Baker & Bond (No 3)
[2023] FedCFamC1A 88
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Baker & Bond (No 3) [2023] FedCFamC1A 88
Appeal from: Baker & Bond (No. 3) [2023] FedCFamC2F 124 Appeal number: NAA 51 of 2023 File number: MLC 749 of 2021 Judgment of: AUSTIN J Date of judgment: 7 June 2023 Catchwords: FAMILY LAW – APPEAL – Costs – Where the primary judge ordered the appellant husband to pay the respondent wife’s costs in property settlement proceedings – Where the appellant complains the primary judge denied him of natural justice and discretion miscarried – Where the appellant’s complaints are baseless – Where the appellant’s complaint of inadequate reasons is baseless – Where the primary judge regularly exercised discretion under s 117 of the Family Law Act 1975 (Cth) – Where the costs order against the appellant was not incongruent with the primary judge’s findings or established legal principles – Where the appeal was wholly unsuccessful – Where the respondent sought costs of the appeal – Appellant to pay the respondent’s costs of the appeal in a fixed amount. Legislation: Family Law Act 1975 (Cth) Pt VIII, s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 136, 188, 190, 191, 192
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 5.13, 12.17
Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Baker & Bond (No.2) [2023] FedCFamC1A 26
Baker & Bond [2022] FedCFamC1A 219
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63
Number of paragraphs: 61 Date of hearing: 6 June 2023 Place: Melbourne The Appellant: Litigant in person Counsel for the Respondent: Mr Kaufman Solicitor for the Respondent: Jordan & Fowler ORDERS
NAA 51 of 2023
MLC 749 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BAKER
Appellant
AND: MR BOND
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
7 June 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $10,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Baker & Bond has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
This is an appeal by the husband from a costs order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 10 February 2023, relating to financial proceedings concluded between the parties by property settlement orders made on 15 June 2022.
The appeal is dismissed for the following reasons.
Background
The parties separated in July 2020 and the husband commenced proceedings seeking financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) in January 2021.
The financial cause was heard between the parties on 14 and 15 June 2022, following which the primary judge gave judgment and delivered ex tempore reasons. The property settlement orders divided the parties’ property equally, but ensured they retained their own superannuation entitlements. The husband appealed from those orders, but the appeal was dismissed on 21 December 2022 (Baker & Bond [2022] FedCFamC1A 219).
When the property settlement orders were pronounced on 15 June 2022, the wife made an oral application for costs against the husband. To facilitate the determination of that application, the primary judge made these procedural orders:
14.The Wife have leave to make an oral application that the Husband pay her costs of these proceedings.
15.The Wife file and serve written submissions addressing the application for costs on or before 29 June 2022.
16. The Husband file and serve answering submissions on or before 13 July 2022.
17.The Wife file and serve any reply to the Husband’s answering submissions on or before 20 July 2022.
The wife thereafter filed and served written submissions, but the husband did not. Ostensibly, that is because he successfully applied to stay the orders made on 15 June 2022 pending the determination of his appeal. The stay order was made by another judge on 29 July 2022.
On 22 December 2022, after the husband’s appeal from the substantive property settlement orders was dismissed and the stay order had lapsed, the primary judge made these further interlocutory orders to vary those made earlier on 15 June 2022, extending the time within which to file submissions on costs:
1. Order 16 of the orders dated 15 June 2022 be varied as follows:
‘The Husband file and serve answering submissions on or before
13 July 202213 January 2023 at 4:00pm.’2. Order 17 of the orders dated 15 June 2022 be varied as follows:
‘The Wife file and serve any reply to the Husband’s answering submissions on or before
20 July 202220 January 2023 at 4:00pm.’(As per the original)
The husband still did not file any costs submissions and so there was nothing to which the wife needed to reply.
On 10 February 2023, the primary judge pronounced this costs order in the wife’s favour:
1.The Husband pay the Wife’s costs of and incidental to the substantive proceedings in the sum of $74,873.65 with such payment to be made to the trust account of [the wife’s solicitors] on the date the Husband complies with Order 2 of the orders made 15 June 2022 and in the event the real property situate and known as [D Street, Suburb C], in the State of Victoria (“[D Street]”) is sold, from the Husband’s share of the proceeds of sale to be received by him pursuant to Order 3(d) of the orders made 15 June 2022.
