Tritton and Poyzer (No 3)

[2011] FamCA 850

FAMILY COURT OF AUSTRALIA

TRITTON & POYZER (NO 3) [2011] FamCA 850

FAMILY LAW - COSTS – between parties – application by the wife seeking costs against the husband – whether the circumstances justify the making of a costs order – consideration of s 117(2A) factors – where the proceedings were necessitated by the wife’s refusal to agree to a consent order – where the circumstances do not justify the making of a costs order – application dismissed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Tritton

RESPONDENT: Mr Poyzer

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 4 November 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 8 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: City East Legal

COUNSEL FOR THE RESPONDENT: Ms Pyke, QC

SOLICITOR FOR THE RESPONDENT: Randle & Taylor

Orders

1. That there be no orders for costs.

IT IS NOTED that publication of this judgment under the pseudonym Tritton & Poyzer (No. 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 of 2001

Ms Tritton

Applicant

And

Mr Poyzer

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter returns to the Court to consider the order for costs sought by the wife Ms Tritton against the husband Mr Poyzer.  

Orders sought

1. By way of her Response to an Application in a Case filed 28 June 2011, the wife seeks orders:

   “2. That the husband pay the wife’s costs fixed in the sum of $1,250.00.”

2. On 8 September 2011 I allowed counsel for the wife to tender a further Affidavit of the wife in which she now sought an increased amount for costs in the sum of $2,292.24.  This revised sum took into account the further expenses she had incurred since the adjournment.  

3. The wife also sought the increased sum on the basis that the husband had refused an offer made during the interim to accept the sum of $1,000 for her costs with an aim to conclude the matter without further hearing.  

4. The breakdown of the costs sought by the wife is set out in this Affidavit and reads as follows:

   “I now seek an order for costs in the amount of $2,292.24 particularised as follows:

   (a)receiving and considering husband’s Application and affidavit (9 folios) $69.30

   (b)attending client to take instructions (.5) $96.45

   (c)drawing and engrossing Response and affidavit of client (8 folios) $177.20

   (d)letter of service on husband by facsimile (1 folio) $18.90

   (e)attending Family Court hearing on 28/6/11 $700

   (f)letter to husband on 28/6/11 (3 folios) $56.70

   (g)perusing letter from husband on 29/6/11 (1 folio) $7.70

   (h)ordering transcript by written application (2 folios) $44.30

   (i)cost of transcript $266.64

   (j)drawing and engrossing this affidavit (7 folios) $155.05

   (k)attending Family Court hearing on 8/9/11 $700.”

Hearing

1. At the hearing Mr Jordan of Counsel appeared for the wife who was present in Court.  Ms Pyke, QC of Counsel appeared for the husband who was not present.  

2. At the outset of the hearing, Ms Pyke sought the leave of the Court to file written submissions within seven days as she had mistakenly believed that the matter had been listed solely for the delivery of my reasons in relation to another issue.  

3. With there being no opposition from the wife’s Counsel I allowed Ms Pyke’s request.  I also gave liberty to the wife’s Counsel to respond to such submissions. 

4. I proceeded to hear short oral submissions from Mr Jordan.  Judgment was reserved. 

5. The husband’s written submissions accompanied by a short chronology were received by my Chambers on 14 September 2011.  On 30 September 2011 I was advised that the wife’s Counsel did not seek to make any further submissions in response.  

6. The wife relied on her Application in a Case and two Affidavits annexing correspondence and transcript from previous hearings.

Background

1. This matter has a long and protracted history in this Court with property proceedings having been commenced in November 2001.  

2. The trial commenced in November 2007 and following a successful application to re-open the evidence, concluded in June 2010 where I reserved my judgment.  

3. I delivered my judgment in August 2010.  

4. The husband filed a Notice of Appeal against my final orders on 31 August 2010.  The matter is awaiting hearing in the Full Court. 

5. These costs proceedings arise out of the husband’s application to rescind injunctive orders made by me on 30 September 2010.  The particular order concerned states that:

   “4. Until further order is made by this Court or the Full Court the husband is restrained from leaving the Commonwealth of Australia and within fourteen [14] days the husband do deliver up to the Registry Manager of the Family Court of Australia, Adelaide Registry his British and Australian passports.”

6. This order was made upon the application of the wife who expressed concerns that the enforcement of final orders for property settlement may be frustrated if the husband was not present in Australia. 

7. The husband subsequently filed an Affidavit on 13 October 2010 seeking leave to travel overseas to the United Kingdom to visit his family and in particular a sibling with health issues.  

8. On 29 October 2010 I made orders that the husband be permitted to travel overseas upon conditions that he make a further payment of $200,000 to the wife and that he return to Australia within 6 weeks of 11 November 2010.  The relevant orders are:

   “(4) The injunction restraining the husband from leaving the Commonwealth of Australia be suspended ON CONDITION that the wife receives the payment of TWO HUNDRED THOUSAND DOLLARS [$200,000.00] on 9 November 2010 and that ON CONDITION that the husband return to the Commonwealth of Australia within six [6] weeks of 11 November 2010.

   (5) The Registrar is to deliver up to the husband his Australia and British passports upon proof of payment to the wife the said sum of TWO HUNDRED THOUSAND DOLLARS [$200,000.00].”

1. On 20 June 2011 the husband filed an Application in a Case (Doc 417) seeking orders that:

   “1. THAT ORDER NUMBER4 (sic) 4 OF THE ORDEROF (sic) JUSTICE DAWE DATED 30 SEPTEMBER 2010 BE RECINDED (sic)

   2. THAT THIS APPLICATION BE HEARD URGENTLY”

1. The husband’s Affidavit in support (Doc 418) was filed on the same day and indicated that he wished to travel overseas to attend the wedding of a close relative and also to visit his family.  He stated that he had a flight booked to leave Australia on 3 July 2011.

