RIDDICK & RUDD

[2019] FamCA 518

FAMILY COURT OF AUSTRALIA

RIDDICK & RUDD [2019] FamCA 518

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – leave granted to the husband to apply out of time for review of orders made by a Deputy Registrar of the Family Court – where orders made by the Deputy Registrar inter alia for indemnity costs against the husband – orders made for husband to pay party/party costs – application for review otherwise dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004

Frost (Deceased) & Whooten (2018) FLC 93-860
Kohan & Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784

APPLICANT: Mr Riddick

RESPONDENT: Ms Rudd

FILE NUMBER: MLC 5036 of 2018

DATE DELIVERED: 12 June 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 27 May 2019

APPEARANCES

SOLICITOR FOR THE APPLICANT: KCL Law

COUNSEL FOR THE APPLICANT: Mr Schmidt

THE RESPONDENT: In Person

Orders

1. The time for the husband to file his Application in a Case for review of the orders made by Deputy Registrar Sudholz on 13 March 2019 be extended to 2 May 2019.

2. Paragraph 1(a), (c) and (d) of the orders made by Registrar Sudholz on 13 March 2019 be discharged.

3. By 4.00pm on 12 July 2019 the husband pay the wife’s costs of the Case Assessment Conference on 31 July 2018 on a party/party basis fixed in the sum of $246.33.

4. By 4.00pm on 12 July 2019 the husband pay the wife’s costs of an incidental to his request to change the date of the Directions Hearing on a party/ party basis  fixed in the sum of $224.06

5. The time for the husband to pay the wife’s costs of the telephone mention on 20 August 2018 fixed in the sum of $164.24 pursuant to paragraph 1(b) of the orders made by Registrar Sudholz on 13 March 2019 be extended to 4.00 pm on 12 July 2019.

6. By 4.00pm on 12 July 2019 the husband pay the wife’s costs of the preparation of her costs submissions filed 2 October 2018 on a party/party basis fixed in the sum of $1,707.

7. By 4.00 pm on 12 July 2019 the husband pay the wife’s costs of and incidental to the husband’s application for review of the orders made by Registrar Sudholz on 13 March 2019 on a party/party basis fixed in the sum of $4,485.

8. The husband’s Application in a Case filed 16 April 2019 and Application in a Case filed 2 May 2019 and the wife’s Response to an Application in a Case filed 23 May 2019 be otherwise dismissed and removed from the list of cases awaiting hearing.

9. All extant applications be adjourned to a Registrar’s Directions Hearing List at 9.30 am on 7 August 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC5036 OF 2018

Mr Riddick

Applicant

And

Ms Rudd
Respondent

REASONS FOR JUDGMENT

1. The parties in this case were in a de facto relationship for some 20 years and there are two children of that relationship. I propose in these reasons to refer to the parties as husband and wife. On 9 May 2018 the wife filed an Initiating Application seeking parenting and property orders on both an interim and final basis. I will refer in more detail in the course of these reasons to the history of the proceedings since the wife filed that application, as it is that history that ultimately lead to the wife’s application for an order that the husband pay her costs.

2. On 13 March 2019 Registrar Sudholz made the following orders:

   The application for costs by the Applicant as set out in the written submissions filed 2 October 2018 is granted as follows:

   a)Within 30 days of the date of these orders the Respondent pay the indemnity costs of the Applicant fixed in the sum of $500, with respect to the Case Assessment Conference listed on 31 July 2018.

   b)Within 30 days of the date of these orders the Respondent pay the costs of the Applicant fixed on the scale in the sum of $164.24, with respect to the telephone mention listed on 20 August 2018.

   c)Within 90 days of the date of these orders the Respondent pay the costs of the Applicant fixed on the scale in the sum of $788.38, with respect to the Directions Hearing listed on 5 September 2018.

   d)Within 120 days of the date of these orders the Respondent pay the indemnity costs of the Applicant fixed in the sum of $3,712.50, with respect to the preparation of submissions as to costs.

