Batey-Elton & Elton (Costs)
[2010] FamCAFC 219
•4 November 2010
FAMILY COURT OF AUSTRALIA
| BATEY-ELTON & ELTON (COSTS) | [2010] FamCAFC 219 |
| FAMILY LAW - APPEAL – COSTS OF DISQUALIFICATION APPEAL – Appellant wife wholly unsuccessful in the appeal – Where wife did not file any submissions – Consideration of Fitzgerald (as a child representative for A (Legal Aid Commission of Tasmania)) v Fish & Another (2005) 33 Fam LR 123 – The wife to pay the husband’s costs of and incidental to appeal. FAMILY LAW - APPEAL – COSTS OF BIAS AND INJUNCTION APPEAL – Appellant wife substantially unsuccessful in the appeal – Where wife did not file any submissions – Where appeal allowed in part – The wife to pay two-thirds of the husband’s costs of and incidental to the appeal. |
| Family Law Act 1975 (Cth) s117 |
| Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Another (2005) 33 Fam LR 123 McAlpin & McAlpin (1993) FLC 92-411 Re P (a child): Separate Representative (1993) FLC 92-376 Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029 |
| APPELLANT: | Ms Batey-Elton |
| RESPONDENT: | Mr Elton |
| FILE NUMBER: | TVF | 2250 | of | 2004 |
| FIRST APPEAL NUMBER: | NA | 19 | of | 2010 |
| SECOND APPEAL NUMBER: | NA | 41 | of | 2010 |
| DATE DELIVERED: | 4 November 2010 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | May, Boland & Strickland JJ |
| HEARING DATE: | By way of written submissions filed 13 May 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 February 2010 and 15 February 2010 |
| LOWER COURT MNC: | [2010] FamCA 106, [2010] FamCA 107, [2010] FamCA 266 and [2010] FamCA 271 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Ms Batey-Elton in person |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Rod Madsen Solicitor |
Orders
The wife pay the husband’s costs of and incidental to appeal number NA 19 of 2010 as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
The wife pay two-thirds of the husband’s costs of and incidental to appeal number NA 41 of 2010 as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton (Costs) 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 19 of 2010; NA 41 of 2010
File Number: TVF 2250 of 2004
| Ms Batey-Elton |
Appellant
And
| Mr Elton |
Respondent
REASONS FOR JUDGMENT
Introduction
On 23 April 2010 we delivered our reasons in respect of two appeals filed by Ms Batey-Elton against orders made by Cronin J on 11 February 2010 and 15 February 2010 and two applications in those appeals. Mr Elton resisted both appeals and the applications in those appeals.
Although the parties have been divorced for a number of years in these reasons, as in our substantive reasons, we will, for convenience only, refer to the parties as “the wife” and “the husband”.
Our orders of 23 April 2010 (as amended under the slip rule) dismissed the wife’s two applications and the appeal against the orders of Cronin J made on 11 February 2010. We allowed the wife’s application for leave to appeal, and allowed in part her appeal against the orders of Cronin J of 15 February 2010.
Our orders also made provision for the parties to file written submissions in respect of the costs of the appeals. Pursuant to the orders, the husband filed submissions on 13 May 2010. The wife did not file any submissions. In circumstances where the timetable for filing submissions has elapsed and the wife has not afforded herself the opportunity to put any submissions to us, we have determined it is appropriate that we should conclude this matter by dealing with the costs of the two appeals.
The husband seeks that the wife pay his costs of and incidental to each of the appeals. In the alternative, he seeks that the wife pay his costs of the appeal against the orders of Cronin J of 11 February 2010 (“the first appeal”) and that Mr B (who was not a party to the appeals but who we permitted to act as a McKenzie Friend for the wife) pay his costs of the appeal against the orders of 15 February 2010 (“the second appeal”).
Relevant law
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) deals with costs. The relevant provisions of the section are s 117(1), (2) and (2A) which provide as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
As the husband seeks, in the alternative, that Mr B pay his costs of the second appeal, it is also appropriate that we refer briefly to the power of this Court to make a costs order against a third party.
