Ripley and Nestor
[2018] FamCA 1051
•4 December 2018
FAMILY COURT OF AUSTRALIA
| RIPLEY & NESTOR | [2018] FamCA 1051 |
| FAMILY LAW – COSTS – where the parties settle on the morning of the hearing and costs sought – circumstances warrant an order. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Prantage & Prantage [2012] FamCA 661 Prantage & Prantage [2013] FamCAFC 105 |
| APPLICANT: | Ms Ripley |
| RESPONDENT: | Mr Nestor |
| FILE NUMBER: | MLC | 7837 | of | 2017 |
| DATE DELIVERED: | 4 December 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 4 December 2018 |
REPRESENTATION
| SOLICITOR ADVOCATE FOR THE APPLICANT: | Mr Horsfall |
| SOLICITOR FOR THE APPLICANT: | Bayside Solicitors |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Mr van der Heyden |
| SOLICITOR FOR THE RESPONDENT: | Tisher Liner FC Law |
Orders
The applicant has leave to withdraw her application in a case filed on 21 August 2018.
The response to an application in a case filed on 22 October 2018 is struck out.
Paragraph (3) of the Orders made on 24 September 2018 is discharged.
The Applicant wife pay the Respondent husband’s costs thrown away this day, fixed in the sum of $1,500 and payable within 90 days.
The reasons this day be transcribed and when settled, placed on the Court file and made available to the parties.
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 Ripley & Nestor 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: MLC 7837 of 2017
| Ms Ripley |
Applicant
And
| Mr Nestor |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
This is an application for costs made by Mr Nestor (“the husband”) arising out of an application in a case filed on 21 August 2018 by Ms Ripley (“the wife”), which was withdrawn on the morning of the hearing.
The details can be picked up from the transcript, but on any view, on 24 September 2018 the registrar considered that there was a justification for consideration of costs when she transferred the application to this list because she fixed the sum and reserved them to today. The most efficacious way to deal with that is to discharge paragraph (3) of the orders made on 24 September 2018 and to wholly deal with the issue of costs.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify departure from that principle. In other words, the first step is to decide whether or not there are some circumstances here that justify making one person pay the costs of the other.
The circumstances relied upon here are the fact that at the registrar’s hearing on 24 September, the wife was not only told by the registrar, perhaps indirectly and certainly not as legal advice, but certainly by the solicitor for the husband, that her application for summary dismissal which she had prepared herself was not going to succeed. The registrar then made an order that the husband file a response to the application in a case and affidavit in support in anticipation of the hearing in the judicial duty list before me.
The wife had not taken any further steps to follow the suggestion of the registrar or the advice of the solicitor for the husband, so the husband then went to the trouble of filing the material, as he did, within time. I am told that as at today, the application was to be withdrawn. On that basis, at least six hours of time has been spent by the lawyers for which the husband will be personally responsible. I gather that the husband has also entered into a contract with his lawyers to pay their legal costs in excess of the scale set out in the Family Law Rules 2004 (Cth) (“the Rules”), and that gives rise to the application for indemnity costs.
It is unnecessary for me to go over the authorities again, but I rely on the Full Court’s decision in Prantage & Prantage [2013] FamCAFC 105, in particular to indicate that costs on an indemnity scale are the exception rather than the rule. While in Prantage & Prantage [2012] FamCA 661, I made the observation that the practitioners in Melbourne were all charging well beyond the scale in the Rules, that was something that the Full Court decided was not a relevant factor.
In my view, the fact that the husband had to go to the trouble of filing the material and has attended again today are circumstances that justify a departure from the principle in s 117 of the Act.
Having regard to what I just said in relation to indemnity costs, I do not intend to make an order for indemnity costs on the basis that these are not exceptional circumstances. There are six hours of undisputed time having been spent by the husband through his lawyers in getting the matter to today. On the scale costs, that will take the total amount to approximately $1,500, which in my view, is a just order in the circumstances.
However, s 117 of the Act also provides that if the Court is contemplating making an order, it must contemplate the matters set out in s 117(2A) of the Act.
As I observed earlier, each of the parties will still be financially secure in the sense that there is a property dispute pending and there is over $4 million in assets.
The conduct of the parties, which is what the Court next has to contemplate, can be seen in what I have already observed about the actions that the wife did not take after hearing what the registrar said. That is her conduct as a litigant rather than as a person, regardless of whatever feeling she may have had and certainly she would have been sensible to have got legal advice much earlier than she did. There are no Legal Aid considerations here and having regard to the fact that she has withdrawn her application, she must be seen to have been wholly unsuccessful.
In my view, it is just to make an order for costs here and I fix the sum in the amount of $1,500.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 December 2018.
Acting Associate:
Date: 11 December 2018
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