3. On 9 April 2019 the de facto husband attempted to file an application for a review of those orders for costs.  That application was not accepted on the basis that it had not been filed within the prescribed period. The husband thereafter filed an application seeking to review the Registrar’s refusal to accept his application for review and ultimately amended his application to seek leave out of time to review the Registrar’s decision.

4. Albeit that counsel for the wife indicated that he would not take issue with the husband being granted leave to apply out of time for a review some time was taken up during the hearing with the question of firstly whether the decision was one made by a Deputy Registrar or a Registrar and accordingly how long the husband had to file his application for a review.   

5. In the submissions made on behalf of the wife in support of her various applications for costs and the husband in his oral submissions before me reference was made to r 11.02(2) of the Family Law Rules 2004 (Cth) (“the Rules”) which provides that if a party does not comply with the Rules, the regulations or a procedural order the court may inter alia make an order for costs. The husband in my view incorrectly interpreted this as conferring the power upon the Registrar to order costs. That power is conferred upon the court or as was the case when the orders the husband now seeks to review were made the Registrar or Deputy Registrar by s 117 of the Family Law Act 1975 (Cth) (“the Act”).

6. The husband was further confused by Division 18.1.3 of the Rules which delegates particular powers to Registrars and Deputy Registrars and in particular it was his submission that Table 18.2 of the Rules which sets out particular powers which have been delegated to Registrars did not include r 11.02(2) of the Rules whereas Table 18.5 which sets out in r 18.06 of the Rules the powers under the Rules delegated to Deputy Registrars does include the powers in r 11.02(2) of the Rules. It was his submission that if Registrar Sudholz was a Registrar rather than a Deputy Registrar as she is described on the orders themselves, she did not have the power to make the orders. This also lay at the heart of the dispute as to whether or not the husband’s application for review was made out of time as an application for the review of a decision of a Deputy Registrar must be filed within seven days whereas an application to review the decision of a Registrar must be filed within 28 days.

7. To be fair to the husband and although nothing ultimately turns on the point the position with respect to the roles of and powers delegated to Registrars and Deputy Registrars can be confusing. Pursuant to s 38N of the Act Registrars and Deputy Registrars are officers of the court. Pursuant to ss 37A and 123 of the Act the majority of the judges have delegated to Registrars (or referred to operationally by the Court) and Deputy Registrars (or referred to operationally by the Court as Registrars) the powers that are set out in Division 18.1.3 of the Rules. That delegation is subject to an arrangement pursuant to s 37B(2) of the Act which provides that the Senior Registrars named in Schedule 1 may exercise all of the powers and functions set out in Schedule 3 and Schedule 4 of the Rules. The powers and functions in Schedule 3 are those in Table 18.2 and 18.3 and those in Schedule 4 are set out in Table 18.4 and 18.5. Rule 18.06 provides that the powers of the Court set out in Tables 18.4 and 18.5 of the Rules are delegated to each Deputy Registrar (or Registrar as referred to operationally by the Court).

8. What this means is that both Registrars and Deputy Registrars have been delegated the powers in r 11.02(2) of the Rules albeit the time for applying to review the decision will depend upon whether it was a Registrar or a Deputy Registrar exercising the power. Registrar Sudholz is a Deputy Registrar under the Rules and the husband should have filed his application for review of her orders made 13 March 2019 within seven days from the date of the order pursuant to r 18.08 of the Rules. The wife took no issue with the husband filing his application out of time however and I intend to extend the time for him to file his application for review.

9. A party has an automatic right of review and that review is a hearing de novo. On that basis the wife is the applicant. The wife did not seek orders in terms of her application for costs it was instead her case that the husband’s application for review should be dismissed leaving in force the orders made by Deputy Registrar Sudholz on 13 March 2019.

Legal Principles

1. The general rule is that parties to proceedings in this Court shall each bear their own costs unless there are circumstances which justify the Court departing from that general rule. In determining what if any order it should make the Court must consider the matters in s 117(2A) of the Act.

