BALDIN & BALDIN
[2019] FamCAFC 19
•7 February 2019
FAMILY COURT OF AUSTRALIA
| BALDIN & BALDIN | [2019] FamCAFC 19 |
| FAMILY LAW – APPEAL – COSTS – Where the appellant has filed nothing in compliance with the orders made to prepare the appeal for hearing – Where the appellant’s oral application to adjourn the hearing of the appeal was dismissed – Where there is no detail which provides a basis for any of the grounds of appeal – Where none of the grounds of appeal have merit – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Where the subpoenas sought to be issued by the appellant are not relevant to the appeal – Where the other orders sought in the application cannot be made – Application dismissed. FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the appellant has made clear that he will not pay whatever costs are ordered – Where there should be an order for costs – Costs ordered in the sum sought by the respondent. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Baldin |
| RESPONDENT: | Ms Baldin |
| FILE NUMBER: | MLC | 3305 | of | 2017 |
| APPEAL NUMBER: | SOA | 45 | of | 2018 |
| DATE DELIVERED: | 7 February 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 February 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 May 2018 |
| LOWER COURT MNC: | [2018] FCCA 1745 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Daly |
| SOLICITOR FOR THE RESPONDENT: | Beckwith Cleverdon Rees |
Orders
The oral application by the husband to adjourn the hearing of this appeal be dismissed.
The application in an appeal filed on 4 February 2019 be dismissed.
The Notice of Appeal filed on 19 October 2018 be dismissed.
The husband pay the costs of the wife of and incidental to the appeal fixed in the sum of TWO THOUSAND FOUR HUNDRED AND FIFTY DOLLARS [$2,450].
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baldin & Baldin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 45 of 2018
File Number: MLC 3305 of 2017
| Mr Baldin |
Appellant
And
| Ms Baldin |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the court today is a Notice of Appeal filed by Mr Baldin (“the husband”) on 19 October 2018 against an order for costs made by Judge Riley on 28 May 2018. The appeal is opposed by Ms Baldin (“the wife”).
It is perhaps relevant here to mention the lead up to that Notice of Appeal being filed.
There was a Notice of Appeal filed on 25 June 2018 by the husband against the order made by Judge Riley on 28 May 2018, and the husband complied with the requirement to file a draft appeal index.
That Notice of Appeal came before this Court on 21 September 2018.
On that day, I explained to the husband that the Notice of Appeal was incompetent because it did not raise, or identify, any appealable error by the trial judge, bearing in mind that that is what an appeal is about, namely, whether the trial judge has made an error that requires appellate interference. In summary, the grounds of appeal alleged that there had been a lack of full and frank disclosure, failure to comply with a practice direction, contempt of a court order, and a general allegation of fraud, all by the respondent and/or her solicitors.
The context of indicating to the husband that that Notice of Appeal was incompetent, was that none of those matters raised in the grounds of appeal, to repeat, identified errors by the trial judge. They only raised issues about the conduct of the proceedings and, specifically, how the other side had conducted those proceedings.
Given that, on 21 September 2018, I dismissed the appeal. I went on though, to make an order, that if the husband filed and served a fresh Notice of Appeal which contained competent grounds of appeal, then the time would be extended to allow that appeal to be filed.
I also made an order that the husband pay the costs of the respondent wife fixed in the sum of $500.
The husband did file a fresh Notice of Appeal, and the grounds of appeal set out therein provide as follows:
1. Trial judge failed to take into account a material consideration.
2. Trial judge’s decision was plainly unreasonable or unjust.
There was a third ground of appeal, but that was removed with the husband’s agreement when this matter was before me on 4 December 2018, and I will not repeat it. The fourth ground, which, in effect, becomes the third ground reads:
4.Trial judge was biased and failed to stop proceedings in a breach of practice directions.
As can be seen, it is not readily apparent what the bases of those grounds of appeal are. For example, with Ground 1, it was not identified what the “material consideration” is. And with Ground 2, there was nothing put to indicate why the decision was “plainly unreasonable or unjust”.
With what was Ground 4 and which became Ground 3, again there was no detail provided by the husband as to how the judge was “biased”.
Nevertheless, I permitted the appeal to proceed and on 4 December 2018 I conducted a directions hearing and set the appeal down for hearing on Thursday 7 February 2019, namely, today.
I also made the usual orders to prepare the appeal for hearing, including the appellant obtaining the relevant transcripts of the hearing, filing a written summary of argument and list of authorities, filing any application seeking leave to adduce further evidence, together with an affidavit setting out that evidence, and mirror orders for the respondent, namely, the respondent to file a written summary of argument and list of authorities, and to file any response to any application filed by the appellant seeking leave to adduce further evidence, and any affidavit in support thereof.
I also reserved the question of the costs of that day.
Now, nothing was filed by the husband in compliance with those orders. All he has filed is an application in an appeal on 4 February 2019, namely, three days ago, in which he seeks four orders as follows:
1.Seek leave to file subpoenas of the orders dated 4th December 2018 SOA45 of 2018.
2.Order 7 be dismissed of the final property orders dated 28th May 2018 of MLC 3305 / 2017.
3.Seek leave for a stay order of cost orders dated 21st September 2018 SOA45 of 2018.
4.Seek leave to file and adduce evidence of hearing dated 4th December 2018 of SOA45 of 2018.
I will return to those orders sought later in these reasons.
In support of that application there was an affidavit filed by the husband which was a short affidavit, but annexed to that affidavit were a number of subpoenas that he sought leave to issue.
In general terms, I have clarified with the husband today that the purpose of issuing those subpoenas was to obtain the financial information, which he says the other side failed to disclose during the proceedings that were before Judge Riley. By that I mean the property settlement proceedings which were finalised by orders made on 8 December 2017, and those orders being then the orders that were the subject of the application in a case filed by the wife on 11 April 2018, which sought, in summary, a variation of the final property settlement orders, or alternatively, a discharge of some of those orders, and enforcement of those orders.
It is in those proceedings and on that application, that her Honour made the order for costs which is the subject of this appeal.
I have indicated to the husband during the course of the hearing today that I do not consider the subpoenas that he wishes to issue to be relevant to the appeal that is now before the court. As I have attempted to explain to him, he is, and he continues to be, fixated about issues such as lack of full and frank disclosure, breach of practice directions and the like, but that is not what this appeal is about.
The appeal, to repeat, is against an order for costs made on 28 May 2018 in the context of her Honour dealing with an Application in a Case filed on 11 April 2018 seeking variation, and/or discharge, and/or enforcement of the final property settlement orders. Plainly, the issues of disclosure relate to the property settlement hearing itself, not the application of April 2018 which led to the order for costs being made.
Thus, to repeat, in my view, those subpoenas are irrelevant and I will be dismissing the application for leave to issue those subpoenas shortly.
In any event, that is all that the husband has done and, to repeat, relevantly and importantly, he has failed to comply with the orders to prepare this matter for hearing.
In relation to the order providing for transcripts, the husband today has said that he is not prepared to obtain that transcript. He says if the respondent wants them, they can obtain them and pay for them. I explained to the husband, as I did on 4 December 2018, that the issue of transcript is a matter entirely for him. If he says that it is necessary to obtain transcript for the purposes of the appeal, then it is up to him to obtain that transcript. The onus is not on the respondent. But if he does not obtain the transcript, he is at risk in terms of the success of his appeal, because if it is necessary to refer to the transcript to determine the appeal, and if he does not provide the transcript, that cannot happen, and the risk is the appeal might be dismissed for that reason. In any event, the husband has not obtained the transcripts and it seems from what he said today that he never had any intention to do that, and he does not intend to do it.
The next order that the husband has failed to comply with is the filing of a summary of argument. Now, in that regard, the husband commenced the hearing today by making an oral application for an adjournment. He indicated that there had been insufficient time for him to prepare the matter and he wanted more time. I queried what he had done to prepare the matter for hearing in the time that he had, and his only answer was that he had prepared the subpoenas and filed the application of 4 February 2019 and the affidavit in support.
The husband said nothing about any attempts to prepare the summary of argument. Despite that, between 4 December 2018 and the date that it was due, namely, 9 January 2019 he has had ample time to prepare and file a summary of argument. If, of course, the husband by 9 January 2019 had for some legitimate reason found that he was unable to comply with that order, what he should have done was to make an application to this Court, seeking an extension of time. It is not open to the husband to simply ignore the order, do nothing, sit back and then come to the hearing and say, sorry, I have not had sufficient time, and expect an adjournment.
The next order that the husband had to comply with was to file and serve any application seeking leave to adduce further evidence, together with an affidavit setting out that evidence. He has not complied with that order. The husband says he understood that order to be that it permitted him to issue subpoenas. That is not something which has ever been raised in that context before. The order is a standard order. The order is self-explanatory, and how it can be interpreted as permitting the filing of subpoenas is beyond me.
For those reasons I dismissed the husband’s application to adjourn this hearing, and I have proceeded with the appeal.
Despite the husband not having filed any summary of argument, I permitted him to make oral submissions to the court in support of his appeal, and he has done so. With all due respect to the husband though, he still seems to be missing the point. The point being that he is appealing against an order for costs. To succeed he needs to establish that, in making that order, the trial judge made an error which calls for appellate interference. He does not succeed by raising issues about lack of full and frank disclosure, or breach of practice directions, or the like.
I have attempted to explain to the husband now on at least three occasions, why that is not the case, and why there is that disconnect but, with all due respect to the husband, he does not seem to understand that point, or perhaps more relevantly he does not want to understand.
Turning then to the appeal and, specifically, the grounds of appeal. To repeat, the difficulty for the husband is that there is no detail which provides a basis for any of the grounds of appeal.
The respondent has filed a summary of argument, as required by my orders of 4 December 2018, and in that summary the respondent has addressed the three grounds of appeal in the husband’s Notice of Appeal.
