Shand and Sharrock and Anor (No.2)

[2016] FCCA 2774

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAND & SHARROCK & ANOR (No.2) [2016] FCCA 2774

Catchwords:
FAMILY LAW – Costs – proceedings between family law litigant and Commissioner of Police regarding costs of compliance with a subpoena – Commissioner successful – as a consequence costs order sought – applicant now in receipt of legal aid and impecunious – matters to be considered.

Legislation:

Family Law Act 1975, s.117

Federal Circuit Court Rules 2001, r. 21.02; 21.07; 21.10; 21.15

Cases cited:
Shand & Sharrock & Anor [2016] FCCA 2234
Oshlack v Richmond River Council (1998) 193 CLR 72
Ruddock v Vadarlis (2001) 188 ALR 143
Minns v State of New South Wales (Department of Education and  Training) [2002] FMCA 197

Applicant: MS SHAND

First Respondent: MR SHARROCK

Second Respondent: COMMISSIONER OF SOUTH AUSTRALIAN POLICE

File Number: ADC 1763 of 2010

Judgment of: Judge Brown

Hearing date: 18 October 2016

Date of Last Submission: 18 October 2016

Delivered at: Adelaide

Delivered on: 27 October 2016

REPRESENTATION

Counsel for the Applicant: Mr M Anderson

Solicitors for the Applicant: Northside Lawyers

Counsel for the First Respondent: Mr P Doube

Solicitors for the First Respondent: Paul Doube Lawyers

Counsel for the Second Respondent: Mr S O'Flaherty

Solicitors for the Second Respondent: Crown Solicitor’s Office

ORDERS

1. The applicant in the application in a case filed 24 August 2016 is directed to pay the Commissioner of the South Australian Police costs fixed in the sum of $1,500.00.

2. The application in a case filed 24 August 2016 and the application in a case filed 4 October 2016 are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Shand & Sharrock & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1763 of 2010

MS SHAND

Applicant

And

MR SHARROCK

First Respondent

And

COMMISSIONER OF SOUTH AUSTRALIAN POLICE

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 5 September 2016, I delivered judgment in a case of some legal and practical controversy relating to the costs incurred by the Commissioner of Police in supplying documents pursuant to subpoena.[1] 

   [1]  See Shand & Sharrock & Anor [2016] FCCA 2234

2. In effect, I determined that the Commissioner of the South Australian Police was entitled to levy charges, as regulated by the Police Regulations 2014 and those costs were payable by the proponent of the subpoena in question, Ms Shand, who had sought to have the point resolved by the court. 

3. On 4 October 2016, in an application in a case filed on his behalf, the Commissioner of Police has applied for costs in an amount of $3,463.00 from Ms Shand.  In her response filed on 14 October 2016, Ms Shand opposes the making of any costs order against her.  It is her position that each party should bear their own costs in the proceedings concerned.  These reasons for judgment are directed to resolving the issues of costs.

The Commissioner’s position

1. The subpoena in question was issued by Ms Shand’s solicitor on 25 February 2016 and sought numerous police records, which related to Ms Shand’s former de facto partner, Mr Sharrock.  As a consequence of the subpoena and the identification and copying of the various documents concerned, the Commissioner sent Ms Shand’s solicitors an invoice in the sum of $1,970.50. 

2. Ms Shand objected to paying the sum in question asserting that the payment of the costs arising was regulated by provisions within the Federal Circuit Court Rules rather than the Police Regulations.  This was the essential controversy, which the court resolved, in the Commissioner’s favour, in the earlier proceedings.

3. On 22 June 2016 Ms F, a senior officer within the statutory compliance section of SAPOL wrote to Ms Shand’s solicitors indicating her view that the question of the costs of production, pursuant to the relevant subpoena, was governed by the South Australian regulatory regime rather than that of the court pursuant to its rules. 

4. As such, Ms Shand’s solicitor was invited to withdraw the application, then recently issued before the court, in which she challenged the issue.  Further, Ms F put the solicitor on notice that, if SAPOL was successful in the matter, it would seek costs, including those relating to the instruction of counsel. 

5. In all these circumstances, it is the Commissioner’s position that it is both just and reasonable for it to be granted its costs, as the Commissioner was entirely successful in the proceedings and put Ms Shand and those advising her on notice that costs would be sought.

6. Mr O’Flaherty, counsel for the Commissioner has calculated the relevant costs pursuant to Part 1 of Schedule 1 of the Federal Circuit Court Rules 2001 as follows:

   Item 3(a)         Interim or summary hearing  $1801.00

   Item 13(b)       Daily hearing fee  $1081.00

   Item 12            Advocacy loading  $540.50

   Item 15            Disbursements

   Photocopying at 75c per page  $40.50

   Total  $3463.00

The respondent’s case

1. In the earlier judgment I outlined some of the details of the difficult and controversial proceedings between Ms Shand and Ms Sharrock, arising in respect of care arrangements for their three children.  From those circumstances, it is manifestly clear that Ms Shand is a person subject to a significant level of social disadvantage and financial privation. 

