Symes and Glover and Anor
[2012] FMCAfam 419
•16 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SYMES & GLOVER & ANOR | [2012] FMCAfam 419 |
| FAMILY LAW – Costs – application for costs on indemnity basis – applicant failing to prove factual basis on which application brought. FAMILY LAW – Costs – application for costs against unsuccessful applicant for indemnity costs order – party wholly unsuccessful – party rejecting offer of settlement. |
| Family Law Act 1975, s.117 |
| Symes & Glover [2011] FMCAfam 735 |
| Applicant: | MR SYMES |
| First Respondent: | MS GLOVER |
| Second Respondent: | MS M |
| File Number: | PAC 1868 of 2010 |
| Judgment of: | Halligan FM |
| Hearing dates: | 24 November 2011, 16 March 2012 |
| Date of Last Submission: | 16 March 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas (on 24 November 2011) In person (on 16 March 2012) |
| Solicitors for the Applicant: | McIntosh McPhillamy & Co |
| Counsel for the First Respondent: | Mr Siggins |
| Solicitors for the First Respondent: | Mason Mia & Associates |
| Counsel for the Second Respondent: | Mr Vincent |
ORDERS
The father may withdraw so much of his application in a case filed on 5 October 2011 as relates to costs in relation to 20 September 2011.
The balance of the father's application in a case field on 5 October 2011 is dismissed.
The father shall pay to Ms M the sum of $5,449.50 in relation to her costs of the father’s application in a case filed on 5 October 2011 within 28 days after service on him of a sealed copy of these orders.
Note that the order for transfer of the proceedings to the Family Court of Australia made on 20 September 2011 may now be carried into effect.
IT IS NOTED that publication of this judgment under the pseudonym Symes & Glover & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1868 of 2010
| MR SYMES |
Applicant
And
| MS GLOVER |
First Respondent
| MS M |
Second Respondent
REASONS FOR JUDGMENT
This is the completion of the hearing of the father’s application for costs in relation to an aspect of contested parenting proceedings between himself and the mother. The hearing of the costs application commenced before me on 24 November 2011 and was adjourned part heard until today.
Since the institution of the costs proceedings, an order has been made by Dunkley FM that upon the determination of the costs proceedings, this matter be transferred to the Family Court as a complex matter.
Determination of the costs issue is thus impeding the progress of the parenting matter and it is for that reason that I propose to give my reasons immediately ex tempore even though that may mean that my elaboration of the relevant legal principles is rather less than I would prefer it to be had I more time to reflect and to elaborate those principles.
Rather unusually, the father was represented by counsel on the first day of the costs hearing but unrepresented and acting as his own advocate today in circumstances where counsel who appeared on the first day of the hearing did not appear today and where the solicitors who filed the costs application remain on the record in relation to both the costs and the substantive proceedings but are not before the Court.
The father’s application is that the mother pay the costs of the father on an indemnity basis thrown away as a result of the vacation of the hearing of the parenting proceedings on 13 July 2011, that the respondent mother indemnify the applicant father in respect of any costs order claimed by the Independent Children’s Lawyer against the applicant father for his or her appearance on 13 July 2011 and
20 September 2011, and that the mother pay the costs of the father on an indemnity basis for the hearing on 20 September 2011 arising as a result of the respondent mother’s Notice of Objection to Subpoena.
In the alternative to those orders, the father sought an order that the solicitor for the mother pay his costs on an indemnity basis thrown away as a result of the vacation of the hearing on 13 July 2011, that the solicitor for the mother indemnify the father in respect of any costs order claimed by the Independent Children’s Lawyer against him for his or her appearance on 13 July and 20 September 2011, and that the solicitor for the mother pay the father’s costs on an indemnity basis for the hearing on 20 September 2011 arising as a result of the respondent mother’s Notice of Objection to Subpoena.
There was a further order sought in relation to the assessment of costs which it is not necessary for me to consider further at this time.
During the course of the proceedings this morning, the father indicated that he withdrew so much of his application as related to the
20 September 2011 and I gave him leave to withdraw those parts of the application.
The father’s application as it remains is opposed by both the mother and her solicitor, who are separately represented before me.