2. The general rule when the court makes an order for costs is that those costs are payable on a party/party basis. Although the court does have the power to make orders for the payment of costs on an indemnity basis it is well settled as referred to in Kohan & Kohan (1993) FLC 92-340 at page 79,614 (“Kohan”) that the Court “…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”.

3. Some of the matters in s 117(2A) of the Act are common to each of the wife’s applications. In particular s 117(2A)(a) of the Act which requires the court to consider the financial circumstances of each of the parties.

4. Both parties have filed Financial Statements. The wife describes herself as a freelance worker and deposes to an average weekly income of $1,591 per week. That is made up of $220 from employment, $233 New Start Allowance, Carers Allowance of $63, Family Assistance of $970 which she receives from her mother, father and uncle to help her support herself and the children who are in her primary care. The description of the monies the wife receives from family members suggests that these are gifts rather than income. The wife deposes to having expenses of $1,710. There is nothing out of the ordinary about these expenses which appear to be for the day to day support of herself and the children. Although reference is made in both the submissions made on behalf of the wife and the husband in relation to the wife having a period of casual employment this is not in evidence. The wife deposes to having property with a gross value of approximately $773,000 the bulk of which is made up of her 25 per centum interest in the property at G Street., Suburb C (“the former matrimonial home”).

5. The husband is a professional and according to his Financial Statement earns $742 per week gross. He deposes to weekly expenditure of $501.64. He owns property with an estimated value of $1,857,963 and has liabilities of $47,936. These figures did not include any of his fees that are outstanding. The bulk of the husband’s property is also attributable to his interest in the former matrimonial home.

6. Although the wife has minimal income that of itself would not warrant the court making an order for costs in her favour. The husband is also not a high income earner however although his income is modest that of itself does not preclude the court making an order requiring him to pay the wife’s costs if there are circumstances which otherwise lead the court to conclude an order should be made. The wife’s submissions referred me to various authorities in support of this proposition. The husband did not point me to any authority which suggests to the contrary. The cases relied upon by the wife are authority for the proposition that a parties impecuniosity is not a bar to an order for costs and I am satisfied that the husband’s financial circumstances, however modest, do not militate against an order for costs.

7. Neither party in this case is in receipt of legal aid. In so far as the husband submits that the wife should or would be eligible for legal aid this is at best speculation.

8. In this case there have also not been any written offers which are relevant for the purposes of the matters I must determine.

Costs of The Applicants Solicitors Attendance At Case Assessment Conference

1. The wife’s Initiating Application filed 9 May 2018 was set down for a Case Assessment Conference on 31 July 2018. Pursuant to r 9.08(1) of the Rules the husband was required to file his Response to an Initiating Application at least seven days prior to the Case Assessment Conference. Rule 13.05 of the Rules provides that a party filing a Response to an Initiating Application in a financial case must file a Financial Statement at the same time. The husband acknowledged that that application was served upon him on 29 May 2018. The husband does not dispute that he did not file either a Response or a Financial Statement prior to the Case Assessment Conference.

2. In his Affidavit filed 20 November 2018 the husband deposed at paragraph 24 and 25 as follows:

   I have never been involved in the filing of documents in the Family Court and Federal Circuit Court. I was aware that I was required to a (sic) Response to the Initiating Application (“the Response”). I undertook filling out the Response. Both the uncompleted affidavit and response were stored on my computer. I had not saved them elsewhere. 

   As deposed in paragraph 18 of the first affidavit on 13 July my computer stopped working. I took it to D Shop, a computer repair shop in B Street. I was later told that it could be fixed. I was not able to pick it up until 24 July. As I was told it could be fixed I determined that there was little point starting again the preparation of the documents, in particular the affidavit as I could not recall the contents word for word.

3. The Deputy Registrar in her reasons referred to the husband having prepared, although not filed, a Response and affidavit in support seeking to oust the jurisdiction of the court on the basis that the Section 60I certificate should not have been issued. It is clear that the affidavit the husband was referring to was the affidavit he was preparing in support of that application. In his Affidavit filed 20 November 2018 the husband deposed at paragraph 20 as follows:

   Subsequent to receipt of the documents on 29 May I was focused on the issue of FDR. I was willing to participate in FDR. For that reason I focused on the preparation of an affidavit on the matter. I did so in an effort to articulate that willingness and to contest the validity of issuing of the 60I certificate by Ms E.

