Baghti and Banis & Ors (No 2) - [2015] FamCAFC 239

FAMILY COURT OF AUSTRALIA

BAGHTI & BANIS AND ORS (NO 2)

[2015] FamCAFC 239

FAMILY LAW – APPEAL – DISMISS – Where the appellant failed to comply with orders made by the appeal registrar to ready the appeal for hearing – Where the appeal registrar has notified the appellant that in light of her failure to comply with orders and directions the appeal was listed for hearing for consideration of dismissal for want of prosecution – Where the first, second and third respondents support dismissal of the appeal – Where there was no appearance at the hearing by or on behalf of the appellant nor the fourth respondent, namely the appellant’s brother – Where the appellant failed to show due diligence in proceeding with the appeal – Where the appellant has already been granted a previous indulgence by the court when the question of dismissal was adjourned after she failed to attend court on that day – Where it is apparent that the appellant has done nothing further to progress the appeal since that earlier hearing – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the first and second respondents seek their costs on an indemnity basis – Where there are circumstances here which both justify an order for costs and a departure from the ordinary rule that costs be calculated on a party/party basis – Where the appellant has been contemptuous of the process – Where the appellant has failed to satisfy her obligations as a litigant and as a practicing lawyer in the conduct of this appeal – Costs ordered on an indemnity basis in the sum of $3,336.62.

Family Law Act 1975 (Cth) – ss 117(2) and (2A)

Family Law Rules 2004 (Cth) – r 22.45

Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225
D & D (Costs) (No. 2) (2010) FLC 93-435
Kohan and Kohan (1993) FLC 92-340
Limousin v Limousin (Costs) (2008) 38 Fam LR 478

APPELLANT:

Ms M Baghti

FIRST RESPONDENT:

Mrs Banis

SECOND RESPONDENT:

Mr Banis

THIRD RESPONDENT:

Ms A Baghti

FOURTH RESPONDENT:

Mr Baghti

FILE NUMBER:

SYC

2145

2009

APPEAL NUMBER:

2015

DATE DELIVERED:

10 December 2015

PLACE DELIVERED:	Adelaide
JUDGMENT OF:	Strickland, Ryan & Aldridge JJ

HEARING DATE:

10 December 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 April 2015

LOWER COURT MNC:

[2015] FamCA 302

REPRESENTATION

THE APPELLANT:	No appearance
COUNSEL FOR THE FIRST AND SECOND RESPONDENTS:	Mr McDonell
SOLICITORS FOR THE FIRST AND SECOND RESPONDENTS:	McDonell Milne Toltz
THE THIRD RESPONDENT:	In person

THE FOURTH RESPONDENT:

No appearance

Orders

That the appeal be dismissed.
That the Appellant pay the costs of the First and Second Respondent fixed in the amount of $3,336.62.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Banis and Ors (No 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 57 of 2015
File Number: SYC 2145 of 2009

Ms M Baghti

Appellant

And

Mrs Banis

First Respondent

And

Mr Banis

Second Respondent

And

Ms A Baghti

Third Respondent

And

Mr Baghti
Fourth Respondent

EX TEMPORE REASONS FOR JUDGMENT

STRICKLAND J

Introduction

This is an appeal against orders made by Johnston J on 7 April 2015. On 21 October 2015 the matter was listed for hearing today to consider its dismissal for want of prosecution, pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
When the matter was called on for hearing today there was no appearance by or on behalf of Ms M Baghti (“the appellant”). Mr McDonell appeared for Mrs Banis and Mr Banis (“the first and second respondents”), Ms A Baghti (“the third respondent”) appeared in person, and there was no appearance by or on behalf of Mr Baghti (“the fourth respondent”). In relation to the question of dismissal, in the circumstances, both Mr McDonell and the third respondent supported dismissal of the appeal.

