Abani and Abani and Anor (SSAT Appeal) (No.2)
[2016] FCCA 1804
•21 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABANI & ABANI & ANOR (SSAT APPEAL) (No.2) | [2016] FCCA 1804 |
| Catchwords: COSTS – Application for costs by Child Support Registrar – financial circumstances of Appellant – where financial circumstances relevant to consideration under Family Law Act 1975 (Cth), s.117(2A) – impecuniosity of a party not necessarily a bar to costs order – where financial circumstances of party relevant to order for time to pay. |
| Legislation: Child Support (Registration and Collection) Act 1988 (Cth), ss.105, 110B Family Law Act 1975 (Cth), s.117 |
| Cases cited: Abani & Abani & Anor (SSAT Appeal) [2015] FCCA 3617 |
| Appellant: | MR ABANI |
| First Respondent: | MS ABANI |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 849 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 19 July 2015 |
| Date of Last Submission: | 5 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2016 |
REPRESENTATION
| Appellant: | In person |
| First Respondent: | No appearance |
| Solicitor for the Second Respondent: | Ms Given |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The Appellant is to pay the Second Respondent’s costs fixed in the sum of $6,851.00.
The Appellant is allowed eight (8) months to pay the costs.
IT IS NOTED that publication of this judgment under the pseudonym Abani & Abani & Anor (SSAT Appeal) (No.2) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 849 of 2014
| MR ABANI |
Appellant
And
| MS ABANI |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Application for Costs
This is an Application for costs arising out of an Appeal against a decision of the Social Security Appeals Tribunal which was dismissed by Order of this Court on 24th June 2015. In orders made on that date, I made the following orders in respect of costs.
(4) Written submission in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within 28 days of the date of these orders.
(5) Any written submissions in opposition to any application for costs are to be filed and served within a further period of 14 days.
The solicitors for the Second Respondent, the Child Support Registrar, forwarded a submission dated 21st July 2015 seeking an order that the Applicant pay the Second Respondent’s costs of and incidental to the appeal fixed in the sum of $6,851.00. The Appellant did not file a submission within the 14 days prescribed by Order 5 of 24th June 2015. Rather, he forwarded a document entitled Submissions of the Applicant to the Court on 5th September 2015. In those submissions, he made it clear that he opposed any application for costs.
The solicitor for the Second Respondent, the Child Support Registrar, referred, in her submission, to supplementary submissions that were filed with this Court on 3rd October 2014 where the Registrar sought an order for costs thrown away occasioned by reason of the Appellant’s amendment to his initiating process. It was also foreshadowed by those written submissions that in the event the appeal was dismissed the Registrar would seek an order for the Appellant to pay costs of and incidental to the proceedings and that this would subsume any order for costs thrown away.
As the solicitor for the Registrar, Ms Goven, submitted, the appeal was indeed dismissed on 24 June 2015. Ms Goven referred to rule 21.02(1)(a) of the Federal Circuit Court Rules providing that an application for costs may be made at any stage in a proceeding and noted that in making an order for costs the court may set the amount of the costs, set the method by which the costs are to be calculated, refer the costs for taxation under part 40 of the Federal Court Rules or chapter 19 of the Family Law Rules, or set a time for payment of costs which may be before the proceeding is concluded.
Ms Given also referred to rule 21.10 which relevantly provides that unless the Court otherwise orders, a party entitled to costs in a proceedings is entitled to:
a)Costs in accordance with parts 1 and 2 of Schedule 1; and,
b)Disbursements properly incurred.
It was further submitted that the present proceedings were brought under section 110B of the Child Support (Registration and Collection) Act 1988. Section 105 of that Act relevantly provides that the Family Law Act 1975 applies to proceedings under the Child Support (Registration and Collection) Act as though proceedings under the later were proceedings under the former. Further, subsection 117(1) of the Family Law Act provides that, subject to subsection 117(2), each party to proceedings under that Act shall bear his or her own costs.
