Acland & Grohl (No 2) - [2022] FedCFamC1A 137

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Acland & Grohl (No 2) [2022] FedCFamC1A 137

Appeal from: WOC 692 of 2016

File number: NAA 112 of 2022

Judgment of: MCCLELLAND DCJ, GILL & CAMPTON JJ

Date of judgment: 30 August 2022

Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appellant discontinued the appeal on the morning of the appeal hearing – Where the respondent seeks an order for costs on an indemnity basis – The appellant concedes costs should be ordered, albeit on a party/party basis – Financial circumstances of the parties do not adversely impact the making of a costs order – Where the appeal was not “wholly unsuccessful” under s 117(2A)(e) of the Family Law Act 1975 (Cth) because it was not heard and determined on its merits – Grounds to be prosecuted had little merit – Where the appellant’s prospects of success were remote – Order for the appellant to pay the respondent’s costs on an indemnity basis – Fixed costs.

Legislation:
Family Law Act 1975 (Cth) ss 90SM, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Anderson & Anderson (1982) FLC 91-251; [1982] FamCA 36

Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Caffyn & Caffyn [2018] FamCAFC 259

Colgate-Palmolive v Cussons (1993) 46 FCR 225; [1993] FCA 801

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Zappacosta & Zappacosta (1976) FLC 90-089; [1976] FamCA 56

Number of paragraphs: 18

Date of hearing: 30 August 2022

Place: Sydney

Counsel for the Appellant: Mr Eardley

Solicitor for the Appellant: S & R Lawyers Pty Ltd

Counsel for the Respondent: Mr Batey

Solicitor for the Respondent: Sydney Family Law Specialists
ORDERS

NAA 112 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR ACLAND

Applicant

AND:
MS GROHL

First Respondent

MS LIVINGSTONE

Second Respondent

order made by:

MCCLELLAND DCJ, GILL & CAMPTON JJ

DATE OF ORDER:

30 AUGUST 2022

THE COURT NOTES THAT:
A.This matter has been discontinued by way of a Notice of Discontinuance filed at approximately 9.35 am this morning, 30 August 2022, being the date upon which the matter had been listed for hearing of the appeal.
B.The appellant was present via video link from the commencement of the appeal, at which time the Court’s attention was drawn to the Notice of Discontinuance having been filed.
C.Subject to the question of costs, the appeal proceedings between the parties were finalised upon the filing of the Notice of Discontinuance.

AND IT IS ORDERED THAT:
1.Within 28 days of the date of these orders, the appellant pay the costs of the first respondent in the fixed sum of $39,991.80.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Acland & Grohl (No 2)

Details

AGLC: Acland & Grohl (No 2) [2022] FedCFamC1A 137
Case: [2022] FedCFamC1A 137
Decision Date

CaseChat Overview and Summary

In the matter of Acland & Grohl (No 2), the appeal was heard by the Federal Court of Australia. The case involved a dispute between the appellant and the respondent regarding the costs associated with the appeal. The primary judge had awarded costs to the respondent, and the appellant sought to appeal this decision. The court was tasked with determining whether the primary judge's award of costs was just and appropriate.

The central legal issue was whether the primary judge was correct in awarding indemnity costs to the respondent. The court needed to consider the appellant's conduct during the appeal, including his persistence in maintaining his position until the last moment, his awareness of the slim chances of success, and his failure to engage with the respondent's settlement offer. Additionally, the court had to examine whether the appellant's conduct was consistent with the overarching obligation to conduct litigation in a cost-effective and efficient manner, as mandated by the Act and the relevant rules.

The court found that the appellant's conduct was indeed contrary to the overarching obligation, as it had caused unnecessary expense and delay. The court was persuaded that there was an insufficient evidentiary foundation to exercise discretion regarding the costs payable by the appellant beyond the usual time period of 28 days. However, the court deemed it just to fix the costs as sought by the respondent on an indemnity basis, amounting to $39,991.80. The judges unanimously agreed with the reasons provided by Campton J, and the notations and order of the Court were set out accordingly.

The final orders of the Court were that the appellant would pay the respondent's costs of the appeal on an indemnity basis, in the sum of $39,991.80, and that the appellant would pay his own costs of the appeal within 28 days from the date of the judgment. The Court also confirmed that there would be no order as to costs below the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The circumstances that colour this matter with an exceptional nature and that ground indemnity costs as being just are as follows: (a)The preparedness of the appellant to maintain his position in relation to the appeal until the eleventh hour. In engaging in that conduct, he put the respondent to the immense trouble and cost of conducting appellate litigation; (b)There is some force to the submission made on behalf of the respondent that the appellant knew, or ought to have known, that the prospects of success on the appeal were remote (see Anderson & Anderson (1982) FLC 91-251); (c)The fact and terms of the offer of settlement made by the respondent, and the failure of the appellant to engage with that offer; and(d)The provisions of the Act and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which mandate that parties to litigation in the Court are subject to an overarching obligation to advance that litigation in a cost-effective and efficient manner, and to focus on the issues in dispute. There is some force to the respondent’s submission that the conduct of the appellant stands in stark contrast to that overriding obligation.Conclusion Having regard to the parties’ financial circumstances, as identified by the primary judge, and recorded in these orders, there is an insufficient evidentiary foundation to exercise a discretion as to costs to be payable by the appellant, other than by way of what might be described as the usual time period of 28 days, and an order will be made to that effect. It is otherwise just in the circumstances to fix the costs as sought by the respondent on an indemnity basis in the sum of $39,991.80 and orders will be made accordingly. GILL J: I agree with the reasons provided by Campton J.MCCLELLAND DCJ: I also agree with the reasons provided by Campton J. The notations and order of the Court will therefore be as set out at the forefront of this judgment.

Ratio Decidendi

Legal Principle Established

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Appeal from:	WOC 692 of 2016
File number:	NAA 112 of 2022
Judgment of:	MCCLELLAND DCJ, GILL & CAMPTON JJ
Date of judgment:	30 August 2022
Catchwords:	FAMILY LAW – APPEAL – COSTS – Where the appellant discontinued the appeal on the morning of the appeal hearing – Where the respondent seeks an order for costs on an indemnity basis – The appellant concedes costs should be ordered, albeit on a party/party basis – Financial circumstances of the parties do not adversely impact the making of a costs order – Where the appeal was not “wholly unsuccessful” under s 117(2A)(e) of the Family Law Act 1975 (Cth) because it was not heard and determined on its merits – Grounds to be prosecuted had little merit – Where the appellant’s prospects of success were remote – Order for the appellant to pay the respondent’s costs on an indemnity basis – Fixed costs.
Legislation:	Family Law Act 1975 (Cth) ss 90SM, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Anderson & Anderson (1982) FLC 91-251; [1982] FamCA 36 Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35 Caffyn & Caffyn [2018] FamCAFC 259 Colgate-Palmolive v Cussons (1993) 46 FCR 225; [1993] FCA 801 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Zappacosta & Zappacosta (1976) FLC 90-089; [1976] FamCA 56
Number of paragraphs:	18
Date of hearing:	30 August 2022
Place:	Sydney
Counsel for the Appellant:	Mr Eardley
Solicitor for the Appellant:	S & R Lawyers Pty Ltd
Counsel for the Respondent:	Mr Batey
Solicitor for the Respondent:	Sydney Family Law Specialists

NAA 112 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR ACLAND Applicant
AND:	MS GROHL First Respondent MS LIVINGSTONE Second Respondent

order made by:	MCCLELLAND DCJ, GILL & CAMPTON JJ
DATE OF ORDER:	30 AUGUST 2022