ANDREASSEN & KALLIANPUR
[2020] FamCAFC 185
•16 July 2020
FAMILY COURT OF AUSTRALIA
| ANDREASSEN & KALLIANPUR | [2020] FamCAFC 185 |
| FAMILY LAW – APPEAL – COSTS – Where it is not demonstrated that the appellant was not afforded procedural fairness – Where the allegation of bias is unfounded – Where there has been no denial of natural justice – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent seeks his costs as a result of the appeal being dismissed – Where the application is opposed – Where impecuniosity is not a bar to an order for costs being made if there are circumstances which otherwise justify such an order – Where the appellant has been wholly unsuccessful and this is not a case where he can be surprised that an order for costs might be made – Costs ordered in the amount as sought by the respondent. |
| Family Law Act 1975 (Cth) | |
| APPELLANT: | Mr Andreassen |
| RESPONDENT: | Mr Kallianpur |
| FILE NUMBER: | ADC | 2654 | of | 2018 |
| APPEAL NUMBER: | SOA | 3 | of | 2020 |
| DATE DELIVERED: | 16 July 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 16 July 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 December 2019 |
| LOWER COURT MNC: | [2019] FCCA 3835 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Lee Kelly Legal |
Orders
The appeal be dismissed.
The appellant pay the costs of the respondent fixed in the sum of $2,210.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andreassen & Kallianpur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)
.
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 3 of 2020
File Number: ADC 2654 of 2018
| Mr Andreassen |
Appellant
And
| Mr Kallianpur |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 7 April 2020, Mr Andreassen (“the appellant”) appeals against orders made by a judge of the Federal Circuit Court of Australia on 5 December 2019.
The appeal is opposed by Mr Kallianpur (“the respondent”).
The orders appealed against, in summary, provide for the appellant to pay the respondent’s costs thrown away fixed in the sum of $2,324.50, with those costs to be paid no later than 20 January 2020, and for there to be a stay of the proceedings until such time as the order for costs had been paid in full. The trial date of 11 February 2020 was also vacated, and the proceedings were listed for mention only on 11 February 2020, noting that in the event the costs had been paid, the respondent would seek to have the question of leave, which was the issue before her Honour, listed for hearing.
Relevant Background
The proceedings were commenced in the Federal Circuit Court of Australia by the appellant on 6 July 2018. However, that application was withdrawn on 13 September 2018.
Then, on 18 January 2019, an Amended Application was filed by the appellant seeking, by way of final orders, orders for property settlement and, curiously, orders for discovery and disclosure. Interim orders were sought that the court make a declaration that a de facto relationship existed between the appellant and the respondent, and that leave be granted to the appellant on hardship grounds, for an application to the court to be made for property settlement outside the two-year period specified in the legislation.
There was an affidavit and a Financial Statement filed by the appellant in support of that application, and the first relevant order was made on 14 February 2019, when a judge of the Federal Circuit Court of Australia ordered that the respondent file a Response, an affidavit in support of that Response, and a Statement of Financial Circumstances. The preliminary questions of the existence of a de facto relationship, and leave to institute proceedings out of time, were listed for trial on 17 February 2020, and the matter was adjourned for directions to 2 August 2019.
On 6 May 2019, the primary judge made an order varying the date of the trial from 17 February 2020, to 11 February 2020. Then, on 14 August 2019, upon noting that the respondent now had the benefit of legal advice, and was arguing that the circumstances of the parties’ separation were such that the proceedings were out of time, that judge ordered that the proceedings be listed for interim hearing on 5 December 2019, with respect to the respondent’s foreshadowed Application for Summary Dismissal. It was further ordered that within 14 days the respondent file an Application in a Case with respect to the summary dismissal, and leave was given to permit the respondent not to file an affidavit in support of the same.
A further order was made that leave not be given to either party to file any further affidavit material with respect to the summary dismissal application.
On 30 August 2019, the respondent filed the application to dismiss.
According to the appellant, on 17 September 2019, a firm of lawyers were engaged to represent him pursuant to a legal aid assignment provided by the Legal Services Commission of South Australia.
On 13 November 2019, the appellant was advised by those lawyers that they were filing a Notice of Intention of Withdrawal as his legal representatives, and a Notice of Withdrawal was filed on 25 November 2019.
On 14 November 2019, the appellant contacted Legal Services Commission requesting the replacement of his legal representatives.
On 18 November 2019, the appellant was advised by the Legal Services Commission that his application for legal aid was unsuccessful.
Between 18 and 24 November 2019, it is said that there were various emails passing between the appellant and the Legal Services Commission as to his application for legal aid, and on 25 November 2019, it appears that the appellant appealed against the refusal of the Legal Services Commission to provide him with legal aid, and he was advised that that appeal had been referred to the relevant section, or person, within the Commission.
