Baghti & Baghti & Ors (No 2) - [2013] FamCAFC 195

FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI AND ORS (NO. 2)

[2013] FamCAFC 195

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks that a decision of the New South Wales Supreme Court and further orders made by the trial Judge be before the Full Court reserved in this appeal – where there is consent to the order as sought by the applicant – order made by consent.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the applicant seeks that the first respondent pay his costs of and incidental to the application in the sum of $1,052.50 – where the application is opposed – where there are circumstances which justify an order for costs being made – where the amount sought is not reasonable – costs ordered in the sum of $500.

Family Law Act 1975 (Cth) s 117

APPLICANT:

Mr Baghti

FIRST RESPONDENT:	Ms Baghti
SECOND RESPONDENT:	Mr B

THIRD RESPONDENT:	Mrs B
FILE NUMBER:	SYC	2145	of		2009

APPEAL NUMBER:

2013

DATE DELIVERED:	12 November 2013
PLACE DELIVERED:	Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland,
Ainslie-Wallace & Stevenson JJ

HEARING DATE:

12 November 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 November 2012

LOWER COURT MNC:

[2012] FamCA 1112

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Millist-Spendlove

SOLICITOR FOR THE APPLICANT:

Demir Legal

COUNSEL FOR THE FIRST RESPONDENT:

Mr Lawson

SOLICITOR FOR THE FIRST RESPONDENT:	SWAAB Attorneys
SOLICITOR FOR THE SECOND & THIRD RESPONDENTS:	McDonell Milne Toltz – excused from attendance

Orders

By consent the decision of [the Supreme Court of New South Wales] and the orders of his Honour Justice Fowler made on 20 September 2013 be drawn to the attention of the Bench of the Full Court of the Family Court of Australia comprising their Honours Justices Strickland, Ainslie-Wallace and Stevenson who are reserved in the judgment concerning the applicant’s application in a case filed in these proceedings for a stay of the final orders made by his Honour Justice Fowler on 22 August 2012 and 27 November 2012.
The first respondent pay the sum of FIVE HUNDRED DOLLARS [$500] towards the applicant’s costs of and incidental to the application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Baghti and Ors 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 10 of 2013
File Number: SYC 2145 of 2009

Mr Baghti

Applicant

And

Ms Baghti

First Respondent

And

Mr B

Second Respondent

And

Mrs B

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before us is the application in an appeal filed by the applicant on 16 October 2013 seeking that a decision of the New South Wales Supreme Court and the orders made by Fowler on 20 September 2013 be before us, the members of the Full Court reserved in this appeal (EA 10 of 2013).
There are other orders sought in that application namely, that the application be heard on an ex parte basis, and in the alternative that it be listed before this Court at the first available opportunity. I do not need to dwell on those orders; this matter was listed for hearing today, and it has been heard by us today.
The fourth order sought is that the first respondent pay the applicant’s costs of the application, and we will return to that order shortly.
In relation to the order sought in paragraph 1, there is consent to that order being made by the first respondent, and by the second and third respondents. The consent given by the second and third respondents came in correspondence received by the Court on 11 November 2013. The consent of the first respondent came by way of inclusion in the summary of argument filed by the first respondent on 11 November 2013. In those circumstances we propose to make an order in terms of paragraph 1.
The issue that has now been argued before us is the question of costs, and specifically the application that the first respondent pay the applicant’s costs. The costs ultimately sought are $1,052.50.
That application is opposed.
The brief history of this matter in terms of this application, and the justification for it, is that, as I have said, the application was filed on 16 October 2013. There has been no correspondence tendered to us today to indicate that prior to the filing of that application that there had been any attempt by the applicant to resolve the matter by agreement, and for example, requesting that the decision of the New South Wales Supreme Court be brought to the attention of the Bench reserved in EA 10 of 2013. Thus there can be no basis for costs to be awarded for the preparation and filing of the application, and we do not understand that any of the final amount sought includes such costs.
The first relevant event then was on 5 November 2013 a letter was sent by Dimir Legal to SWAAB Attorneys, and that letter has been tendered and received, and marked Exhibit 1. In effect in that letter the applicant sought the consent of the first respondent to two matters. First, that the hearing of the Notice of Appeal in EA 143 of 2013 filed on 16 October 2013 be vacated and be heard at the same time as the substantive appeal in EA 118 of 2012. Secondly, that the application in an appeal to which I have referred earlier, and the orders sought therein, be consented to.
It seems that there have been two responses to that letter both dated

6 November 2013. One response is Annexure “L” to the affidavit of Mr Baghti filed on 7 November 2013, and the other is a letter of the same date, and which letter too has been tendered and received, and marked Exhibit 2.
A plain reading of the two letters indicates to us that Exhibit 2 is the letter specifically dealing with the request by the applicant for the first respondent to consent to the orders sought in the application in an appeal. The other letter namely, Annexure “L”, clearly only related to the Notice of Appeal that had been filed on 16 October 2013.
Importantly in the letter which is Exhibit 2, it is indicated that the first respondent does not consent to the orders sought in the application and there will be a response filed in due course. The precise terms of that letter are as follows:
We refer to your letter of 6 November 2013.
We advise that our client does not consent to the orders sought in the Application in an Appeal filed on 16 October 2013.
We put you on notice that we anticipate serving upon you our client’s Response to your client’s Application in an Appeal in due course.
As it has transpired no response was filed, and we have not been taken to anything that has occurred in relation to that.
It seems that the next relevant event is the filing of the summary of argument of the first respondent on 11 November 2013, and as I have said earlier, in that summary of argument it is put that there is no opposition to the order sought in paragraph 1 of the application in an appeal being made.
With this background, as we understand it, the final amount of the costs sought are calculated on the basis of two hours of preparation time for counsel, for the hearing today, and one and a half hours for the instructing solicitor to brief counsel.
It is said by counsel for the respondent that there should be no costs awarded, and the basis of that submission is that although there may have been preparation for today’s hearing, there were orders made on 30 October 2013 by the Regional Appeals Registrar which required that summaries of argument in relation to the matters listed before the Full Court today be filed by specific dates. In relation to the applicant his summary of argument and list of authorities had to be filed by 5 November 2013, but as Mr Lawson for the first respondent has pointed out, no summary of argument has been filed in compliance with that order. Thus his submission is that there should be no costs awarded.
As with any application for costs this application is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). The primary position under the Act is that each party is to bear their own costs (s 117(1)) however, pursuant to

s 117(2) of the Act costs can be awarded if there are circumstances that justify the awarding of costs.
Here we are satisfied that there is a circumstance that justifies costs being awarded. That circumstance is that as of 6 November 2013, the position of the first respondent was that she did not consent to the orders sought in the application, and there was to be a response filed. It was only on 11 November 2013, namely yesterday, that the applicant was made aware of any change to that position, and that came in the summary of argument.
Thus, there should be an order for costs. It was necessary for the applicant to prepare for this hearing.
In terms of the amount sought though, we consider that it is not reasonable in the circumstances, and the order that we would make is that the first respondent pay the sum of $500 towards the applicant’s costs of and incidental to the application.

Ainslie-Wallace J

I agree with the orders proposed by the presiding judge and his reasons for making those orders and I have nothing further to add.

Stevenson J

I too agree with the orders proposed by the presiding judge and the reasons which his Honour has given. I likewise have nothing further to add.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Stevenson JJ) delivered on 12 November 2013.

Associate:

Date: 3 December 2013