Relevant background

On 9 January 2015 the appellant filed an application in a case seeking leave to intervene in the proceedings between the first and second respondents, and the appellant’s brother, the fourth respondent, pursuant to which the first and second respondents were seeking to enforce a costs order made against the husband, namely the fourth respondent, in the substantive proceedings between the husband and the wife, namely the third respondent.
At the hearing of the matter before Johnston J on 7 April 2015, the appellant amended the orders sought in her application in a case to include an order that the proceedings be adjourned. Orders were made by Johnston J on that day dismissing the appellant’s application in a case in its entirety. On the same day, the appellant filed an application in a case seeking a stay of the orders made by Johnston J on 7 April 2015. His Honour heard and determined that application on 16 April 2015, and stayed the orders of 7 April 2015, pending the determination of the appeal.
On 27 April 2015, the appellant filed the Notice of Appeal which is before us today, against the orders of 7 April 2015. Pausing there, I note that the filing of this document occurred 11 days after the appellant had undertaken to his Honour to file it.
On 22 May 2015 the appellant filed a draft appeal book index as required under the Rules.
On 11 June 2015 the matter was listed for a procedural hearing before the appeal registrar. At that hearing the appellant sought an extension of time to file an Amended Notice of Appeal. The appeal registrar ordered that the Amended Notice of Appeal be filed by 12 June 2015, and that the appeal books and the appellant’s summary of argument, and list of authorities, be filed by 23 July 2015.
On 15 June 2015, namely three days after the date which was allowed for filing, the appellant sought to file her Amended Notice of Appeal. The appeal registry received that document but did not file it, because it was, of course, out of time. That document has still not been accepted for filing.
On 20 July 2015 the appellant emailed the other parties in the matter, seeking their consent to an extension of time to file the appeal books and her summary of argument and list of authorities. The first, second and third respondents refused to give their consent, but the fourth respondent, namely the appellant’s brother, consented.
On 22 July 2015, namely one day before the appellant was due to file her summary of argument, list of authorities and appeal books, the appellant sought to file an application in an appeal, and supporting affidavit, seeking an extension of time to file these documents. That application and the supporting affidavit were received by the appeal registry, but were not filed.
On 27 July 2015 the appeal registrar emailed the appellant, notifying her that the Amended Notice of Appeal received by the registry on 15 June 2015 had not been accepted for filing. The appellant was also notified that the supporting affidavit, sworn on 22 July 2015, in support of the application in an appeal of that date, failed to specify a reason why the appellant sought an extension of time to file the appeal books, her summary of argument and list of authorities, other than that the transcript was not available until 4 or 5 August 2015.
Thus, the appeal registrar directed the appellant to file and serve a further affidavit in support of her application in an appeal by Friday 31 July 2015. In the event that the appellant did not do that, she was informed by the appeal registrar that the matter would be listed before the Full Court for consideration of dismissal.
No further affidavit has been filed or, indeed, received by the appeal registry.
On 13 August 2015 the appeal registrar notified the appellant that in light of her failure to comply with the orders of 11 June 2015, and the direction of 27 July 2015, the matter was listed for consideration of dismissal before the Full Court on 3 September 2015.
On 3 September 2015 the matter came before the Full Court for consideration of dismissal of the appeal. There was no appearance by the appellant. The assistant to the appeal registrar attempted to telephone the appellant’s mobile telephone number, but without success. After the commencement of the hearing an email was sent to the appeal registry from a person allegedly assisting the appellant with her appeal. The email informed the registry that the appellant was not aware of the listing of the hearing. As a result, the Full Court made orders adjourning the hearing to a date to be fixed by the appeal registrar, and reserved the question of the costs of that hearing.
On 8 September 2015 the appeal registry emailed the settled ex tempore reasons for judgment of the Full Court to all the parties.
On 14 September 2015, a person I will describe as an agent of the appellant, attended at the appeal registry seeking to view the appeal file and obtain copies of the orders and reasons of the Full Court of 3 September 2015. As the appellant was a self-represented litigant at that time, this request was denied and the agent was informed that a Notice of Address for Service must be filed with the firm’s details. The agent provided the appeal registry with a letter from the appellant as to the circumstances surrounding her failure to appear on 3 September 2015.