The husband’s appeal lies from that order.
As explained by the primary judge in the reasons for judgment, the calculation of costs totalling $74,873.65 comprised three components (at [29] and [77]):
(a)party/party costs of $19,037.20, for the period between October 2020 and July 2021; added to
(b)indemnity costs of $59,336.45, for the period between July 2021 and June 2022; but the subtraction of
(c)costs of $3,500 already awarded to the wife by the final orders.
The costs were granted because her Honour was satisfied the husband had the means to pay them (at [47]), neither party was legally-aided (at [51]), the manner in which the husband conducted the proceedings unnecessarily increased the wife’s costs (at [54], [57], [66] and [76]), and the husband either rejected or refrained from accepting reasonable offers of settlement made by the wife (at [61]–[66] and [76]). Such costs were awarded on an indemnity basis as from 8 July 2021, being the date upon which the wife made an offer of compromise which her Honour was satisfied was “imprudently refused” because it was better than the result the husband achieved (at [71] and [76]).
The appeal
The husband amended the appeal and so the grounds are those set out in the Amended Notice of Appeal filed on 19 May 2023.
Ground 1 will be considered first because it alleges (in part) the husband’s deprivation of natural justice which, if established, would require re-hearing of the costs dispute.
Grounds 2 and 3, albeit alleging separate legal and discretionary errors, will be discussed together because they are both directed to the award of indemnity costs from July 2021.
Ground 4 complains of factual errors in the reasons for judgment.
Ground 1
This ground is pleaded as follows:
The trial Judge abused her discretion when arriving at the decision to award costs on an indemnity basis, a denial of nature justice for the Husband.
(Emphasis added)
As can be seen, the ground imports dual complaints of the denial of natural justice and the miscarriage of discretion.
The husband made no complaint at all about his denial of natural justice in his Summary of Argument. Inferentially, he confused “natural justice”, in the legal sense of “procedural fairness”, for the perceived “justice” of the outcome of the proceedings.
The terms “natural justice” and “procedural fairness” are used interchangeably (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]) and the concept they mutually describe is concerned with only the fairness of the hearing, not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]). There was nothing unfair about the manner in which the primary judge conducted the costs dispute.
Having heard that exposition, the husband persisted in submitting orally during the appeal that he was denied natural justice because he was not given enough time to file written submissions and denied the chance to give an “oral reply” to the wife’s written submissions, though both complaints are baseless.
The procedural orders made in June 2022 and December 2022 implicitly envisaged that, consequent upon the filing of written submissions, the primary judge would determine the costs application on the papers in chambers. Such conduct of the ancillary costs dispute was well open to the primary judge because it:
(a)was sanctioned by statute (ss 136(1) and 188 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)); and
(b)promoted the quick, inexpensive and efficient resolution of the dispute according to law (ss 190, 191 and 192 of the FCFCA Act).
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), which ordinarily require an oral hearing unless the parties agree otherwise (r 5.13), cannot override the statutory imperatives of the FCFCA Act, but may be relaxed in any event (r 1.31).
The husband knew in June 2022 that the wife was seeking costs against him. He knew, from the time of his service with the wife’s written submissions, both the quantum of the costs she sought and the reasons why she sought them. He did not need to formally respond to those submissions whilst ever the stay order was in place, but he still had many months within which to contemplate his position. When the stay order dissolved, the procedural orders made on 22 December 2022 gave him about three weeks within which to file his written submissions in response. That was plenty of time within which to formulate and articulate his opposition to the costs application.
Contrary to the husband’s apparent belief, the stay order made in July 2022 neither subsisted until, nor was revived by, his application to the High Court of Australia in January 2023 seeking special leave to appeal the from the dismissal of his appeal by the Full Court. An application for special leave is not an appeal (DJL v Central Authority (2000) 201 CLR 226 at [248]) and the stay order only prevailed until the appeal was determined by the Full Court.
The husband complains that he should have been given notice that the primary judge was no longer abiding by the stay order but, even if he did not realise the stay order had dissolved upon the dismissal of his appeal by the Full Court, it was readily apparent from the orders made by the primary judge on 22 December 2022 that her Honour intended moving ahead to determine the costs dispute. The husband did nothing to try and deter the primary judge from doing so.