Subsection 117(2) provides that if, in proceedings under that Act, the Court is of the opinion that there are circumstances that justify it in doing so, it may, subject to subsection 117(2A) make such order as to costs whether by way of interlocutory order or otherwise as the Court considers just. Subsection 117(2A) sets out those matter to which the Court must have regard in considering what, if any, order should be made under subsection 117(2). They are as follows:
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 the conduct of the parties in relation to pleadings.
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 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 a proceedings and the terms of any such offer.
g)Such other matters as the court considers relevant.
It was submitted and in my view, correctly, that although subsection 117(1) sets forth the general rule, that subsection does not take precedence over subsection 117(2). As was said by Stephen, Mason, Aickin and Wilson JJ in Penfold v Penfold[1] where their Honours said:
It is an accurate description of subsection 117(1) to say that it expresses a general rule provided that it is firmly understood that the subsection is not paramount to subsection 117(2). As subsection (1) is expressed to be subject to subsection (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
[1] (1980) 144 CLR 311 at 315
As for subsection 117(2A), it was submitted that the weight to be attached to any of the considerations in that subsection is wholly discretionary and while no single factor outranks any other, there’s nothing to present one or other of them from being the sole foundation for a costs order and reliance was had on the decision of Fitzgerald & Fish[2] at 41 per their Honours Kay, Warnick and Boland JJ. Ms Given also referred the Court to the decision in Hendy v Deputy Child Support Registrar[3] where the Full Court of the Family Court listed, at paragraph 115, certain matters that the trial judge considered relevant to the exercise of his discretion on the question of costs.
[2] (2005) 33 Fam LR 123; [2005] FamCA 158
[3] (2001) 164 FLR 236; 27 Fam LR 641; [2001] FamCA 632
Three of those which were particularly relevant are:
a)These proceedings should be more properly perceived as being civil proceedings between the Commonwealth as a third party and the respondent as a citizen rather than as between parties to a marriage or parties to a relationship covered by the general philosophy of the Family Law Act which is to the effect that each party should bear their own costs.
b)Costs orders are frequently made in the civil arena when there is no apparent immediate capacity to meet the orders for costs.
c)It would inappropriate if a taxpayer was required to bear the entire burden of this exercise.
The Full Court of the Family Court did not interfere with the trial judge’s discretion in Hendy. It was submitted on behalf of the Registrar that the following matters support an order for costs thrown away by reason of the Appellant’s amendments to his amended notice of appeal:
i)The Appellant was wholly unsuccessful in the appeal.
ii)The originating application, being a notice of appeal filed on 17th February 2014, contained 15 grounds of appeal.
iii)On 10th June 2014, I ordered that the Appellant file and serve by 26th June 2014 an amended notice of appeal giving particulars of each ground of appeal. The Appellant did not do so. Instead, he filed and served an amended notice of appeal that contained 29 grounds of appeal.
The Registrar, by this time represented by counsel, was required to respond to each ground in the Appellant’s principal submissions which was difficult and time-consuming given the nature of the grounds and the manner in which they were expressed. The Appellant then sought to rely upon a further amended notice of appeal and was granted leave on 5th September 2014. Time was, therefore, spent and costs incurred in preparing the Registrar’s principal submissions and preparing for the hearing on the earlier grounds that could have been avoided had the Appellant complied with the court’s orders of 10th June 2014.
The amendments also caused the adjournment of the matter and further attendance and preparation of supplementary written submissions by counsel. It is further submitted that consistent with the decision in Hendy these proceedings ought to be seen as akin to civil proceedings between the Commonwealth and a citizen, not proceedings between parties to a marriage. Accordingly, the Court should be more inclined to depart from the general rule in subsection 117(1) and the taxpayer ought not to bear the entire burden of this exercise.
It was submitted that no evidence had been read and the substantive proceedings gave the Appellant’s present financial circumstances. But even if the Appellant did not have the capacity to meet any order for costs thrown away, that itself will not foreclose the possibility of the Court exercising its discretion to depart from the general rule in subsection 117(1). It was noted that in the decision in Hendy, the trial judge, Jordan J, made a costs order in favour of the Registrar in circumstances where the Appellant was in very poor financial circumstances and did not have the capacity immediately to meet the order.
Thus, it is submitted the court should exercise its discretion under subsection 117(2) of the Family Law Act to make an order in the Registrar’s favour. As to the quantum of costs, it was submitted that Schedule 1, part 2, division 2, item 3 to the Federal Circuit Rules 2001 provides a scale amount for SSAT appeals concluded at final hearing in the sum of $6,581.00.
The Registrar submitted that in all the circumstances, including multiple appearances and the engagement of counsel, the sum of $6,581.00 is appropriate and says that this amount is significantly less than the registrar’s party/party costs. Those then are the reasons why the Child Support Registrar seeks an order that the Appellant, or the Applicant, pay the Second Respondent’s costs of and incidental to the appeal fixed in the sum of $6,851.00.
The Appellant, who describes himself as the Applicant in his submissions, asks that, for his health, the Court does not apply those costs to him as he is already under enough stress and financial pressure and he feels that a further burden would be detrimental to himself and his family and his children whom he loves dearly. He goes on to say that, for the record, he is not suicidal; however, his health has declined over the course of the last three years due to pressure, stress and financial burdens and repeated court cases. He then describes some injuries that he has sustained.
He asks that if the Court does not find the evidence and the submission enough to dismiss costs against him, that leave be granted to enable him a period of 14 days to lodge a submission from the date of receiving the reasons for dismissal of the appeal. He goes on to submit that his application, as he calls it, is made due to the fact that an error was made by the Social Security Appeal Tribunal Members during a hearing in January 2014 and he goes on to say that this is the fact even though the Court has ruled that there was no error of law, which he has to accept and he goes on to say, “As I’m sure your Honour can accept, the facts do not support the decision that the SSAT has made, but your Honour’s hands are tied to an error of law only.”
The Appellant goes on to submit that he is not a trained lawyer, but a reasonable person under common law would believe that if an error is made in arriving at a judgment, then an error of law somewhere must have been made because the facts of the case do not show correctly the outcome that the Social Security Appeals Tribunal has delivered. He goes on further to say that both he and the business known as (omitted business) are in the middle of a family law matter at the Federal Circuit Court at Parramatta and he does not believe that this case should be treated as a civil case. He then makes some criticisms of the First Respondent, his former wife, and refers to an application for damages which he lodged on 21st July 2014 in the Parramatta Registry of that Court. The Appellant further states at paragraph 13 of his submission:
I do not have any financial resources or money and the assets are outweighed by debts.
At paragraph 15 he says:
I’m currently receiving Centrelink benefits.
At paragraph 16 he says:
I did not have access to legal aid to fight this appeal.
At 17 he said:
I could not afford the $10,000 quoted to be represented to fight for this appeal.
The Appellant then goes on to make some criticisms of the Australian Taxation Office and of the Child Support Agency. He sets out that he has a duty to his father to provide for his children. He then makes a statement about the resources of a Child Support Registrar with a large budget who could “waste money on fighting this appeal”. He then refers specifically to the solicitors in charge of the case, including Ms Given, who prepared the submissions for the Registrar, whom he described in this way:
…who has specialised in government and administrative law since 2000 and was called to the New South Wales Bar in 2004.
He then went on to say:
With all of this legal knowledge and expertise, the Child Support Registrar sought that it needed to spend even more money on counsel, being Bora D. Kaplan, to fight an unrepresented individual with no legal experience.
He then goes on to criticise the necessity for the government to spend so much money to get the result that they wanted against an unrepresented appellant. He submits further that he sees his children almost 50 per cent of the time and has borrowed money from family members to provide his children with medical and education in excess of $6,500.00 which has been disallowed as a non-agency payment. He said he is struggling financially because of the First Respondent and the Family Law Court orders she has on the business. Finally, he submits that:
I do not see that it would be fair to put my children and my family under more financial pressure by imposing a civil law costs order against the father trying to do the right thing for his family.
