SCVG and KLD (No. 3)

[2017] FamCA 722

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO. 3) [2017] FamCA 722

FAMILY LAW – COSTS – Costs fixed – Review of costs assessment orders – Failure to prosecute

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.54

APPLICANT: Mr SCVG

RESPONDENT: Ms KLD

FILE NUMBER: SYC 4380 of 2008

DATE DELIVERED: 14 September 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr A Stenhouse

SOLICITOR FOR THE RESPONDENT: Macphillamy Lawyers

Orders

1. The Applications filed by Mr SCVG dated 31 May 2017, 14 August 2017 and 21 August 2017 are dismissed.

2. I order that the applicant is to pay to the respondent, within a period of 28 days, an amount in respect of her costs as follows:

   a)Two times $1,984 being counsel’s fees in relation to attendances at Court.

   b)Twenty-one hours at $395.86 per hour being counsel’s fees for chamber work.

   c)Fifty-one hours at $156.72 and forty hours at $241.74 being fees for work undertaken by the solicitors for the respondent

   being a sum in total of $29,943.38

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 SCVG & KLD (No. 3) 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 CANBERRA

FILE NUMBER: SYC 4380 of 2008

Mr SCVG

Applicant

And

Ms KLD

Respondent

REASONS FOR JUDGMENT

1. Three matters have been listed today for final hearing that relate to cost assessment orders made by Registrar Payget and Registrar McNamara.  By Application in a Case filed 31 May 2017 Mr SCVG sought that the cost assessment orders made by Registrar McNamara on 15 May 2017 that related to costs orders made by Justice Ainslie-Wallace on 24 February 2016 be set aside.

2. By Application in a Case of 14 August 2017 Mr SCVG sought to have cost assessment orders made by Registrar McNamara on 25 June 2017 reviewed or set aside.

3. Otherwise before me today is an application for review of a cost assessment order made by Registrar Payget, the application being initiated on 21 August 2017.  The application was initially styled as an application to set aside the orders of Registrar Payget, that application was dismissed for want of jurisdiction and on application over objection Mr SCVG was granted leave to file an application for review of Registrar Payget’s orders.  With the review subsequently set down for today to meet the convenience of Mr SCVG, Mr SCVG had indicated that today was a day which he would be able to travel to Canberra for the hearing of the matter.  It is now 11am, the hearing of the matter was listed for 10am, and he has made no appearance. 

4. On 11 September 2017 Registrar Campbell transferred the matters that relate to Registrar McNamara’s cost assessment orders to me for hearing today.  The notations recorded in Registrar Campbell’s set of orders indicate that Mr SCVG was aware of the transfer and opposed the transfer.

5. I am satisfied that Mr SCVG is on notice of today’s proceedings.  No communication has apparently been received by him to indicate why it is that he is not present today.

6. Although potentially not necessary to determine, in relation to today’s matters, the applications by Mr SCVG in relation to Registrar McNamara’s orders appear on their face to be misconceived to the extent that they seek a setting aside of Registrar McNamara’s orders, as such a jurisdiction is not available in relation to those orders as on each case an application to set aside relies upon Rule 19.38 which is only applicable where there has been no objection to preliminary assessment.  It appears in this case there were objections to preliminary assessment; the other basis for setting aside do not arise in this matter.  There is therefore a genuine question as to the jurisdiction for the matter to be dealt with at all to the extent that Mr SCVG seeks an application for review.  The power in relation to an application for review is set out at Part 19.8.  Rule 19.54 enables a party to apply to the Court to review the decision of a Registrar under Rule 19.32.  It is apparent that the orders made by Registrar McNamara were made under Rule 19.31, that is, in circumstances where there was no written notice of any objection to the preliminary assessment in accordance with Rule 19.30(1)(a) nor payment into Court in accordance with Rule 19.30(1)(b) nor the seeking of an exemption from the requirements of Rule 19.30(1)(b).  I must correct the earlier comments I made in relation to the inability to seek a setting aside.  It has been pointed out to me quite appropriately by Mr Stenhouse of counsel that given that orders were made pursuant to Rule 19.31 a jurisdiction did exist for Mr SCVG to seek a setting aside of the orders pursuant to Rule 19.38.

