Loomis & ML Lawyer (Costs)
[2016] FamCAFC 269
•22 December 2016
FAMILY COURT OF AUSTRALIA
| LOOMIS & ML LAWYER (COSTS) | [2016] FamCAFC 269 |
| FAMILY LAW – APPEAL – SINGLE JUDGE APPEAL – COSTS – where the appeal was dismissed – where the respondent solicitors seek an order for costs – where the appellant father was wholly unsuccessful – where an offer and counter offer were made between the parties – conduct of the parties – financial circumstances – where the circumstances of the case justify an order for costs – where the appellant father ordered to pay the costs of the respondent solicitors fixed in the sum of $9,000. |
| Family Law Act 1975 (Cth) ss 94AAA(3), 117(1), 117(2A) Family Law Rules 2004 (Cth) Schedule 3, r 17.03 |
| Idoport Pty Limited v National Australia Bank Limited and Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 Lenova & Lenova (Costs) [2011] FamCAFC 141 Reynolds & Sherman [2016] FamCAFC 240 |
Trask & Westlake (Costs) [2015] FamCAFC 214
| APPELLANT: | Mr Loomis |
| RESPONDENT: | ML Lawyer |
| FILE NUMBER: | BRC | 1010 | of | 2012 |
| FIRST APPEAL NUMBER: | NA | 64 | of | 2015 |
| SECOND APPEAL NUMBER: | NA | 7 | of | 2016 |
| DATE DELIVERED: | 22 December 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 August 2015 13 November 2015 |
| LOWER COURT MNC: | [2015] FCCA 2353 [2015] FCCA 3582 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Baston |
| SOLICITOR FOR THE RESPONDENT: | Mr ML of ML Lawyer |
Orders
IT IS ORDERED
That the appellant father pay the respondent solicitors’ costs of and incidental to Appeal No 64 of 2015.
That the appellant father pay the respondent solicitors’ costs of and incidental to Appeal No 7 of 2016.
That the total costs payable in respect of both appeals be fixed at $9,000.
That the father raise and pay the said total amount of $9,000 by no later than 60 days from the date of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis & ML Lawyer (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Numbers: NA 64 of 2015; NA 7 of 2016
File Number: BRC 1010 of 2012
| Mr Loomis |
Appellant
And
| ML Lawyer |
Respondent
REASONS FOR JUDGMENT
On 17 August 2016, sitting as a single judge on appeal pursuant to direction by the Chief Justice in accordance with s 94AAA(3) of the Family Law 1975 (Cth) (“the Act”) I dismissed two appeals by the appellant father and varied the orders with respect to the father’s stay application made by Howard J on 13 November 2015 (as amended on 1 December 2015).
I also made an order for each party to file and serve written submissions in respect of the costs of the appeals. They each did so. These reasons pertain to the application by the respondent solicitors that the appellant father should pay their costs of and incidental to the appeals fixed in the sum of $16,274.03.
The solicitors also seeks an order that the father pay interest on the fixed sum, to be calculated from the date of any orders made at the rate of interest prescribed under r 17.03 of the Family Law Rules 2004 (Cth) (“the Rules”). The father opposes that application.
For the reasons which follow, I am of the view that the circumstances of this case justify a departure from s 117(1) of the Act and that the father should pay the solicitors’ costs of and incidental to the appeal.
The circumstances in which the solicitors firm (and a barrister then representing them) became respondents to the relevant appeals are somewhat unusual and have been dealt with both in the primary judge’s reasons and in my reasons dismissing the father’s appeal from his Honour’s orders.
The solicitors submit that the father was “wholly unsuccessful” in circumstances where both appeals were dismissed. As was stated by the Full Court in Trask & Westlake (Costs):[1]
4.While costs do not “follow the event” any more on an appeal than they do in any other proceedings (s 117(1)), it is often said that a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the “fruits of their judgment”, can be of great significance.
[1] [2015] FamCAFC 214.
Central to the solicitors’ application for costs is correspondence sent to the father on 24 September 2015. The father was invited to discontinue his Notice of Appeal and Application in a Case, in circumstances where the solicitors had not been served with the either document. The letter provided notice to the father that failure to discontinue would result in a costs order being sought against him. The father proceeded with the appeal.
On 26 July 2016, the father sent an email to the solicitors containing an offer “without prejudice save as to costs” to meet with the solicitors in an attempt to resolve the appeals. The solicitors refused to meet with the father, seeking instead that he make any proposed offer in writing. Particularly in light of the circumstances of this case, I do not consider that there was anything unreasonable about their approach. On 28 July 2016, the father made a written offer, by way of email to pay the solicitor’s costs in the total amount of $5,000.
On 29 July 2016, the solicitors caused a letter to be sent to the father rejecting the father’s offer. In a second letter sent that same day, the solicitors made a counter offer seeking $8,500 in satisfaction of any costs that might be awarded against the father for both appeals and in relation to an application for costs against the father in the property proceedings before Forrest J.
This offer was rejected by the father on 5 August 2016, with the father making a final offer of $5,491 to settle the two appeals, payable upon him being “placed in funds by Justice Forrest”. This too, was rejected by the solicitors. I should point out that the specific sum is the amount ordered to be paid by the primary Judge by way of costs in respect of one of the applications dismissed by his Honour.