The husband was not denied procedural fairness. Objectively, he had every opportunity to make submissions rebutting the wife’s costs application, but chose not to do so. That his decision not to do so might have been misinformed by his misconception does not convert the forensic process from fair to unfair.
Otherwise, as articulated in the husband’s Summary of Argument, this ground of appeal is actually an admixture of complaint about mistaken findings and the failure to take relevant considerations into account. So much is inferred from these written submissions:
4.Her Honour has no consideration of the emotional burden of a marriage breakdown, how each party is affected by the separation and any disparity of wellbeing across the parties.
…
8.Her Honour’s determination in p57 that the Husband’s conduct throughout the litigation unnecessarily increased the costs incurred by the Wife, while disputed, provides no quantification or magnitude of this increase. Costs orders based on this determination should be limited to a calculated value of this increase. As no measure has been provided, nor evidence of this actually occurring, costs should only be awarded as were reserved through the litigation.
9.The Trial Judge gave no consideration to the emotional strain and wellbeing of the husband as a result of the separation.
…
13.Her Honour’s conclusion the Husband caused unnecessary and extended court proceedings by acting in an egregious manner (p76) is unquantified, and without factual evidence.
…
25.Regardless of any validity for items in the aforementioned p14, the Wife has given limited to no actual examples of how the husband’s conduct lengthened the proceedings vs what would have otherwise happened.
Plainly enough, in determining an application for costs between the parties, the husband’s emotional reaction to the marital separation and the “emotional strain” he experienced during the litigation were not material considerations and the primary judge did not err by not taking them into account.
The allegedly mistaken findings made by the primary judge about the husband’s conduct of the substantive proceedings, which were found to be influential pursuant to s 117(2A)(c) of the Act in the decision to award costs against him, do not fall within the rubric of this ground of appeal, which complains of an asserted “abuse” of discretion. The submissions could therefore be rejected outright because they do not match the ground of appeal but, because the husband is self-represented, they will be addressed.
The primary judge said this in the reasons for judgment with respect to the engagement of s 117(2A)(c) of the Act:
Section 117(2A)(c): the conduct of the parties to the proceedings
52.The Wife submits that the Husband’s resistance to co-operation, lack of responses to correspondence and untimely production and filing of material in these proceedings has caused her increased legal costs and “frustrated negotiations”.
…
54.Paragraphs 60 to 68 of the Wife’s written submissions document examples of the Husband’s challenging behaviour throughout the litigation which she submits have caused her “increased legal costs and frustrated negotiations”. These include:-
•Failing to meaningfully respond to key correspondence including the multiple settlement offers put to him;
•Being “evasive” in relation to his employment status;
•Failing to provide financial disclosure in an open and transparent way or in a timely manner;
•His correspondence being “usually combative, convoluted and / or irrelevant and often irrational”;
•Not cooperating in compiling a joint chronology or assets and liability table for the final hearing in accordance with Court orders;
•Seeking orders for damages in this Court and for the Wife to issue an apology for filing an Intervention Order Application (which was granted after a defended hearing);
•Filing further applications and affidavits “within days or minutes of each other seeking the same types of orders”; and
•Circulating at least three proposals “on the cusp of the final hearing”, all being substantially different.
55. The Wife submits that the Husband being unrepresented until the final hearing should not be a bar to the Court departing from the usual rule pursuant to section 117(1) of the Act. She notes that the Husband “was requested at every turn to seek advice, was repeatedly put on notice as to the potential cost risk, and agitated firmly on his own behalf often quoting the rules and legislation” to her solicitor.
…
57. The Husband was self-represented until just prior to the final hearing. While self-represented litigants are given some latitude, the Court is satisfied the manner in which the Husband comported himself, his unwillingness to meaningfully engage with the Wife to resolve the matter and his lack of responsiveness and the tone thereof, unnecessarily increased the costs incurred by the Wife.
