Mulligan and Teale (No.2)
[2015] FCCA 1966
•24 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MULLIGAN & TEALE (No.2) | [2015] FCCA 1966 |
| Catchwords: FAMILY LAW – Costs – where an application for a de facto property settlement was dismissed after a jurisdictional hearing – respondent seeks costs – order made that the applicant pay the respondent’s costs in accordance with scale in Schedule 1 of the Federal Circuit Court Rules. |
| Legislation: Federal Circuit Court Rules 2001, Schedule 1 |
| Applicant: | MR MULLIGAN |
| Respondent: | MS TEALE |
| File Number: | NCC 2372 of 2014 |
| Judgment of: | Judge Terry |
| Hearing date: | 24 June 2015 |
| Date of Last Submission: | 24 June 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 24 June 2015 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Routh |
| Solicitors for the Applicant: | Bale Boshev Lawyers |
| Solicitor Advocate for the Respondent: | Mr Fryatt |
| Solicitors for the Respondent: | Stacks The Law Firm |
ORDERS
The Applicant pay the Respondent’s costs in the amount of $17,682.46.
The Applicant shall have until 5.00pm on 24 June 2016 to pay the Respondent’s costs.
IT IS NOTED that publication of this judgment under the pseudonym Mulligan & Teale (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT NEWCASTLE |
NCC 2372 of 2014
| MR MULLIGAN |
Applicant
And
| MS TEALE |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I delivered judgment yesterday in a de facto property matter. I found that I was not satisfied on the balance of probabilities that a de facto relationship existed between the applicant and respondent on or after 1 March 2009. I therefore held that this court had no jurisdiction to hear the applicant’s property claim and I dismissed his application.
Following the delivery of the decision, the respondent’s solicitor made an application for costs and consideration of that application was adjourned to today.
The respondent’s solicitor seeks an amount of $18,265.00 which is calculated in accordance with the scale in the Federal Circuit CourtRules 2001 which is the appropriate way to deal with the matter.
The applicant opposes the application for costs.
S. 117 of the Family Law Act 1975 provides that parties to proceedings in this court are to bear their own costs.
S. 117(2) provides however that the court can make an order for costs if it considers that the circumstances justify it doing so and in considering what order if any to make about costs the Court must have regard to the matters in s. 117(2A) of the Family Law Act 1975.
The first matter in s.117 (2A) is the financial circumstances of each of the parties to the proceedings.
The respondent is in receipt of a Disability Support Pension. She owns the property on which she lives in (omitted) near (omitted) but her only income is the Disability Support Pension. She has not filed a financial statement but the information which emerged during the hearing suggests that she would have few other assets. She would have household effects.
The applicant is also not in a particularly strong financial position. According to his financial statement he is earning $600.00 a week which equates to about $31,200.00 per annum. He disclosed to having few other assets and he has almost no superannuation. This is not a case where the difference in the party’s financial circumstances alone would justify a costs order but the fact that one party is not in a strong financial position does not mean that costs cannot be awarded against them.
I must consider whether any party was in receipt of legal aid and neither party was.
I must consider the conduct of the parties in relation to the proceedings. No submissions were made to me to the effect that this was relevant.
I must consider whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court and that is not the case here.
I must consider whether any party to the proceedings has been wholly unsuccessful in the proceedings.
This is an important consideration because this was an all or nothing case and the applicant was wholly unsuccessful.
The CCH commentary outlines the fact that in most jurisdictions costs follow the event and the successful party in proceedings normally gets their costs. The commentary points out that often in family law property and parenting cases, it is not quite that simple because the Court has to decide not, for example, whether a debt is owed or whether it isn’t or whether the Court has jurisdiction or whether it doesn’t, it has to decide whether in the exercise of its discretion it should make certain orders. The decided cases point out that both parties can both have legitimate arguments about how discretion should be exercised, that neither is necessarily wrong and that the Court simply has to exercise its discretion and make a decision.
This case though was not that kind of case. It was an all or nothing case and the CCH commentary goes on to say:
Where, however, a court comes to the conclusion that the applicant really was entitled all along to the orders sought and the defence has been substantially without merit, there would seem to be little reason why the ordinary rules about costs following the event should not apply.
This particular case was all or nothing and the respondent has succeeded. The applicant has failed, not because of any exercise of discretion but because the Court determined that the applicant had not made out his case and if you look at a corollary to that costs orders are routinely made in appeals in the basis that one party has been wholly unsuccessful and it can only be on the same basis. People run their arguments, they take their chances and if they are unsuccessful they unsuccessful costs follow the event.
In my view that is a significant issue in this particular case.
I then have to consider whether either party to the proceedings has made an offer in writing to the other party to settle the proceedings.
Prior to the trial commencing the respondent made an offer to the applicant to the effect that if the applicant would agree to withdraw his application the respondent would not seek costs. It was not a proposal that the applicant receive anything in monetary terms. It was simply an offer not to seek costs if the applicant agreed to withdraw his application.
In my view the significance of that offer is not so much in terms of the way an offer would usually be significant, rather it is significant in terms of the weight I should give the preceding subsection, namely, whether any party to the proceedings has been wholly unsuccessful in the proceedings.
What that offer did was reinforce to the applicant that the respondent would seek costs if he proceeded with his claim and was unsuccessful. He chose to ignore that and continued and he was ultimately unsuccessful.
The court has to take into account any other matters the Court considers relevant but there are none in this case.
Conclusion
I accept that the applicant is not in a strong financial position.
I accept that he may have some difficulty paying the costs and may need some time to pay them.
Neither of those things is a reason though not to order costs.
The applicant was wholly unsuccessful in the proceedings. It is akin to an appeal in my view. He was put on notice by the respondent that she would be seeking costs if the matter proceeded and he was unsuccessful. The respondent gave him an opportunity to withdraw before the matter reached that point. He declined to do so.
In my view in all the circumstances of this case it is appropriate to make an order that the applicant pay the respondent’s costs.
I can give some consideration to the applicant’s financial circumstances by giving him time to pay.
The quantum of costs
After considering the scale I intend to order that the Applicant pay the Respondent’s costs fixed at $17,682.46 and that he have twelve months to pay the course.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 21 July 2015
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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