MINCHIN & MCDONALD (COSTS) (No 2)
[2012] FMCAfam 1343
•12 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINCHIN & MCDONALD (COSTS) (No 2) | [2012] FMCAfam 1343 |
| FAMILY LAW – Costs – application for costs – where Respondent did not attend court on hearing day – conduct of party to the proceedings in relation to the proceedings. |
| Family Law Act 1975 (Cth), s.117 Federal Magistrates Court Rules 2001 Sch.1 |
| Colgate Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225 Kohan & Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340 Minchin & McDonald [2011] FMCAfam 681 Minchin & McDonald [2012] FMCAfam 1328 Munday & Bowman (1997) 22 Fam LR 321; FLC 92-784 |
| Applicant: | MS MINCHIN |
| Respondent: | MR MCDONALD |
| File Number: | WOC 675 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 November 2011 |
| Date of Last Submission: | 21 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor |
ORDERS
The Respondent is to pay the Applicant’s costs of 3 November 2010 in the fixed sum of $5,766.00.
IT IS NOTED that publication of this judgment under the pseudonym Minchin & McDonald (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 675 of 2009
| MS MINCHIN |
Applicant
And
| MR MCDONALD |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for an order against the Respondent for costs thrown away by his failure to attend Court on 3rd November 2010, when the final hearing of the parties’ parenting and property proceedings was part heard (Minchin& McDonald[1]).
[1] [2011] FMCAfam 681
The matter had been heard over three days, from Wednesday 20th October to Friday 22nd October. The Respondent’s evidence had occupied the entire day on 22nd October and there was still further evidence to be taken.
The proceedings were adjourned part heard to Wednesday 3rd November 2012. The Respondent did not attend Court. The proceedings were adjourned to Tuesday 14th December 2012 and the Applicant’s costs were reserved.
The Respondent opposes the Application for a costs order against him. Instead, he sought an order that “all costs associated with the aborted set court hearing date of 3 November 2010 be paid by the State”. That application has been dealt with in a separate decision about costs under the Federal Proceedings (Costs) Act 1981 (Minchin & McDonald)[2].
[2] [2012] FMCAfam 1328
Orders Sought
The Applicant filed an Application in a Case on 6th July 2011, seeking a number of different orders, including a Recovery Order and an Application for a costs certificate under the Federal Proceedings (Costs) Act, all of which have been dealt with separately. The Application that remains for determination is that the Respondent “pay all costs associated with his non appearance without excuse in our court hearing on 3 November 2010”.
The Respondent filed a Response on 18th November 2011 in which he sought an order that all costs associated with the hearing on 3rd November 2010 be paid by the State. The Order that he seeks adds what appears to be submission, saying:
The Court hearing date was tentatively set down in the prior knowledge that both the respondent and a key witness to this matter…would at this time be interstate under a 2 week subpoena. The date would coincide with the second week of a murder trial in the Queensland Supreme Court and it was hoped that the Respondent and his family would have completed their testimony and be returned by that time. The Trial date was delayed and did not begin until Monday 1 November 2010 when Jury selection commenced and no return to meet the tentative 3 November 2010 date was viable.
Evidence
The Applicant relied on her affidavit filed on 14th September 2011, although it bears the date of 15th September 2011.
The Respondent relied on two affidavits:
a)filed on 7th October 2011; and
b)filed on 18th November 2011.
Neither party gave oral evidence. Each party made submissions.
The Applicant deposed that on 3rd November 2010 she attended court with her solicitor, Mr Davies, and her counsel, Ms Hausman. She stated that the Respondent did not attend court on that day.
The Applicant went on to depose that:
a)The Respondent’s counsel, Mr Alexander, was directed to confirm the Respondent’s whereabouts, as not even his lawyers were aware that the Respondent would not be attending Court that day;
b)The Respondent’s counsel applied for an adjournment, which was opposed by the Applicant’s counsel and Mr Maurice, counsel for the Independent Children’s Lawyer;
c)The Applicant’s counsel suggested that alternatives to an adjournment were that either the matter could proceed in the absence of the Respondent or that the Applicant would pay the Respondent’s airfare from Brisbane;
d)The proceedings were stood down and Mr Alexander again contacted the father;
e)He told the Court that the father had said that although he had finished giving evidence, the police, who had subpoenaed him, were not prepared to change his flight arrangements so that he could return to Sydney in time for the hearing;
f)The Applicant’s solicitor checked flight availability and found that there were seats on both Jetstar and Virgin Blue flights from Brisbane to Sydney that would have allowed the Respondent to have returned to Sydney prior to the hearing;
g)The Respondent failed to notify anyone that he would be absent on 3rd November;
h)She, her legal team and a witness, Ms M, psychologist, had all travelled from Wollongong to give evidence on 3rd November.[3]
[3] Affidavit of Ms Minchin 14.9.2011 at paragraphs [13]-[23]
The Applicant annexed to her affidavit an estimate of the total costs to her of the lost day in court:
Costs for 3 November 2010
$1,270.00 court attendance, preparation and travel time for
Ms M
$2,509.10 solicitor’s fees
$4,000.00E barrister’s fees
$7,779.10 Total for 3-11-10
Annexed to the Applicant’s affidavit are copies of the following documents:
a)Memorandum of costs from Maguire & McInerney, Lawyers;[4]
b)Tax Invoice from Ms M, Psychologist;[5] and
c)Fee notice from Denise Hausman of counsel.[6]
[4] Ibid Annexure “C”
[5] Ibid Annexure “E”
[6] Ibid Annexure “F”
The fee notice from Ms Hausman of counsel shows that she only sought payment for half a day on 3 November 2010.
