SEGUR & SEGUR (COSTS SUPPLEMENTARY)

[2011] FamCA 632

FAMILY COURT OF AUSTRALIA

SEGUR & SEGUR (COSTS SUPPLEMENTARY) [2011] FamCA 632

FAMILY LAW – Costs decision – error in previously published reasons for judgment explained

APPLICANT: Ms Segur

RESPONDENT: Mr Segur

INDEPENDENT CHILDREN’S LAWYER
FILE NUMBER:	MLC	11159	of		2008

DATE DELIVERED: 30 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 24 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms L Colla

SOLICITOR FOR THE APPLICANT: JA Middlemis

COUNSEL FOR THE RESPONDENT: Mr J St. John SC

SOLICITOR FOR THE RESPONDENT: MDM McDonald Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr D Laidlaw CSC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11159 of 2008

Ms Segur

Applicant

And

Mr Segur

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(COSTS - SUPPLEMENETARY)

1. On 24 May 2011 I pronounced orders which determined the respondent’s costs application against the applicant and the applicant’s costs application against the respondent.

2. I ordered, inter alia, that the applicant wife pay the respondent husband’s costs of 8 and 9 February 2010 and 25% of the husband’s costs incurred on or after 20 November 2009.  I ordered the manner in which the costs were to be calculated, that is, on a party/party basis rather than on the indemnity basis sought by the husband.

3. The orders accurately reflected my decision which was arrived at after all my deliberations.

4. An arrangement had been made between my Chambers and the lawyers for each party that orders would be pronounced without the need for an appearance in court by, or on behalf of, the parties.  It was arranged that my orders and reasons for decision would be sent by email promptly after being pronounced.  I now know that the reasons for judgment which were certified by my associate and sent to the lawyers on 24 May 2011 contained an error at paragraph 28. At that paragraph the reasons contain a conclusion that the wife should be responsible for 30% of the husband’s costs from 20 November 2009.  The reasons should have recited 25% rather than 30%.

5. A letter had been received by my Associate at my Chambers drawing the discrepancy to her attention. That letter was from the husband’s solicitors, was dated 25 May 2011 and read as follows:-

   Thank you for providing us with a copy of the Orders and Reasons for Judgment delivered yesterday afternoon in this matter

   With respect, we note that there appears to have been an error in the Orders.  In paragraph 28 of the Reasons for Judgment, her Honour indicates that it is appropriate for the Wife to pay the Husband 30% of the costs incurred on or after 20 November 2009 (excluding the costs of 8 and 9 February 2010). However, paragraph 2 of the Orders lists this figure as 25% of such costs.

   So as to enable a bill of costs to be prepared, kindly provide confirmation as to the percentage to be applied.

   A copy of this letter is being forwarded to Mr Middlemis, solicitor for the Wife.

6. The error was brought to my attention on 26 May 2011, whilst I was out of Australia.  

7. My associate wrote to the practitioners for the mother and the father explaining that the published reasons contained an error.  Her letter, dated 26 May 2011, stated:-

I acknowledge receipt of the letter dated 25 May 2011 from the solicitor for the husband which I also attach for ease of reference.

I confirm that her Honour’s Orders are not in error.  I enclose copy of the transcript of the Handing Down of Judgment in this matter in which her Honour pronounces the Orders.

Paragraph 28 of the Reasons for Judgment should have read:

In all of the circumstances, I am satisfied that it is appropriate for the wife to pay to the husband 25 per centum of his costs of and incidental to these proceedings incurred on or after 20 November 2009 but excluding the costs of 8 and 9 February 2010 which are dealt with separately.

The error in the Reasons for Judgment was mine in the typing and proofreading, for which I apologise.

I attach the correct reasons for judgment in PDF.  The sealed orders of the Court as already issued will stand.

1. My associate’s letter is correct.

2. For the avoidance of doubt I now publish a revised version of the reasons for judgment.

I certify that the preceding nine (9) paragraphs are a true copy of the supplementary judgment of the Honourable Justice Bennett delivered on 30 June 2011._

Associate:

Date:  30 June 2011