McMillan and McMillan (No 2)
[2017] FamCA 1102
•22 December 2017
FAMILY COURT OF AUSTRALIA
| MCMILLAN & MCMILLAN (NO. 2) | [2017] FamCA 1102 |
| FAMILY LAW – COSTS – Where wife seeks husband pay her costs to be taxed – Where husband’s application for recusal was wholly unsuccessful and misconceived – Where husband ordered to pay wife’s costs to be taxed. |
| Family Law Act 1975 (Cth) ss 70NFB, 117, 117AA, 117AC, 118 Family Law Rules 2004 (Cth) rr 19.08,19.18 |
| McMillan & McMillan [2017] FamCA 773 McMillan & McMillan [2016] FamCA 287 |
| APPLICANT: | Mr McMillan |
| RESPONDENT: | Ms McMillan |
| FILE NUMBER: | CSC | 355 | of | 2015 |
| DATE DELIVERED: | 22 December 2017 |
| PLACE DELIVERED: | In Chambers |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | Last submission filed 14 June 2017 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITORS FOR THE RESPONDENT: | Williams Graham Carman |
Orders
That the husband pay the costs of and incidental to his application that Tree J recuse himself from dealing with the husband’s Application filed 12 September 2016.
That otherwise the wife’s Application in a Case filed 7 November 2016 be dismissed.
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 McMillan & McMillan (No 2) 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).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC355/2015
| Mr McMillan |
Applicant
And
| Ms McMillan |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 25 October 2016 I dismissed an application by Mr McMillan (“the husband”) that I recuse myself from hearing his application filed 12 September 2016. By Application in a Case filed 7 November 2016, Ms McMillan (“the wife”) sought an order that the husband pay her costs of and incidental to that application, to be taxed.
On 24 May 2017, I made directions for the filing of material in relation to the wife’s application for costs, and directed that upon the wife filing any material in reply, my decision in relation to her application stand reserved. This is my decision in relation to the wife’s application for costs.
BACKGROUND FACTS
This matter has a most tortuous history, but in essence, the wife has been seeking to recover from the husband some ancient costs orders. She has sought to do that by issuing enforcement warrants from time to time, which have then been applied to be set aside or stayed by the husband. He has now twice been successful in doing so, on the basis that the amounts claimed were wrong. Further detail in relation to the history can be obtained from my most recent reasons in McMillan & McMillan [2017] FamCA 773 and my earlier reasons in McMillan & McMillan [2016] FamCA 287.
RELEVANT STATUTORY PROVIONS AND LEGAL PRINCIPLES
Costs orders generally
The starting point for a consideration of these applications is s117 of the Family Law Act, which relevantly provides as follows:
117(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118 each party to proceedings under this Act shall bear his or her own costs.
117(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
117(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
…
Rule 19.18 deals with the method of calculation of costs in the following terms:
19.18(1) The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount assessed in accordance with Schedule 3.
Example
For paragraph (1)(c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.
19.18(2) If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
19.18(3) In making an order under subrule (1), the court may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party’s behaviour in the case;
(c) the rates ordinarily payable to lawyers in comparable cases;
(d) whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
CONSIDERATION
Both of the parties are in reasonable financial circumstances. The wife is presently engaged in private practice, and has assets of substance. The husband likewise appears to have assets with a net value of, at least as at September 2015, $230,000.00. That said, his current position in relation to income may be less then sanguine, as it appears as though he may presently be suffering some ill health. However the husband has not put on any material, as he was permitted to do under my orders of 24 May 2017, other than 4 paragraphs of submissions which have no relevance to the matters enumerated in s 117.
Neither of the parties to these proceedings are in receipt of Legal Aid.
The husband has been an avid litigant, at least in recent years, in relation to the wife’s attempts to recover the outstanding costs against him. That said, his litigation has, thus far, been successful at first instance.
The proceedings generally have been necessitated by the failure of the father to comply with previous costs orders against him, however the application that I recuse myself was not necessitated by a failure of any party.
The husband’s application that I recuse myself was wholly unsuccessful. It was misconceived.
There is no evidence of any offer in writing to settle the application that I recuse myself on terms better than were obtained.
Weighing those matters in the balance I am satisfied that the usual rule in relation to costs is displaced, and there should be an order for costs against the husband.
As to that, I notice that the wife’s Application in a Case sought that those costs be taxed, but her submissions of 14 June 2017 sought to quantify those costs in the sum of $1,896.00. Whilst it may be that quantification seems reasonable, that is not the wife’s application. There will therefore be an order that the costs be taxed.
Finally I should say that in the wife’s submissions of 14 June 2017, there was implicitly a further application for costs made in relation to any subsequent dismissal of the husband’s Application in a Case filed 12 September 2006, which sought a stay of the Enforcement Warrant filed by the wife on 16 June 2016. Such an application was pre-emptive: I did not make any orders in relation to that application until 28 September 2017, on which occasion I ordered a permanent stay of the Enforcement Warrant: see McMillan & McMillan [2017] FamCA 773. In my view, there is no present valid application for costs in relation to that matter, and in any event, given that the husband succeeded, it may be difficult for the wife to in due course to persuade me that an order for costs in her favour should be made, although I will need to determine that if any application is subsequently made.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 22 December 2017.
Associate:
Date: 22 December 2017
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