4. There are a number of issues with this aspect of the father’s case which he agitated in the hearing before me. Firstly as submitted by counsel for the wife if there was an issue with the Section 60I certificate his complaint was with Ms E and not the wife. Secondly if the husband had taken the time to read the Family Law Act 1975 (Cth) he would have understood that the lack of a Section 60I certificate or any issue with the issue of the certificate would not impact upon the court’s power to make orders or the validity of any orders it might make (s 60I(11) of the Act). Nor does it explain why he focused on this aspect of the case rather than responding to the wife’s application or filing a Financial Statement as the Rules required him to do. Even if he wanted to pursue this aspect of his case he could have done that and also complied with the Rules.

5. The husband further submitted that the fact that the Case Assessment Conference did not commence was not solely attributable to him as it was the Deputy Registrar conducting that conference who decided that it could not proceed before the wife had even arrived. This submission ignores the underlying purpose of the Rules. In my view even if the Deputy Registrar did cancel the conference before the wife arrived she was entitled to do so in circumstances where the husband had failed to comply with the Rules and had not filed any documents. In particular he had not filed a Financial Statement which his obligation to provide full and frank disclosure requires him to do. This is a document the Deputy Registrar requires in order to assess the case in a meaningful way and the wife is entitled to know not only what case she is expected to meet and is also entitled to have a sworn Financial Statement setting out the husband’s financial circumstances. In my view neither the Court nor the wife should be required to conduct or participate in a Case Assessment Conference absent the documents the Rules required the husband to file. Significantly in so far as the husband claimed as a litigant in person not to understand his obligations pursuant to the Rules on the last page of the wife’s Initiating Application there is a document titled “IMPORTANT NOTICE TO RESPONDENT(S)” which sets out what he was required to do and where he could get the forms he was required to complete, file and serve.

6. Albeit that the husband referred generally in his oral submissions to how difficult it was for him to complete his Financial Statement I note that he had almost two months in which to do so. The husband submitted that although he is a Professional working at the F Organisation this is not a jurisdiction he is familiar with and he blamed his failure to comply with the Rules upon his ignorance of the procedures in this Court. In my view this does not adequately explain his failure to file the documents he was required to file. One would assume that if the husband were briefed to appear in an unfamiliar jurisdiction he would do the research necessary to prepare himself for that appearance. In my view the husband in this case knew more than most litigants representing themselves in proceedings and would understand the need to familiarise himself and comply with any requirements of the Act and/or the Rules.

7. Finally the husband also submitted that as there were no proceedings prior to 31 June 2018 and there being no proceedings there therefore could be no order for costs. That is not the case. Proceedings are defined in s 4(1) of the Act as “a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding”.  As stated by the Full Court in Frost (Deceased) & Whooten (2018) FLC 93-860 a case is started when the requisite application is filed.

8. The Deputy Registrar fixed and reserved the wife’s costs of the Case Assessment Conference when that conference was unable to proceed. She fixed those costs in the sum of $500. The costs were fixed on an indemnity basis and the Deputy Registrar ultimately ordered those costs on an indemnity basis.

9. I am satisfied that there are circumstances justifying a departure from the general rule that each party bear their own costs of proceedings in this Court. However this was to be the parties first court event and I am not satisfied that the circumstances at this stage of the proceedings were of the exceptional kind that are required if the court is to order costs on an indemnity basis.  In all of the circumstances I propose to order that the husband pay the wife’s costs thrown away on a party/party basis. I note that the scale costs for one hour would be $246.33 and I propose to order accordingly.