Ground 1 complains that the trial judge failed to take into account a material consideration. However, it is readily apparent from the reasons for judgment delivered by the trial judge that, in respect of the application for costs, the trial judge gave consideration to all relevant considerations. Her Honour carefully went through each of the paragraphs of s 117(2A) of the Family Law Act1975 (Cth) (“the Act”), which sets out the matters that a judge must have regard to in determining an order for costs. Accordingly, this ground of appeal must fail.
Ground 2 is that the trial judge’s decision was plainly unreasonable or unjust. Again, the difficulty is there is no detail as to why that would be the case, and it is not readily apparent from a perusal of the record, and particularly the trial judge’s reasons for judgment. The trial judge has a discretion under s 117 of the Act to make an order for costs. Subsection (1) provides that each party is to bear their own costs. Subsection (2) provides that if there are circumstances that justify it, then the court can make an order for costs. And subsection (2A) then sets out the factors that the trial judge must have regard to in determining whether to make an order for costs or not and, if so, what order should be made.
To repeat, that is what the trial judge did, and it is not apparent to me where the trial judge’s decision was plainly unreasonable or unjust. Thus, that ground of appeal also has no merit.
Ground 4, which in effect became Ground 3, was whether the trial judge was biased and failed to stop proceedings in breach of practice directions. Now, there are two aspects here. First, whether the trial judge was biased. Again, I repeat, there is no detail as to the basis for that complaint, and there is no transcript that I can refer to. Thus, the difficulty for the husband in making this complaint, is that there is no evidence to say, for example, that during the course of the hearing the husband raised with the judge that she was biased, and sought that she recuse herself. In those circumstances, it is not open to a litigant, on appeal, to seek to raise the question of bias and allege that the trial judge was biased. Thus that aspect of this ground has no merit.
The second aspect of the ground is that the trial judge failed to stop proceedings as a result of a breach by the other side of practice directions. It seems that the practice direction being referred to is the practice direction in relation to the length of affidavit material in support of applications, namely Practice Direction No. 2 of 2017. However, the problem that the husband has, and I interpolate here that he conceded this at the very first directions hearing that I held in relation to the initial Notice of Appeal, is that at no stage did he raise this with the trial judge during the hearing, and at no stage did he seek a ruling from the trial judge as to that issue, nor seek an adjournment. Thus, there is no error by the trial judge.
In any event, it seems that there was no breach of the Practice Direction in that the Practice Direction provides that the affidavit cannot exceed 10 pages in length, but that does not apparently account for annexures. The affidavit itself was of six pages in length, but there were a number of annexures, expanding the length of the document to over 50 pages. Plainly there is an argument that there was no breach of the Practice Direction, but regardless of that, and I am not making any finding or ruling about that, the fact of the matter is, it has not been demonstrated that the trial judge has made an error in relation to that matter. Accordingly, that aspect of the ground of appeal also has no merit.
Given that there is no merit in any of the grounds of appeal, the appeal must be dismissed.
Pausing here, before I make the orders, I indicated that I would be dismissing the application for leave to issue subpoenas, and I will do that in a moment. That has reminded me though, that there were two or three other orders sought by the husband in that application which I now need to address.
Apart from order 1 which was leave to issue subpoenas, order 2 sought that order 7 made by Judge Riley be dismissed. Now, order 7 is the order for costs, and the only way that order would be dismissed, is if there is a successful appeal. That is not the case, and indeed the appeal is being dismissed. Thus that is an application which can go nowhere.
The third order sought was in effect a stay of the costs order of 21 September 2018. That is the order that I made for the payment of costs of $500. There is no appeal against that order, and there is no basis for a stay to be granted. Therefore, that is not an application that can succeed.
The fourth order sought was “leave to file and adduce evidence of hearing dated 4 December 2018”. I do not understand that order; it is not explained in the affidavit and, therefore, that is not an application that can go anywhere.
I now have before me an application for costs, on the basis of the appeal being dismissed, and the amount sought is $2,450.
I am told that that is costs for solicitor and counsel since 4 December 2018, which was the date of the directions hearing in this matter, and covers counsel fees for today. It is prepared on the scale, namely on a party/party basis.
I invited the husband to respond to that application for costs, and he said that whatever amount is ordered would not be paid. I raised with him whether he wanted to make any submission about financial circumstances, being a matter I have to take into account, and he indicated in the negative and made complaints about this Court obstructing justice and the like, being matters that he has repeated throughout this hearing.
One matter the husband does raise though, is he suggests that the summary of argument filed on 29 January 2019 by the respondent does not comply with the Family Law Rules 2004 (Cth) (“the Rules”), in that the summary of argument does not address the grounds of appeal, and then set out argument in relation to each ground of appeal. Apparently the appeal registrar raised that matter and the husband has seen that correspondence.
Frankly, as far as I am concerned, the summary of argument does comply with the Rules, and even if it did not, I would certainly be comfortable to give leave to the respondent to rely on it in the circumstances. It does not behove the husband to raise any issue about it, given he has done nothing whatsoever, and there is no summary of argument filed by him at all.
That submission does not prevent me from making the order for costs sought, and I am disposed to make the order.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 7 February 2019.
Associate:
Date: 20 February 2019
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