Batey-Elton & Elton
[2009] FamCAFC 101
•12 June 2009
FAMILY COURT OF AUSTRALIA
| BATEY-ELTON & ELTON | [2009] FamCAFC 101 |
| FAMILY LAW – APPEAL – REINSTATE APPEAL –Wife’s application for reinstatement of appeal in circumstances in which wife failed to comply with orders of Full Court dismissed - Wife failed to adequately explain failure to comply with previous orders of Full Court - Wife failed to demonstrate prospect of substance in challenges to trial judge’s refusal to disqualify himself from further hearing of proceedings - Not demonstrated that refusal to reinstate appeal would visit injustice upon wife - Reinstatement of appeal would visit injustice upon husband and constitute abuse of the Court’s processes - Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 cited |
| Family Law Act 1975 (Cth) s 117(2)(a) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 In the Marriage of L and CL Kohan (1992) 16 Fam LR 245 ; (1993) FLC 92‑340 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Yunghanns v Yunghanns (2000) 26 Fam LR 331 ; (2000) FLC 93‑029 ; [2000] FamCA 681 |
| APPELLANT: | MS BATEY-ELTON |
| RESPONDENT: | MR ELTON |
| INTERVENOR: | Independent Children’s Lawyer |
| FILE NUMBER: | TVF | 2250 | of | 2004 |
| APPEAL NUMBER: | NA | 79L | of | 2008 |
| DATE DELIVERED: | 12 June 2009 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Coleman, Warnick & May JJ |
| HEARING DATE: | 18 May 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 June 2008 |
| LOWER COURT MNC: | [2008] FamCA 562 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self Represented |
| SOLICITOR FOR THE APPELLANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Rod Madsen Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
Orders
That the application for reinstatement of appeal NA79L/2008 filed 3 March 2009 be dismissed.
That the wife pay the husband’s costs of and incidental to such application and of appeal NA79L/2008 as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 79L of 2008
File Number: TVF 2250 of 2004
| MS BATEY-ELTON |
Appellant
And
| MR ELTON |
Respondent
And
| Independent Children’s Lawyer |
Intervenor
REASONS FOR JUDGMENT
By Application filed 3 March 2009 Ms Batey-Elton (“the wife”) sought an order reinstating a Notice of Appeal filed by her on 21 July 2008. By her Notice of Appeal the wife sought an order that the refusal of Jordan J to disqualify himself from further hearing proceedings involving the wife on 20 June 2008 be discharged, and that an order be made disqualifying Jordan J from further hearing proceedings involving the wife.
Mr Elton (“the husband”) resisted the wife’s Notice of Appeal and sought to maintain the trial Judge’s orders.
On 5 December 2008 this Court made orders after hearing an application made by the wife in the appeal. Those orders relevantly provided:
1.That time for filing Appeal Books and outlines of argument in support of appeal be extended to 4 pm 12 January 2009.
3.That leave be granted to the Appellant to subpoena the National Transcription Service to produce on 19 December 2009, or such later date as the Appeal Registrar may direct, the original unedited audio tapes and/or CDs of the proceedings before Justice Jordan on 13 March 2007, 4 September 2007, 19 February 2008, 15 April 2008 and 20 June 2008 and such further dates as the Appellant shall in writing advise the Respondent, the Official Trustee in Bankruptcy, the Independent Children’s Lawyer and the Appeals Registrar by 4 pm Monday 8 December 2008.
4.That the Appellant, the Respondent, the Official Trustee in Bankruptcy, Independent Children’s Lawyer, and Mr B be granted leave to listen to such audio tapes and/or CDs by arrangement with the Brisbane Registry of Court.
In anticipation of the wife complying with the Court’s orders it was noted:
That the Court as currently constituted will seek to convene on a day to be arranged in the week commencing 19 January 2009 for hearing of the appeal.
It is not in doubt that the wife failed to comply with the directions made on 5 December 2008. The wife’s appeal was deemed abandoned on 14 January 2009 and there was accordingly no hearing of the appeal, either on 19 January 2009 or any other date.
