealing with the submission of Mr Staindl that there be no order for costs I have regard to the primary requirement of section 117 and that is that each party pay his or her own costs. The ultimate determination is whether that outcome is in all of the circumstances just. That is a matter that I will return to having further considered the submissions made to me this day on behalf of the wife.

14. The husband did have two counsel appear before me in that Mr Staindl was in the role of senior counsel and leading Mr Strum of counsel.  Mr Staindl has the carriage of the Supreme Court proceedings and they were matters of importance in the submissions to me.  Mr Strum is an experienced family law barrister who appeared and who argued the case before me.  Generally it is the right of and entitlement of client to choose counsel to argue their case and I can see the logic of the husband requesting the counsel involved in Supreme Court proceedings to be so involved.  I certainly make no criticism of counsel or solicitor or the husband in that regard.

15. The issue ultimately is whether if I were to award costs whether there should be the costs allowed for two counsel.  In effect and following upon the actual cost sums submitted by Mr Arnold, Mr Staindl has taken a proper but practical approach of saying that two counsel were required and the costs of the husband would at least exceed the costs of the wife by $1800 being the costs of additional counsel.  I simply balance all of those submissions in determining what is appropriate and what is just.

16. On behalf of the wife Mr Arnold’s primary submission is that she should receive a costs order. The husband was out of time in his property application. He needed the leave of the court pursuant to section 44(3) of the Act and thus he needed the indulgence of the court to grant him leave to institute proceedings otherwise he was statute barred from any proceedings in this court. I have considered at some length in my reasons for judgment the issues of hardship, of delay in the explanation for delay, of the arguable case that each of the parties have before the court and of the level of prejudice.

17. Mr Arnold particularly identified paragraph 89 of my reasons for judgment where I made pointed reference to the fact that the explanation or that thereof were both curious and unsatisfactory though I did highlight that the paragraph was related to a specific and limited period and not the more substantial time following upon separation when proceedings should have been instituted.  The parties I should record separated on 2 September 2000 and a decree nisi of dissolution of marriage was pronounced on the application of the husband on 22 March 2002.  Therefore on a strict interpretation by September of 2003 proceedings should have been on foot in this court.

18. The husband’s response is understandable on one view of the facts as presented by Mr Staindl and that is he understood and believed, for whatever reason yet to be fully explored, that the parties would retain that which they had and given the very brief period of marriage and the asset or other money that he had introduced into the marriage there would be no proceedings either way and each party simply left the marriage to pursue their own life.  Ultimately of course that did not eventuate and the husband sought and was granted by my judgment qualified leave to institute proceedings subject to the costs payments as identified therein.

19. That therefore is the background to the competing applications now before me as I prepare and deliver this ex tempore reasons for judgment without leaving the Bench. The imperative is that I do justice to both parties. I have carefully evaluated the requirements of section 117. I do know of the general financial circumstances of the parties both as to their disclosed income and assets as are before me on their financial statements now filed. I have asked both counsel to endeavour to quantify costs. Mr Arnold has indicated that a preliminary bill of costs that he has before him but which has not been served or in any way discussed with the husband’s solicitor identified $5000 as the sum of solicitors’ costs and $1800 that Dr Ingleby marked on brief.

20. In response Mr Staindl adopted a pragmatic approach, and on the basis of two counsel of requesting $6100, being an additional $1800 for counsel over and above that sought by Mr Arnold on behalf of his client.  The qualification, as I have already expressed, was that Mr Staindl emphasised there was a far greater volume of work undertaken by his solicitor who had the carriage of presenting both the original and the amended updated application for urgency and the affidavits in support thereof which required detailing the significant past legal and personal history of the parties both within the Supreme Court and earlier in their domestic relationship.

21. There is a measure of truth to that submission and I would understand the husband’s costs to be greater than the wife for the role he carried in presenting the original submission to the court and in his electing to have two counsel represent him in the proceedings.  I therefore have an overall consideration of the issues confronting both clients and the manner in which the submissions were presented to the court.  My conclusion is to do what is just and I determine what is just is to make an order of costs in favour of the wife.  I determine that those costs will be $2500 in total. 

22. I understand that is significantly less than Mr Arnold in his abbreviated and practical submission request of $4300, being a substantial discount on solicitors’ costs for the wife to a sum of $2500 plus counsel brief of $1800.  I well understand  that the wife will, by an award of $2500, not meet all of her costs of and incidental to the proceedings but I regard that as just given the limited success by my qualified order the husband had achieved and it is for that reason that I do substantially discount back those costs orders to the wife.

23. I should emphasise that I have selected a quantum at the invitation or implied invitation of counsel and trying to limit ongoing costs and issues in the matter.  I will stay the payment of costs for a period of 30 days and there will be no interest attached to that costs order for that period and thereafter interest would be in accordance with the rate prescribed from time to time in the Family Law Rules and Regulations.  I will have those reasons transcribed, placed upon the court file and made available to the parties.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: