Pencious & Pencious (No 2)

[2013] FamCA 748

FAMILY COURT OF AUSTRALIA

PENCIOUS & PENCIOUS (NO 2) [2013] FamCA 748

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Pencious

RESPONDENT: Mr Pencious

FILE NUMBER: MLC 11069 of 2008

DATE DELIVERED: 3 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyers

SOLICITOR FOR THE RESPONDENT: Altona Legal

Orders

1. That the Registrar assess the costs pursuant to the orders made 5 April 2012 according to the ruling this day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Pencious has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11069  of 2008

Ms Pencious

Applicant

And

Mr Pencious

Respondent

REASONS FOR JUDGMENT

1. As a result of the orders I made on 29 August 2013, each of the husband and wife provided written submissions. The wife’s was drawn and signed by Mr Wood of Counsel and the husband’s by his solicitor Mr Canals.

2. In the August reasons, I described the issue which gave rise to the referral by a registrar as follows:

   By a letter dated 27 August 2013, the Registrar wrote to me saying that a “question” had been raised by the legal practitioner for the husband as to the scope of the order. I have inferred from the letter that the “question” is whether the order relates only to the hearing days (in total 6) or includes the various things that go towards proceedings relating to the hearing days.

3. I am not sure where the confusion came from which gave rise to the registrar’s request because of the following matters.

4. In her submissions, the wife through her counsel wrote:

   It appears that the husband’s position is that the costs order only relates to the costs of the hearing itself with respect to the application. On this basis, it is suggested by the husband that the wife is not entitled to any costs incurred by her in relation to the application prior to the commencement of the hearing.

   It is submitted that paragraph 1 of the costs orders could not be cast in wider terms. Indeed, on its face, paragraph 1 of the costs orders would indicate that the wife is entitled to all costs which have been incurred by her prior to the making of the order, regardless of whether they relate to the application or otherwise. This was obviously not the intention of the order. The wife accepts that the costs which are governed by the costs orders are those with respect to the application. (emphasis added)

5. Counsel submitted that the intention was to make an order for the costs relating to the discrete application. Further, to the extent there was a problem, it could be cured by the use of the “slip rule”.

6. My understanding of the registrar’s request was that the husband was saying that the only costs ordered related to the days of the actual hearing. In his solicitor’s submission, the following was written:

   (i)The husband submits that the Costs Order of Justice Cronin dated 5 April 2012 relates solely to the discrete issue of the application to restrain the wife’s solicitors from acting.

   (ii)The said order does not relate to parenting and property issues.

   (iii)The Respondent’s application for costs was made solely in relation to the issue of restraining the wife’s solicitors from acting. Written submissions on behalf of the wife and dated 9 March 2012 expressly seek to rely, at par 8(e) inter alia, on the discrete nature of this issue and seek to distinguish other litigation between the parties. (emphasis added)

7. There is therefore no dispute here and no need for an amendment to the orders. The parties agree that the costs are to be assessed in relation to the discrete proceedings about the restraint of the wife’s solicitors.

8. If the husband was suggesting that the costs only related to the relevant days of the hearing about the issue, that was not correct nor what the parties would now seem to be saying in the submissions received.

9. The registrar should assess the costs on the basis of the discrete application including all relevant attendances associated with it.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 October 2013.

Associate:

Date:  3 October 2013