By his response filed 17 April 2009 the husband opposed the wife’s application for reinstatement of her appeal.
It is appropriate to deal first with the wife’s application to reinstate her appeal. If that application is successful, other orders sought by the wife would require consideration. If the application to reinstate the appeal is refused it would be unnecessary to consider the other relief sought by the wife in her application of 3 March 2009. For completeness we record that, on 8 May 2009 the wife filed a further application. It would only be necessary to consider the relief sought in that application in the event of the wife’s appeal being reinstated.
The evidence in support of the reinstatement application
In support of her application for reinstatement of her appeal, the wife filed affidavits on 3 March 2009 and 8 May 2009.
The wife alleged in her affidavit filed 3 March 2009 that:
1.The Court at Brisbane has not provided any “original, unedited” audio tapes and/or CDs of any one of the requested hearings in my case, pursuant to the subpoena duly issued and served in accordance with Order 3 made by the Full Court on 5th December, 2008. Only copies were provided, and the whole problem is that at least some of the copies have been altered to remove the evidence which would, without more, make out my case for this appeal.
For reasons which she detailed (paragraph 2), the wife alleged that on 22 December 2008 she filed an application seeking “to obtain a copy of the compact disk (CD) actually produced” by the Court pursuant to the orders of this Court of 5 December 2008. The wife deposed to the matter having been listed before Warnick J on 6 January 2009 at which time an order was made in the terms the wife sought (paragraph 3).
The wife further deposed to having “collected a CD which contains a copy of what purported to be all requested hearings of my matter before Jordan J, commencing with 13th March, 2007. Additionally, not even allegedly correct copies have been provided of two of the hearings specified in the subpoena, namely 11 July 2007 and 3 October 2008”.
As the wife conceded on the hearing of her application for reinstatement of her appeal, 11 July 2007 and 3 October 2008 were not dates included in the orders made on 5 December 2008. The dates which were included in the orders made (Order 3) were dates suggested by the wife. Notwithstanding that the orders enabled the wife to raise additional dates, the wife did not, in accordance with the orders, request “original unedited video tapes and/or CDs” of the proceedings before Jordan J on 11 July 2007 or 3 October 2008. The wife’s reinstatement application thus cannot advance in reliance upon the absence of sound recordings of either of those two dates.
It is significant for present purposes that by 9 January 2009, the wife was in possession of the CD containing “all requested hearings of my matter before Jordan, J, commencing with 13th March, 2007”.
The wife asserted that, by 9 January 2009 she had discovered from the disk provided to her “serious omissions and evidence of tampering regarding my hearings before Jordan, J” (paragraph 4).
Having made submissions (paragraph 6) which cannot advance her reinstatement application, the wife asserted that:
7.I was and remain unable to comply with Registrar Spink’s request to have Appeal Books ready by 12th January, 2009 for the above reasons. I need more time to properly listen to, and have professionally analysed, the disk containing copy [sic] of the audio recordings of my hearing before Jordan, J. and in particular, the one fraudulently and criminally altered by parties presently unknown for apparently nefarious purposes.
In the affidavit sworn by the wife on 29 April 2009, and filed 8 May 2009, the wife deposed to “the transcript showing clear bias having been edited to remove” proof of Jordan J’s bias (paragraph 3). The wife attached to her second affidavit (annexure “A”) “correspondence relevant to my attempt to obtain the evidence I wish to adduce in these proceedings”.
As she reiterated in oral submissions on the hearing of her reinstatement application, the wife complained that it was “the fault of the Court” that she had not obtained the evidence which she considers that she requires.
The correspondence annexed to the wife’s affidavit reveals that, on 4 March 2009, well after the time by which the wife was to have her material filed in the appeal, the wife requested transcripts of proceedings before Jordan J on 11 July 2007 and 26 February 2009. The wife referred to the orders of this Court of 5 December 2008, but omitted to refer to the provision of the orders as to the time within which the wife could request further unedited copies of the transcripts of further proceedings before Jordan J.
