Wicklow and Wicklow and Anor (No. 3)

[2008] FamCA 1250

FAMILY COURT OF AUSTRALIA

WICKLOW & WICKLOW AND ANOR (NO. 3) [2008] FamCA 1250

FAMILY LAW – COSTS – husband to pay wife’s costs thrown away on an indemnity basis – husband’s continued failure to comply with directions – written submissions

Family Law Act 1975 (Cth)

Kohan and Kohan (1993) FLC ¶92-340
Hobartville Stud v Union Insurance Co (1991) 25 NSWLR

APPLICANT: Mr Wicklow

RESPONDENT: Ms Wicklow

INTERVENOR: Deputy Commissioner of Taxation

FILE NUMBER: SYF 2648 of 2007

DATE DELIVERED: 23 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

DATE HEARD: In Chambers by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B Richards

SOLICITOR FOR THE RESPONDENT: Mr J Burreket

COUNSEL FOR THE INTERVENOR: Does not seek to be heard

Orders

1. The costs payable pursuant to my order of 12 November 2008 be paid on an indemnity basis.

IT IS NOTED that publication of this judgment under the pseudonym Wicklow and Wicklow and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2648  of 2007

MR WICKLOW

Applicant

And

MS WICKLOW

Respondent

And

DEPUTY COMMISSIONER OF TAXATION

Intervenor

REASONS FOR JUDGMENT

Introduction

1. In this matter I delivered a judgment on 12 November 2008 in which, inter alia, I made the following orders, namely:

   “2.The husband is to pay the wife’s costs thrown away by reason of his non compliance, late compliance or incomplete compliance with the orders and directions made in these proceedings.

   3.The costs referred to in Order 1 of these Orders are to be agreed, or failing agreement, assessed.

   4.Payment of the costs to be made by the husband is deferred until completion of the proceedings, the payment to be made from the husband’s entitlement from any order made in the proceedings altering the parties’ interests in property and such entitlement is charged with this obligation.

   5.I propose to allow the husband to briefly address in written submission the issue of the basis on which costs should be assessed, that is to say on a party/party basis or an indemnity basis.  Should he wish to do so, I direct that any submission in this regard should be filed within 14 days by the husband and the wife will have a further 14 days in which to answer such submissions, and the husband will have a further 7 days in which to rely.  I propose, in the absence of submissions, to order payment of costs on an indemnity basis and absent submissions aliunde from the husband within the time limited, it will be so ordered.”

2. The husband took the opportunity referred to and made submissions proposing that no indemnity costs order should be made.

3. He asserted in those submissions that, whilst I have a general discretion to make such an order as to costs as is appropriate, there are no exceptional circumstances justifying a departure from the ordinary rule that costs be paid on a party party basis.

4. I am referred to the Full Court authority of Kohan and Kohan (1993) FLC ¶92-340 where, inter alia, the Court held (at 79,614):

   “… where the justice of the matter so requires, the Court may make such order as the Court considers just.  As we have pointed out, the Court may depart from the scale of costs prescribed under the rules.”

   The Full Court referred to the rules made in relation to costs and went on to say:

   “… the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind.”

5. I am also referred to Hobartville Stud v Union Insurance Co (1991) 25 NSWLR 358 where the nature in indemnity costs as an exception in that and other jurisdictions was discussed.

6. It was asserted that the husband’s non-compliance with the various directions made was not deliberately designed to delay, manipulate or otherwise interfere with the proper administration of the proceedings but should be viewed as ranging from inadvertent to careless or negligent.

7. This Court proceeds upon the basis that the parties before it have to make full and frank disclosure and timely and ordered production of documents so that the playing field of knowledge for each party is as close to the same as possible.

8. In this case information was sought and re-sought on a number of occasions.

9. The husband was in continual breach of a large number of the directions and further extensions of time did not in many cases elicit a response.

1. The result of the husband’s failure to comply has put the wife to expense in seeking to procure the enforcement of the orders made.  She ought not to have been put to that expense and ought to be adequately and properly compensated for it.

2. Whilst the decision in Kohan and Kohan (supra) says that regard should ordinarily be had to the scale, the fact is that it is a commonplace that attorneys no longer charge upon the basis of the scale which continually is below the market for legal services and in this case that was so, the wife having entered into contracts with both counsel and solicitors for their remuneration at a level higher than scale.

3. It is my view that, where a loss is created by behaviour of the sort, complained of in the husband, it ought to be compensated generally speaking at the level at which it is incurred and if that level be higher than scale then that is the appropriate level for such compensation.  I do not find the contracts in any way unreasonable nor is it asserted that they are.

4. If I were not to adequately compensate the wife at that level for the costs thrown away by the husband’s repeated failure to comply with directions I would not be doing justice between the parties and accordingly make the order set forth above.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  23 December 2008