2. The matter returned before the Court to hear the husband’s Application on 28 June 2011.  Counsel for the wife argued that paragraph 4 of the orders of 30 September 2010 was an order until further order.  It was the wife’s position that the subsequent order of 29 October 2010 was such “further” order.  I accepted the submissions of the wife’s Counsel.  However, I also acknowledged Counsel for the husband’s submission that it was possible to perceive that the order of 29 October 2010 only suspended the order for the particular time mentioned in that order.  

3. For the purpose of clarifying the matter I formally discharged paragraph 4 of the order of 30 September 2010.  

4. In the absence of the husband, the wife’s application for costs was adjourned to 8 September 2011.  I also gave liberty to the parties to apply to vacate this listing in the event that the matter was able to be resolved by agreement.

The Law

1. The relevant provisions of the Family Law Act 1975 (Cth) (“the Act”) dealing with an application for costs are set out in section 117. The sections which are significant to this application are contained in sections 117(1) to (2A) of the Act. They read as follows:

   Costs

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

Discussion

1. When considering an application for costs the Court is directed to the factors set out in section 117(2A) which are:

   (a)the financial circumstances of each of the parties to the proceedings;

2. This was not an issue raised by either counsel for the parties.  The financial circumstances of each party are not significant when considering this costs application. 

   (b)   whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

1. This factor is irrelevant as neither of the parties is in receipt of legal aid. 

   (c)    the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admission of facts, production of documents and similar matters;

   (d)   whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

2. These factors are not relevant to the consideration of costs in this matter. 

   (e)   whether any party to the proceedings has been wholly unsuccessful in the proceedings;

3. Neither the husband nor the wife has been wholly unsuccessful in these proceedings.  When the matter came before the Court on 28 June 2011 I accepted Counsel for the wife’s submission the orders of 30 September 2010 were orders ‘until further order’ and that the subsequent order of 29 October 2010 was such an order.  Adopting this interpretation would leave paragraph 4 of the orders of 30 September 2010 no longer in effect and therefore render the husband’s application for rescission futile.

4. However I acknowledged that it was possible to perceive that the order of 29 October 2010 suspended the order restraining the husband from leaving Australia for that particular occasion only.  To clarify matters I proceeded to formally discharge paragraph 4 of my orders made 30 September 2011 pursuant to the Application of the husband.

   (f)     whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

5. In the husband’s written submissions, it was stated that the husband had specifically invited the wife to agree to a consent order to rescind paragraph 4 of the orders of 30 September 2011.  Both parties agree that the husband wrote to the wife’s solicitors on two occasions prior to the filing of his Application.  The first occasion was on the 15 June 2011 in which he requested the wife’s agreement to a consent order amongst other matters.  He further wrote to the wife on the 16 June 2011 advising her that an order in chambers could be made if the parties were in agreement however such an order would be subject to my consideration and approval.  The husband subsequently filed his Application in a Case on 20 June 2011.  On 22 June 2011 the wife’s solicitors wrote to the husband’s solicitors in response and stated that the wife’s position in relation to the husband’s proposed travel was that she had “no difficulty” with his intentions to travel.  There was further correspondence from the husband to the wife’s solicitors on 22 June 2011 again requesting a response from the wife.

6. At the hearing Counsel for the wife argued that following the hearing of 28 June 2011, the wife wrote to the husband offering to accept the sum of $1,000 for her costs in the hope of concluding the matter without further hearing.  He reports that the wife received a response from the husband on 29 June 2011 rejecting her proposal.  

   (g)   such other matters as the court relevant.

7. There are no further matters which are relevant to the Court’s consideration.

Summary and conclusion

1. The usual approach in relation to costs is set out in section 117(1) which provides that “each party to proceedings under this Act shall bear his or her own costs”. 

2. However the provisions of section 117(2) of the Act provide that the Court may make an order for costs if there are circumstances which justify the Court in doing so. If such circumstances exist, then the Court may make such order as it considers just.

3. The significant factor in the consideration of costs in this matter is whether either party in the proceedings had made an offer to settle the proceedings and if so, the terms of such an offer.  

4. Having regard to the husband’s conduct prior to initiating proceedings together with the concessions made by the wife, I am not satisfied that these are circumstances which justify the making of a costs order.

5. The wife’s argument was based on her position that the husband’s Application was not necessary.  Whilst I ultimately agreed with the wife’s interpretation of the order, I accepted that the husband’s interpretation was a possible alternative.  The husband’s submission was that the order needed to be discharged.  The husband was ultimately successful in his application as I made an order discharging the relevant order.  

6. The main thrust of the husband’s argument was that regardless of the wife’s interpretation of the order, she did not oppose the husband’s proposal to travel overseas.  Counsel for the husband argued that the appropriate action by the wife in the circumstances would have been to consent to the order as sought by the husband.  It was further argued that it was entirely inappropriate for the wife to maintain the stance without responding to the husband’s repeated requests.  Ultimately the husband was obliged to file an urgent Application in this Court.  For this reason, it was argued that there should be no order for costs in favour of the wife as the matter was quite capable of resolution by consent order in chambers.  I accept the submissions of Counsel for the husband. The opposition of the wife to the request for a consent order was the significant cause of the costs she incurred.

7. The circumstances do not justify any order for costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 November 2011.

Associate: 

Date:  4 November 2011