The Court’s response, dated 19 March 2009, to the wife, correctly in our view, suggested that “your leave given pursuant to the Orders dated 5 December 2008 [to seek further unedited transcript recordings] is now exhausted”. Notwithstanding this, the Court indicated a willingness “to request NTS [National Transcription Service] to allow you to listen to the tapes if this satisfies your request”. There is no evidence before this Court that the wife availed herself of the invitation thus extended.
The transcript recordings of 26 February 2009 cannot advance the present application. No other matters emerging from the wife’s second affidavit could advance her reinstatement application.
The wife’s Outline of Argument
In her written Outline of Argument, the wife asserted that:
2.…it was not the Appellant wife’s fault that she did not file her Appeal books and Outline of Argument by 4pm on January 12th last. She did not file because she could not complete her preparation to file and duly file those things within the timetable set by this full court in order 1 made on 5 December 2008.
Part of the wife’s failure to comply with this Court’s orders of 5 December 2008 was said to relate to the record of proceedings before Jordan J on 11 July 2007. As we have earlier recorded, the wife’s failure to request a copy of such record in accordance with the orders of this Court of 5 December 2008 precludes her from advancing her claim in reliance upon the absence of such “record of hearing”.
Although not the subject of evidence, the wife made a series of assertions in relation to the production of the “audios” with respect to the dates referred to in the orders of 5 December 2008, and made a number of complaints in relation to the production of copies of the transcript records of proceedings in the Court.
It is unnecessary to refer in detail to the matters raised by the wife in this context in view of the fact that, as her first affidavit clearly stated, by 9 January 2009 the wife was satisfied from the audio material to which she had listened that there were “serious omissions and evidence of tampering regarding my hearing before Jordan, J”.
It was, on her own evidence, open to the wife to file her material, including her Outline of Argument in which she could reiterate those assertions, in accordance with the orders of this Court of 5 December 2008. It would then have been for the Court to determine the significance of any “omissions” or other matters emerging from the audio records.
It would also have been open to the wife to file an application in the appeal for leave to adduce further evidence if, subject to the filing of the material in accordance with the directions of this Court of 5 December 2008, the wife discovered further or other material which she considered capable of impacting upon her appeal.
On her own evidence, the wife was satisfied on 9 January 2009 that there were irregularities (to put the matter at its lowest) emerging from the audio recordings of the proceedings before Jordan J on some of the occasions upon which the wife relied. To the extent that the wife sought to explain her failure to file her material in accordance with the directions of this Court of 5 December 2008 in reliance upon material which she did not seek to access in accordance with those orders, or in one instance until three months after they were made, and at a time when her appeal had been abandoned, the wife’s reinstatement application cannot be advanced in reliance upon such matters.
The evidence on behalf of the husband
The husband’s solicitor swore an affidavit on his behalf on 4 February 2009. Apart from the reality that the matters therein referred to are essentially hearsay and/or conclusions or other matters which are objectionable in the form in which they are raised, those matters do not go to the core of the wife’s application for reinstatement of her appeal, and we prefer not to rely upon them. The submissions on behalf of the husband warrant consideration.
Senior Counsel for the husband submitted that the order made by Warnick J allowing the wife to obtain a copy of the “transcript audio” was made on 3 January 2009. In her submissions, the wife asserted that the order was made on 6 January 2009. The Court record reveals that the order was in fact made on 6 January 2009.
In his submissions, Senior Counsel for the husband reminded the Court that the substantive proceedings, the determination of which was being delayed by the wife’s appeal against Jordan J’s refusal to disqualify himself on 20 June 2008, arose from an application by the wife to set aside a consent order made in August 2004 (paragraph 16).
Senior Counsel for the husband submitted that the wife had not adduced evidence sufficient to “adequately explain the failure to comply with the direction to file the appeal book” (paragraph 20A).
Discussion
The principles governing the present application are not in doubt and do not require extensive re-stating for present purposes. The wife referred in her submissions to the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 and submitted, correctly in our view, that the case was relevant for present purposes “because of closely analogous facts and factors”.