Costs of The Telephone Mention

1. When the Case Assessment Conference did not proceed the Deputy Registrar adjourned all extant applications to the Registrar’s Directions Hearing List at 9.30am on 5 September 2018. The husband was present at Court when those orders were made. Later that same day the husband contacted the Court by email seeking to change the date of the directions hearing on the basis that he had prior work appointment on 5 September 2018. When the Case Coordinator ascertained that the husband was appearing in a matter unrelated to the proceedings in this Court the husband was advised that he would need to seek the wife’s consent to an adjournment.

2. On 10 August 2018 the husband emailed the wife’s solicitor requesting the wife’s consent to an adjournment of the hearing on 5 September 2018. On 15 August 2018 the wife’s solicitor informed the husband that they would respond to his request shortly.

3. On 16 August 2018 the wife’s solicitor contacted the Case Coordinator seeking a telephone mention so as to ascertain whether another date could be accommodated “without any excessive delay”. The husband was advised by email that the matter would be listed for a telephone mention at 2.30 pm on 20 August 2018 and the parties were requested to provide a contact telephone number. The wife’s solicitor responded to the Court by email copying the husband into that email and advised the Court of his preferred contact number. The husband did not respond.

4. On 20 August 2018 the Deputy Registrar telephoned the wife’s solicitor who provided her with a mobile telephone number for the husband and left a message. The husband deposed that he did hear the message “much later” albeit he did not make it clear how much later. The husband did explain at some length that he was briefed in a matter at Suburb K Magistrates' Court and that in these circumstances he could not have participated in a telephone mention in any event.

5. In his Affidavit filed 20 November 2018 the husband deposed that he was unaware of the telephone mention on 20 August 2018 and when told about the email sent to him by the Court on 16 August 2018 said he had could not find it in his inbox. His explanation that he “eventually located it some time later underneath another email that come up in a sequence when a particular email is opened” is not a satisfactory explanation. Experience of emails suggests that an email sent to both parties by the Court would be identifiable as having been sent by the Court and even if there had been what is described as a chain of emails it is hard to imagine in circumstances where the husband was seeking an adjournment and as he says waiting for a response to his request from the wife’s solicitor that he would not have carefully read an email from the wife’s solicitor.  I note that the husband did not annex to his Affidavit any evidence of the emails he said he received. I am satisfied on the balance of probabilities that the husband was aware of the telephone mention and instead prioritised the brief he had accepted at the Magistrates’ Court at Suburb K.

6. The husband also submitted that the purpose of the telephone mention was unclear and unnecessary in the circumstances where all that was required was for the wife to either consent or refuse her consent to changing the date and he said he had not given up hope of changing the date. I do not agree. In my view the telephone mention was a legitimate response to the husband’s request. 

7. In circumstances where the wife has incurred the unnecessary cost of this wasted telephone mention accommodating the husband’s request for an adjournment I am satisfied that there are circumstances that justify a departure from the general rule that the parties should each bear their own costs.

8. Although the Deputy Registrar acceded to the wife’s application for an order for costs she did not accede to her application that those costs be paid on an indemnity basis. The wife’s case at the hearing before me was that the orders made by the Deputy Registrar should not be varied. She did not in those circumstances pursue her application for indemnity costs. I do not propose to accede to the husband’s application and the order made by the Registrar will remain in force.

Directions Hearing On 5 September 2018

1. The matter was adjourned to the Registrar’s Directions Hearing List on 5 September 2018 by the Deputy Registrar when the Case Assessment Conference could not proceed.

2. The Deputy Registrar in her reasons described that hearing as follows:

   [21] The matter proceeded before me at 9:30am, as the first of nine matters listed to be heard on the morning of 5 September 2018.

   [22] The solicitor for the Applicant Wife handed up proposed orders. It was submitted that the proposed orders were previously provided to the Respondent Husband, however I spent some time going through each order to determine whether any of the proposed orders were to be made by consent.

   [23] After I determined what order were to be made, either by the Court or by the consent of the parties, the solicitor for the Applicant Wife sought to make indemnity costs application by handing up a schedule of costs. The submissions thereafter became loud and hostile. Some discussion was had about the telephone mention, which the Respondent Husband did not attend, although he claimed to be unaware of the listing whatsoever.