The critical issue in this matter, in my view, is that the father’s costs application is said to be based on the circumstances in which it is said the father wasted costs because of the vacation of the hearing of the parenting proceedings which had been listed for hearing before me in Dubbo on Wednesday 13 July 2011. The father’s case, as I understand it, proceeds upon the basis that that adjournment was as a result of the mother having filed for use in that hearing, an affidavit of a number of volumes, which I disallowed. I gave my reasons for doing so at the time (Symes & Glover, [2011] FMCAfam 735).
Amongst other things, I found in the course of striking out that affidavit and ordering that the mother not be permitted to rely upon it, that it was an abuse of process. I said:
In my view, it is oppressive, in the sense of being seriously and unfairly burdensome, prejudicial and damaging to the respondent and the Independent Children's Lawyer, and vexatious, in the sense of productive of serious and unjustified trouble and harassment to the father and the Independent Children's Lawyer.
As I indicated in paragraph [2] of those reasons, the mother’s affidavit comprised 130 pages and 744 paragraphs together with 603 pages of annexures which were marked using the alphabet four times in full and on the fifth occasion from AAAAA to VVVVV. As I indicated, when challenged on the affidavit, counsel for the mother indicated that of the 130 pages and 744 paragraphs of the affidavit proper, only 20 pages and 120 paragraphs would be pressed, and of the annexures, those that would remain would be insufficient to exhaust the alphabet once. That demonstrates the extent to which this affidavit contained material which as I found should not have been included.
But it is significant to note that that per se, on its own, is not the basis of the costs application, and I need to be very careful that I deal with the costs application as it was advanced by and on behalf of the father, because to deal with it otherwise is to then deny both the mother and her solicitor procedural fairness in being able to know the case against them and to address it.
Therefore, whatever else might be said of the offending affidavit, the first question is, did its disallowance cause the adjournment, because that is the basis upon which this costs order is sought, and without that foundation - and it is for the father to prove it - he has not established the very basis upon which he seeks costs. I am concerned that he has failed to prove that fact.
It was put on behalf of both the mother and the solicitor that the true reason for the adjournment was because counsel for the Independent Children’s Lawyer at the beginning of the hearing on the Wednesday, had to withdraw because of a conflict. On behalf of the father, it was put that that was not so, but even if it was, there was still grounds upon which the application for costs could be pressed in its full terms.
Those grounds were suggested to be because, so it was said, the mother having indicated that she had no objection previously to counsel instructed by the Independent Children’s Lawyer continuing to act notwithstanding the conflict, changed her mind and raised objection on the evening before the trial. I am concerned that that is a foundation factually of the application and there is no evidence to prove it.
The transcript of the matter before me in Dubbo on the day that the matter was due to be heard was relied upon as part of the father’s case. It was relied upon in its entirety on behalf of the mother. Parts of the transcript of 20 September 2011 were also relied upon, but ultimately they are no longer relevant because that aspect of the application has been withdrawn.
The father chose not to give any evidence himself. The evidence in his case, apart from the transcript of the proceedings before me on
13 July 2011, comprises an affidavit by his solicitor. That affidavit does not give any evidence going to the circumstances in which, within the knowledge of the father’s solicitor, it came about that the mother objected to counsel briefed for the Independent Children’s Lawyer acting.
Thus all I have is unsworn evidence comprising a transcript of statements at the bar table by Mr Berry of counsel, instructed by the Independent Children’s Lawyer. Mr Berry is a very experienced and senior member of the Parramatta Bar.
On page two of the transcript after the appearances had been announced, Mr Berry said:
Perhaps I might do some talking here, your Honour because I think I’m initially the problem in this matter. The situation has arisen, your Honour that I was advised, either late last week or, perhaps it came to my attention on Monday morning, that I had in fact appeared for the mother in some interim proceedings that took place back in 2005. They were proceedings before the matter proceeded before Collier J for a full hearing. I had had and I must say have no recollection of having done so. I spoke with both of my learned friends and by the end of Monday, as I understood it, there was no objection from either party for me remaining in the matter. Last night however, I was informed that the mother was now taking objection to my being in the matter and obviously the situation is I can’t stay in it. It being such a late situation, your Honour of course, to find alternate counsel, even though I tried this morning, is not possible.