The present reinstatement application is in substance an application for the granting of an extension of time albeit the wife does not suggest by what period she seeks such extension. In reality, having regard to the wife’s material it cannot realistically be suggested by what date the wife will have filed all of the material upon which she seeks to rely in support of her appeal.
In Gallo v Dawson (supra) McHugh J said (at ALR 480):
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185
The history of the proceedings before this Court is instructive, but not decisive of the wife’s reinstatement application. The wife failed to lodge her Notice of Appeal against Jordan J’s refusal to disqualify himself on 20 June 2008 until 21 July 2008.
On 29 September 2008 the wife applied for an extension of time within which to file her Notice of Appeal. On 10 November 2008 the Full Court granted the wife’s application, and extended the time for filing her Notice of Appeal, and listed such appeal in the sittings of the Full Court commencing 24 November 2008.
On 25 November 2008 the wife applied for an extension of time within which to file material in support of her appeal. Notwithstanding that, on her own evidence, by 9 January 2009 the wife considered that she was unable to file her Appeal Books and other material in accordance with the directions of this Court of 5 December 2008 by 12 January 2009, the wife first applied to this Court for, in effect, an extension of time within which to file such material, on 3 March 2009. No explanation for the failure to apply sooner emerges from the wife’s affidavit material. It can be said that the wife’s conduct has resulted in the hearing of her appeal being significantly delayed.
The wife failed to comply with directions made to enable her appeal to be heard in the November 2008 sittings. On 5 December 2008 this Court extended the time for filing the wife’s Appeal Books until 12 January 2009 and granted the wife leave to subpoena the National Transcription Service to produce “the original unedited audio tapes and/or CDs” of the proceedings before Jordan J on four dates designated by the wife and such further dates as the wife advised the Appeals Registrar of by 4 pm on 8 December 2008, such subpoena to be returnable on 19 December 2008.
The history of the proceedings to which we have referred militates against the exercise of discretion to again extend the time within which the wife is to file her material. Also significant is the reality that the wife does not suggest when, if her appeal is reinstated, she will be ready to proceed.
The “conduct of the parties” relevant for present purposes is significantly more limited than the affidavit evidence before us, and particularly the affidavit evidence of the wife would suggest. Many of the matters raised by the wife, and to a lesser extent on behalf of the husband, in the affidavit material are matters which go to the substance of the wife’s as yet undetermined section 79A application, and are not matters about which we can speculate. What is clear however is that the wife cannot advance her reinstatement application by reference to anything done or omitted to be done by or on behalf of the husband.
The “nature of the litigation” in this Court is of relevance. The Grounds of Appeal, the first three of which are relevant for present purposes, appearing in the wife’s Notice of Appeal provided:
1.Justice Jordan has displayed clear and on the record bias against [the] appellant on a number of occasions over the whole time of his involvement with this matter, as was adequately set out in the Outline of Argument before His Honour at [the] hearing and His Honour’s conduct at this hearing further evidenced that bias against the appellant compared to the other party.
2.His Honour failed to cognise [sic] that there were adequate grounds before him to require that he disqualify himself.
3.On 20 June 2008, His Honour displayed further impropriety or his discretion miscarried in a number of ways:
(a)He twice refused to allow the appellant to swear that the facts set out in her Outline of Argument were true.
(b)He twice refused to allow the appellant to present oral evidence from a relevant witness who was present in court.
(c)He stated that some relevant facts were not properly in evidence before him, when in fact, those facts were directly within His Honour’s own knowledge.
The “Outline of Argument” to which the wife referred contained a series of allegations in relation to the proceedings before Jordan J on 13 March 2007, 4 September 2007, on a number of unspecified and undated hearings during the second half of 2007, on 19 February 2008, and 15 April 2008. As is apparent from reading the mother’s outline, to the extent that the sound recordings of the proceedings say what the wife alleges, they speak for themselves. To the extent that the statements allegedly made by Jordan J do not appear on the transcript, it would be for the Court to draw inferences as to their alleged absence having heard the totality of the sound recordings.