In his affidavit of 7th October 2011, the Respondent deposed:
12.…I could not be in attendance at the Federal Magistrates Court Sydney on 3rd November 2010 as I was still in Brisbane, Queensland under a subpoena from the Queensland Supreme Court until 5th November 2010.
On Monday 1st November 2010 at exactly 10:44 am I sent a text message to my solicitor Mr Peter Williamson informing him of the situation. The text message states:
‘Hi Peter, just a quick note to keep you updated. We are at the Supreme Court and they are now starting jury selection, it is expected to go on for some considerable time, probably to this afternoon. We have been given copies of our statements to review, doesn’t look like much will happen today.’
13…Mr David Alexander was the person who raised the issue of my subpoena to the Queensland Supreme Court on the 22nd October 2010. Mr Alexander knew precisely where I was and it was only the ridiculous insistence to continue pushed on by (the Applicant) and her legal team refusing to vacate the 3rd November date that had persons present in court.
14.…Mr Alexander was correct that I was still required to be in Brisbane and correct that I was still under Subpoena to give evidence at a murder trial.
15…Mr Alexander made an application to adjourn only because he was aware that the murder trial was continuing and that the Queensland DPP’s trial strategy required my presence until the end of the subpoena on Friday 5th November.[7]
[7] Affidavit of Mr McDonald 7.10.2011 at paragraphs [12]-[15]
The Respondent makes statements in his affidavit which are more in the nature of submissions than statements of fact:
18.…Mr Alexander was never told by Queensland chief prosecutor or the crime detectives that my requirement to be present to give evidence was completed on Monday 1st November. The text message I sent to Mr Williamson at 11am clearly bears out the situation as it was on Monday. Mr Alexander was in fact told that the Queensland DPP trial strategy required all who were on the ‘000’ call to be available for cross-examination by defence counsel once the call was played to the Court as the close of the State’s evidence. It is also ludicrous to suggest that the Queensland Police Detectives were absolutely going to excuse me, risk a possible mistrial and make flight arrangements and transport shuttle arrangements after 11am on Wednesday 3rd November in an attempt to have me attend a Sydney Court by 3pm at (the Applicant’s) insistence while I was under subpoena.[8]
[8] Ibid at [18]
The Relevant Law
The question of costs in Family Law proceedings is dealt with by section 117 of the Family Law Act. Whilst costs do not follow the event, as subsection (1) provides that normally “each party to proceedings under this Act shall bear his or her own costs”, subsection (2) provides that the Court, if it is of opinion that there are circumstances that justify it in doing so, may “make such order as to costs and security for costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.”
Subsection 117(2A) of the Act provides:
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 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.
Where a court makes an order for costs, it usually makes such an order on a party and party basis. However, in an appropriate case, the Court has a discretion to order costs on an indemnity basis. Costs should not follow the event as a matter of course. However, where the justice of the matter requires it, the court may make such order as it considers just. It may depart from the scale of costs prescribed under the Rules but it should not depart lightly from the ordinary Rules relating to costs between party and party, and the circumstances justifying the departure should be of an exceptional kind (see Kohan & Kohan[9]; Munday & Bowman[10] ).
[9] (1992) 16 Fam LR 245; (1993) FLC 92-340
[10] (1997) 22 Fam LR 321; FLC 92-784
The circumstances in which a court, in the proper exercise of its discretion, may depart from the normal practice of making an order for costs on a party and party basis are set out in the decision of Sheppard J in Colgate Palmolive Company & Anor v Cussons Pty Ltd[11] at 232-234. Those circumstances include evidence of particular misconduct that causes loss of time to the Court and to other parties, and circumstances where the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law.
