BAGLEY & ULMER - [2011] FamCAFC 45

FAMILY COURT OF AUSTRALIA

BAGLEY & ULMER

[2011] FamCAFC 45

FAMILY LAW - APPEAL – COSTS – Where the Federal Magistrate dismissed the father’s application for costs and the mother’s application for her costs of the father’s application – Whether the Federal Magistrate erred in failing to take objections to the material relied on by the father in support of his costs application – No appealable error established.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Bagley

RESPONDENT:

Mr Ulmer

FILE NUMBER:

SYC

5638

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

11 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

10 February 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 May 2010

LOWER COURT MNC:

[2010] FMCAfam 577

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Battley

SOLICITOR FOR THE APPELLANT:

Williams Roncolato

COUNSEL FOR THE RESPONDENT:

Mr Alexander

Orders

1) The appeal is dismissed.
2) The Appellant is to pay the Respondent’s costs of the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Bagley & Ulmer is approved 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: NA 61 of 2010
File Number: SYC 5638 of 2008

Ms Bagley

Appellant

And

Mr Ulmer

Respondent

REASONS FOR JUDGMENT

background

The appellant, Ms Bagley (the mother) and the respondent, Mr Ulmer (the father) engaged in parenting proceedings in the Federal Magistrates Court. The proceedings were to be heard on 18 January 2010 but were settled.
On 2 February 2010 the father applied for an order that the mother pay his costs of the parenting proceedings. The mother made an application for her costs of the father’s costs application. The applications were heard by Federal Magistrate Cassidy on 4 May 2010 and in a judgment delivered on 11 May 2010 both applications were dismissed.
The mother appeals against the Federal Magistrate’s refusal to grant her a costs order in respect of the hearing of the father’s costs application.

Costs hearing

The father’s application before the Federal Magistrate essentially sought orders that the mother pay all of his costs relative to the proceedings between them either on an indemnity basis or party-party basis and other orders associated with the costs application.
In support of his application, the father filed an affidavit of considerable length. While that document was not included in the Appeal Books for this appeal, it is clear from the transcript of the hearing before the Federal Magistrate, and from her Honour’s judgment, that it was extensive.
Although it is not explicitly stated in the transcript of the costs hearing, it appeared to be agreed that at some earlier stage the Federal Magistrate had directed the mother to file written objections to the father’s material, the father was given an opportunity to respond to that document and both parties had complied with that direction.
The hearing of the father’s application was conducted by telephone. The Federal Magistrate asked each party to identify the material they wanted her to consider in determining the application. The father referred her to his application, affidavit and submissions. Counsel for the mother referred only to the mother’s response to the application, but it is clear that counsel intended the Federal Magistrate to have regard to the written objections. Her Honour indicated that she had limited time in which to consider the application and allocated 20 minutes to each party for submissions.
It appears that the father asserted several bases for his costs application which were adverted to in her Honour’s judgment. In declining to make a costs order in favour of the father, her Honour said that she was, “…not able to come to a conclusion under the provisions of s117(2A) that there are circumstances that take this matter away from the primary position, which is that each party bear their own costs.”
In respect of the mother’s application for her costs of the application, her Honour said at paragraph 12 of her reasons for judgment:
…Mr Battalie made a costs application with respect to the costs order. He made very limited submissions, and in reply to his limited submissions, I am going to give this very simple reason, that I do not see any reason why I should depart from s117 in relation to that matter as well, that each party bear their own costs, and therefore, all applications with respect to costs are dismissed.

The appeal

The grounds set out in the Notice of Appeal assert an error of law by the Federal Magistrate in refusing to make a costs order in favour of the wife and in the exercise of her discretion in refusing to make the costs order.
In the summary of argument filed on behalf of the mother, the grounds were articulated as follows:
…The learned Federal Magistrate:-
i)erred in law in determining that the court would not consider objections to the husband’s prolix affidavits (such determination was made notwithstanding that objections and responses-to-objections had been filed in accordance with her Honour’s directions);
ii)erred in law in determining that cross-examination of the husband would not be allowed; and …
iii)erred in law in that the manner in which she conducted the hearing prevented the wife from properly ventilating her application for costs in respect of the husband’s wholly unsuccessful costs application.
Although three grounds of challenge to her Honour’s decision were asserted, the argument on appeal focused on the first of the grounds, namely the failure to take objections to the material relied on by the father in support of his costs application.

