Z (A Solicitor) and Limousin (Costs)
[2010] FamCAFC 119
•25 June 2010
FAMILY COURT OF AUSTRALIA
| Z (A SOLICITOR) & LIMOUSIN (COSTS) | [2010] FamCAFC 119 |
| FAMILY LAW - COSTS – Costs of appeal – Where there are factors which make it inappropriate that s 117(1) of the Family Law Act 1975 apply – Where appeal not entirely without merit – Appropriate for the solicitor to pay 80 per cent of the husband’s costs. |
| Family Law Act 1975 (Cth) – s 117 |
| APPELLANT: | Mr Z |
| RESPONDENT: | Mr Limousin |
| FILE NUMBER: | MLF | 10522 | of | 1996 |
| APPEAL NUMBER: | SA | 42 | of | 2008 |
DATE DELIVERED: | 25 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | By way of written submissions filed 16 April 2010, 29 April 2010 and 12 May 2010 |
| JUDGMENT OF: | May, Boland & O’Ryan JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 April 2008 |
| LOWER COURT MNC: | [2008] FamCA 315 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Obst Legal |
| COUNSEL FOR THE RESPONDENT: | Mr St John SC |
| SOLICITOR FOR THE RESPONDENT: | Berry Family Lawyers |
Orders
The appellant pay 80 per cent of the respondent’s costs of and incidental to Appeal No SA 42 of 2008, such costs to include the written submissions on costs, on a party and party basis as agreed and failing agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Z (a Solicitor) & Limousin (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 42 of 2008
File Number: MLF 10522 of 1996
| Mr Z |
Appellant
And
| Mr Limousin |
Respondent
REASONS FOR JUDGMENT
Introduction
On 29 March 2010 we delivered our reasons for judgment dismissing an appeal by Mr Z against costs orders made against him by Guest J on 30 April 2008. The costs orders were made at the conclusion of lengthy defended property, spousal maintenance and child support proceedings between Mr Limousin (“the husband”) and Ms Limousin (“the wife”) (for whom Mr Z acted in the proceedings). The husband resisted the appeal.
For convenience we will in these reasons, as we did in our substantive reasons, refer to Mr Z as “the solicitor”.
Our orders of 29 March 2010 made provision for the parties to file written submissions as to costs. Pursuant to the orders the husband filed submissions on 16 April 2010, the solicitor filed a response to those submissions on 29 April 2010 and the husband filed submissions in reply on 12 May 2010.
The husband seeks that the solicitor pay his costs of the appeal on a party and party basis. For his part the solicitor concedes he should be ordered to pay costs, but submits the costs should be limited to 50 per cent of the husband’s costs, including costs of the submissions as to costs, assessed on a party and party basis.
Relevant law
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs costs. Sections 117(1), (2) and (2A) provide as follows:
(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.
The parties’ submissions
The husband relied on sub-paragraphs (a), (e) and (g) of s 117(2) [semble s 117(2A)] to support the order for costs sought by him. Specifically, the matters relied on by the husband are:
·that the appeal was “entirely unsuccessful”. The husband’s senior counsel submitted that all grounds of appeal were found to be without merit save for one, and in relation to that ground “a re-hearing was determined to be of no practical utility”;
·the conduct of the solicitor whereby he became a party to the proceedings and the subject of the orders he appealed. The husband’s senior counsel submitted that this fact makes it inappropriate that s 117(1) should apply; and
·the financial circumstances of the husband. In relation to this issue, the husband’s senior counsel submitted that the trial Judge found the husband to have minimal assets and substantial debts, such as to satisfy him that an injunction restraining the husband from entering into a Part X application under the Bankruptcy Act 1966 should be discharged.
As we have already noted, in his submissions the solicitor concedes that he should pay 50 per cent of the husband’s costs. The solicitor submits that, notwithstanding the appeal “failed”, he had “cause to complain about the judgment at first instance”. In support of this submission the solicitor relied on three paragraphs of our reasons of 29 March 2010 (paragraphs 131, 164 and 170).
At paragraph 4 of the written submissions filed on behalf of the solicitor, it is submitted:
Having regard particularly to the serious nature of the flawed finding of the learned trial Judge that the Appellant had conducted the litigation with an improper purpose the Appellant, as a legal practitioner, was justified in prosecuting the appeal and was successful to the limited extent of having that finding overturned. He is left with findings of the nature articulated in the Respondents [sic] submissions at paragraph 7(b) which are matters which go to his professional competence in the conduct of this litigation but do not go so far as to attack his honesty, as did the finding of improper purpose.
Discussion
It is unnecessary, as the solicitor was a party to the costs appeal, that we discuss the power of this Court to make a costs order against a third party.
It is implicit in the solicitor’s concession he should pay a percentage of the costs that he accepts there are circumstances which justify departure from s 117(1).
We turn then to consider the relevant provisions of s 117(2A). The trial Judge’s findings as to the financial position of the husband are not in doubt. The solicitor did not, in his submissions, refer at all to his financial circumstances. We imply, in these circumstances, that he could meet any costs order made.
We do not consider there is any matter relevant to our consideration in s 117(2A)(b), (c), (d) or (f).
We accept the submissions made on behalf of the husband that the solicitor was unsuccessful to the extent that the appeal was dismissed and no order made by the trial Judge was disturbed.
We do however accept that the solicitor’s grounds of appeal insofar as some of the grounds sought to challenge the trial Judge’s in-court observations of the wife and his Honour’s findings that the solicitor had an ulterior motive were found to be arguable grounds of appeal. In these circumstances, we could not say that the solicitor’s appeal was entirely without merit.
Conclusion
For the reasons discussed above, we do not think it is appropriate that the husband should be entitled to all of his costs of and incidental to the appeal. In so determining we note that the grounds relating to improper purpose and in-court observations were robustly contested by the husband’s senior counsel.
We consider it would be appropriate for the solicitor to pay 80 per cent of the husband’s costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 25 June 2010
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