[11] (1993) 46 FCR 225
Consideration
The Transcript of the proceedings shows that the Respondent’s counsel, Mr Alexander, appeared, although his instructing solicitor did not, and told the Court that the Respondent was still in Queensland:
He has given evidence but may be recalled. His family are currently are giving evidence in relation to it. I think one of the children, for example, had a particularly hard time in the witness box yesterday. My own point of view in relation to the matter is that it is shameful that this matter is before the court this morning in circumstances where that was made apparent to my friends. But that’s the situation. I understood that there is – that the police are unwilling to fund an alternate ticket at the present time even if it was – even if the view was taken that (the Respondent’s) family did not require his support there.[12]
[12] Transcript 3.11.2010 at 21-28
Later that morning, at 11:39am, Mr Alexander reported back to the court that he made some inquiries through his instructing solicitor, saying:
He tells me that the coordinating officer was both unable and, I think, unwilling to change flights late yesterday. It turned out yesterday that the family’s evidence, subject to recall, was completed late yesterday afternoon. Subsequently, they’re subpoenaed and still subpoenaed to remain until Friday, but, as I have said to my friends, there is no greater chance than in any other matter of them actually being recalled, as far as I know. The police officers weren’t willing to change their flights and were unable to do so at any rate, so that’s the position at the present time.[13]
[13] Transcript 3.11.2010 at 17-24
Conclusions
In my view, Mr Alexander of counsel has put the Respondent’s argument as strongly and as clearly as it could possibly have been put. The evidence certainly shows that the Respondent was still in Queensland, having given evidence at a murder trial in the Supreme Court of Queensland and, even though his evidence had concluded the day before, the prosecution were reluctant to release him before the end of the week, in case there was a need for him to be recalled.
However, that is not the issue. The facts cited above would have provided good reason for this Court to adjourn the proceedings had an adjournment been sought. The Respondent, though, did not apply for an adjournment.
The Respondent has produced no evidence to show that he had instructed his solicitor to seek an adjournment of the hearing on Wednesday 3rd November. He was well aware that he was required to attend Court on that date. He gives evidence of having sent a text message to his solicitor on the Monday beforehand, advising him that the trial had commenced late and the morning was being taken up with the process of selection of the jury, but there is no evidence that he ever advised his solicitor that it was unlikely that he would be able to attend court in Sydney on the Wednesday. A telephone call to his solicitor the day would have given sufficient notice to allow the solicitor to telephone the solicitor for the Applicant and the Independent Children’s Lawyer to advise them of the difficulty and seek an adjournment of the hearing the following day.
The facts of the Respondent being delayed in Queensland were purely within the Respondent’s knowledge. He does not produce any evidence to show that he asked his solicitor to inform the other parties and seek an adjournment. Instead, the Applicant, her witness Ms M, and the solicitors and counsel, were allowed to attend court on a day when the Respondent could not be there, and knew that he could not be there.
There is no evidence from the Respondent’s solicitor to say that he was instructed to seek an adjournment the day before, or even early that morning, but the other parties declined that request. There is no evidence from the Respondent that he even instructed his solicitor to seek an adjournment, knowing that he would not be in a position to attend court.
It is not unforeseeable that a court would be reluctant to proceed with a hearing in the absence of a party who had been delayed by the need to remain in another State for the purpose of court proceedings which he had been subpoenaed to attend.
The Respondent’s failure to take reasonable steps to seek an adjournment when he knew that he would be delayed and unable to attend constitutes a matter that the Court should consider under paragraph 117(2A)(c) of the Act, conduct of a party in relation to the proceedings.
There is no evidence of the financial circumstances of either of the parties.
Neither party has asserted that he or she is in receipt of assistance by way of legal aid.
The maters in paragraphs 117(2A)(d) to (f) are irrelevant.
There is no other relevant matter under paragraph 117(2A)(g).
I am satisfied that the Respondent should pay the Applicant’s costs thrown away as a result of his failure to seek an adjournment when he failed to attend Court on 3rd November 2010.
There are no circumstances justifying a departure from the rule that costs should be assessed on a party and party basis.
The Applicant has prepared an assessment of her costs on an indemnity basis, that is, on the amount she was actually charged by her solicitor and counsel. For 3rd November 2010, the Applicant claims the following:
·Solicitor’s costs $2,509.10
·Counsel’s fees (half day) $2,000.00
·Disbursement, witness expense $1,270.00
TOTAL $5,779.10
Costs will be assessed according to Schedule 1 of the Rules. The Schedule allows:
·Preparation for each additional hearing day $1,098.00
·Daily hearing fee (instructing solicitor) $1,942.00
·Counsel (half day, including advocacy loading) $1,456.00
·Travelling for solicitor from Wollongong $546.00
·Disbursement, witness expense $1,270.00
TOTAL $5,766.00.
Accordingly, the Respondent will be ordered to pay the Applicant’s costs of the day in the sum of $5,766.00.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 6 December 2012
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