The “less than exhaustively catalogued” complaints raised against Jordan J would not, if true, establish “clear bias against the mother and her partner” on the part of Jordan J. To read the complaints is to appreciate why we so conclude. Some complaints relate to remarks that Jordan J made in relation to an application by the wife that a Mr B be permitted to represent her. It is not in doubt that Mr B has qualifications in law. Nor is it in doubt that, whatever the precise nature of their relationship, the wife and Mr B are on at least friendly terms. It is not in doubt that Mr B has sought leave to appear on behalf of the wife in proceedings before the Court. Consistently, Jordan J, and this Court, have refused to allow Mr B to represent the wife in proceedings before the Court. Equally consistently, Jordan J and this Court have allowed Mr B to sit at the Bar table and assist the wife.
The matters raised in paragraph 2 of the wife’s Outline give no reasonable apprehension of lack of impartiality on the part of Jordan J, much less the “clear bias” asserted by the wife.
So far as the complaint in paragraph 3 of her Outline is concerned, we do not understand how the statement attributed to Jordan J could advance the wife’s contention. Only in exceptional circumstances would any judge contemplate allowing a person not admitted to practice as a solicitor or barrister to appear as Counsel in proceedings in this Court.
So far as the matter referred to in paragraph 4 of the wife’s Outline is concerned, nothing there raised advances the wife’s bias complaint. To the extent that the wife was dissatisfied with the substance of any orders made by Jordan J on 4 September 2007, or on any other unspecified date, her remedy was by way of appeal. We have not been referred to any Notice of Appeal with respect to any such decision.
In paragraph 5 of her Outline, the wife articulated a combination of the sweeping allegations of bias, unsupported by any particulars, and comments allegedly made by another judge, none of which can advance the wife’s bias complaint.
Paragraph 6 of the wife’s Outline is confined to complaints about the substance of Jordan J’s orders on “several” unspecified occasions. Nothing emerging from that paragraph could possibly advance the wife’s present complaint.
In paragraph 7 of her Outline, although not referring to any dates or particulars, the wife reiterated her sweeping and unsubstantiated assertions of bias. Repeatedly asserting bias in submissions is no substitute for evidence which, if accepted, could lead to a finding of bias. The wife’s material is long on allegations, and short on evidence by which they might be proved.
So far as paragraph 8 of the wife’s Outline is concerned, to the extent that any of the allegations there raised, and unsupported by any evidence to which we have been referred, may have merit, the remedy was by way of Notice of Appeal. We have not been referred to any Notice of Appeal with respect to orders made on 19 February 2008.
Paragraph 9 of the wife’s Outline asserts, in the absence of any evidentiary foundation for doing so, a series of propositions in relation to Jordan J’s state of mind as to 15 April 2008. In what way his Honour allegedly knowing such matters advances the wife’s bias claim has not been explained, and we are at a loss to understand how anything raised in paragraph 9, if accepted, could have that effect.
Paragraph 10 of her Outline contains nothing which could advance the wife’s bias claim.
In his Reasons for Judgment of 20 June 2008 Jordan J said of the wife’s application for disqualification:
8. It could be construed that, after the bald assertions which appear in pars 1, 2 and 3 of the wife’s affidavit, there is some effort to demonstrate some asserted incompetence on my part, but there is not contained in the body of the affidavit any particulars, grounds or evidence upon which one could base an argument, much less a finding, of actual or apprehended bias. The document in support is an eight paragraph affidavit and I gather the first three paragraphs are intended to deal with the first three paragraphs of the application.
9. As I say, I have had regard to the totality of the affidavit and, despite many invitations to Ms [Batey-Elton] to point to relevant evidence, she herself was unable to point to any evidence contained in her affidavit which would support her case of bias.
His Honour accordingly dismissed the wife’s application that he disqualify himself from further hearing the wife’s section 79A application.
