Mancini and Mancini (No. 2)

[2008] FamCA 484

FAMILY COURT OF AUSTRALIA

MANCINI & MANCINI (NO. 2) [2008] FamCA 484

FAMILY LAW – COSTS – discretion
FAMILY LAW – PRACTICE AND PROCEDURE – adjournment

Family Law Act 1975 (Cth) s117

APPLICANT: Mr Mancini

RESPONDENT: Mrs Mancini

FILE NUMBER: SYF 3646 of 2005

DATE DELIVERED: 17 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 17 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: M Kearney

SOLICITOR FOR THE APPLICANT: Barkus Edwards Doolan

SOLICITOR FOR THE RESPONDENT: Dimocks Lawyers

Orders

1. That the husband’s Application in a Case filed 26 May 2008 seeking an order for costs is adjourned to a date to be fixed subsequent to the determination of the wife's pending appeal pursuant to her Notice of Appeal filed 5 June 2008.

1. That the wife pay the husband's costs of the adjournment in the sum of $1,439.00 on or before 5.00pm, 15 July 2008.

IT IS NOTED that publication of this judgment under the pseudonym Mancini & Mancini is approved pursuant to s121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3646 of 2005

MR MANCINI

Applicant

And

MRS MANCINI

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The husband has made an application for an order for costs against the wife pursuant to his Application in a Case filed 26 May 2008.

2. The application is opposed by the wife.

3. The wife’s solicitor has made an oral application that the husband's application be adjourned pending determination of the appeal filed on 5 June 2008 in respect of the substantive orders made by me on 8 May 2008.

4. I have sighted a copy of the Notice of Appeal, with respect includes proper grounds of appeal.  I make no comment of course as to the merits of any of those grounds.

5. The counsel for the husband has made cogent submissions in support of opposing an adjournment of his client's costs application.  I accept that a relevant consideration is that litigation between the parties should be determined as soon as possible so as to avoid the spectre of undetermined applications remaining on foot for what might be a considerable period of time.

CONCLUSION

1. I have reluctantly decided to adjourn the costs application for these reasons.

2. In the event of the appeal being successful then the basis of the costs application may no longer be available to the husband, or alternatively, depending on the terms of any orders made allowing an appeal, the costs application may have to be, in effect, re-cast.

3. Consequently, to consider and now determine the appeal potentially raises further litigation between the parties which would be represented by an appeal by both or either of them from orders that I might make.  Ironically, that would lead to additional legal costs which no doubt both parties would seek to avoid.

4. Consideration of the costs application, even if it does not arise for determination by me for several months due to a pending appeal, does not represent any extraordinary difficulty, given that I will have a copy of the reasons for judgment given on 8 May 2008 and the written material which would be relied upon by each of the parties.  The issues that are involved are the subject of well established principle and fall within a small compass compared to the range of issues that I had to determine in the substantive proceedings.

COSTS APPLICATION OF ADJOURNMENT

1. An oral application has been made on behalf of the husband that the wife pay the costs occasioned by the adjournment of his application for costs filed 26 May 2008.

2. In support of the application counsel submitted that notice had not been given that an adjournment application would be made until approximately 12 noon today subject to prior correspondence between the solicitors for the parties.

3. That correspondence included a request by the solicitor for the wife that the husband consented to an adjournment of the proceedings pending the determination of the appeal.  The solicitor for the wife was then informed by letter that request was refused.  Subsequently, there was no notice given that an adjournment application would be made today until 12 noon to which I have earlier referred.

4. The question arises whether the general rule that each party pay his or her costs be departed from on the basis that there is a circumstance which may justify an order for costs being made.

5. I have concluded that there is such a circumstance, namely that there was no notice given until today that the wife would seek an adjournment today.

RELEVANT LEGAL PRINCIPLES

1. Consequently, I have to consider relevant matters under s117(2A) of the Family Law Act 1975 (Cth) (‘the Act’) for the purpose of determining whether or not I should exercise my discretion to make an order.

2. Understandably, counsel for the wife and solicitor for the husband did not address me in relation to any of the matters that fall for consideration under that subsection, save and except for reiteration of the circumstances which were relevant to the adjournment application being made today.

3. I take into account the written request made by the solicitor for the wife that an adjournment of the husband's costs application was sought some days ago.

4. From that alone it should have been implicit that it was possible that the adjournment application would be made today.  As against that aspect of the matter, no notice was given until noon today to which I have referred.

CONCLUSION

1. Weighing up those competing considerations it seems to me that it was reasonable for counsel to be briefed for the husband given his familiarity with all aspects of the matter and the reliance which was to be put on an offer for settlement which is the subject of a number of Full Court authorities in terms of the principles that should be applied.

2. I have determined that there will be an order for costs made in favour of the husband representing half of the costs sought by him.

3. My reasons are that the question of an adjournment had previously been raised by the solicitor for the wife in the correspondence to which I have referred.  It should have been a matter for consideration that an adjournment application may well then be made today given that the request for an adjournment by consent had been refused.  I balance that against the fact that the wife's position was not made clear on her behalf in either correspondence or verbally so far as communication between the parties were concerned, until the very last moment today.

4. I will make an order reflecting half of the costs sought.

5. There was no submission made that the quantum of counsel's fees was unreasonable.

6. Rather, the submission was that counsel should not have been briefed.  I have obviously rejected that submission.

7. So far as the amount of the solicitor's costs are concerned as submitted by Mr Dimock, they are for a similar amount as that contended by counsel for the husband.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Legal Associate: 

Date:  26 June 2008