On 3 December 2019, the appellant was able to discuss his situation with a community legal service and, specifically, how to deal with his matter, which was listed for hearing on 5 December 2019. He was provided advice by that legal service both on 3 December 2019 and on 4 December 2019, and at approximately 4:47pm on 4 December 2019, the appellant sent an email to the solicitors for the respondent advising that he was seeking an adjournment of the hearing on 5 December 2019, as a result of his pending appeal to the Legal Services Commission.
At the hearing on 5 December 2019, the appellant made an oral application to the judge to adjourn the proceedings for two reasons. Primarily, because he was awaiting the result of his appeal to the Legal Services Commission, but also, as he described it, that he, despite numerous requests, had not been provided financial disclosure and financial details by the respondent. That application was opposed by the respondent, but it was put to her Honour that if she was disposed to grant the adjournment, then, an order for the costs thrown away should be made, and the appellant indicated to her Honour that he understood that position.
The Appeal
There are three grounds of appeal propounded in the Amended Notice of Appeal filed on 7 April 2020, and they are as follows (without the particulars):
1.Failed to apply procedural fairness
2.Demonstrated Bias against the applicant
3.Denial of Natural Justice
Ground 1 – Failed to apply procedural fairness
By not adequately weighting the reasons behind the late request for Adjournment and ignoring the Applicant’s position that he did all that he could to avoid the late Motion
By Hearing the Motion for Summary Dismissal with initial disregard of the Applicant’s Motion for Adjournment. The dismissal application argument took up more than 80% of the available hearing time
In refusing to allow the Applicant to place reliance upon affidavit material referred to the Court previously.
The judicial officer exercised her discretion wrongly, in relation to awarding costs due to the steps taken to not inconvenience the Court and the Respondent by seeking legal representation for the Hearing date e.g. cessation of Counsel, appealing withdrawal of legal aid, formal appeal still pending at time of Hearing, meeting with Community Legal Service twice in the days leading up to the trial, etc. Her Honour appeared to disregard all of these points.
(As per original)
It is difficult to discern from the ground, and the summary of argument filed by the appellant on 15 June 2020, what his complaint is in relation to the alleged failure to apply procedural fairness. Doing the best I can, it seems that in that regard the appellant is complaining of the fact that there was a date previously fixed for the hearing of the matter, namely in February 2020, and listing the matter on 5 December 2019, in some way prejudiced him.
In addition, it seems that the appellant complains that he was given no opportunity to present his case to the judge about the summary dismissal application and, indeed, he had not prepared for that eventuality, given that any preparation he had been able to do prior to the hearing, was around his application for adjournment.
Dealing with the first matter. There is no issue of a lack of procedural fairness demonstrated by the appellant in relation to the listing of the application of the respondent on 5 December 2019. Although there was a hearing and a trial to take place in February, the application listed on 5 December 2019 was a discrete application seeking summary dismissal, and it was given a date which allowed ample time for preparation for that hearing by both parties.
In relation to the second issue, and perhaps to expand on that somewhat, it is apparent on reading the summary of argument of the appellant that he is particularly concerned about the fact that the hearing on 5 December 2019 took approximately an hour, and in that time, he says, the judge permitted the respondent’s counsel to address her in relation to the application for summary dismissal, but more specifically, the issues of whether the appellant was out of time with his application for property settlement, whether he should be granted leave to bring the application, and whether there was any hardship on which he could rely in seeking that leave. However, he was not given sufficient time to address her Honour in relation to those matters, and certainly, he was given less time to do so than the respondent’s counsel was.
Plainly though, that does not demonstrate any lack of procedural fairness.
What was before her Honour was the appellant’s application to adjourn. That was opposed. Accordingly, it was appropriate for her Honour to hear from the parties as to the application which was listed to be heard that day. It was also appropriate for her Honour to hear submissions as to that in detail from the respondent’s counsel, because, of course, it was the respondent’s application which was before her Honour, and it is apparent from the transcript of the hearing before her Honour that her Honour needed to understand what the issues were, to, in effect, put the application for an adjournment into context. The best person to apprise her Honour of that, was the respondent’s counsel, given also, that the appellant was without legal representation.
Although it is readily apparent that counsel for the respondent was able to make expansive submissions to her Honour, it is not the case that the appellant was unable to make relevant submissions to her Honour. A careful reading of the transcript of the hearing before her Honour indicates otherwise, and her Honour explored the relevant issues with the appellant to the extent that she needed to, in the context of understanding the appellant’s position. Thus, I am not persuaded that there is any lack of procedural fairness in relation to that issue.
I also add, that in my view, there was no lack of procedural fairness specifically in relation to the application to adjourn the hearing. The appellant was able to, and did put before her Honour, the relevant facts and the basis for that adjournment application, including what occurred in the lead-up to the hearing with his legal representation, and his appeal to the Legal Services Commission.