…
76.The Wife’s application for the Husband to pay her costs of and incidental to the substantive proceedings is established. The egregious manner in which the Husband conducted his case caused the substantive proceedings to take far longer than they should have, at great expense to the Wife. …
…
80.The Wife seeks the Husband pay her costs within 42 days. Given the evidence before the Court, it is clear the Husband does not have the funds at this time to make such a payment. Accordingly, the Court will make an order for the payment of these costs in the same terms as it did on 15 June 2022, that is that the amount be paid either on the day the Husband pays the Wife $190,000 pursuant to Order 2 of the final orders or in the event of the sale of [D Street], from the Husband’s share of the proceeds of sale.
(Footnotes omitted)
The judgment under appeal was discretionary in nature and is therefore strongly presumed to be correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at [627]). None of the husband’s submissions demonstrate how the primary judge’s observations and findings in those paragraphs of the reasons were incorrect. The alleged failure by her Honour to elaborate such findings with a litany of individual examples is demonstrably false. Such examples were given (at [54]) in reliance upon the wife’s unchallenged written submissions.
The husband admitted in the appeal it was open to the primary judge to accept the wife’s unchallenged written submissions but, despite that conclusive concession, still tried to contest the validity of her Honour’s findings based on such submissions. The husband said the primary judge was wrong to find he was “recalcitrant in providing the most basic of financial material” because he filed a financial statement on 3 February 2021, an affidavit on 3 February 2021, a disclosure statement on 27 April 2021, and an affidavit on 28 March 2022.
However, the primary judge made no such finding. Her Honour instead quoted the wife’s submissions that he was “recalcitrant in providing the most basic of financial material and evidence of his employment status notwithstanding the [procedural orders] made [on] 12 April 2021” (at [7]), which was true. On 12 April 2021 he was ordered to give specific disclosure of certain documents and information to the wife by 3 May 2021 and he was impelled to concede he did not do so, at least in totality, until 28 June 2021, just before a conciliation conference (at [8]). On 17 June 2021, another order had to be made compelling the husband to produce to the wife certain documents she sought in a letter dated 9 June 2021, which he had not yet provided. The affidavit filed by the husband much later on 28 March 2022, giving details of his employment status, did not retrospectively annul any finding about his dilatory disclosure in 2021. The primary judge was entitled to find the husband “fail[ed] to provide financial disclosure in an open and transparent way or in a timely manner” (at [54]).
Grounds 2 and 3
These grounds are pleaded as follows:
2.The trial Judge’s decision to award substantive costs from the first offer was plainly wrong, and does not provide adequate reasons for her decision to award these costs on an indemnity basis.
3. The trial Judge failed to properly consider some or all of the evidence
Collectively, the grounds comprise three separate complaints: first, the primary judge failed to consider some relevant evidence (which evidence is not identified by any particulars); secondly, inadequate reasons were given for the decision to award indemnity costs (in part); and thirdly, the result was “plainly wrong”.
The complaints will be addressed in that order.
Not only did the husband fail to adorn the grounds of appeal with particulars of the supposedly overlooked evidence, he failed to identify such evidence in his Summary of Argument. Relevantly, the appellant said only this in his Summary of Argument:
44.In determining whether costs should be awarded, Her Honour at p54 lists grievances that the Wife alleged caused increased costs. (pp25)
45.Her honour has failed to consider these items in earnest, and particularly considering their points in time of the litigation.
(As per the original)
Thereafter in the Summary of Argument, the husband comments critically upon evidence which the primary judge actually did consider – not evidence which was supposedly ignored. In addition, the husband comments gratuitously upon the “inaccuracy of the [respondent’s] Written and Oral Testimony” during the substantive proceedings, which opinions were not relevant to determination of the subsidiary costs application, nor to the appeal from the costs judgment. The husband’s disagreement with the earlier judgment determining the substantive proceedings was rejected by the dismissal of his last appeal.
The complaint of inadequate reasons for the partial award of indemnity costs is baseless. The primary judge correctly referred to binding legal principles (at [67]–[70]) and found indemnity costs should be awarded for a portion of the litigation because of the husband’s failure to accept reasonable offers of settlement (at [71]–[75]).
These facts are beyond dispute. The wife made a succession of offers to the husband to settle the financial dispute in October 2020, December 2020, and January 2021. None was accepted. The parties attended a conciliation conference in June 2021, but were unable to resolve their dispute. The wife then made another offer of compromise to the husband on 8 July 2021, which offer was more beneficial to him than the orders eventually made after trial in June 2022.
