Luna & Luna (No 8)
[2024] FedCFamC1F 742
•5 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Luna & Luna (No 8) [2024] FedCFamC1F 742
File number(s): BRC 11516 of 2019 Judgment of: HOGAN J Date of judgment: 5 November 2024 Catchwords: FAMILY LAW – COSTS – Where the third respondent seeks an order that the applicant pay its costs – Where the court is not of the opinion that there are circumstances justifying an order for costs. Legislation: Family Law Act 1975 (Cth) Cases cited: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123
Luna & Luna (No 7) [2024] FedCFamC1F 540
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664
Prantage & Prantage (Costs) [2014] FamCA 850
Division: First Instance Number of paragraphs: 16 Date of last submission/s: 1 October 2024 Date of hearing: Determined in Chambers following the receipt of written submissions Place: Brisbane Solicitor for the Applicant: Results Legal by way of written submissions filed 24 September 2024 in response First Respondent: Did not participate in this aspect of the proceedings Solicitor for the Second Respondent: Did not participate in this aspect of the proceedings Solicitor for the Third Respondent: Barry Nilsson Lawyers by way of written submissions filed 11 September 2024 and sealed 17 September 2024 and reply submissions sealed on 1 October 2024 ORDERS
BRC 11516 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LUNA
Applicant
AND: MR LUNA
First Respondent
F LAWYERS
Second Respondent
G LAWYERS
Third Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
5 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All outstanding applications are dismissed.
2.There is no order as to costs as between the applicant and the third respondent.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Luna & Luna has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
On 13 August 2024, I ordered, for the Reasons published that day[1], that the first respondent pay, on an indemnity basis from January 2022 onward, the applicant’s costs of and incidental to his application to set aside a Binding Financial Agreement. I also dismissed the applicant’s application[2] that the second and third respondents (who were, at various times, the first respondent’s solicitors) pay her costs; I made orders to facilitate any application by any party for an order for costs arising from that decision.
[1] Luna & Luna (No 7) [2024] FedCFamC1F 540.
[2] Application in a Proceeding filed 28 March 2024.
The third respondent[3] now seeks that an order be made for the applicant to pay its costs of and incidental to her unsuccessful application for an order for costs.
[3]Who relied on an affidavit by Mr H (filed 11 September 2024), Costs Submissions (filed 11 September (2024) and Reply Submissions sealed 1 October 2024.
The applicant[4] opposes such an order. She also sought, by the submissions, that the third respondent be ordered to pay her costs of the Application in a Proceedings filed 28 March 2024 and her costs of responding to its application for costs. Whilst I accept that this relief was not sought within the time prescribed by the August 2024 order, I intend to deal with it in the hope that this Judgment will be the last in the proceedings.
[4]Who relied on her affidavit sealed 24 September 2024 and “Submissions in Answer to the Costs Submissions of [G Lawyers]” sealed 24 September 2024.
Relevant principles and the application of the same
The starting point in relation to costs under the Family Law Act 1975(Cth) (the Act) is that each party bears their own costs.[5] However, if it is of the opinion that there are circumstances that justify it in doing so, the Court may, subject relevantly to s 117(2A) of the Family Law Act 1975 (Cth) (the Act), make such order as it considers just.[6] In considering what order, if any, as to costs should be made, the Court must have regard to the matters set out in s 117(2A) of the Act.
[5] Family Law Act 1975 (Cth) s 117(1).
[6] Family Law Act 1975 (Cth) s 117(2).
The factors that are to be considered when contemplating the making of a costs order are those set out in s 117(2A) of the Act; the Court may give such weight as it considers appropriate to any relevant factor.[7] It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient.[8]
[7] Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24].
[8]Prantage & Prantage (Costs) [2014] FamCA 850 at [12]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123 at [41].
Neither the applicant nor the third respondent was in receipt of Legal Aid. Both engaged privately funded legal representation; there is no suggestion that the proceedings were necessitated by the failure of either of them to comply with previous Court orders.
The applicant remains employed as a public official. The absence of evidence about the third respondent’s financial circumstances must be seen in the context of it having called upon its insurance policy to meet the applicant’s unsuccessful application for costs.
The applicant was wholly unsuccessful in her attempt to persuade the court to make an order for costs against the third respondent.
I accept, on the evidence before me, that the applicant first asked the third respondent to pay her costs by correspondence dated 20 December 2022. I also accept, in the context of what was then a foreshadowed application for an order for costs in an unparticularised forum, that by correspondence dated 23 December 2022 and 20 January 2023, the third respondent invited the applicant to desist in the prosecution of her request that it pay her costs.
The Application in a Proceedings by which the applicant sought an order that the third respondent pay her costs was filed on 28 March 2024. In “without prejudice save as to costs” correspondence dated 23 May 2024, the third respondent’s solicitors advised the applicant of their view that she would not succeed in her application for an order for costs and invited her to discontinue the application on the basis that she pay the third respondent’s costs to date on the standard basis. They also advised that, if she persisted with her application, they would seek an order that she pay the third respondent’s costs on an indemnity basis. On 5 June 2024, the third respondent’s solicitors wrote again, noting that the offer made on 23 May 2024 would expire that afternoon: they also advised that, as at that date, the third respondent’s costs were about $57,000.
The third respondent submitted, in essence, that the court would be persuaded that the circumstances justify the making of an order that the applicant pay its costs of and incidental to the application for costs because: she was wholly unsuccessful in her application, which was doomed to fail and should never have been brought; it had made her a reasonable pre-hearing offer to resolve the application and she failed to accept that same – that is, despite the warnings provided to her in relation to the possible costs consequences, she persisted with the application. It was also submitted that the offer made to the applicant to resolve the application on the basis that she pay its costs on a standard basis was, given the solicitor and own client costs it had incurred by then, a significant concession and that her failure to accept this reasonable offer, taken with her complete absence of success in the circumstances adverted to in the written submissions, would persuade the court that it is appropriate that she be ordered to pay its costs of and incidental to the application.
The applicant submitted, in essence, that the court would not be persuaded that the circumstances justify the making of the order as to costs sought by the third respondent because: it would be persuaded that she had a reasonable basis for bringing the application that she did; the Reasons for Judgment delivered in support of the 13 August 2024 order revealed that it was a finely balanced matter whether the court would make an order against the third respondent in the context of the indemnity costs order made against the first respondent. It was also submitted that the court would not be persuaded that it is appropriate to make the order sought by the third respondent in circumstances where it had promulgated the first respondent’s case until ceasing to act for him in October 2021.
Having regard to the submissions made on behalf of each of the parties, noting the broad discretion in relation to costs accorded to judges at first instance and acknowledging that others may disagree, I am not persuaded that the circumstances here justify departing from the position prescribed by s 117(1) of the Act. Having regard to this statutory starting point, I am not persuaded that making an offer in terms which would have required the applicant to agree to pay costs on the standard basis persuades of the existence of circumstances that justify the making of the order sought by the third respondent. I may well have been persuaded otherwise if the offer to resolve the application had been made in terms which would have seen each party bear their own costs.
For these short reasons then, I decline to make an order that the applicant pay the third respondent’s costs of and incidental to her unsuccessful application for an order that it pay her costs.
Having regard to the submissions made on behalf of each of the parties, I am not persuaded that the circumstances justify an order that the third respondent pay the applicant’s costs of her unsuccessful attempt to obtain a costs order or her successful resistance to the making of a costs order adverse to her. Consequently, I decline to make an order in those terms either.
The only orders which I will make is that all outstanding applications be dismissed and that there is no order as to costs as between the applicant and the third respondent.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 5 November 2024
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