3. The Registrar made the following orders:

   IT IS ORDERED THAT

   1.That within 14 days of the date of these Orders, the parties do all such acts and things and sign all such documents that may be necessary to jointly appoint either Q Company, R Company or S Company (“the valuer”) to value the parties home located at G Street., Suburb C (“the valuation”), and the parties each pay one half of the valuer’s costs.

   2.The Applicant file the valuation within 14 days of receipt.

   3.That within 28 days of the date of these Orders, the Respondent provide the Applicant his full and frank disclosure, including but not limited to those documents listed in the Applicant’s solicitors letter to the Respondent dated 15 August 2018 annexed hereto and marked annexure A.

   IT IS ORDERED BY CONSENT

   4.That the Financial Statement filed by the Respondent on 23 August 2018 shall not be relied upon in these proceedings and within 7 days of the date of these Orders the Respondent file a Financial Statement sworn in accordance with section 98AB of the Family Law Act1975.

   IT IS ORDERED THAT

   5.That within 7 days of the date of these Orders, the Respondent file an Amended Response to Initiating Application (if any) particularising the Final Orders that he seeks in compliance with Rules 4.01 of the Family Law Rules 2004.

   6.That the matter be listed for a Conciliation Conference before Registrar Sudholz on 28 November 2018 at 11:00am.

   7.That within 28 days the Applicant file and serve submissions with respect to costs on the scale sought by her.

   8.That within 28 days the Respondent file and serve submissions with respect to the issue of costs sought by the Applicant to date.

   9.There be liberty to apply with respect to the order for valuation.

4. The wife sought an order that the husband pay her costs of the hearing on 5 September 2018 on an indemnity basis fixed in the sum of $4,207.50 or in the alternative calculated in accordance with Schedule 3 of the Rules in the sum of $1,744. For some reason which is not clear to me these figures included the wife’s costs for reading and drafting emails leading up to the telephone mention on 21 August 2019 which in my view would more appropriately be part of the costs incurred by the wife with respect to the husband’s request to change the date of the Directions Hearing and were part of the amount the husband was ordered to pay. For the reasons already discussed with respect to the telephone mention I also propose to require the husband to pay these costs albeit the order will be worded so that it is clear that they are referable to the husband’s request that the date of the directions hearing be changed. Those costs, payable on a party party basis in accordance with Schedule 3 are $224.06.

5. The submissions filed on the wife’s behalf pursuant to the orders made by the Registrar detail a litany of complaints about the way in which the husband has conducted these proceedings including the following matters:

   a)That the husband failed to file his Response and Financial Statement by 21 August 2018 in accordance with the orders made 31 July 2018;

   b)That when he filed his Response and his Financial Statement on 23 August 2018 he did not serve those documents upon the wife;

   c)The husband did not provide full and frank disclosure in accordance with the orders;

   d)That when the husband filed his Financial Statement it had not been sworn in accordance with s 98AB of the Act; and

   e)The husband did not do what was required of him to appoint a valuer to value the former matrimonial home pursuant to the orders made 5 September 2018 which lead to a request for a further telephone mention,

6. In my view although events following the hearing on 5 September 2018 may be relevant for the purposes of a further application of costs, in particular any application for the costs of further hearings that may have been necessary because of the husband’s failure to comply with the orders made on 5 September 2018, there is some force in the husband’s submission that they are not relevant to the determination of an application that the husband pay the costs of that hearing on 5 September 2018.

7. Although there may be some basis for an order that the husband pay the costs of the wife thrown away in relation to his request that the hearing on 5 September 2018 be rescheduled I am not satisfied that there is any basis for departing from the general rule that the parties should each bear their own costs in relation to the actual hearing on 5 September 2018. Although there may have been outstanding issues with respect to the husband’s documentation in contrast to the Case Assessment Conference on 31 July 2018 the matter was able to proceed on 5 September 2018 and orders were made for the future conduct of the matter. Whilst the directions hearing on 5 September 2018 might not have been necessary if the Case Assessment Conference had been able to proceed on 31 July 2018 and I have already found that the husband should pay the wife’s costs thrown away of that date. Although the husband’s failure to comply may have added some complexity to the hearing on 5 September 2018 I am not satisfied that of itself would warrant a departure from the general rule with respect to parties bearing their own costs.  

