Sharaf & Nouri (No 2)
[2022] FedCFamC1F 899
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sharaf & Nouri (No 2) [2022] FedCFamC1F 899
File number: PAC 3638 of 2022 Judgment of: CAMPTON J Date of judgment: 27 October 2022 Catchwords: FAMILY LAW – COSTS – Application for costs in a fixed sum subsequent – Where the husband’s oral application to extend the time provided by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to file an Application for Review was dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.53, Sch 3 Item 108)
Cases cited: Sharaf & Nouri [2022] FedCFamC1F 898 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 27 October 2022 Place: Sydney Solicitor for the Applicant: Mr Sant, Longton Legal Solicitor for the First and Second Respondents: Mr Lloyd, WM Lloyd & Associates ORDERS
PAC 3638 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHARAF
Applicant
AND: MR NOURI
First Respondent
B PTY LTD
Second Respondent
order made by:
CAMPTON J
DATE OF ORDER:
27 October 2022
THE COURT ORDERS THAT:
1.The husband pay the wife’s costs of and incidental to his Application for Review filed 17 October 2022 as dismissed today in the sum of $990 within 21 days of the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sharaf & Nouri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
This is an application by the wife for costs payable by the husband in a fixed sum of $990 of his Application for Review of orders made by a senior judicial registrar filed on 17 October 2022 (“the husband’s Application for Review”).
The wife’s costs application is made in circumstances where the husband’s Application for Review was filed out of time and his oral application for the indulgence of leave to extend the time to file the Application for Review was dismissed by me today. Implicitly the husband opposes the order for costs sought by the wife. In the event a costs order is made, he puts into issue the quantification of the costs as sought as being excessive.
The making of a costs order is governed by s 117 of the Family Law Act1975 (Cth) (“the Act”). Section 117(1) of the Act provides that, subject to subsection (2) and other sections which presently are not relevant, each party shall bear his or her own costs. Section 117(2) provides that:
2.If the Court is of the opinion there are circumstances that justify it doing so, subject to section 117(2A) of the Act, the Court may make such order as it considers just.
A number of considerations set out in s 117(2A) of the Act are relevant to the wife’s application for costs, including the parties’ conduct (2A(c)) in the proceedings and whether the proceedings were necessitated by a failure of a party to comply with the rules, orders, and directions of the Court (2A(d)).
It is relevant and I place weight on the fact that the husband’s Application for Review:
(a)Was filed outside the time limit prescribed by r 12.53 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”); and
(b)Sought to review orders made by a senior judicial registrar in the husband’s absence, notwithstanding that husband was aware of the listing and knew what was to be determined at the listing by the senior judicial registrar, and elected not to participate in the hearing.
To my mind those circumstances, together with the matters identified in my reasons given for dismissing the husband’s application to extend the time to file his Application for Review (see Sharaf & Nouri [2022] FedCFamC1F 898), establish with some degree of comfort that it is just to make an order for costs in the terms sought by the wife.
I am fortified that fixing the amount of costs as sought by the wife in the sum of $990 (inclusive of GST) will achieve the primary objectives and overarching considerations as identified in the Federal Circuit and Family Court of Australia Act2021 (Cth), so as to ensure the just and expeditious determination of outstanding issues in the proceedings on a basis that is proportionate to the issues in dispute. Putting it another way, it would be in the interests of these parties to fix the costs sought by the wife and avoid a process of assessment.
In respect of the quantification of costs sought by the wife, I have had regard to the Schedules contained within the Rules regarding the costs of the husband’s application for leave, and if that application were successful, the costs that would have flowed by the parties having prepared for and being required to conduct the interlocutory hearing initially heard by the senior judicial registrar afresh.
Item 108 contained within Sch 3 of the Rules provides for “time reasonably spent by a lawyer on work requiring the skill of a lawyer” to have costs allowable of $259.22 per hour (including GST). I am comfortably satisfied in all the circumstances that the wife expending in the range of three hours’ worth of work is not excessive, and hence am satisfied that fixing the wife’s costs in the sum of $990 is just in all of the circumstances.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 16 November 2022
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