Sathra and Sathra (No. 2)

[2007] FamCA 607

FAMILY COURT OF AUSTRALIA

SATHRA & SATHRA (NO. 2) [2007] FamCA 607

FAMILY LAW - COSTS - Order

APPLICANT: MR SATHRA

RESPONDENT: MRS SATHRA

FILE NUMBER: SYF 5076 of 2003

DATE DELIVERED: 6 June 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 6 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Samuels

BRIAN SAMUEL & ASSOCIATES

SOLICITOR FOR THE RESPONDENT:

Mr Manning

AITKEN LAWYERS

Orders

1. That the bill which has already been filed by the husband for cost taxing purposes is hereby struck out.

2. That within 28 days from today the husband file with the court and serve on the wife a bill in taxable form for the purpose of it being taxed according to the rules for taxing costs by a taxing officer.

3. That the matter be listed before me for mention in the event that within 14 days of receipt of a bill in taxable form by the wife, the wife challenges the form of the bill. 

4. That the husband pay the wife’s costs of and associated with today as taxed or agreed within 28 days from today.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5076 of 2003

MR SATHRA

Applicant

And

MRS  SATHRA

Respondent

REASONS FOR JUDGMENT

1. I think this is an instance where there ought to be an order that the husband pay the wife's costs of today as taxed or assessed or agreed within 28 days of today.  I come to that conclusion knowing only a few matters.  The first is that the husband was not represented on the taxing issue.  He filed a document for the purpose of his costs being taxed after he received the benefit of a costs order. The document was not in accordance with the rules and could not, in my view, be taxed. 

2. He was unrepresented and says that it was his ignorance based upon the fact that he was not represented which caused him to do that, together with advice he got from somebody within the Court Registry.  A solicitor would know that he should not take advice from some do-gooder in the Court Registry who tells them how to do something, but that he should follow the rules.  In my view, the husband cannot hide behind his ignorance created by his choice to be self-represented in excusing his failure to comply with the rules. 

3. In relation to this matter the only other matter, and I must consider all the matters that are required to be considered in s.117 of the Act, that I know to be the case is that the husband is quite well off and has put the wife, who in my recollection is also not impoverished, to expense in having to come here to challenge the husband's conduct in seeking to enforce an order for costs where the husband has created the problem because he was unrepresented while the wife has, at all times, been properly represented and therefore had to suffer the consequences of costs in being represented. 

4. In this particular instance, because the matter is a dispute over the taxing of a bill of costs, it seems to me that it is not a matter in which costs should lie where they fall as is the principal thrust of s.117.  In my view here there is proper reason based on the above circumstances to depart from that primary position and make an order for costs. I shall order that the husband pay the wife’s costs of and associated with today’s hearing as assessed or agreed.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date:  18 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SATHRA & SATHRA