I have considered those submissions. It is certainly the case that subsection 117(2) of the Family Law Act 1975 provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection 117(2A) of the Act, make such order as to costs that the Court consider just. And then subsection 117(2A) provides:
In considering what order, if any, should be made under subsection (2), the Court should have regard to –
And thereafter I have quoted paragraphs (a) through to (g) which have already been referred to in the submissions of the Child Support Registrar.
I have considered those matters and there are some matters that I see are relevant to these proceedings. I note that the Appellant’s financial circumstances are strained and that he has, in fact, as he said, had to borrow money from family members. Clearly, his financial circumstances are a matter to be taken into account. He was not in receipt of a grant of legal aid in these proceedings and it is uncommon, but not unheard of for parties to receive assistance from the Legal Aid Commission of New South Wales in proceedings of this nature but that was certainly not the case here. It is relevant that the Appellant was wholly unsuccessful in the proceedings. There is no evidence that either party made an offer in writing to the other party to the proceedings to settle the matter.
There are two particular matters to which Ms Given has referred in her submission that are relevant. Subsection 117(2A), paragraph (d): a consideration is whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court. It is not the case that the proceedings were commenced by either party because of a failure to comply with an order of the Court. However, as Ms Given submits, during the course of the proceedings, the Court made a direction to the appellant about filing and serving by 26th June 2014 an amended notice of appeal giving particulars of each ground, which he did not do. He filed and served an amended notice of appeal that contained no fewer than 29 grounds of appeal. This is, in my view, more in the line of a matter referred to – paragraph (c) of subsection 117(2A):
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.
I noted in the principal decision that the method in which the appellant prosecuted his appeal involved a number of notices of appeal containing a number of grounds. The Appellant filed a notice of appeal on 17th February 2014 in which he sought orders under section 111C of the Child Support (Registration and Collection) Act 1988. The notice of appeal sets out some 15 grounds of appeal. It is noteworthy that the orders which he sought in that notice of appeal were wrong in law as section 111C of the Child Support (Registration and Collection) Act did not give jurisdiction for the various orders sought by the Appellant. Section 111C of the Act is one that provides for a stay of proceedings.
The appeal was originally listed for hearing on 10th June 2014, but on that date the hearing was vacated. A fresh hearing date was set for 12th August. On 26th June 2014 the appellant filed an amended notice of appeal, an application in a case and an affidavit in support. The applications were returnable on 15th July 2014. The amended notice of appeal contained some 29 grounds of appeal. The application in a case sought a stay on the collection and enforcement of arrears of child support and the operation of all child support assessments “pending the determination of the rehearing in the Social Security Appeals Tribunal”. The First Respondent filed a response on 9th July 2014 opposing the application for a stay supported by an affidavit.
The application for a stay was heard on 15th July 2014. The hearing of the appeal on 12th August 2014 was vacated and a fresh hearing date of 5th September 2014 was set. On 5th September 2014 I handed down a decision on the stay application Abani & Abani & Anor (SSAT Appeal) [2014] FCCA 2058.
In that decision I made certain orders relating to a stay of the collection and enforcement of arrears of child support and an order that in the meantime the Appellant should pay the sum of $300.00 per month by way of child support. The final hearing of the appeal was listed for 5th September 2014.
On the morning of the hearing the Appellant indicated that he did not wish to proceed with all 29 of his grounds of appeal, noting the Child Support Registrar in the submission prepared for the hearing had submitted that a number of his grounds were not grounds of appeal at all. He told the Court that he only sought to proceed on seven grounds of appeal.