7. In any event as I indicated prior to considering whether or not there was any basis for the applications to be entertained, this is not a matter that is necessary for me to determine in order to deal with the matter at this stage.  The critical aspect of this matter is that the reviews or setting aside applications have been initiated by Mr SCVG, they have been set for hearing today, I am satisfied that he is on notice of the hearing, he has not attended the hearing to prosecute the matter, the Applications in a Case that I have outlined that is those Applications in a Case relating to the cost assessment orders made by Registrar McNamara and the cost assessment order made by Registrar Payget are dismissed.

8. An Application for Costs has been made in this matter in relation to the sets of proceedings involving Registrar McNamara and the proceedings involving Registrar Payget.  Evidence has been led as to the nature of the costs incurred in respect of each which are shown at exhibits R1, R2 and R3 which relate to the solicitor’s costs and exhibit R4 which relates to the costs of counsel.  Each of those has been divided up into, in the case of counsel, the hours spent in chamber work and appearances, and for the solicitor dividing between the hours spent by the senior solicitor with the conduct of the matter and the other more junior legal staff who have prepare the matter.  Appropriate scales have been identified for each. 

9. Before dealing with the nature of any costs order to be made it is fundamental that it be considered whether a costs order ought to be made at all. Section 117 of the Family Law Act 1975 sets out the ordinary position which is that each party should bear his or her own costs.  Subsection 2(a) sets out the considerations the Court is to examine in determining whether in the particular circumstances of a case a costs order ought to be made.  Little is known in respect of the paragraphs listed at 2(a).  I am told that the respondent is able to fund her own legal expenses but apart from that I do not have information about her financial circumstances.  I do not have information from Mr SCVG as to his financial circumstances.  I do not expect that either party is in receipt of Legal Aid, I have not been notified of any offers in writing.  The key matters that have been advanced are the conduct of the parties in the proceedings and whether any party of the proceedings has been wholly unsuccessful in the proceedings.

10. It appears to me that the significant matter for consideration that justifies the making of a costs order in this case is the fact that Mr SCVG has been wholly unsuccessful in the cost proceedings.  It was urged upon me that I should also take into account his conduct in the proceedings; in particular the fact that in coming to a review or setting aside application for the Registrar Mr SCVG had not participated in the cost assessment hearings before the Registrars.  I am not confident that this is a matter which brings him into the category of somebody whose conduct could be taken into account to justify the making of an order and I rely simply upon the fact that he has been wholly unsuccessful as justifying an order being made in this instance.

11. While it was raised as to whether or not an order should be made on an indemnity basis, after consideration of the matter the lawyers for the respondent determined that they would press for an application simply in accordance with the scale.  I intend to grant that application and to fix a sum certain.  The reason for fixing a sum certain in this case is driven by the history of this matter proceeding through various cost assessment processes to end up at a review before the Court.  It seems that under those circumstances the making of a sum certain based upon the evidence which is before me as to the application of the scale to the efforts of the various lawyers is an appropriate award for costs.

12. Accordingly, in relation to the applications for setting aside or review of the decisions made by Registrar McNamara on 15 May 2017, Registrar McNamara on 14 August 2017 and Registrar Payget on 27 July 2017 I direct that the applicant is to pay to the respondent, within a period of 28 days, an amount in respect of her costs as follows:

    d)Two times $1,984 being counsel’s fees in relation to attendances at Court.

    e)Twenty one hours at $395.86 per hour being counsel’s fees for chamber work.

    f)Fifty one hours at $156.72 and forty hours at $241.74 being fees for work undertaken by the solicitors for the respondent

    being a sum in total of $29,943.38

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 September 2017.

Associate: 

Date:  14 September 2017