The wife’s offer contained this warning:
This offer is made in accordance with the principles set out in Calderbank v. Calderbank [1975] 3 All ER 333 and Cutts v. Head [1984] Ch 290 affirmed in Mahoney v. Watson [2003] NSWCA 259.
If you do not accept this offer and the eventual determination of this matter is no less favourable to you than the terms of this offer, our client will rely on this letter in accordance with Section 117(2A)(f) of the FamilyLaw Act 1975 [Cth] and the principles set out in Dukemaster Pty. Ltd v. Blue Haven Pty. Ltd. [2003] FCAFC and most recently applied in Briggs v. Mantz No2 [2014] VSC 487 in support of an Application for an order that you pay our client’s costs from the date of service of this offer until the final determination of this matter.
(As per the original)
The husband responded shortly thereafter by email saying:
As I’m sure you are aware, Family Dispute Resolution communications, and anything said as part of (of which Conciliation Conferences are included), are not admissible in any court. - part 10J of the Family Law Act 1975
Your letter contains many references to items and details discussed within the conciliation conference; I have thus disregarded this communication in it’s entirety.
If your client wishes to propose an offer to me, can you please do so in accordance with the applicable legal framework at which point I will consider accordingly.(As per the original)
More offers were then made to the husband in late July 2021, April 2022, and June 2022, but they were not accepted either.
In the costs submissions made to the primary judge, the wife said this:
74.As set out in detail within these submissions, there have been numerous and repeated formal offers in writing of settlement to the Husband spanning a period of 18 months, the first of which pre-dated the Husband’s initiation of these proceedings, and two more formal offers clearly marked “Calderbank offers” in July 2021 and April (repeated on 6 June 2022).
75.All of the offers afforded the Husband a “better” outcome than that provided for in the judgement and Orders of Her Honour [the presiding judge].
…
84.Further, the second offer took place on the back of the Conciliation Conference and reflected the views of the Registrar and the in principal agreement reached at that court event.
…
86g.The Calderbank offers in July 2021 and April 2022 all flagged the eventuality of indemnity costs being raised should the ultimate outcome be no less favourable to him than the terms of the offers made. At all times the Husband was urged to obtain legal advice.
…
89.It respectfully submitted that the Court award the Respondent Wife costs in the sum of $74,873.65, being $19,037.20 for the period October 2020 to July 2021 plus $59,336.45 from July 2021 to date (total cost: $78,373.65) less the sum of $3,500 already awarded to the Wife.
(Emphasis in original)
The primary judge accepted and acted upon those submissions. Her Honour accepted that exceptional circumstances were required to justify indemnity costs (at [68]) and correctly identified how an “imprudent refusal of an offer of compromise” could properly be regarded as exceptional for that purpose (at [69]–[70]). So much accords with well-established authority.
The primary judge then said this in the reasons for judgment:
71.The Wife made multiple offers of settlement to the Husband throughout the substantive proceedings, including a Calderbank offer on 8 July 2021 and a further Calderbank offer on 8 April 2022. The latter offer was enlivened on 6 June 2022 upon the Husband obtaining legal representation. These offers are outlined in detail at paragraph 53 of this judgement. Those offers were either better than or same as the final orders made by the Court.
72.The Wife’s offers were either not responded to by the Husband or were met with “derision”.
73.The Wife’s offers were entirely reasonable and were expressed in the clearest of terms.
74.Having regard to all these factors, I am of the opinion that this matter is one which falls into the exceptional category as referred to by the Full Court in Kohan & Kohan (1993) FLC 92-340.
75.Accordingly, an order should be made for the Husband to pay the Wife’s costs of and incidental to the substantive proceedings from 8 July 2021 to 15 June 2022 on an indemnity basis.
CONCLUSION
76.... The Wife put several offers of settlement to the Husband in an attempt to avoid unnecessary litigation and costs, some of which were more favourable to the Husband than the final orders. The Husband rejected all proposals made by the Wife, however the offers should have been accepted by the Husband.
There is nothing to suggest the primary judge’s discretion miscarried or that her Honour failed to articulate why the uncontroversial legal principles applied in this instance.
Although the husband submits the offers were not necessarily “reasonable”, they undeniably were by dint of the fact that they were more advantageous to the husband than the “just and equitable” property settlement orders made by the primary judge in June 2022.