It is beyond doubt that this Court has the power to make a costs order against a non-party. In their joint judgment in McAlpin & McAlpin (1993) FLC ¶92-411 Nicholson CJ and Maxwell J (at 80,215), after considering the High Court decision in Knight v FP Special Assets Ltd (1992) 174 CLR 178, said:
It seems clear from the above authority that while a discretion to order costs against a non-party should be exercised sparingly the jurisdiction to do so, at least in relation to cases governed by legislation similar to that contained in s5 of the Judicature Act (1890) is unlimited. Further, where cases fall into the category identified by their Honours, they appear to consider that the Court should make such an order.
In our view, on a natural reading of s117(2) of the Family Law Act, this Court's jurisdiction to order costs is similarly unlimited. It is true that s117(1) and (2A) refer to “parties” but s117(2) is not so limited and is expressed in the widest possible terms. We therefore see no reason to confine the jurisdiction of this Court in this area.
If this view be incorrect then the cross vested jurisdiction of the State and Territory Supreme Courts would seem to confer such a power, subject to any limitations contained in particular State or Territory legislation. See Gilbert and Gilbert (1988) FLC ¶91-966.
Similarly in Re P (a child): Separate Representative (1993) FLC ¶92-376 Nicholson CJ and Fogarty J (at 79,904) found:
In any event, the power of this Court to make an order about costs is not confined to a party to the proceedings. The Court has power to make an order against a non-party in the circumstances illustrated in such cases as Aiden Shipping Co. Ltd v Interbulk Ltd (1986) 1 AC 965, Bent v Gough (1992) 36 FCR 204, Knight v F.P. Special Assets Ltd. (1992) 174 C.L.R. 178, and Burns Philp & Co. Ltd. v Bhagat (1993) VR 203. The views of the Full Court of this Court in Collins and Collins (1985) FLC ¶91-603 esp. at pp 79,878 and 79,886 to the contrary no longer represent the law.
However, this latter power should only be exercised if the special circumstances of the individual case justify that course and within the parameters which the above cases illustrate.
(see also Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC ¶93-029).
In respect of costs orders against a non-party rule 19.11 of the Family Law Rules 2004 is also relevant. That rule provides:
(1)Before making an order for costs against a lawyer or other person who is not a party to a case, the court must give the lawyer or other person a reasonable opportunity to be heard.
(2)If a party who is represented by a lawyer is not present when an order is made that costs are to be paid by the party or the party’s lawyer, the party’s lawyer must give the party written notice of the order and an explanation of the reason for the order. (our emphasis)
The husband’s submissions
As noted previously, the husband, who was the respondent in the appeals, seeks that the wife pay his costs of the appeals, or in the alternative that the wife pay his costs of the first appeal, while Mr B, the wife’s McKenzie Friend, pay his costs of the second appeal.
In relation to the financial circumstances of the parties, senior counsel for the husband, in his submissions, noted that there was no evidence before the Court as to the parties’ financial circumstances, nor the financial circumstances of Mr B. The husband conceded that the wife had no assets and that she was “not in receipt of an income obtained from her own resources”. The husband asserted that the wife was no longer a bankrupt.
The husband’s senior counsel asserted (written submissions, paragraph 5) that despite absence of legal representation the wife has had the assistance of Mr B at times as a “McKenzie friend”. He referred to the wife being “in a position to put copious, well-researched and apparently competent but, it is submitted, misguided submissions before the Court, both verbally and in writing” and later in that submission asserted that the wife has at all times had the assistance of a person with legal qualifications. He concluded the submission asserting:
… The purpose of this submission is to assert that the appellant has not come to this Court in these appeals on the same basis as other appellants in person not legally represented.
Senior counsel for the husband referred to paragraph 75 of our reasons for judgment. The reference is in fact to paragraph 22 of our reasons where we set out a number of paragraphs, including paragraph 75, of the reasons of judgment of Stein JA (with whom Mason P and Sheller JA agreed) in Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256. In our view of more importance was senior counsel’s reference to paragraph 92 of our reasons where we said as follows:
No particulars of actual or apprehended bias having been alleged by the wife, and having regard to the wife’s conduct in leaving the court before the matter was completed on 11 February 2010, we are unable to discern what more his Honour could have done but to proceed to determine the disqualification application in the wife’s absence, as he did. We are satisfied that the grounds asserting actual or apprehended bias are without merit.
