Yarran and Yarran
[2012] FMCAfam 665
•9 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YARRAN & YARRAN | [2012] FMCAfam 665 |
| FAMILY LAW – Costs – assessment of bill of costs – prior orders made for indemnity costs (appeal subsequently abandoned). |
| Family Law Act 1975, ss.117(1), (2) and (2A) |
| Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Penfold v Penfold (1980) 144 CLR 311 |
| Applicant: | MS YARRAN |
| Respondent: | MR YARRAN |
| File Number: | CAC 86 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | By written submissions |
| Date of Last Submission: | 23 May 2012 |
| Delivered at: | Canberra |
| Delivered on: | 9 July 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Andrew Warren Associates (Bega) |
| Solicitors for the Respondent: | Canberra & Coast Lawyers |
ORDERS
The Husband pay the Wife the sum of $48,802.37 pursuant to the Orders of this Court made on 15th September 2011 and 17th October 2011.
No further Applications are to be accepted for filing from the Husband without the prior leave of the Court.
AND IT IS NOTED THAT:
(A)In the absence of the costs referred to in Order 1 being paid within 30 days by the Husband, the Wife be at liberty to deduct the sum of $48,802.37 from the proceeds of sale of the former marital residence.
IT IS NOTED that publication of this judgment under the pseudonym Yarran & Yarran is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 86 of 2010
| MS YARRAN |
Applicant
And
| MR YARRAN |
Respondent
REASONS FOR JUDGMENT
Introduction
Following the filing and making of consent orders on 19th June, 2012 and pursuant to detailed written submissions filed on behalf of both parties, there now remains only one issue in dispute. As with all aspects of these long-running proceedings, there must be a brief history to comprehend the remaining issue.
Costs orders were made by this Court against the Husband, on an indemnity basis, on 15th September and 17th October 2011. There were challenges to these orders, but which were ultimately abandoned.
A detailed bill of costs was prepared by the Applicant Wife. That bill of costs was filed with the Court. The Husband challenges that bill, both in its totality and or in relation to specific items in it. The bill totals $48,802.37. It is sufficient to note that the bulk, if not all, of the costs claimed arose out of the Wife’s attempt to enforce, and the Husband’s attempts to thwart, orders previously made in her favour for the sale of the former marital residence.
What follows is a brief consideration of the detailed submissions made on behalf of both parties for an order that the sum claimed should be paid by the husband (which, presumably, will have to be paid out of the proceeds of sale of the former marital residence in any event).
The Submissions
Summarily stated, the Husband’s opposition to the amount claimed in the Bill of Costs was on the grounds that (a) some parts of the costs relate to parenting matters and therefore should not be part of a bill of costs regarding property matters; (b) it was unnecessary for the Wife’s solicitor to travel from Bega to Canberra to deal with the various applications; (c) the Wife unreasonably did not engage in settlement negotiations; (d) the orders should more properly be payable on a party/party basis (rather than on an indemnity basis); and (e) the relevant cost scale should be the “Bega District Court” rather than the Federal Magistrates Court of Australia.
In part by reference to the Wife’s submissions, and otherwise, I note the following.
First, there is no such entity, so far as I am aware, of the “Bega District Court.” Presumably the Husband seeks to refer to the District Court of New South Wales, sitting at Bega. In any event, all relevant proceedings have taken place in this Court. Accordingly, the relevant scale is the scale of costs applicable to this Court.
Secondly, orders were properly made in this Court on the dates earlier noted, and that they should be payable on an indemnity basis. Also as previously noted, a challenge was instituted by way of an appeal to the orders made and the reasons given. That appeal was deemed to be abandoned. In such circumstances, it is not possible for this Court to re-visit orders previously and regularly made. The orders for indemnity costs stand.
Thirdly, there were multiple applications in this Court made by the Husband in relation to the property of the parties. There were also various applications made in relation to parenting. On more than one occasion, the Husband failed to attend at Court. However, his applications necessarily involved the Wife incurring legal costs, and her lawyer, quite reasonably in all the circumstances, attended Court on each occasion. Had he not done so, presumably he would have retained an agent, for whose costs, pursuant to the orders made, the Husband would be liable in any event. In my view, there is no substance to the challenge about the attendance of the Wife’s lawyer on any of the occasions noted in the Bill of Costs.
Fourthly, as the solicitor for the Wife observes, the Husband’s former solicitors never qualified their appearance to indicate that they attended or acted for the Husband in only one capacity – either parenting or property.
Fifthly, the solicitor for the Wife also properly makes the point that if he had not drafted the voluminous affidavit material it would have fallen to Counsel to do so. In such circumstances, arguably there has been a net saving to the Husband by there being only the Wife’s solicitor involved in drafting documents as well as appearing as advocate.
Sixthly, I should also note that the Respondent Husband raised that he was in receipt of legal aid. There was no evidence put before the Court that this was so. It was, in any event, denied by the Applicant Wife. Absent any relevant evidence, the Court cannot take this into account.
Finally, in relation to the alleged failure of the Wife to engage in settlement negotiations, such is a submission, as opposed to a matter of evidence. In any event, as the Wife makes plain in the submissions filed on 21st May 2012 (pp.1-2), there were attempts to resolve the matter without the need to resort to enforcement proceedings.
Consideration & Resolution
First, reference to the relevant statutory provisions of the Family Law Act (“the Act”), ss.117(1), (2) and (2A) is singularly lacking in the Husband’s submissions.
Secondly, likewise, there is a signal lack of reference in those submissions to the provisions of the Federal Magistrates Court Rules2001, for example, in relation to obligations in enforcement proceedings, or in relation to costs.
In my view, it is sufficient to dispose of the matter to note the following.
Section 117(2) of the Act confers a very wide discretion in relation to costs, subject to the consideration of the matters set out in s.117(2A). The breadth of the discretion has long been recognised, and certainly at least since the High Court decision in Penfold v Penfold.[1]
[1] (1980) 144 CLR 311.
Similarly, the principles to be applied in the award of indemnity costs has also long been recognised, such as articulated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd.[2]
[2] (1993) 46 FCR 225 at pp.232-235.
However, the issue here is not whether an order for costs, on whatever basis, should be made. The relevant orders were made last year. Reasons were then provided, and reference should be made to them for the more complete background as to why they were so made. Rather, the present issue is whether the amount set out in the Bill of Costs, pursuant to those orders, is just and reasonable in all the circumstances.
In my view, having regard to the detailed submissions of the parties, an order should be made that the Respondent Husband pay the Wife the sum of $48,802.37 pursuant to the orders of this Court made on 15th September 2011 and 17th October 2011.
Having regard also to the history of the matter, the Court is of the view that no further Applications by the Husband should be permitted to be filed without the prior leave of the Court. The Court so orders.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 9 July 2012
0
2
1