On 17 September 2015 the assistant to the appeal registrar spoke with the appellant. The appellant was informed of the need to file a Notice of Address for Service, and was advised of the orders that had been made by the Full Court on 3 September 2015, and emailed to her on 8 September 2015. The appellant indicated that she would file a Notice of Address for Service with a new email address.
On 2 October 2015 the appellant filed a Notice of Address for Service providing a postal address, an email address, and a mobile telephone number. A copy of the orders and the reasons for judgment of the Full Court of 3 September 2015 were then sent to the new email address by the appeal registry on 7 October 2015.
On 21 October 2015 the appeal registry notified the parties by letter of the listing of the matter for consideration of dismissal for want of prosecution on 10 December 2015, namely today. Helpfully, in that letter of 21 October 2015, the appeal registrar set out a detailed chronology of events to that point in time, and, importantly, in the letter advised that the parties were not required to attend on the date of the hearing, but if a party did not, the Full Court may dismiss the appeal in that party’s absence. And that was particularly addressed to the appellant.
That letter of 21 October 2015 was sent to all the parties by email and including, obviously, the appellant, at the email address specified in her Notice of Address for Service. It was also posted to the parties, including the appellant, at her postal address specified in her Notice of Address for Service. In the email to the parties, the appeal registrar sought that each party confirm receipt of the correspondence by return email. The first, second and third respondents complied with that request, however nothing was heard from the appellant, or the fourth respondent. Accordingly, on 23 October 2015, the assistant to the appeal registrar telephoned the fourth respondent and he confirmed receipt of the correspondence. I note again that the fourth respondent is the husband in the substantive proceedings, and the brother of the appellant.
On that same day, namely 23 October 2015, the assistant to the appeal registrar telephoned the mobile telephone number of the appellant specified in her Notice of Address for Service. There was no answer and a voicemail message was left by the assistant, requesting to be called back in relation to the correspondence sent on 21 October 2015. There was no return call received from the appellant. Thus, out of abundant caution, the appeal registry sent a copy of the letter of 21 October 2015 to the postal address of the appellant, which is a street address, and that letter was sent by registered post. However, that letter was not collected by the appellant from the relevant post office, and it was ultimately returned to the appeal registry marked “return to sender”.
In the meantime, on 16 November 2015, another attempt was made by the assistant to the appeal registrar to contact the appellant by telephone, again using the mobile number specified in her Notice of Address for Service. On this occasion a voice mail message was left advising that the matter was listed for dismissal on 10 December 2015 at 10:00 am.
In yet another attempt to formally advise the appellant of the listing of this matter for hearing, on 17 November 2015 the earlier letter was again sent to the address specified in the Notice of Address for Service, and again was sent by registered post. Still nothing was heard from the appellant, either by way of telephone, or by way of return email, or by way of return correspondence, and indeed on 8 December 2015 the letter was received by the appeal registry marked “return to sender”.
Thus, to repeat, the position is that the appellant has failed to appear today. A letter was sent by post and by email to her on 21 October 2015. It is apparent from what I have just relayed that the letter does not appear to have been received by the appellant through either ordinary or registered post. However, the email which was sent on 21 October 2015, to use, as I understand it, the relevant IT phrase, has not “bounced back”.
For my part, I am prepared to proceed on the basis that the appellant is aware of the hearing today, and specifically as a result of the email attaching the letter of 21 October 2015.
I note of course, the messages that have been left by the assistant to the appeal registrar on the mobile telephone number of the appellant specified in the Notice of Address for Service. I also observe that the fourth respondent, namely the husband in the substantive proceedings, and the brother of the appellant, confirmed with the appeal registry that he received the correspondence. Although I do not specifically rely on this in finding that the appellant has received notice of today’s hearing, that is another relevant factor to be taken into account in that regard.