It seems that under the rubric of this ground of appeal, the appellant also submits that her Honour failed to adequately take into account the circumstances and the difficulties experienced by the appellant which caused him to make the application for an adjournment. However, I do not accept that her Honour erred in that regard. Her Honour, as I indicated, was well aware of the relevant facts, the circumstances, and the difficulties experienced by the appellant. Indeed, I am somewhat bemused by that submission because, of course, the appellant is appealing against the order for costs, not the order that the matter be adjourned. Indeed, it was the appellant who wanted the adjournment and her Honour granted that application, so clearly, there can be no error by her Honour in making the order for adjournment.
There is no merit in this ground of appeal.
Ground 2 – Demonstrated Bias against the applicant
In predetermining the applications before her without having heard the evidence in its totality, as evidenced by the comments made by her Honour early in proceeding. Her Honour encouraged/advised/suggested to the Respondent’s Lawyer that they should seek an order for Summary Dismissal, despite both [Judges] ruling previously that this would not be heard until after the February 2020 trial date.
Her Honour stated at least twice that “whilst not recalling the reason behind it, she recommended/raised the issue of the Application for Summary Dismissal.
Despite extensive initial application and affidavit evidence provided by the Applicant, refuted by the Respondent in initial Affidavits, but since accepted e.g. existence of a de facto relationship for more than two years, the Judge does not appear to have read the Applicant’s Affidavit and by suggesting the Respondent lodge the Summary Dismissal Application infers that the Applicant has no merit for their case, and would appear to be a predetermined judgement.
(As per original)
Again, it is difficult to discern from the Amended Notice of Appeal, and the appellant’s summary of argument, precisely what the basis of his complaint is, but the first thing to note is the allegation is, that her Honour demonstrated bias against him. There is ample authority to the effect that such a complaint cannot be raised on appeal when it has not been raised before the primary judicial officer. In other words, if that has not happened, then it is likely that an appellant has waived his or her ability to raise that matter on appeal.
I note though, it is sometimes said that that only applies where the appellant was without legal representation during the hearing below, and that is the case here, thus, I propose to deal with this ground of appeal.
Doing the best I can, the complaint seems to be that her Honour predetermined the application before her and, specifically, by reason of her Honour’s comment during the hearing that, as she recalled it, she invited the summary dismissal application. Further, by suggesting that an application seeking summary dismissal be filed, the inference is that her Honour had already decided that there was no merit in his case.
The difficulty with that submission is that at the hearing on 5 December, her Honour did not summarily dismiss the application. What her Honour did was accede to the application by the appellant to adjourn the proceedings, and there is no appeal against that order made by her Honour.
Thus, this is a ground of appeal which cannot be sustained, and I find it has no merit.
Ground 3 – Denial of Natural Justice
Failure to provide balanced opportunity for argument at the December Hearing, with more than 80% of the available time being dedicated to hearing argument from the Respondent’s Counsel.
With reference to the Affidavits lodged by the Applicant and then subsequent Affidavits lodged by the Respondent which are not substantiated.
The February 2020 Trial date was to determine matters of (1) did a defacto relationship actually exist and did it exceed two years, and (2) out of time to lodge. Extensive supporting documentation was lodged in the Affidavit by the Applicant to support matters 1 and 2
With vacating the trial date, the Applicant has been denied access to representation as the Judge will not entertain/grant a 102NA Application
(As per original)
This ground raises much the same issues as raised in Ground 1, and again, I need to indicate that it has been difficult to discern from the Amended Notice of Appeal, and the appellant’s summary of argument, what the precise basis of the appellant’s complaint is in this regard.
There are a range of matters raised under this rubric in the appellant’s summary of argument, and I do not propose to deal with all of them, because not all of them are relevant or germane to the ground as pleaded.
One of the matters raised again, is this issue of the respondent’s counsel having more opportunity during the hearing to address her Honour in relation to the issues in the proceedings, as compared with the opportunity given to the appellant to address those issues. I will not repeat what I have said about that complaint, save and except to say that it does not demonstrate a denial of natural justice, given the circumstances and what, in fact, actually occurred.
A further related matter raised by the appellant here is that he was not given the opportunity to present the merits of his argument. Again, the appellant plainly has overlooked that the appeal is against the order for costs and the staying of the proceedings pending the payment of those costs, and in that regard, it is readily apparent from the transcript of the hearing before her Honour, that the appellant was given every opportunity to address her Honour as to the merits of his application to adjourn, and the question of costs.
The issue of costs was raised appropriately by her Honour, having been foreshadowed by the respondent’s counsel as being an application that would be made in the event the application was adjourned; the appellant was then given every opportunity to address her Honour as to his financial circumstances, and he did so.
