Baghti & Banis
[2015] FamCAFC 80
•8 May 2015
FAMILY COURT OF AUSTRALIA
| BAGHTI & BANIS AND ANOR | [2015] FamCAFC 80 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – reinstatement of abandoned appeal – where appeal has no merit – where application is dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 19.29, 19.30, 19.31, 22.13 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Kohan & Kohan (1993) FLC 92-340 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Baghti |
| FIRST RESPONDENT: | Mr Banis |
| SECOND RESPONDENT: | Ms Banis |
| FILE NUMBER: | SYC | 2145 | of | 2009 |
| APPEAL NUMBER: | EA | 166 | of | 2014 |
| DATE DELIVERED: | 8 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 20 April 2015 6 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 November 2014 |
| LOWER COURT MNC: | [2014] FamCA 975 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levet |
| SOLICITOR FOR THE APPLICANT: | Baghti & Company Lawyers |
| SOLICITOR FOR THE FIRST RESPONDENT: | McDonell Milne Toltz Family Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | McDonell Milne Toltz Family Lawyers |
ORDERS DATED 6 MAY 2015
The first and second respondents have leave to withdraw their oral application made pursuant to order 2 on 20 April 2015.
The applicant has leave to file in court the Notice of Address of Service of Baghti & Company Lawyers.
ORDERS DATED 8 MAY 2015
The application in an appeal filed by Mr Baghti on 2 March 2015 be dismissed.
The applicant pay the first and second respondents’ costs in the total amount of $800 within 28 days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Banis and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 166 of 2014
File Number: SYC 2145 of 2009
| Mr Baghti |
Applicant
and
| Mr Banis |
First Respondent
and
| Ms Banis |
Second Respondent
REASONS FOR JUDGMENT
This is an application by Mr Baghti (“the applicant”) filed on
2 March 2015 to reinstate his Notice of Appeal filed on 11 December 2014. The proposed appeal is against orders made by Rees J on 13 November 2014 which resulted in the dismissal of the applicant’s application to review orders and directions made by a Senior Registrar on 12 August 2014 and
2 September 2014. Because the applicant failed to file a draft appeal index within the time prescribed by r 22.13 of the Family Law Rules 2004 (Cth) (“the rules”), the appeal was deemed abandoned.
The orders made on 12 August 2014 and 2 September 2014 concerned the assessment of costs to be paid by the applicant, pursuant to orders made by Fowler J on 27 November 2012, to Mr Banis (“the first respondent”) and Ms Banis (“the second respondent”). The respondents are the applicant’s former parents-in-law who were joined in property settlement proceedings between the applicant and Ms Baghti. In relation to the costs of the first and second respondents, Fowler J made the following order:
(3)The husband is to pay the interveners’ costs of and incidental to the proceedings as agreed or assessed, such costs to be on an indemnity basis for the purpose of the hearing, that is to say, from the date of the commencement of the hearing to the conclusion of it, otherwise the costs be on a party and party basis.
On 19 December 2013, the respondents filed an application for an assessment of the costs to which they were entitled pursuant to Order 3 dated
27 November 2012. A Notice Disputing Itemised Costs Account was filed by the applicant on 18 February 2014. Although the Notice was filed out of time, it would seem that it was treated as having been filed within time.
In any event, on 8 May 2014, and pursuant to r 19.29 the Senior Registrar issued a preliminary assessment of the amount for which, if the costs were to be assessed, a costs assessment order would be likely to be made. The directions made by the Senior Registrar are set out below:
1. I note that this matter was listed before me today for a settlement conference (costs). 2. I further note that I have made a preliminary assessment of costs pursuant to Rule 19.29 and conveyed that preliminary assessment to each party by post and by email. 3. I also note that, pursuant to Rule 19.31 of the Family Law Rules 2004, if after 21 days of receipt this Notice neither party has given written notice of objection to the Registrar and the other party and paid the amount as security for costs, a costs assessment order will be made for the amount of the preliminary assessment amount. Preliminary Assessment 4. I hereby notify each party that the preliminary assessment amount, pursuant to Rule 19.29 of the Family Law Rules 2004, is $109,160 comprising:
Solicitor’s costs of $45,635, and
Barrister’s fees of $63,525.