2. Ms Shand is in receipt of social security as her principle form of financial support.  She receives limited child support from Mr Sharrock and from the father of another of her children, X.  She owns a piece of real property but it is subject to a significant level of mortgage.  It is also subject to a charge, in favour of the Legal Services Commission, arising from legal aid previously provided to her. 

3. Ms Shand has placed the property on the market but there have been few offers for it and none of them has been satisfactory.  Ms Shand lives in a rural area of South Australia, which is currently subject to some level of economic downturn.  If the property sells, I accept that there is a high probability that it will realise a loss.

4. In addition, at the present time, Ms Shand has a number of outstanding debts relating to a personal loan; her council and water rates; her motor vehicle; and other consumer debts.  She has no savings to speak of and I accept that she lives from hand to mouth. 

5. The irony of the case is that, if Ms Shand had been in receipt of legal aid, the Commissioner of Police would have supplied the documents sought gratis.  However, at the time of the subpoena, due to the generosity of a relative, Ms Shand was funding her litigation, against Mr Sharrock, privately. 

6. More recently, Ms Shand’s grant of legal aid has been reinstated.  She further deposes that she has sought advice from a financial counsellor, in respect of her current circumstances, which both she and the counsellor concerned regard as being parlous.  In these circumstances, she opposes the making of any costs order against her, which she asserts she is incapable of satisfying.

7. Essentially, it is the position of Ms Shand’s counsel, Mr Anderson that the point his client took was one of general interest to the community, particularly members of the legal profession, who engage in family law practice.  In these circumstances, it is his submission that it is not appropriate that an award of costs be made against his client because her application has now, at least, resolved the issue concerned for the general benefit of many litigants, who utilise the court.

8. Increasingly, over time, the nature of applications coming before the court, in its family law jurisdiction, has become more and more complex.  It is now relatively commonplace for applications concerning children to contain serious allegations of family violence and child abuse, which have necessitated the involvement of public agencies, particularly the police and child welfare authorities.

9. In these circumstances, it is commonplace for multiple subpoenas to be issued to such authorities, compelling the production of multiple documents, over sometimes extended periods of time, arising from the involvement of these authorities in the family concerned.  SAPOL, in particular, has a designated department to deal with such applications.

The legal principles applicable

1. Pursuant to section 117(1) of the Family Law Act, the ordinary rule, in family law proceedings, is that each party should bear his or her own costs. However, pursuant to section 117(2), if the court is of the opinion that there are circumstances that justify it in so doing, the court may make an order for costs as it considers just. 

2. The power to make an order for costs, arising under section 117(2), is subject to a number of considerations which are delineated in section 117(2A). They include the following:

   ·The financial circumstances of each of the parties concerned;

   ·Whether any of the parties to the proceedings was in receipt of a grant of legal aid;

   ·The conduct of the parties to the proceedings generally and in respect of procedural matters specifically;

   ·Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   ·Whether any party to the proceedings has been wholly unsuccessful in the relevant matter;

   ·Whether an offer has made to settle the proceedings, in writing;

   ·Any other matter the court considers relevant.

3. The court has a wide discretion as to the calculation of costs. Pursuant to Rule 21.02(2) of the Federal Circuit Court Rules:

   “In making an order for costs in a proceeding, the Court may:

   a)     set the amount in costs; or

   b)     set the method by which the costs are to be calculated; or

   c)   refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19  of the Family Law Rules; or

   d)     set a time for payment of costs, which maybe before the proceeding is concluded.”

4. Pursuant to Rule 21.10 of the Federal Circuit Court Rules 2001, a scale of costs by reference to the occurrence of fixed events [Part 1 of Schedule 1] is created. As previously indicated, Mr O’Flaherty has calculated the Commissioner’s costs pursuant to this schedule.

5. Pursuant to Rule 21.15 of the rules, the court may certify that it was reasonable for a party to employ an advocate to appear for that party in the proceeding.  According to Item 15 of the Schedule, reasonable incurred disbursements can be awarded as costs.  Otherwise an advocacy loading, calculated by reference to 50% of the daily hearing fee applies.

Consideration

1. In the circumstances of this case, I accept that Mr O’Flaherty has correctly calculated the Commissioner’s costs pursuant to the relevant regulatory regime prescribed by the court’s rules.  The question remaining for the court is whether it is just to make an order for costs, against Ms Shand, given her obvious and significant degree of impecuniosity. 

2. In support of his application, Mr O’Flaherty points to the fact that the Commissioner was entirely successful in the proceedings.  In addition, the Commissioner put Ms Shand and those advising her on notice that it believed that Ms Shand’s case was untenable, as the relevant South Australian regulatory scheme applied. 

3. On any view, Ms Shand is a person who is significantly financially disadvantaged.  At relevant times, she was not in receipt of legal aid.  In the event of an award of costs against her, she has no obvious means of satisfying such an award.

4. On the other hand, SAPOL is a large publically funded authority.  It has a specific department dealing with the production of documents for court proceedings.  As such the Government of South Australia recognises that is to the public benefit that these documents are made available to courts, particularly at a time when issues involving family violence are become increasingly the subject of government policy.

