Rattray & Macauley (No 2)
[2023] FedCFamC2F 1390
•30 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rattray & Macauley (No 2) [2023] FedCFamC2F 1390
File number(s): PAC 2013 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 30 October 2023 Catchwords: FAMILY LAW – Property – Costs of third party in defending a joinder application – Costs order made. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.01
Division: Division 2 Family Law Number of paragraphs: 22 Date of last submission/s: 5 September 2023 Date of hearing: In Chambers Place: Parramatta Solicitor for the Applicant: Coutts Solicitors & Conveyancers Solicitor for the Respondent: Swaab Attorneys ORDERS
PAC 2013 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS D
Applicant
AND: MS MACAULEY
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 OCTOBER 2023
THE COURT ORDERS THAT:
1.The wife pay Ms D’s costs in the sum of $3,731 within three months of the date of this Order.
2.The Application in a Proceeding filed on 31 July 2023 by Ms D is otherwise dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION AND BACKGROUND
This is the determination of an application for costs by Ms D, the partner of the husband, against the wife; the detail of such application is set out in her Application in a Proceeding filed 31 July 2023. This application is opposed by the wife.
At the outset of the first day of the final property hearing between the husband and wife being 24 July 2023, Ms D successfully opposed an Application in a Proceeding filed by the wife on 14 July 2023 to belatedly join her to the (now finalised) property proceedings.
By way of consent orders made on 29 August 2023, it was agreed that for the purposes of this costs application, the Court could make its determination based upon the written material and related submissions submitted to the Court by Ms D and the wife in the absence of the parties.
Ms D relied upon the material set out and referred to in her written submissions as to costs. The wife relied upon the material set out and referred to in her written submissions as to costs.
The Court refers to and adopts, for the purposes determining this costs application, the content of its written reasons for judgment in relation to the finalised property proceedings dated 11 August 2023 at paragraphs 1 to paragraphs 13, and the documentary material referred to in those paragraphs, including the wife’s solicitor’s affidavit filed 14 July 2023 and the husband’s affidavit filed 17 July 2023.[1]
[1] Rattray & Macauley [2023] FedCFamC2F 1011.
RELEVANT LEGAL PRINCIPLES
The Court refers to section 117 of the Family Law Act 1975 (Cth) (“the Act”) in relation to Ms D’s costs Application.
Under subsection (1) of s 117, each party to the proceedings bears his or her own costs subject to, inter alia, subsection (2) of s 117. The Court refers to subsections (2) and (2A) of s 117.
Section 117(2) provides:
(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), (5) and (6) 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.
Section 117(2A) provides:
(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.
DISCUSSION
The Court has had regard to all relevant considerations under s 117(2A) of the Family Law Act 1975 (Cth). The Court has had regard to all the above documentary material in this respect.
The Court maintains its view that the application by the wife to join Ms D was without merit and, again, the Court refers to the content of its written reasons for judgment, as described above. The two elements of r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 were not satisfied by the wife in seeking to join Ms D to the property proceedings. Ms D was wholly successful in opposing the application to join her to the property proceedings.
The Court has had regard to the financial circumstances of Ms Ms D, including the content of her Financial Statement filed 4 September 2023. The Court observes from that Financial Statement that her average weekly expenses exceed her average weekly income whilst observing that she has fairly modest credit funds in ANZ, W Bank and P Bank accounts.
The Court has had regard to the financial circumstances of the wife, including the content of her Financial Statement 9 March 2023, including her statement that her average weekly expenses are roughly the same as her weekly income. She states in that Financial Statement that she has personal liabilities to specific persons in the sum of about $31,000 and utility debts of $3,020.
The Court takes into account the wife’s assertions as to her parlous mental health, whilst observing that she has been able to give instructions to her solicitors for the preparation of material on her behalf to oppose the within application for costs.
The Court takes into account from the wife’s affidavit filed 4 September 2023 that it appears unclear as to whether she will be able to refinance the mortgage loan on the subject property at Suburb C, and the Court refers to paragraph 20 of that affidavit.
Taking into account the above matters, it will be just to make an order for costs in favour of Ms D. In the view of the Court, the material before it does not justify an order for indemnity costs. It is appropriate so as to avoid prolongation of these ancillary costs proceedings that the Court proceed to assess costs itself on a party/party basis. The Court would observe that Ms D’s legal representatives reasonably were required, to meet the wife’s joinder application, to interview Ms D and the husband, and take instructions from them in relation to the wife’s Application in a Proceeding and the supporting affidavit of the wife’s solicitor Mr Gannon filed 14 July 2023. It would appear reasonable that junior counsel was briefed to appear on 24 July 2023 to oppose the joinder application, which was listed on 24 July 2023 at 9.30 am, with the final hearing listed to commence at 10.00 am the same day. The joinder application was unsuccessful and junior counsel’s appearance was ultimately contained within two hours. It is readily apparent that had the joinder application been successful, there was a significant chance if not a likelihood that the final property hearing would have been adjourned to have permitted, inter alia, a valuation of the Town F property, and accordingly the appearance of junior counsel on behalf of Ms D would have been necessarily limited in any event.
In relation to costs on a party/party basis, Ms D’s solicitors claim that her scale costs including counsel fees amount to $16,061.89 being $10,210.84 for lawyer’s fees and $5,851.05 for counsel’s fees (see Annexure B to the Applicant’s Written Submissions filed 4 September 2023). The Court observes that such costs have apparently been calculated pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
The wife’s solicitor proposes that party/party costs, if ordered by the Court, be limited to $2,500 or calculated “to scale” (see paragraph 12 of the Respondent’s Written Submissions filed 5 September 2023).
Rule 12.17 of the Rules permits the Court to order costs, inter alia, as assessed in accordance with Schedule 3. In circumstances where Schedule 3 applies to Division 1 proceedings, the Court in Division 2 proceedings has a discretion, pursuant to r 4.01 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“the Division 2 rules”), to apply the scale of costs either at Schedule 3 of the Rules or at Schedule 1 of the Division 2 rules.
The Court is satisfied that it is appropriate to apply the scale of costs at Schedule 1 of the Division 2 rules, that scale better reflecting the complexity of the meeting the wife’s joinder application.
In circumstances where the Applicant opposed an Application in a Proceeding filed by the wife on 14 July 2023 she should be entitled to:
Item 3 Opposing an application for interlocutory orders Both:
(a) $1,964; and
(b) $1,178 (half day hearing)Item 14 Advocacy loading $589 (50% of $1,178) Total $3,731
In the above circumstances (with the Court also dismissing Ms D’s application for costs of her costs application because, by reference to the above paragraph, the Court has, inter alia, allowed a “half day hearing” when the joinder application was heard in significantly less than half a day), the Court fixes the costs recoverable by Ms D as $3,731. The wife should have three months to pay this sum.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 30 October 2023
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