Thurston and Loomis and Anor

[2018] FamCA 16

FAMILY COURT OF AUSTRALIA

THURSTON & LOOMIS AND ANOR [2018] FamCA 16

FAMILY LAW – COSTS – Where a costs application in favour of the Intervener remains undetermined – Where the respondent relies on his financial circumstances as a matter that should persuade the Court that a costs order against him is not justified or just – Where the Court is not satisfied that poor financial circumstances alone should determine the costs application in favour of the respondent – Where the Court found that the respondent’s application never had any reasonable prospects of success – Where the respondent is to pay the Intervener’s costs of and incidental to his Application in a Case – Where the respondent is not required to pay the costs of their application to intervene.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Thurston

RESPONDENT: Mr Loomis

INTERVENER: ML Lawyers

FILE NUMBER: BRC 1010 of 2012

DATE DELIVERED: 19 January 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE:

18 & 27 April 2016

Submissions received 11 May 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT:

In Person

SOLICITOR FOR THE INTERVENER:

Mr ML

ML Lawyers

Orders

1. That ML Lawyers’ application that Mr Loomis pay their costs of and incidental to their Application in a Case filed in these proceedings on 12 February 2016 is dismissed.

2. That Mr Loomis pay ML Lawyers’ costs of and incidental to his Application in a Case filed in these proceedings on 25 January 2016 with the quantum of such costs to be fixed by agreement between Mr Loomis and ML Lawyers or, failing agreement, by his Honour Justice Forrest.

3. That in order to facilitate the fixing of the quantum of such costs by agreement or by his Honour Justice Forrest, ML Lawyers shall file and serve an affidavit annexing a schedule of the costs they claim were incurred by them in meeting and defending Mr Loomis’s Application in a Case filed 25 January 2016, calculated pursuant to the scale of costs provided for in the Family Law Rules 2004, by close of business on Friday, 2 February 2018.

4. That should ML Lawyers and Mr Loomis be able to agree on the quantum of such costs to be fixed after Mr Loomis has considered the said schedule, then ML Lawyers shall inform his Honour’s Associate by email (…) copied to Mr Loomis as soon as possible after such agreement has been reached.

5. The matter is otherwise listed for the hearing of further submissions, in the event that agreement is not able to be reached before then, at 9.30 am on Friday, 16 February 2018 and both parties shall be given leave to appear at that hearing by telephone with each being required to confirm with the Court prior to that date and time as to their intention to appear and as to the telephone number at which the Court will be able to contact them on that morning.

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 Thurston & Loomis & Anor 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 BRISBANE

FILE NUMBER: BRC 1010 of 2012

Ms Thurston

Applicant

And

Mr Loomis

Respondent

And

ML Lawyers

Intervener

REASONS FOR JUDGMENT

1. In these long running property settlement proceedings, the Respondent, Mr Loomis, filed an Application in a Case on 25 January 2016 (at a time when my judgment in property settlement proceedings had recently been reserved) in which he sought orders that included an order in relation to ML Lawyers, the firm of solicitors which had previously acted for the Applicant in the proceedings.

2. On 12 February 2016, ML Lawyers filed an Application in a Case in the proceedings seeking a number of orders, including leave to intervene in the proceedings.

3. On 18 April 2016, I ordered that ML Lawyers be given leave to intervene in the property settlement proceedings in respect of the issue of costs owed to them by the Respondent.

4. On 27 April 2016, I made orders and gave written reasons dismissing the Respondent’s Application in a Case filed on 25 January 2016, including that part of it in which he sought orders against ML Lawyers.

5. Paragraph 5 of the orders I made on 27 April 2016 provided:

   [Mr Loomis] shall file and serve on ML Lawyers any written submissions he wishes to make as to why the court should not order him to pay ML Lawyers’ costs of and incidental to the matters dealt with by the judgment delivered this morning, on or before Wednesday, 11 May 2016.

6. Included in my reasons for judgment delivered that day, 27 April 2016, were the following passages:

   84.… I am also prepared to say that I am satisfied that this application by [Mr Loomis] against Mr ML did not have reasonable prospects of success and has been, at least in part, motivated by a determination to harass, annoy and/or cause detriment to Mr ML.

   …

   86.I have already determined that I will exercise my discretion to refuse [Mr Loomis] the leave he seeks in respect of the documents produced by ML Lawyers and in doing so I am also prepared to say that I am satisfied that [Mr Loomis’s] application had no reasonable prospects of success and was frivolous and vexatious as those terms are understood (see Marsden & Winch (2013) FLC 93-560 at [79]).

7. On 11 May 2016, Mr Loomis caused lengthy written submissions to be filed.

8. By letter sent to the Court on 25 September 2017, whilst my judgment in the property settlement proceedings still remained reserved, ML Lawyers drew to the Court’s attention that their costs application in respect of Mr Loomis’s unsuccessful Application in a Case against them remained undetermined.  An affidavit of Mr David ML, the Principal of the firm, was included with the letter for filing and service on Mr Loomis and Ms Thurston.