It also bears mentioning that the principal reason given by the primary judge for making the order for costs, was the late notice given by the appellant to the respondent’s solicitors that he would be making an application to adjourn. To repeat, the notice was given at approximately 4:47pm on the day prior to the hearing, and plainly, at that point, there would have been significant costs incurred by the respondent as a result of his legal representatives preparing his case. Indeed, that preparation could not stop at 4:47pm on the day before because, of course, the application for an adjournment was to be opposed. Thus, there was the distinct possibility of the adjournment not being granted, and the hearing taking place as listed.
As her Honour noted, there was ample time in the lead-up to the hearing for the appellant to advise the respondent’s solicitors of his predicament in relation to legal representation, and lack of legal aid, and to indicate that he was appealing, but he did nothing in that regard. He provided no advice, and no information as to what was occurring.
To repeat, I do not propose to address all of the matters raised under this ground of appeal, and I again confirm that many are irrelevant. For example, there were a number of issues raised relating to the substantive proceedings as opposed to the orders that are actually under appeal. None of that is relevant to this appeal.
The final matter that I will refer to is that it seems the appellant is complaining that the stay imposed by the Court represented a denial of natural justice, given that until and unless he paid the order for costs, he was unable to proceed with his application.
However, that her Honour was considering making such an order was raised fairly and squarely with the appellant during the hearing, and no objection was taken by the appellant to that order being made. Indeed, it was the respondent’s counsel who took issue with her Honour making such an order, primarily on the basis of the costs consequences of the matter ultimately proceeding, and given that the tenor of the submissions made, both by the appellant and the respondent during the hearing, were to the effect that the appellant would be able to meet the costs order that was proposed, and in that circumstance, the substantive matter would proceed, and the respondent would then incur further costs in opposing the substantive proceedings.
Thus, I am not persuaded that there was any denial of natural justice in her Honour making the stay order. Accordingly, I find there is no merit in this ground of appeal.
At this point, I note that the appellant was criticising the failure of the respondent to provide discovery. That issue was raised during the hearing before her Honour, and correctly, her Honour informed the appellant that until and unless she had jurisdiction to hear the application which the appellant made, there was no requirement for a respondent to, in effect, do anything.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
Costs
I now have before me an application for costs on behalf of the respondent as a result of the order that I propose to make, namely dismissing the appeal.
The amount of costs sought is $2,210, and that covers costs incurred on 24 March 2020, 14 April 2020 and 12 May 2020, as well as the preparation for, and the hearing today. The basis of the application is that the appellant has been wholly unsuccessful.
The appellant, who has attended this hearing by telephone link, has indicated that he has no money to pay any order for costs, and he will not pay any order for costs. Although it might seem that he is saying that he will not pay an order for costs because he cannot afford it; that is not what I took his submission to be. I took his submission to be that no matter what order was made, and no matter what his financial circumstances, he simply would not comply with any order of this Court that provided for him to pay costs.
I invited submissions from the appellant as to his opposition to the application for costs and, ultimately, all I got was abuse, foul language, and the appellant hanging up.
In considering this application for costs, I will ignore the abuse and the foul language, and the submission by the appellant that he would not, under any circumstances pay any order for costs, and I proceed on the basis simply that he opposes the application because of his financial circumstances.
In considering any application for costs, I am obliged to take into account the respective financial circumstances of the parties, and in that regard, I am told that the respondent is working and has an income of $1,800 a fortnight, that he owns a property which has a value of approximately $410,000, but is mortgaged to the extent of $390,000.
I have no current information from the appellant as to his financial circumstances, but I do have some detail about that from the hearing before the primary judge, and what the primary judge was told was that the appellant was receiving Centrelink benefits, but he was also working. As I indicated earlier, the tenor of the discussion that took place before her Honour in relation to the question of costs and the capacity of the appellant to pay them, was that he could pay them. Indeed, it was suggested that he might have a third party source from which he could meet those costs.
In these circumstances, I am not satisfied that the appellant would be unable to meet any order for costs, and in any event, there is ample authority, that in this Court, impecuniosity is not a bar to an order for costs being made if there are circumstances otherwise that justify an order for costs. Here, there are those circumstances, namely the appellant has been wholly unsuccessful in his appeal, and this is not a case where the appellant can be surprised that an order for costs might be made if he was unsuccessful.
During the hearing before the primary judge it was put to the appellant on a number of occasions, that depending on the merit of his applications, the consequences may be orders for costs. He indicated that he was well aware of that and, impliedly, that he was well prepared for that. The same situation applies in relation to this appeal. To repeat, it simply cannot be said that the appellant was unaware that an order for costs may be made in the event of his appeal being unsuccessful, yet he determined to proceed with what I have found to be a completely unmeritorious appeal.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 16 July 2020.
Associate:
Date: 30 July 2020
0
0
3