Peterson & Davis and Ors
[2020] FamCA 994
•27 November 2020
FAMILY COURT OF AUSTRALIA
Peterson & Davis and Ors (No. 2) [2020] FamCA 994
File number(s): PAC 1208 of 2016 Judgment of: FOSTER J Date of judgment: 27 November 2020 Catchwords: FAMILY LAW – COSTS – Where application for costs arising from adjournment of final hearing – Where little had been done by or on behalf of the first respondent to prepare the matter for hearing – Order made that the first respondent pay the costs of the applicant and second respondent. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Collins and Collins (1985) FLC 91-603
Greedy and Greedy (1982) FLC 91-250
Hawkins & Roe (2012) 47 Fam LR 526
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka v Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311
Peterson & Davis and Ors [2020] FamCA 723
Number of paragraphs: 21 Date of last submission/s: 31 August 2020 Date of hearing: 10 and 11 August 2020 Place: Parramatta Counsel for the Applicant: Mr George Solicitor for the Applicant: Williamson & Learmonth Solicitors Counsel for the First Respondent: The First Respondent appeared in person Solicitor for the First Respondent: Ms Hitchen of Adams & Partners Lawyers Counsel for the Second Respondent: Mr Marshall SC and Mr Eardley Solicitor for the Second Respondent: Mercantile Legal Services Counsel for the Third Respondent: Mr Allen Solicitor for the Third Respondent: McEvoy Legal Counsel for the Fourth Respondent: Mr Allen Solicitor for the Fourth Respondent: McEvoy Legal ORDERS
PAC 1208 of 2016 BETWEEN: MS PETERSON
Applicant
AND: MR DAVIS
First Respondent
MR CUSSON
Second Respondent
MR B DAVIS
Third Respondent
(and others named in the Schedule)
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
27 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The first respondent Mr Davis pay the costs of the applicant and second respondent being costs thrown away by reason of the adjournment of the hearing of these proceedings on 11 August 2020 with the quantum of such costs to be as agreed between the parties within 14 days from this date or otherwise as assessed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peterson & Davis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
The application for determination is an application in relation to costs arising from the adjournment of the final hearing of property proceedings involving the various parties in this matter that were listed for final hearing for four days commencing 10 August 2020. The background circumstances relating to the vacated hearing and the order adjourning the proceedings was the subject of reasons for judgment delivered 1 September 2020: Peterson & Davis and Ors [2020] FamCA 723.
As a consequence of the adjournment of the proceedings in circumstances more fully set out in those reasons for judgment, orders were made that the issue as to costs thrown away by reason of the adjournment be reserved. The applicant, the second respondent and third and fourth respondents were ordered to file any submissions seeking an order for costs thrown away by no later than Friday, 28 August 2020.
The first respondent was ordered to file and serve any submissions in response by no later than 11 September 2020.
Submissions were received on behalf of the second respondent trustee in bankruptcy on 28 August 2020 together with an affidavit by his solicitor as to quantum. Submissions were received from the applicant on 27 August 2020.
Submissions were received from the third and fourth respondents being the parents of the first respondent on 31 August 2020. Those submissions were received out of time and will not be considered in circumstances where there was no application to chambers for any extension of time.
Costs
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relevantly, in these proceedings, relate to the following:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party has legal aid and the terms of any grant of aid;
(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 answers, 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.
In Collins and Collins (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.
In Greedy and Greedy (1982) FLC 91-250 and Luadaka v Luadaka (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
Later the Full Court in Hawkins & Roe (2012) 47 Fam LR 526 said:
17. With respect to the application of the section, in Penfold and Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
18. The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) which states:
19.18 Method of calculation of costs
(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
It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162, that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the court said at [10] that the court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.
Murphy J said in Parke & the Estate of the Late A Parke (2016) FLC 93-748:
130. If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
It is readily apparent from the reasons for judgment referred to above that little had been done by or on behalf of the first respondent to prepare the matter for hearing notwithstanding that the first respondent had only been incarcerated a short time before the scheduled commencement of the four day trial.
Otherwise, the first respondent’s legal representatives that appeared on the first day of the trial clearly had instructions only to seek an adjournment and they later withdrew from the proceedings in circumstances more fully set out in the reasons for judgment referred to.
In all of the circumstances of this matter, it is appropriate that there be an order that the first respondent pay the costs of the applicant and second respondent being costs thrown away by reason of the adjournment of the hearing.
Notwithstanding short submissions from the applicant and the second respondent as to quantum, in all of the circumstances, it is appropriate that costs thrown away be assessed in the normal way.
Orders will be made accordingly.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 27 November 2020
SCHEDULE OF PARTIES
PAC 1208 of 2016 Respondents
Fourth Respondent:
MS DAVIS
0
4
2