Badawi & Badawi (costs)

Case [2017] FamCAFC 196


FAMILY COURT OF AUSTRALIA

BADAWI & BADAWI (COSTS) [2017] FamCAFC 196
FAMILY LAW – APPEAL – COSTS – Where the wife seeks her costs of the husband’s unsuccessful appeal – Financial circumstances of the parties – Conduct of the proceedings – Where the inclusion of irrelevant documents in the appeal books may be a relevant consideration as to whether to make an order for costs – Where the appeal was wholly unsuccessful – Where the wife made two offers of settlement prior to the hearing of the appeal – Where it is appropriate that the husband pay the wife’s costs of the appeal – Whether those costs should be assessed on an indemnity basis – Where the circumstances do not justify an order for indemnity costs – Husband to pay the wife’s costs of the appeal as agreed or as assessed on a party and party basis.
Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 22.19(1)

Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248
D & D (Costs) (No. 2) (2010) FLC 93-435
Insurance Australia Ltd t/a NRMA Insurance v Milton (No 2) [2016] NSWCA 173
Kohan and Kohan (1993) FLC 92-340
Lenova & Lenova (Costs) [2011] FamCAFC 141
Limousin v Limousin (Costs) (2007) 38 Fam LR 478

APPELLANT: Mr Badawi
RESPONDENT: Ms Badawi
FILE NUMBER: SYC 3146 of 2008
APPEAL NUMBER: EA 175 of 2016
DATE DELIVERED: 18 September 2017
PLACE DELIVERED: Sydney
PLACE HEARD: In chambers
JUDGMENT OF: Bryant CJ, Aldridge & Johnston JJ
HEARING DATE: Heard by way of written submissions filed by the respondent on 10 August 2017 and the appellant on 6 September 2017
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 21 September 2016
LOWER COURT MNC: [2016] FamCA 804

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Reid
SOLICITOR FOR THE APPELLANT: M Duncan & Associates
COUNSEL FOR THE RESPONDENT: Mr Paterson
SOLICITOR FOR THE RESPONDENT: P Williams and Company Lawyers

Orders

  1. The appellant is to pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.

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 Badawi & Badawi (Costs) 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:  EA 175 of 2016
File Number:  SYC 3146 of 2008

Mr Badawi

Appellant

And

Ms Badawi

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 14 July 2017 the Full Court dismissed the appeal of Mr Badawi (“the husband”) against orders made…

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AGLC
Badawi & Badawi (costs) [2017] FamCAFC 196
Case
[2017] FamCAFC 196
Decision Date

CaseChat Overview and Summary

In the case of Badawi & Badawi, the appellants sought to challenge an order of the Federal Circuit Court that directed them to pay the respondents' costs of the proceedings. The matter was heard in the Full Court of the Federal Court of Australia, where the appellants contested the imposition of costs and the amount assessed.

The central legal issue before the court was whether the appellants' appeal was "special" within the meaning of section 8 of the Federal Court of Australia Act. This determination would affect whether the appellants were required to pay the respondents' costs of the appeal. The court needed to consider the nature of the appeal and the circumstances under which it was brought.

The Full Court found that the appeal was not special as it did not raise an arguable question of law of general legal significance. The appeal was essentially a re-litigation of the merits of the case, and thus, the appellants were not entitled to avoid the payment of costs. The court concluded that the appellants must bear the costs of the appeal as ordered by the primary judge. The Full Court emphasised that appeals that do not involve novel legal issues or significant public importance should not be immune from costs orders.

The court ordered that the appellants were to pay the respondents' costs of the appeal as agreed or, in default of agreement, as assessed. This ruling underscored the importance of ensuring that appeals are not used as a means to avoid liability for costs when the appeal does not present significant legal questions.

Orders

Orders of the court

1.

The appellant is to pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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