The paragraphs of the wife’s affidavit to which his Honour referred asserted that:
1.Justice Jordan has displayed clear bias against myself on at least four occasions, during the period from March 2007 to April, 2008. He has also displayed clear bias against my partner, [Mr B] on two occasions, the first I believe was during a hearing on 13th March, 2007 and the second, in his latest Orders, No 8 (attached). These Orders are now under Appeal.
2.I do not wish to appear before Justice Bell, who has displayed clear bias and denied Procedural Fairness on 2nd May, 2006 or before Justice O’Reilly, who excused herself from hearing the matter on 23rd February, 2007.
3.The Independent Children’s Lawyer has acted improperly, exhibited clear bias and has consistently failed to take appropriate steps to act in the child’s best interests.
It is significant that, having heard all of the audio recordings which she requested pursuant to the orders of this Court of 5 December 2008, the wife does not in any material placed before this Court assert any utterance by Jordan J consistent with her allegations of apprehended or actual bias on his Honour’s part.
The wife’s allegations with respect to the proceedings are that Jordan J caused the National Transcription Service to edit portions of the audio transcript by omitting them. The wife has given no evidence as to what Jordan J said, but caused to be edited from the transcription. How the wife can complain that statements have been deleted without suggesting what was said in any way is hard to comprehend. The improbability of Jordan J having sought to “tamper” with the record of the proceedings before him, thereby risking his removal from office, and probable criminal charges, is obvious. The improbability of any officer of the National Transcription Service being receptive to a request of that kind is also obvious.
In our view it is highly significant that, almost five months since the wife heard the audio recordings of the proceedings before Jordan J, not a single statement allegedly made by his Honour indicating his alleged actual or possible bias has been suggested.
As is plain from the material which the wife has filed, and continues to file, there is a real concern that only when the wife hears what she wants to hear will she file her material and be ready to prosecute her appeal. Given the improbability that the wife will hear, or not hear, what she hopes for, she may never be ready to prosecute her appeal. Paradoxically, in the meantime, the determination of her own application under section 79A, and perhaps other proceedings brought by her in relation to children, remains in abeyance.
The significance of Jordan J’s refusal to disqualify himself must also be seen in context. Such refusal does not, on our understanding of the law, preclude the wife from asserting on appeal that Jordan J’s decision was vitiated by bias in the event that his Honour determines the wife’s section 79A application adversely to her.
The “consequences for the parties of the grant or refusal of the application for an extension of time” need also to be considered. As noted earlier, it cannot with any confidence be suggested when, if the wife’s appeal is reinstated, she will be ready to proceed with such appeal. The wife’s affidavit evidence provides no basis for confidence that her material will be filed within any particular or finite time. The wife’s evidence suggests that unless and until she is satisfied that the audio recordings prove what she claims, the wife will continue to fail to file her material so that her appeal can be determined.
Although refusing to reinstate the wife’s appeal means that, at least so far as the evidence up to and including 20 June 2008 is concerned, Jordan J will not be precluded from continuing to hear the wife’s section 79A application, that does not preclude the wife from making further applications for disqualification in reliance upon events subsequent to 20 June 2008. Moreover, refusing to reinstate the wife’s appeal does not prevent the wife from raising on any appeal she may bring against Jordan J’s determination of her section 79A application grounds based upon actual or apprehended bias in reliance upon such further matters.
As McHugh J observed in Gallo v Dawson (supra) (at ALR 480), extensions of time are not “automatic”, but rather “for the sole purpose of enabling the court or justice to do justice between the parties” and prevent rules of court “which fix times for doing acts” from becoming “instruments of injustice”.
Such injustice as the wife may feel that refusing to reinstate her appeal may occasion her, stems from her own actions, and not from the application of the rules of Court. On the evidence before us, to reinstate the wife’s appeal would be to visit an injustice upon the husband, and condone an abuse of the Court’s processes, in circumstances where, on her own evidence, no injustice is visited upon the wife. The application will accordingly be dismissed.