9. I have been working on the written reasons for judgment in the property settlement proceedings and am close to delivering my reasons. Accordingly, I consider it necessary to get this outstanding question of costs determined. I recently directed the affidavit of Mr ML be filed, so that he could cause it to be served on Mr Loomis and Ms Thurston.

Mr Loomis’s submissions

1. In his written submissions, Mr Loomis persisted in asserting that he had acted only with bona fides in respect of ML Lawyers, notwithstanding my findings that I have set out above. Pages and pages of his submissions were just devoted to restating factual matters that he perceived justified the application he had made against ML Lawyers. Included were many complaints against ML Lawyers in respect of matters of alleged misconduct towards him in these proceedings.

2. I appreciate that Mr Loomis probably considered it important and necessary to say these things again given the fact that s 117(2A)(c) of the Family Law Act  1975 provides that the Court must have regard to the “conduct of the parties to the proceedings” in considering what order, if any, to make in respect of costs. However, I had already made findings and set them out in my previous judgment and revisiting the factual circumstances was not the way to address this issue in terms of costs.  Mr Loomis’s lack of legal training and experience probably accounts for his not understanding that.

3. Ultimately, Mr Loomis did turn to his “financial circumstances” and submitted that his “dire financial position” is a matter that should persuade the Court that a costs order against him is not justified or just. He asserted that he owes his former solicitor $200,000 and again asserted that the quantum of that liability is attributable to the conduct of Ms Thurston and her former solicitors, including ML Lawyers. He also referred to the fact that he receives an income tested benefit from the Commonwealth Government as income. Essentially, his submission was, as I understood it, that he cannot afford to pay costs.

My Determination

1. Poor financial circumstances alone do not determine costs applications in favour of the financially destitute litigant. They are but part of the circumstances to be considered, being only one of the matters set out in s 117(2A) of the Act.

2. I am now aware, from Mr ML’s affidavit, that Mr Loomis’s appeal against Judge Howard’s orders that Mr Loomis pay $7,991 in costs to ML Lawyers was unsuccessful and that the Full Court also ordered Mr Loomis to pay the additional sum of $9,000 to ML Lawyers in respect of the unsuccessful appeal. Although Murphy J ordered Mr Loomis to pay that sum of $9,000 within 60 days of the date of the orders, Mr ML says, in his affidavit sworn 25 September 2017, Mr Loomis had not paid the amount.

3. Accordingly, on that evidence, Mr Loomis already owes ML Lawyers $16,991 in costs.

4. My reasons for judgment in the property settlement proceedings will be handed down soon. Mr ML, Mr Loomis and Ms Thurston were all informed that they would be given notice when those reasons were going to be published and an opportunity to consider them and be heard as to the appropriate final orders to be made.  I currently anticipate that Mr Loomis will receive valuable property pursuant to final orders in those proceedings.

5. I am satisfied, particularly having regard to my findings about Mr Loomis’s motivation in bringing his unsuccessful application that never had any reasonable prospects of success, that the circumstances justify a departure from the general position that each party to proceedings under the Act shall bear his or her own legal costs in respect of that application.  I will order Mr Loomis to pay ML Lawyers’ costs of and incidental to his Application in a Case that was filed on 25 January 2016.

6. I will not order Mr Loomis to pay ML Lawyers costs of their application to intervene in the proceedings. That application was a matter of choice by ML Lawyers. Not everyone or every solicitor who is owed money by a party to property settlement litigation seeks leave to intervene in those proceedings.  Although Mr Loomis could have informed the Court that he did not oppose the application to intervene but did not and actually opposed it, that does not convince me that he should be ordered to pay ML Lawyers costs of and incidental to that application. He was not totally unsuccessful with respect to that application. ML Lawyers did not succeed in obtaining the costs in respect of production of documents pursuant to subpoena that they sought. 

7. I am not minded to make an order that Mr Loomis pay ML Lawyers’ costs as agreed or assessed pursuant to the Rules as that, in my judgement, knowing the history of the matter and what I do about Mr Loomis’s personality and litigious conduct, will simply lead to further proceedings, albeit before a Registrar.

8. The Court has the power to make orders in fixed sums (Rule 19.18(1)). I intend to do that, but only after ML Lawyers file and serve a schedule of their costs of and incidental to Mr Loomis’s unsuccessful application against them filed on 25 January 2016, calculated according to the Scale set out in the Rules. If the parties are then unable to agree on the amount of costs that Mr Loomis is to be ordered to pay, I will list the matter again to hear oral submissions on the point and to fix the quantum of the sum I will order Mr Loomis to pay.

9. I make the orders set out at the commencement of these written reasons.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 January 2018.

Associate: 

Date:  19 January 2018