In Lenova & Lenova (Costs),[2] this Court held:
11.A timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation. Conversely, where, consequent upon success in an action, a litigant can point to the making of a genuine and timely offer having been made, that offer might be seen as an important (albeit not the only) matter in the exercise of the discretion as to the ordering of costs.
[2] [2011] FamCAFC 141.
The father’s willingness to make an offer to settle should be taken in to account. However, the terms of any such offer, compared to the costs that might otherwise be payable if the issue does not resolve, is also relevant as it is to any counter-offer made by the other party. Here, I consider it was entirely reasonable for the solicitors to refuse the offer of settlement made by the father. Conversely, I consider the terms of their offer which was rejected by the father as also being entirely reasonable.
The solicitors also rely on the conduct of the father in support of the costs application (s 117(2A)(c)), submitting that the father’s written submissions “are almost entirely irrelevant to the issue of costs except in one significant matter: conduct of the [father]”. The solicitors refer to [35] of my reasons for judgment in the appeal where I held that “many of the father’s grounds appeal cannot be described as such. They allege no sustainable legal or factual or discretionary error”.
The solicitors contend that both the grounds of appeal and the written submissions as to costs demonstrate that the father’s conduct of the appeal has been based on incorrect, misleading and irrelevant allegations against the solicitors (as well as their then counsel and the wife).
The father also makes reference to the conduct of the solicitors in support of his opposition to the costs application, submitting that due to the conduct of the solicitors and counsel in using “every opportunity to prolong and increase the expense of the proceedings”, the father has experienced extreme hardship and is “now suffering from an ‘Adjustment Disorder’” which can be “attributed to the wrongdoing of [w]ife and her legal representatives”.[3] He contends that “it would be wrong at law for the [father] to incur further costs”. No evidence is offered for the asserted causal connection. The father’s health and any consequent effect on his income and assets may be relevant, but scant evidence of same is offered save for bare assertion. Most of the father’s submissions relate to the conduct of the wife with respect to the property proceedings before Forrest J.
[3] Father’s Written Submissions, filed 9 September 2016, paragraphs 2, 5 and 30.
In any event, I consider that any such consideration is overwhelmed by other circumstances justifying a costs order including the absence of a proper foundation for the joining of the solicitors and, subsequently, the absence of any proper foundation for the appeal, the complete lack of success of the father and the father’s failure to accept what I regard as an entirely reasonable offer in writing made by the solicitors.
I take it to be a major thrust of the father’s submissions (as, it seems, it was of his offer) that he is financially unable to meet a costs order. I have considered the “financial circumstances of each of the parties”,[4] including the father’s contention that he does not have the capacity to pay due to his financial circumstances and his inability to work. As stated in my earlier reasons for judgment in this matter, and reiterated by the Full Court on a number of occasions, the father’s financial circumstances cannot be determinative of the court’s discretion in relation to costs:
12.… a limited financial capacity to meet an order cannot be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a costs order in circumstances where pursuit of the litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs.[5]
[4] Section 117(2A)(a) of the Act.
[5] Lenova & Lenova (Costs) [2011] FamCAFC 141.
Separate to these appeals, the father has also filed a Notice of Appeal (NA 90 of 2015) in the parenting proceedings. It is his contention that any costs order made against him in these proceedings would have a detrimental effect to his ongoing parenting appeal and would be against the best interests of the children.[6] That submission has no substance.
[6] Father’s Written Submissions, filed 9 September 2016, paragraph 36.
The fixed amount of $16,274.03 is sought by the solicitors. They annex to their submissions an itemised list of items by reference to Schedule 3 of the Rules together with a summary of same
Any further litigation in this matter should be avoided and the costs which the father should pay to the solicitors should be fixed. It should be accepted that it is not necessary to be particularly scientific or mathematically precise about fixing those costs.[7]
[7]See, for example, Idoport Pty Limited v National Australia Bank Limited and Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [10] per Einstein J; Reynolds & Sherman [2016] FamCAFC 240, at [117].
I am unpersuaded that some of the items sought by the solicitors should be awarded.
For example, I am unable to see why the costs sought for the reading of documents in relation to the hearings conducted on 1 July 2015 and 13 November 2015 should be recoverable, particularly in in circumstances where costs orders have already been made in respect of those hearings and where the solicitors were represented by counsel. So, too, the reading of listed sections of the Act and the Rules and the Federal Circuit Court Rules 2001 (Cth) and “reading case law” which, it might be noted, included House v The King[8] and Mallet v Mallet[9] and which includes cases not discussed or referred to in the submissions on behalf of the solicitors in the appeal.
[8] (1936) 55 CLR 499.
[9] (1984) 156 CLR 605.
For the benefit of the self-represented father I should make clear that my conclusions in that regard should not be taken as suggesting the work was not carried out, but only that he should not have to pay for it.
The appeals were heard together and no distinction is drawn in the orders sought in each appeal. I am satisfied that it is appropriate to assess the totality of the costs by reference to the totality of the work undertaken and to make an order fixing the total amount of the costs payable for both appeals.
Costs should be fixed accordingly in the sum of $9,000. I will permit 60 days for the father to raise and pay that sum.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy J) delivered on 17 August 2016.
Associate:
Date: 22 December 2016
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