8. I also do not propose to make any order with respect to the cost of the preparation for the directions hearing. Preparation for a hearing is normal practice and of itself does not support an order for costs. Even if I had concluded that it was appropriate to make an order for the costs of that preparation I would have some reservations about the claim for costs in this case based upon four hours of preparation and query the need for written submissions.  

Costs of the Costs Submissions

1. The wife sought an order that the husband pay her costs for the preparation of the submissions ordered to be filed by the Deputy Registrar on 5 September 2018 in support of her applications for costs in the sum of $3,712 on an indemnity basis or in the alternative $1,707 calculated in accordance with Schedule 3 of the Rules.

2. These submission were a direct result of the husband’s failure to comply with the Rules prior to the Case Assessment Conference, his requests to change the date fixed for the Directions Hearing and his unavailability when the matter was listed for telephone mention and the husband’s application for a review of those orders has not been successful.

3. I am satisfied that there are circumstances which justify a departure from the general rule and that the husband should be required to pay the wife’s costs for the preparation of those submissions.  I am not however satisfied that the circumstances are of an “exceptional kind”.

4. Pursuant to r 19.18 of the Rules the court may order that a party is entitled to costs of a specific amount, as assessed on a particular basis, to be calculated in accordance with a specified method or assessed in accordance with Schedule 3. I propose in this case to order that those costs be paid in accordance with Schedule 3 rather than indemnity costs. The costs will be fixed in the sum of $1,707.

Costs of The Husband’s Application For Review

1. Finally the wife seeks an order that the husband pay her costs of the husband’s application for review on an indemnity basis in the sum of $9,795 or calculated in accordance with Schedule 3 in the sum of $4,485.

2. I have previously referred to the parties’ financial circumstances and I am satisfied that those circumstances are neither the basis for an order for costs with respect to this application or preclude an order being made.

3. Whilst the husband was not wholly unsuccessful and I propose to accede to his application for review at least in part it is ultimately the case that I am not proposing to set aside all of the orders for costs as he seeks.  And although I propose to accede to the husband’s application for review at least in part that is largely for reasons other than those advanced by the husband.  Even the way in which the husband conducted himself in the hearing before me added to the costs of that hearing repeating matters notwithstanding he had submitted detailed written submissions and refusing to abandon what were in my view unmeritorious submissions. The husband was unnecessarily quarrelsome and in my view many of his arguments lacked merit. The wife in contrast took a much more pragmatic and practical approach choosing to rely upon her written submissions and generally not pursuing those aspects of her case that had not been accepted by the Deputy Registrar.

4. In all of the circumstances I am satisfied that there are circumstances in this case that warrant the Court departing from the general rule that each party bear their own costs and I propose to make an order that the husband pay the wife’s costs albeit I am satisfied that those costs should be calculated in accordance with Schedule 3 and fixed in the sum of $4,485.

5. Although I am not satisfied, particularly in circumstances where I propose to accede in part to the husband’s application for review, that the circumstances are of the “exceptional kind” that would warrant an order for costs on an indemnity basis, the husband should be under no illusions about what will be expected of him in this Court as these proceedings move forward. He should not expect to hide behind a lack of knowledge of the jurisdiction. Legal representation is a privilege not a right and all litigants who for whatever reason do not have legal representation must comply with the Rules of this Court. The husband has less excuse than most as he both legal qualifications and experience in practice. He should be aware that in these circumstances more is likely to be expected of him. In these circumstances there is a very real possibility that any order for costs the court makes in the event that the husband fails to comply with any orders or the Rules will be payable on an indemnity basis.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 12 June 2019.

Associate: 

Date: 12 June 2019