Failure to take objections

Counsel for the mother argued that her Honour failed to afford the mother procedural fairness in that, having received written objections to the father’s affidavits, she refused to hear further, oral argument from counsel for the mother on those objections. It was argued that in not allowing objections to be taken, her Honour, in reaching her decision, may have taken into account irrelevant matters and, further, that in failing to allow objections to be taken, the mother is in doubt about what matters were relied on by her Honour in coming to her decision.
The argument became further distilled when counsel for the mother agreed with the proposition (transcript of 10 February 2011 at p 5) that:
Having called for, and received, written argument on the very matters that you wanted to raise with her, don’t you have to assume that, having received the documents, she took no notice of them?
The reasons for judgment do not contain any formal rulings on the objections raised by the mother to the father’s affidavit.
It is helpful to set out some parts of the transcript of the argument before the Federal Magistrate. I note that although the transcript of the proceedings before her Honour refers to counsel for the mother as “Mr Battalie”, counsel’s correct name is Battley.
At p 3 of the transcript and following, counsel for the wife had the following exchange with the Federal Magistrate:
Mr. Battalie: …Might I simply address you, firstly, though, on the prolixity of this application.
Her Honour: You can, but you’re wasting a lot of time doing that. I intend to scan read that. I don’t wish to take any objections on it.
Counsel for the mother argued that the Federal Magistrate should strike out the father’s affidavit and said (at p 13 of the transcript):
Mr Battalie:    …Firstly might I say robustly that this is an application without any merit whatsoever. Secondly, I note your Honour’s decision, with respect, on objections, and…
Her Honour:   Well, you didn’t press it, did you?
Mr Battalie:    I did press it, but I pressed it on this theory. Your Honour had made your decision. I simply asked your Honour to take it into consideration.
Her Honour:   Yes. Well, of course I’m going to do that.
Counsel for the mother said (at p 15 of the transcript):
Mr Battalie:    …There are some 236 pages that Mr [Ulmer], the father, unwisely in my view, asks the court to consider. Your Honour, I have absolutely no difficulty with your Honour’s decision, or even if I did it wouldn’t be appropriate to say so, other than respectfully, in not going through these paragraphs one by one and/or the annexures, because if your Honour were to do that this would be a matter that would take some three to four days, and clearly, your Honour, your Honour has a busy list. There are…
Her Honour:   And it’s not done with costs applications.
Mr Battalie:    Well, it’s not done with costs applications…
After responding to the points raised by the father on which his costs application was based, and in an exchange with counsel for the mother about the reliance by the father on the untested opinion of an expert, the Federal Magistrate said (at p 18 of the transcript):
Her Honour: I think it is too but I’ve got to read this material before I come to a firm conclusion on that.
Mr Battalie: Yes I appreciate that. Well, I ask simply, your Honour, in reading that that you have recourse to the objections. I understand…
Her Honour: Yes, I’m not going to deal with them.
And, at p 22 of the transcript he said:
Mr Battalie: When your Honour looks at 117(2A), the financial circumstances of each of the parties, Mr [Ulmer] puts some certain facts, alleges certain facts in respect of the mother. There is a reference to the objections. Your Honour will determine what weight, if any, you give to those objections.
Her Honour: Yes.
Counsel for the mother conceded that if I came to the view that this last exchange with the Federal Magistrate amounted to a concession, then the point would be more difficult for the mother to argue.
While I am not sure that the exchange represents a concession, I am of the view that it reflects that both counsel and the Federal Magistrate were of the understanding that the objections would be considered at a later time, not in the hearing.
The preceding passages indicate, in my view, that the Federal Magistrate’s clear intention was to take into account the objections raised by the mother to the father’s material in her determination of the father’s application.
The following exchanges are also of assistance in determining this issue.
After referring her Honour to the Court’s general power to control proceedings, counsel for the mother said (at p 14 of the transcript):
Mr Battalie: …and in that respect, your Honour, that was the power which your Honour, I assumed, was relying on when your Honour determined that issue in…
Her Honour:   Absolutely. Busy, busy lists.
Mr Battalie:    Indeed your Honour. No please…
Her Honour:   That’s what we rely on.
Mr Battalie: …I have no difficulty with that. But in doing that, your Honour, your Honour will take into notice the extraordinary prolix nature of the material that the applicant father seeks your Honour to look at.
After discussion about the Court’s power to strike out documents that were prolix, counsel for the mother submitted that the Court could come to the view that the proportion of irrelevant information in the father’s documents so outweighed any relevant information, that all should be struck out. Counsel for the mother then said (at p 19 of the transcript):
Now, if your Honour were to go through that very tedious task of ruling on every paragraph of the material that the applicant filer [sic] says that you ought to look at then your Honour would, in my respectful submission, it would take days. Your Honour would be comfortable in adopting the procedure both in the inherent power that you have to control your court’s own proceedings, mindful of those authorities, because if you took, for example, Mr [Ulmer’s] paragraphs 102 to 134…
Later, counsel for the mother continued (at p 21 of the transcript):
…Now that’s just indicative – If I may say so and I do submit respectively – of totally irrelevant material which highlights the, if I may say so, commonsense approach that your Honour has taken to this application. Of course, if your Honour were to go and rule on each of the objections, as I said earlier, your Honour would be here for some time….