Senior counsel noted in his submissions that the wife had, throughout the proceedings, referred to the husband’s representation by both a solicitor and senior counsel and her assertion that she was disadvantaged as against the husband. He submitted that it did not flow from the wife’s assertion that there was a “considerable financial disparity between the parties”. He further submitted, at paragraph 7, that “[t]he Court … requires more than that factual situation to discharge the duties imposed on it by s117(2A)(a)”.
In relation to the second appeal, the submissions on behalf of the husband acknowledge that the appeal was partly successful in relation to an order which restrained Mr B from accompanying the wife to inspect documents. It was submitted on behalf of the husband:
13.The Court needs to note the frankness of the respondent that in the course of the submissions made to the Full Court the [husband] admitted [Mr B] had no notice directly from the trial Judge of his intention to make that order and that neither he nor the [wife] were heard in relation to the making of the order.
…
18.In the context of these submissions in relation to costs, the [husband] asks that the Court note that at no time was a representation made to the Full Court that adequate reasons were provided by the trial Judge for the making of the order that restrained [Mr B] from accompanying the wife on inspection of documents.
The written submissions assert that the major thrust of the second appeal was the order which restrained Mr B from being present in the courtroom while proceedings between the parties were conducted.
In respect of the second appeal, the husband’s senior counsel referred to paragraph 148 of our reasons in which we said:
Our reading of the transcript, which we have set out in some considerable detail, discloses that [Mr B’s] conduct was disruptive, disrespectful and inappropriate. His Honour’s reasons for excluding [Mr B] from the courtroom, and continuing that exclusion until further order, were soundly based.
Senior counsel also referred to the issue of procedural fairness raised by the wife in the appeal and noted, at paragraph 151 of our reasons, that we found:
There is accordingly no merit to the wife’s claim of lack of procedural fairness, nor is there anything advanced by her why the third set of orders (Orders 1-16) should be set aside by reason of appealable error.
It was further submitted at paragraph 20:
It is significant, in my submission, that:
(a)appeals have been brought, none of which relate directly to the substantive application that was before the trial Judge; and
(b)those appeals were made with lengthy and researched submissions each of which was found not to support the basis of any of those appeals.
Senior counsel for the husband submitted that the husband had been required to engage in the preparation of a response to considerable submissions filed by the wife and that, in all the circumstances, it was reasonable for him to have retained his solicitor and counsel.
Senior counsel for the husband concluded his submissions asserting that the husband had incurred costs amounting to $9,000.00. We were not provided with a skeleton outline of the breakdown of the husband’s costs or any costs agreement which could have assisted us to make an order for costs in a fixed sum.
Discussion
There was no evidence before us of either party’s financial position. We accept, however, the concession made on behalf of the husband that the wife apparently does not have any assets of significance. That, of itself, cannot be determinative of this application.
We are satisfied that neither party was in receipt of legal aid.
The wife was wholly unsuccessful in relation to appeal number NA 19 of 2010 in which she sought to challenge the trial Judge’s refusal to disqualify himself from further hearing the matter.
We also accept that the wife was substantially unsuccessful in relation to appeal number NA 41 of 2010. We found that the wife’s assertion that the trial Judge’s behaviour disclosed bias to be entirely without substance, as was her procedural fairness challenge.
In respect of appeal number NA 19 of 2010, in which the wife was wholly unsuccessful, we consider the comments of the Full Court in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Another (2005) 33 Fam LR 123 at [41] about justifying circumstances in s 117(2A) are apposite:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
We consider the total lack of success of the wife in this appeal justifies making an order that she pay the husband’s costs of and incidental to the appeal.
Insofar as appeal number NA 41 of 2010 is concerned, as we explained in paragraph 26, we consider the wife was substantially unsuccessful in that appeal. We also take into account during the hearing of the appeal, the husband’s counsel did not in any way substantially contest the order made by the trial Judge preventing Mr B from being present when the wife inspected documents. However, having regard to the fact that we allowed the appeal in part, we propose to make an order that the wife pay two-thirds of the costs of the husband of and incidental to that appeal.
Accordingly, it is unnecessary that we consider the husband’s alternative order sought, namely that Mr B pay those costs. Further, even if we had thought it appropriate to make such an order, we observe that there was no evidence before us that the proposed application had been brought to Mr B’s attention as procedural fairness and compliance with the rule 19.11 of the Family Law Rules 2004 would demand.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date:
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