Costs
On 4 February 2009, a month prior to the wife applying to reinstate her appeal, the husband filed an application seeking orders that the wife pay his costs “of [and] incidental to the Appeal” and of the “Subpoena Hearing” of 9 January 2009 on an indemnity basis.
By his response filed 17 April 2009 to the wife’s application for reinstatement of her appeal filed 3 March 2009, the husband sought that the wife’s application for reinstatement be dismissed and that her appeal “be struck out or dismissed” and that the wife pay the husband’s costs on an indemnity basis.
The wife was accordingly on notice, both before and after she made her application for reinstatement that the husband sought his costs of both the appeal and the reinstatement application. Having failed in the reinstatement appeal, the wife’s appeal stands abandoned. The wife has accordingly been wholly unsuccessful within the meaning section 117(2)(a) of the Family Law Act1975 (Cth). It is accordingly difficult to see on what basis the husband could reasonably be refused his costs of the reinstatement application, and of the appeal.
The wife relied upon her financial circumstances in opposition to any order for costs being made against her asserting that she is “destitute and bankrupt”
There is no clear evidence before us as to the wife’s financial circumstances, either supporting or rebutting her claims. However, as Senior Counsel for the husband reminded the Court, the wife has a pending section 79A application which she considers to have merit, and from which she presumably expects to recover significant funds from the husband. In the circumstances, we do not consider the wife’s current financial position militates against making an order for costs.
Objectively, as the reasons for dismissing the wife’s application for reinstatement reveal, the wife has had ample opportunity to place material in support of her contentions before the Court and have the substance of her claims determined by the Court. This the wife has repeatedly failed to do. The wife has failed to adequately explain such failures.
In our view, whether they are ever recovered or not, there should be an order for costs against the wife with respect to the appeal and the reinstatement application.
On behalf of the husband, indemnity costs were sought. As the authorities make clear, awards of indemnity costs require “exceptional” circumstances. In Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 (Fam LR at 485 - 487) these authorities were discussed:
[41]The decision of the Full Court of the Family Court (Strauss, Lindenmayer and Bulley JJ) in In the Marriage of L and CL Kohan (1992) 16 Fam LR 245; (1993) FLC 92‑340 held that nothing in s 117 or 123 of the Family Law Act 1975 (Cth) (the Act) prevents the court making an order for costs on an indemnity basis. It was recorded (at Fam LR 258; FLC 79,614):
The intent of s 117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the court considers just. As we have pointed out, the court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O 38 r 2, the provisions of O 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. Order 38 r 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v Wright (No 2); Wentworth v Rogers (No 5); Hobartville Stud v Union Insurance Co.
Indemnity costs orders are still an exception in this and other jurisdictions. [Citations omitted].
[42]The principles underpinning indemnity costs were summarised by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233–4 ; 118 ALR 248 at 256 ; 28 IPR 561 at 569 (Colgate-Palmolive Co):
(2) The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis.
(3) This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it.
(4) In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course.
[43]In the decision of Yunghanns v Yunghanns (2000) 26 Fam LR 331 ; (2000) FLC 93‑029 ; [2000] FamCA 681 the Full Court of the Family Court (Lindenmayer, Holden and Mullane JJ) acknowledged that the category of cases in which an indemnity costs order is appropriate is not closed. It was recorded (at [31]):
[31] It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought.
…
[48]Reliance in that regard was placed upon the judgment of Sheppard J in Colgate-Palmolive Co (above) in which His Honour said (at FCR 234; ALR 257; IPR 570):
… it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (for example, Messiter v Hutchinson; Maitland Hospital v Fisher (No 2); Crisp v Kent) and an award of costs on an indemnity basis against a contemnor (for example, Megarry V-C in EMI Records). [Citations omitted].
In this case, we are not satisfied that the discretion to award indemnity costs has been enlivened. The case does not reveal the kind of “exceptional” circumstances necessary to do so.
Objectively, to the extent that the wife’s conduct has occasioned more appearances or other procedural steps than ought reasonably have occurred, an order for party and party costs would embrace such matters.
I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 12 June 2009
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