A little bit later and only a few lines on, after Mr Berry indicated to the Court that at least for the case management purposes that then arose, there was no objection to him remaining in the matter. He referred to another matter that was listed and indicated that he thought that matter was going to take the best part of that particular day, the Wednesday, and I was sitting in Dubbo for that week only. He went on to indicate:
Your Honour is only going to be left with at most, two days to deal with this matter. In my respectful submission it is clearly a three day matter, in fact it may well be a longer matter having perused the material and discussed the matter with my friends.
When I made an observation to Mr Berry that that might perhaps depend upon whether or not there was an affidavit in the mother’s case that I would allow her to rely upon, Mr Berry said at page three of the transcript:
Well I’m conscious of that, your Honour, but can we just for the moment look at the fact that if there was no affidavit, then in my respectful submission application I would have thought would have to be made in the interests of justice for some evidence on behalf of the mother to be placed before your Honour.
It was thereafter that I proceeded to address the issues that I foresaw in relation to the mother’s affidavit and subsequently struck it out. There would thus appear to be not one, nor even two, but three potential reasons why this matter was vacated. To the extent to which it is put that the striking out of the mother’s affidavit necessitated the adjournment, that as I say remains a matter as to whether or not it was struck out and whether or not I would thereafter grant an adjournment. That situation never arose for my consideration or determination because it was accepted by all before me that Mr Berry having to withdraw meant that the case could not proceed.
I am therefore not satisfied that the father has proven the primary premise of his application, that is, that the reason for the adjournment was the striking out of the affidavit. In fact, I dealt with the affidavit and struck it out only after it was clear that the matter would be adjourned. That after all was the very basis upon which counsel for the father as well as for the mother agreed to Mr Berry remaining in the matter and assisting the Court on the day.
I note that the father is now unrepresented, and this certainly was not articulated previously by his counsel, but to the extent to which it might be argued that in any event the mother ought to be culpable in costs for the circumstances in which Mr Berry had to withdrew, again there is no evidence to prove factually the foundation of a submission that might be arguable in support of that contention.
My note of Mr Thomas’s submissions before me on 24 November in this regard, when addressing the suggestion that the true reason for the adjournment was Mr Berry withdrawing, as in fact I have found it primarily to be, was to tell me that Mr Berry advised the Court that both parties had advised no objection would be taken but then the mother changed her mind the night before the hearing and Mr Berry had to withdraw.
The relevant passage of the transcript is:
I spoke with both of my learned friends and by the end of Monday, as I understood it, there was no objection from either party for me remaining in the matter.
And continuing on the next line:
Last night however, I was informed that the mother was now taking objection to my being in the matter”
These passages are at best ambiguous. There is two possible reasonable interpretations. One, as seems to be submitted to me on behalf of the father, is that the mother’s legal representatives had conveyed either to Mr Berry himself, or to the Independent Children’s Lawyer, that, being made aware of the conflict or knowing of the conflict, the mother would take no objection to Mr Berry continuing in the matter.
Putting aside entirely for one moment, because it is unnecessary for me to so determine, whether that was sufficient, if it were the case, for Mr Berry to remain in the matter under the Bar Rules, that is only one possible interpretation. The other of course is that Mr Berry had not heard one way or the other whether the mother objected. That again is consistent with the passage:
There was no objection from either party.
The absence of any response as to whether or not objection would be taken is an absence of an objection.
What appears in the last paragraph on page two of the transcript:
Last night however, I was informed that the mother was now taking objection to my being in the matter.
Again in my view is not free of ambiguity. It might mean that Mr Berry or the instructing Independent Children’s Lawyer had previously been advised by the mother’s representatives that the mother did not object, but was now taking objection, or it could simply be no more and no less than a temporal indication as to when he first became aware of the mother’s attitude, and when he became aware of it, it was to object.