5. I accept that it was reasonable for Ms Shand to have wished to examine Mr Sharrock’s various interactions with police, which also included her on some occasions.  These matters are extensive and likely to bear some relevance to the substantive proceedings.  In pursuing the records, Ms Shand is likely to have relied on the advice of her solicitor as to the best means to go about it and how extensive the subpoena should be in respect of the documents sought.

6. The subpoena in question was wide in its scope and later little attempt was made to confine it.  Necessarily, this led to the Commissioner incurring greater expense.  Ms Shand and those advising her were placed on notice that the Commissioner regarded the issue of production of documents to be based on a principle of user pay. 

7. In addition, Ms Shand was given ample opportunity to reconsider her position.  In these circumstances, it is to be inferred that she proceeded with her application being fully aware that there was a risk of costs attached to it.

8. I accept that the issue was one of interest to members of the legal profession practicing in family law in South Australia and therefore there was some advantage in having it adjudicated, at least before a court at first instance. 

9. In Oshlack v Richmond River Council [2] after referring to authorities from Australia, Canada, New Zealand and England, Kirby J said as follows:

   “…a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest and has contributed to the proper understanding of the law in question and has involved no private gain.  In such cases the cost incurred have, occasionally been described as incidental to the proper exercise of public administration.”

   [2]  Oshlack v Richmond River Council (1998) 193 CLR 72 at 100

10. Ruddock v Vadarlis[3] was a case in which the Commonwealth had been successful in defending mandamus and habeas corpus proceedings, brought by an individual, which related to 433 non citizens then said to be illegally detained as a result of actions of the Australian Government on the Norwegian vessel, MV Tampa, off the coast of Christmas Island in 2001.  It was a matter of some controversy in public discourse in Australia at the time.

    [3]  Ruddock v Vadarlis (2001) 188 ALR 143

11. Factors identified by the Full Court of the Federal Court supporting an award of costs in the Commonwealth’s favour included that the Commonwealth had been wholly successful and it was to be expected that the Commonwealth had incurred substantial costs in the proceedings in question.  These factors were found to militate in favour of an award of costs being made in the Commonwealth’s favour. 

12. However, the Full Court of the Federal Court also identified a number of factors which weighed in Mr Vadarlis’ favour that there be no order for costs against him.  These factors included that the proceedings were both novel and important; the issue divided judicial opinion; there was no financial gain to Mr Vadarlis and the organisation which he represented; and the case was pursued with efficiency and expedition.

13. Balancing these various considerations, the Full Court characterised the case as follows in its determination not to make an award of costs against Mr Vadarlis:

    “This is a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by majority, found to exist. The case is quite different in character from the predominantly environmental litigation in which may of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition is that there be no order as to the costs of the appeal or the application before North J.”[4]

    [4] Ibid at paragraph 29

14. Raphael FM (as he then was) in Minns v State of New South Wales (Department of Education and  Training)[5] indicated that the applicable authorities (including Vadarlis) pertaining to the mitigation of cost orders, due to the public interest, established that :

    “…if public interest is to be used to mitigate the normal order for costs then that public interest must go further than mere precedent value.  There must be a public interest in the subject of the proceedings and once some exclusively personal benefit is sought the prospects of the proceedings having the necessary quality of public interest is much diminished.”

    [5] Minns v State of New South Wales (Department of Education and  Training) [2002] FMCA 197 at [13]

15. The issue was very capably and expeditiously argued by both Mr Anderson and Mr O’Flaherty.  There were no previous decisions in respect of the issue and, in my view, it cannot be said that the position advocated on behalf of Ms Shand, by Mr Anderson, was clearly untenable.  As such, it was an interesting point, which involved some reasonably complex constitutional issues.

16. However, in my view overall, the public interest in the subpoena issue was not great and, as such, any precedent value of the substantive decision limited. As was pointed out in the original judgment, persons in receipt of legal aid are not required to pay for the production of documents by SAPOL. In addition, it is open to applicants, in cases involving family violence and child abuse, to seek production of documents pursuant to the mechanisms provided by section 69ZW of the Family Law Act, again a process that attracts no costs.

17. In addition, a significant element of Ms Shand’s application was that she sought to escape a fee which had been levied on her personally.  Accordingly, in my view, it cannot be said that she was acting out of purely egalitarian principles.  In my view, the issue was a fairly arcane one, of interest mainly to a confined group of lawyers. 

18. In those circumstances, there was an element of foolhardiness, attaching to those advising Ms Shand in allowing her to proceed further, given their knowledge of the precariousness of her financial circumstances.  However, Mr O’Flaherty has made it clear that he does not seek any award of costs against Ms Shand’s solicitors and that no misconduct attaches to them personally.[6]

    [6]  See Federal Circuit Court Rules at rule 21.07

19. In all these circumstances, I propose to make an order for costs, which recognises both the significant disparity in the financial backing of each of the parties and the fact that the Commissioner was wholly successful.  I will order that Ms Shand pay the Commissioner’s costs fixed in the sum of $1,500.00.

20. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         27 October 2016