Discussion

The relevant rule under consideration today is r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
I have been particular in tracing the history of this matter, and also in specifically addressing the question of whether the appellant has received notice of the hearing today, because under sub-rule (3) of rule 22.45, the court is able to make an order under that rule of its own initiative, if at least 14 days before the making of the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order. I am satisfied that that sub-rule has been complied with.
Rule 22.45 provides as follows:
Dismissal of appeal and applications for non‑compliance or delay
(1)This rule applies if:
(a)the appeal is not taken to have been abandoned; and
(b)a party (the defaulting party) has not:
(i)met a requirement under these Rules or the Regulations;
(ii)complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii)shown reasonable diligence in proceeding with an appeal or application.
(2)A court having jurisdiction in the appeal or application may:
(a)if the defaulting party is the appellant or the applicant:
(i)dismiss the appeal or application; or
(ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b)if the defaulting party is the respondent:
(i)fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii)proceed to hear the appeal or application.
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
(4)An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.
In this case the appellant has failed to comply with orders made by the appeal registrar designed to ensure that the appeal progressed expeditiously to a hearing, and as such, the appellant has failed to show reasonable diligence in proceeding with the appeal. The appellant was granted an indulgence by this court on 3 September 2015 when the question of dismissal was adjourned, after she failed to attend that hearing on that day. It is apparent that the appellant has done nothing further to progress her appeal since that hearing, and time and the patience of this court has now well and truly run out, and I would dismiss the appeal.

RYAN J

I agree and have nothing to add.

ALDRIDGE J

I also agree.

STRICKLAND J

Costs

We now have an application for costs on behalf of the first and second respondents. There is also the circumstance that their costs were reserved at the hearing on 3 September 2015. Thus, the costs application now before us encompasses both the hearing on 3 September and this hearing, and the work that was required to be undertaken on behalf of the first and second respondents in relation thereto
The application that is made is for an order for costs on an indemnity basis.
There are obviously two questions with the application. The first is whether there should be an order for costs, and I am satisfied that there should be given there are circumstances that justify an order for costs being made, and I refer generally to s 117 of the Family Law Act 1975 (Cth) (“the Act”), and particularly to ss (2) and (2A). The particular circumstances I am referring to are the failure by the appellant to appear on either occasion, the fact that the appeal has been dismissed, effectively because of her failure to comply with orders and directions of the appeal registrar, and the fact that she has failed to show reasonable diligence in proceeding with the appeal. That has led to the first and second respondents incurring unnecessary legal costs.
The second question is on what basis should those costs be calculated. The ordinary rule of course, is that an order for costs is calculated on a party/party basis. In this instance though, to repeat, the application is for costs to be calculated on an indemnity basis. Mr McDonell has indicated to us that the costs, if assessed on an indemnity basis, would be $3,336.62, but if calculated on a party/party basis, would be approximately $2,800.00.
To repeat, the ordinary rule is that orders for costs are calculated on a party/party basis, but it emerges from the authorities that to depart from that ordinary rule and to order indemnity costs, exceptional circumstances need to be demonstrated. I refer to such cases as Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225, that being a decision of the Federal Court of Australia. And in terms of decisions of this Court, there are those in D & D (Costs) (No. 2) (2010) FLC 93-435, Limousin v Limousin (Costs) (2008) 38 Fam LR 478, and Kohan and Kohan (1993) FLC 92-340.
As to what might constitute an exceptional circumstance, in Colgate-Palmolive, Sheppard J set out what he considered were examples of exceptional circumstances, but again, the authorities tell us that the category of exceptional circumstances are not closed. In this case, in my view, there are exceptional circumstances which would justify departing from the ordinary rule and making an order for costs to be calculated on an indemnity basis. Those exceptional circumstances are, that it is apparent from the procedural history of this matter that the appellant has been contemptuous of the process. Importantly, it must also be recognised that she is a practising lawyer, and it is readily apparent that she has failed to satisfy her obligations, not only as a litigant, but as a practising lawyer in the conduct of this appeal.

Thus, for those reasons I would make an order for costs to be paid in the precise sum of $3,336.62.

RYAN J

I agree.

ALDRIDGE J

I agree.

I certify that the preceding forty-two (42) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court delivered on 10 December 2015.

Legal Associate:

Date: 16 December 2015