5. Pursuant to Rule 19.30 I direct that, if either party wishes to object to the preliminary assessment, that party must prepare, file and serve a written notice of objection within 21 days of receiving this notice. At the time of filing the notice of objection, that party must pay into Court the sum of $6,067.37 by way of security for costs of any assessment hearing. Other Orders and Notations 6. It is requested that the Case Co-ordinator forward a copy of these orders to each party forthwith by email.
(Original emphasis)
The preliminary assessment triggered r 19.30 (objection to preliminary assessment amount) and r 19.31 (if no objection to preliminary assessment). Those rules are set out below:
19.30 Objection to preliminary assessment amount
(1) A party may object to the preliminary assessment amount by:
(a) giving written notice of the objection to the Registrar and the other party; and
(b) paying into court a sum equal to 5% of the total amount claimed in the itemised costs account as security for the cost of any assessment of the account;
within 21 days after receiving written notice of the preliminary assessment amount.
(2) On receiving a notice and security, the Registrar must fix a date for an assessment hearing for the itemised costs account.
(3) The party objecting may be ordered to pay the other party’s costs of the assessment from the date of giving notice under paragraph (1)(a) unless the itemised costs account is assessed with a variation in the objecting party’s favour of at least 20% of the preliminary assessment amount.
Note: The court may order that a party is not required to pay security under paragraph (1)(b).
19.31 If no objection to preliminary assessment
If:
(a) a Registrar does not receive a notice of objection under paragraph 19.30(1)(a); and
(b) an amount as security for costs is not paid under paragraph 19.30(1)(b);
the Registrar may make a costs assessment order for the amount of the preliminary assessment amount.
The applicant did not file a Notice of Objection pursuant to r 19.30 or pay the $6,067.37 as security for costs of an assessment hearing. Thus, by the operation of r 19.31 the registrar was entitled to make a costs assessment order in the same amount as the preliminary assessment.
However, before that step was taken, on 29 May 2014, an application was filed by the applicant to dispense with r 19.30. That application was determined by the Senior Registrar on 12 August 2014 who made orders which gave the applicant an extension of time within which to file and serve a Notice of Objection pursuant to r 19.30 and dismissed that part of the application to set aside the order for security for costs of an assessment hearing.
The applicant failed to comply with the directions of 12 August 2014. In other words, he did not file a written objection to the preliminary assessment or pay the security for costs.
Consistent with r 19.31 and on 2 September 2014, the Senior Registrar made a costs assessment order for the amount referred to in the preliminary assessment. That order is set out below:
Pursuant to Rule 19.31 of the Family Law Rules 2004 it is ordered that the amount payable by [Mr Baghti], the Costs Respondent to [Mr Banis and Ms Banis], the Costs Applicants is $109,160.
On 16 September 2014, an application was filed by the applicant to review the orders of the Senior Registrar made on 12 August 2014 and 2 September 2014. This is the application which her Honour dismissed and against which the applicant seeks to appeal.
The guiding principles
As has already been mentioned, r 22.13 provides that an appellant must file a draft index to the appeal within 28 days of filing the Notice of Appeal and failure to do so will result in the appeal being treated as abandoned.
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. Although that case dealt with an application for an extension of time to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88).
The guiding principle is that such applications would generally be allowed where to do otherwise may occasion a substantial injustice. However, an order for reinstatement is not automatic and involves the exercise of discretion. The discretion is given for the sole purpose of enabling the court to do justice between the parties. In determining whether strict compliance with the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave.
In Jackamarra v Krakouer (1998) 195 CLR 516, Gummow & Hayne JJ said at [33]:
…when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason
enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Why wasn’t the draft appeal index filed?