I suggested to the appellant that he should prepare a document setting out the grounds of appeal on which he did seek to proceed. A little bit later in the day the Appellant produced a six-page handwritten document in which he set out some nine grounds of appeal. Mr Kaplan of counsel, who appeared for the Child Support Registrar, took exception to the way in which the Appellant had chosen to prosecute the appeal and pointed out that the Child Support Registrar had been placed at a considerable disadvantage. As Mr Kaplan said on page 8 of the transcript:
I should just note, however, for the Registrar’s part almost all of these grounds are new and had neither been canvassed in the amended notice of appeal or, more particularly, the applicant’s affidavit filed on 17 February 2014 which the Registrar took to be a submission pertaining to the grounds, I believe, in the original notice of appeal.
Mr Kaplan went on to say at page 9:
So there is a question. I am certainly in no position to deal with new matters that have been raised for the first time about 15 minutes ago on the run. I would be doing my client a disservice if I attempted to do so. The applicant, in my submission, would need to make an application to amend the amended notice of appeal to raise these grounds. If your Honour is going to allow these new grounds to be pressed, then the Registrar would ask that your Honour grant leave to the Registrar to respond to these points in writing. As I say, most of them have been raised for the first time. Those that have been raised previously, your Honour, are grounds 4, 5, 7, to a certain extent, and 8, but apart from that, the balance of these new points, in my submission, are new.
I did, in fact note that - and I pointed out to the Appellant that Mr Kaplan of counsel and his instructor had been taken by surprise and would need to be able to respond to this material. I commented that all parties are entitled to procedural fairness. I noted that he had recast his case and that that was the case upon which he wanted to proceed. I granted leave for him to do so but I did grant leave for a further submission to be made in reply to the new points.
All of this shows that the way the Appellant conducted his appeal was far from satisfactory. There were, in fact, three notices of appeal. There were three separate hearing dates set, two of which were vacated for various reasons. The third further amended notice of appeal which ended up as a handwritten document prepared by the Appellant on the morning of 5th September had not been communicated to the Child Support Registrar or the other Respondent until the proceedings were ready to start.
It is quite fair to say that costs were thrown away by the inept and disorganised way in which the appellant chose to run his case. It is not uncommon for appellants to be without representation in proceedings of this nature. It is fair to say, however, that most of them are in a position to file their documents on time and to be ready to proceed at the final hearing.
It is most rare for there to be not one but three dates set for a final hearing. I note the comments by the Appellant critical of the Child Support Registrar for employing an experienced solicitor, Ms Given and briefing an experienced barrister, Mr Kaplan. It is entirely at the discretion of the Child Support Registrar who the registrar chooses by way of legal representation to defend an appeal of this nature.
It is significant, as was pointed out by Ms Given in her submission, that the costs being sought by the Registrar are only the scale costs provided by the rules. No additional amount of legal costs have been sought by way of counsel’s fees and, quite clearly, the Child Support Registrar has chosen to absorb those costs. As Ms Given pointed out in her submission, the Registrar’s party costs would certainly exceed the costs provided by the scale.
All that the Registrar seeks is the figure provided by the scale. It is certainly the case that the Registrar has established a number of reasons as to why a costs order should be made. The Appellant’s case on appeal was not strong. The Appellant was wholly unsuccessful in the proceedings. The manner in which he conducted his case involved a considerable waste of the Court’s time and costs thrown away by the Child Support Registrar but no additional amount of costs is being sought by the Registrar.
The Appellant claims that his financial circumstances are dire and gives examples of it. I am not of the view, however, that his financial circumstances are sufficient to act as a bar to the imposition of a costs order. As I recently held in the decision of Friswel & Child Support Registrar (No.3)[4]:
I have taken into account the applicant’s financial circumstances but I have not taken the view that impecuniosity should of itself be a ground not to make an order for costs.
[4] (2016) FCCA 1609
I propose to make an order for costs in the scale figure of $6,581.00 in favour of the Child Support Registrar. I will take the Appellant’s dire financial circumstances into account in setting a longer period of time to pay than I would normally do. In the circumstances I will allow him eight months to pay the costs. I require a transcript of my reasons for this decision on a next-day basis, and I remove the application for this case as awaiting finalisation.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 19 July 2016
4
4