The husband may feel as though the facts and circumstances were not so “exceptional” as to warrant an award of indemnity costs, but his personal impressions are not dispositive. The primary judge was satisfied the circumstances were exceptional and the husband’s mere disagreement does not manifest appealable error.
The husband seems to believe that indemnity costs were not justified because the merit of his earlier appeal from the substantive property settlement orders was vindicated by views expressed along the way by another judge and the appeal registrar. The husband submitted this in his Summary of Argument:
17.The Husband’s grounds for appeal were reviewed at length by [judge] before ordering a Stay of [the orders of the primary judge] orders on 29th July 2022; the proposed grounds were again reviewed and discussed in detail with [the appeal registrar] on 30th August 2022.
…
20.The Trial Judge has indicated the Husband unnecessarily extended litigation by going to trial with the ruling he should have accepted the first Calderbank offer. Given the above evidence and review of appeal having some merit, the Husband holds the view Her Honour was in error in this ruling.
…
38.The Husband’s prospects for success in not only the trial, but the appeal were validated by two Senior judicial officers and confirmed as valid
The husband is clearly mistaken. The second judge simply determined his application to stay the property settlement orders pending the outcome of his first appeal and the appeal registrar merely made procedural orders to facilitate the progress of that appeal to hearing. The appeal was wholly unsuccessful and was dismissed with costs against the husband (Baker & Bond (No.2) [2023] FedCFamC1A 26).
The oral arguments advanced by the husband about the allegedly mistaken finding of how his conduct of the underlying proceedings unreasonably increased the wife’s costs, which factor influenced the primary judge to make the costs order, have already been addressed under Ground 1 and need not be repeated.
The last contention is that the costs order was “plainly wrong”, which assertion is presumably intended to allege an implied appealable error if no frank appealable error is otherwise identified (House v The King (1936) 55 CLR 499 at [504]–[505]; Lovell v Lovell (1950) 81 CLR 513 at [519] and [533]). The reasons given by the primary judge for the costs order appear to show discretion under s 117 of the Act was regularly exercised, resulting in an outcome which is neither incongruent with the primary judge’s findings or established legal principles, meaning there is no room to impute error.
Ground 4
This ground is pleaded as follows:
There were errors of fact in her honours reasons leading to improper determinations and judgments.
The submissions then made in support of the ground refer to: the value of a parcel of real property, upon which value the parties supposedly agreed at two court events in April 2021 and June 2021; interim orders made in August 2021; another hearing in March 2022; and an independent inquiry.
The husband’s expectation that such submissions demonstrate a factual error made by the primary judge is misplaced. The connection between the submissions and the reasons which underpin the appealed costs order made in February 2023 is not self-evident and was not elaborated in any useful way by the husband during the appeal hearing. This ground also fails.
Disposition
The appeal is dismissed.
In the event of the appeal being dismissed, the wife sought costs against the husband on alternate bases. She primarily sought indemnity costs of $13,283, but alternatively party/party costs of $11,244.28. The costs schedules were filed within the time ordered by the appeals registrar on 18 April 2023.
The appeal was wholly unsuccessful and a costs order is justified. However, there is no basis for the assessment of the costs on an indemnity basis and the itemised party/party costs appear to actually be solicitor/client costs, even though the items of work may have been individually costed according to the scale within the Rules. The wife’s assessment is trimmed and fixed at $10,000 in reliance upon r 12.17(1)(a) of the Rules.
The husband opposed any costs order on the basis of his poor financial circumstances, but that consideration carries less weight than the appeal’s inherent lack of merit. It may be accepted the husband is currently unemployed, but he will soon receive his share of the property settlement. The primary judge found the parties had net tangible assets of $537,788, to be divided equally between them. At the commencement of the appeal, the husband conceded a parcel of real property had recently sold for more than was expected. True it is the husband will have outstanding costs to pay from his share of the property, under the costs order made by the primary judge on 10 February 2023 and the costs order made by the Full Court on 17 March 2023, but those circumstances were of the husband’s own making. Unmeritorious litigation is no less unmeritorious just because it is pursued by an impecunious self-represented litigant (Northern Territory v Sangare (2019) 265 CLR 164 at [27]).
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 7 June 2023
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