The father bears the onus of proof of the facts that he says would sustain the application, and as I have indicated very clearly, the basal facts upon which he says a costs order should be made are simply not proven on the balance of probabilities. In those circumstances, his application for costs must fail.
I emphasise again, as I think I tried to make clear at the beginning, that it is necessary for me to determine the case as it is presented and not on some other basis. If for arguments sake there had been some additional or different basis upon which costs might have been sought, but which was not relied upon by the father, that is his choice. I am not entitled to make a costs order on some basis that I perceive, but which is not the foundation for the father’s application and which neither the mother nor her solicitor have been given any opportunity to address. I therefore dismiss the balance of the father’s costs application.
Following my dismissal of the remainder of the father’s application for costs both against the mother and the mother’s solicitor personally, an application for costs incurred by the mother’s solicitor in responding to that application has now been made. I sought a quantification of costs and stood the matter in the list for counsel for the mother’s solicitor to prepare a written assessment of those costs and to provide it to the father, who today is unrepresented, so that he was fully aware of how the amount was calculated and before I heard further as to whether any order should be made, and if so, in what sum.
When the matter was called back into Court, there was no appearance by or on behalf of the father, and I am told by counsel at the bar table and I accept that he has been unable to provide a copy of the assessment that he has now produced to the father because the father is nowhere to be found.
In the circumstances, I proceed upon the basis that the father has chosen to absent himself from further participation in this aspect of the proceedings knowing that an application for costs again him was pending, and therefore he does not defend that application.
That does not mean that the order is automatically made, costs being in the discretion of the Court. That discretion is to be exercised in accordance with section 117 of the Family Law Act 1975. The starting proposition is that each party bears his or her own costs. This does no more or no less than raise an onus upon an applicant for costs, as might arise ordinarily in civil litigation. In exercising the court’s discretion, I must take into account the provisions of subsection (2A) of the section.
The matter that is said to justify the order is that it is put that the father’s application had little merit and that the solicitor personally was put to trouble and expense in defending herself.
An offer of settlement was tendered and relied upon and was admitted into evidence before the father absented himself. That indicated that on 17 November last year, that is one week before the commencement of the costs hearing that I have just concluded, the solicitor wrote to the father’s solicitors making an offer to settle the costs claim in the sum of $2,000. The offer of this sum was said to be “exclusive of any costs of the application in respect of your client’s costs allegedly incurred as a result of the prolix nature of the affidavit in return for the motion being dismissed vis a vis our firm”. On 21 November 2011, the father’s solicitors replied indicating that they had been instructed to reject the offer.
The father’s application having been dismissed or withdrawn in its entirety, the father has achieved a result worse than the offer that he rejected before this hearing commenced. This is but one consideration, albeit a powerful one, in the exercise of the Court’s discretion as to costs.
I have evidence before me of the solicitor concerning her financial circumstances. This was not explicitly referred to in the course of submissions on behalf of the solicitor, and in fairness to the respondent I will not take those matters into account in determining whether an order ought to be made in favour of the solicitor.
I may take into account in determining whether an order ought to be made the parties’ conduct in this litigation. The costs application in large measure arose out of the Court having struck out an extraordinarily prolix affidavit which it found to be an abuse of process. Nonetheless, the fact is that the father chose the way in which he couched his application for costs and as I made plain in my reasons for dismissing that application, whether or not there may have been some other basis for the father seeking a costs order is neither here nor there. He chose his own battle ground and he lost completely. The fact that he has been wholly unsuccessful is another relevant consideration that I must take into account under section 117(2A).
I also take into account insofar as the striking out of the affidavit is concerned, the fact that there is no indication that any objection to it had been taken on behalf of the father, and in fact it was the Court exercising its own obligations under Division 12A, Part 7 of the Family Law Act that called the affidavit into question.
On balance and taking into account the fact that the father knowing of this application has chosen not to advance any argument against it, but also taking into account the clear considerations in support of the making of the order that the father has been wholly unsuccessful and that he rejected an offer of settlement which would have put him in a materially and significantly better position than he ultimately achieved, I am satisfied that the Court ought to exercise its discretion in favour of the costs applicant and I should make the order as sought.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 8 May 2012
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