The applicant was required to file a draft appeal index by 4.30 pm on
8 January 2015. Before his evidence about why he did not file the draft index is considered, a number of uncontentious facts need to be mentioned. First, the applicant holds a degree in law or its equivalent. Secondly, he lives with a sister who is a lawyer and the solicitor on the record in this application. Thirdly, he has considerable experience as an appellant in this jurisdiction, having commenced the appeals listed below, each of which required him to file a draft appeal index within the time prescribed by the rules. The applicant commenced the appeals listed below:
· EA 13 of 2010 filed 25 January 2010;
· EA 40 of 2010 filed 6 April 2010;
· EA 118 of 2012 filed 19 September 2012;
· EA 10 of 2013 filed 24 December 2012; and
· EA 143 of 2013 filed 16 October 2013.
It is the applicant’s evidence that during the period after he filed the Notice of Appeal to which this application relates, he was unrepresented and did not know the date by which he was required to file the draft index. Although the first proposition is correct, the second is somewhat curious. This is because it can be inferred that he was aware of the existence of rules of court which govern the conduct of appeals. This inference is readily available by reason of the applicant’s extensive experience in this court, his qualifications in law and the large number of applications in an appeal (there are too many to record here) in which he has sought to depart from various rules of court. There can be no doubt that the applicant knew he was obliged to file a draft index and how to establish the relevant time frame.
Those matters put to one side, there is in evidence a letter dated
15 December 2014 from the Appeals Registry to the applicant. That letter, which was sent by email to the applicant’s email address, informed him of the date by which the draft appeal index was to be filed. According to the applicant he did not receive the letter dated 15 December 2014 and the first correspondence he received from the Registry in relation to this appeal, is a letter dated 17 December 2014 which returned the service copies of his Notice of Appeal and Address for Service.
It follows that even if it is accepted that the applicant did not receive the
15 December 2014 letter, no later than 22 December 2014, which is when he says he received the letter of 17 December 2014, he knew of the date upon which his Notice of Appeal had been filed. With little effort by him, he could have established for himself the date by which he was required to file a draft appeal index. The period between 22 December 2014 and 8 January 2015 gave the applicant ample time to prepare and file the draft appeal index. When that factor is considered alongside those matters mentioned in this paragraph and paragraph 16, the totality of the evidence reveals that the applicant cannot be accepted of having provided a reasonable explanation for his delay.
Merits of the appeal
The applicant propounds eleven grounds which assert error by the primary judge. With the exception of ground one, the remaining grounds are either no grounds at all or materially misstate her Honour’s findings or the facts. Counsel for the applicant conceded that this was so and went onto submit that ground one was the only ground that could properly be pressed.
The gravamen of ground one is that the primary judge fell into error by proceeding on the basis that the respondents were entitled to their costs of the proceedings on an indemnity basis whereas the order for costs awarded them their party/party costs up to the first day of the hearing and it was only in the period thereafter which gave them indemnity costs.
Counsel for the applicant’s overview of the operation of the order for costs is correct. However, it is uncontentious that the costs assessed by the Senior Registrar relate to the period from the first day of the hearing, which is the indemnity period and the respondents waived their entitlement to party/party costs for the preceding period. That being so, as counsel for the applicant properly acknowledged, ground one could not succeed.
Conclusion
It follows, that by this application, the applicant seeks leave to reinstate an unmeritorious appeal. Reinstatement would simply add to the parties’ costs and prolong the stress inherent in litigation. Consistent with Jackamarra the application for reinstatement will be dismissed.
Costs
In the event the application was dismissed, the respondents applied for an order that the applicant pays their costs. Costs were sought on an indemnity basis in the amount of $1,500 and, failing that, $800 on a party/party basis.
Parties to family law proceedings usually pay their own costs, unless the court is satisfied there are circumstances which justify an order for costs. Here, the justifying circumstances are to be found in the applicant’s lack of success and that the respondents are strangers to the marriage who have incurred legal expenses unnecessarily. There are no other factors which are relevant to this issue and an order that the applicant pays the respondents’ costs on a party/party basis will be made.
It is not accepted that there is a proper basis for the court to make an order for indemnity costs in this application (Kohan and Kohan (1993) FLC 92-340).
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 May 2015.
Associate:
Date: 8 May 2015
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