Clearly, her Honour was mindful of the time constraints that prevailed on that day, and, as I have already indicated, had allocated each party 20 minutes in which to make submissions. The foregoing exchanges indicate that both her Honour and counsel were conscious of the time it would take for her to consider and rule on each objection.
At the end of his submissions on costs, the father turned to a consideration of the objections to his affidavit filed by the mother (at p 12 of the transcript):
Mr [Ulmer]:   The respondent raises section 135 of the Evidence Act in a lot of places in…
Her Honour:   Yes. Don’t worry about that. Objections to evidence have not been taken.
Mr [Ulmer]:   Okay.
Her Honour:   I mean I will take notice, to the extent that I will know what is admissible and what is not, so to the extent that if you’re trying to seek something to be admissible and it’s not you had better tell me why I should look at it. But it’s not a – yes, its not pressed as an objection, but do you want to do with section 135 of the Evidence Act?
A reading of the transcript of the argument before her Honour on that day does not support the mother’s submission that the remarks made by her Honour demonstrated that she had no intention of considering the objections in due course. It is plain that she was not proposing to hear argument on the objections in the hearing and had refused the application of the mother’s counsel to cross-examine the father on his affidavit saying (at p 4 of the transcript):
Well, I’m not going to allow that on a costs application. It’s a discretion that I have. This is a matter where it would be impossible to cross-examine him in the time allowed. I’m entitled on a costs application to truncate it.
The transcript makes it plain that her Honour and counsel were well aware that written objections had been made, and indeed there was discussion about them by both Mr Battley and the father in the course of the hearing.
The transcript as a whole and in particular the extracts to which I have referred do not support the argument for which the mother’s counsel contended. Rather, they support a finding that her Honour’s comments referred to an unwillingness to hear oral argument on the objections during the hearing. I am fortified in that finding by the exchange between counsel for the mother and the Federal Magistrate reflected above (at p13 of the transcript) when counsel returned to the issue of objections and said, “…I simply asked your Honour to take it into consideration” to which her Honour replied, “Yes. Well, of course I’m going to do that”. I am also taking into account her Honour’s comment to the father that indicates that she will take account of what is admissible (p 12 of the transcript).
Counsel said that the asserted error existed even if I accepted that her Honour’s intention was to have regard to the written objections, because she denied the mother an opportunity to expand on that which had been written. I find no merit in that argument.
Counsel for the mother on two occasions referred to her Honour’s accepted ability to regulate the procedures of the court and she, herself, referred to the desirability of truncating proceedings such as a costs hearing. It is implicit in the directions for written argument and responses and the comments made by her Honour that she was acting in the way urged on her by counsel for the mother. There is no basis on the facts of this case, or in the oral argument on the appeal, for thinking that in failing to afford the mother another opportunity to make objections, or to expand on those already made, that her Honour did not afford the mother procedural fairness.
True it is that the judgment does not indicate the fate of the mother’s objections to the father’s material but, of course, the father’s application for costs was dismissed.
Counsel for the mother argued that although the father’s application failed, there was no opportunity for the mother to pursue her costs application and demonstrate that she had expended money and effort in meeting an unmeritorious claim, including complying with the direction to provide written objections.
It is pertinent to note that there was no challenge on the appeal to her Honour’s discretionary decision not to make an order for costs to the wife in meeting the father’s application. It was in the process by which this decision was reached that appealable error was asserted.
In my view, taking into account the agreed history of the matter, that included the directions for providing objections in writing and the transcript of the argument before her Honour, the Federal Magistrate could not possibly have been unmindful of the costs and expense incurred by the mother in meeting the father’s claim. Counsel’s submissions on the mother’s application were brief.
At p 24 of the transcript Counsel for the mother said:
Mr Battalie:    When dismissing the application, your Honour, I am instructed, however, if your Honour were to come to that decision then there’s an application for resisting the costs. Again, that’s a discretionary matter and I think I will leave that.
Her Honour:   You probably don’t need to be heard. I don’t need to hear from you on that one…in the sense that I'm probably not inclined to entertain that for the same reasons that I'm not inclined to entertain the primary reason. It’s a children’s matter.
Mr Battalie:    As always, there’s much merit that falls from your Honour’s lips except this, might I add: your Honour will recall that on the very first day when your Honour converted the terms into orders your Honour indicated to the father that a costs application would be unlikely to be successful.
Her Honour:   Yes.
Mr Battalie:    And the respondent mother has been put to some considerable costs….but it is a matter in which the father has persisted against authority and in a manner that has not been helpful.
There is no doubt that her Honour understood the mother’s position in relation to the father’s costs application and that she had been put to trouble and expense to defend it. I therefore find no merit in this argument.
No argument was addressed to the other two grounds of appeal.
The appeal therefore fails.

Costs

As is usual, counsel for both parties, were invited to address on the issue of costs on the appeal. Counsel for the mother conceded that if the appeal failed, the mother could not resist an order for costs against her. It is indeed properly conceded and in this case appropriate that the mother be ordered to pay the father’s costs of the appeal.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 11 March 2011.

Legal Associate:

Date: 11 March 2011