Beidenhope and Cantanor - [2012] FamCAFC 82

FAMILY COURT OF AUSTRALIA

BEIDENHOPE & CANTANOR

[2012] FamCAFC 82

FAMILY LAW ─ APPEAL ─ Application in an appeal by wife for dismissal of Husband’s Notice of Appeal for want of prosecution ─ Where as a matter of natural justice, the husband had every reasonable opportunity to appear before the Court in person, by email, or by telephone in opposition to the wife’s application that his application for leave to appeal should be dismissed ─ Where the husband has done nothing to prosecute the proposed appeal ─ Husband’s Notice of Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the husband’s inactivity has placed the wife in the position where she has incurred very considerable costs of a solicitor and client nature, a substantial part of which may well not be covered by an award of party and party costs ─ That the appellant husband pay the respondent wife’s costs of and incidental to the wife’s Application in an Appeal and the husband’s appeal on an indemnity basis.

Family Law Act 1975 (Cth) Part VIII, s 117(2A)
Family Law Rules 2004 (Cth), r 19.08

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248
Rutherford and Rutherford (1991) FLC 92-255

APPELLANT:

Mr Beidenhope

RESPONDENT:

Ms Cantanor

FILE NUMBER:

BRC

117

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

30 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Coleman, Strickland & Murphy JJ

HEARING DATE:

30 May 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 August 2011

LOWER COURT MNC:

[2011] FamCA 669

REPRESENTATION

COUNSEL FOR THE APPELLANT:

No appearance by or on behalf of the appellant

SOLICITOR FOR THE APPELLANT:

No appearance by or on behalf of the appellant

COUNSEL FOR THE RESPONDENT:

Dr Mark Sayers

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

That the husband’s Notice of Appeal filed 22 September 2011 be dismissed.
That the appellant husband pay the respondent wife’s costs of and incidental to the wife’s Application in an Appeal filed 16 May 2012 and the appeal on an indemnity basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beidenhope & Cantanor has been approved by the Chief Justice 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 73 of 2011

File Number: BRC 117 of 2010

Mr Beidenhope

Appellant

And

Ms Cantanor

Respondent

REASONS FOR JUDGMENT

coleman j

By Notice of Appeal filed 22 September 2011, Mr Beidenhope (“the husband”), sought leave to appeal against interlocutory orders made by Forrest J on 30 August 2011 in proceedings for settlement of property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) between the husband and Ms Cantanor (“the wife”). Forrest J’s orders of 30 August 2011 provided that the husband’s application in a case filed 20 October 2010 be dismissed.
That application sought an order that the Initiating Application filed by the wife on 7 September 2007 be stayed until further order. The application filed on 7 September 2007, it is not in doubt, sought inter alia, financial relief pursuant to Part VIII of the Act.
The husband has not appeared before the Court today, nor has he been represented. He was represented at the time his Notice of Appeal was filed, but has been unrepresented since the attorneys who previously acted for him, and filed the husband’s Notice of Appeal, filed a Notice of Ceasing to Act in March 2012.
Subsequent to the filing of the Notice of Ceasing to Act, correspondence ensued in two forms. One of those, the evidence before the Court which is contained in an affidavit of the wife’s solicitor sworn and filed on 16 May 2012 suggests, may not have come to the attention of the husband. That communication was by post to the husband at an address in Scandinavia. The other form of communication with the husband was by email. The evidence to which reference will shortly be made, establishes that email communication came to his attention. The email address to which reference will be made in the reasons which follow, and from which the husband has dispatched emails is (email address omitted).
On 3 May 2012, the Court advised the husband by email, at that email address, that his appeal was listed for hearing before the Full Court in Brisbane at 10 am on 30 May 2012. There followed in the email an outline of the times by which submissions were to be filed by both parties.
On 11 May 2012, the Court again emailed the husband, twice. The first and shorter of the two emails reiterated, by reference to the previous correspondence sent on 3 May 2012, that the appeal was listed for hearing before the Full Court at Brisbane on Wednesday, 30 May 2012 at 10 am, and then named the judges who would comprise the bench on that occasion.
The second email of the same date again reiterated that the appeal was listed before the Full Court on Wednesday, 30 May 2012 at 10 am. After other matters were then indicated, which do not assume significance for present purposes, the email advised that a request to attend by telephone was attached for the husband to complete, in relation the appeal on 30 May 2012. The Court record does not reveal, nor has anything occurred in the registry this morning which suggests that the husband has availed himself of the opportunity to participate in the proceedings today by telephone, whether or not he has completed any formal request in that regard. The Court’s emailed letter concluded that the husband could file his summary of argument or notice of discontinuance by email, and an email address for an officer of the Court was provided.
The record should reflect that the Court officer who initiated the emails to which reference has thus far been made, and to which reference will shortly be made, as having issued from the Court, is present in the Court and could, were it necessary, give evidence of the dispatch and receipt of the emails to which I have referred and will refer. I do not consider it necessary that such evidence be given, particularly as emails speak for themselves.
On 16 May 2012 the Court again emailed the husband and reminded him that his summary of argument in the appeal was required to be filed today.
On 23 May 2012 an email was received by the Court from the husband. It commenced by addressing the Court officer who had sent a number of the Court’s emails to the husband and thanking the Court officer for:
…your email dated 11 May 2012. …
In the sentences which followed, the husband made a series of assertions of fact with respect to his financial circumstances, his ability to fund his lawyers, and matters of that kind. He proceeded, in the fourth paragraph of the email, to assert that:
… the judge simply puts an anti-suit injunction on me. Something un-heard of in [Scandinavia]. Not only am I affected in my freedom of speech, also my right to file a court case has been taken away from me. …
I record that simply because, consistent with authority, to the extent that is realistically possible to do so, some consideration needs to be given to what are, or might be, issues of substance sought to be raised by the husband if leave to appeal were to be granted.
Perhaps not insignificantly, the husband proceeded to record that he was “not familiar with law, jurisdictional procedures, especially in Australia.” He then proceeded to reiterate themes which this Court not uncommonly hears, about the plight of men in the Family Court, and the attitudes of their estranged spouses, and those representing them.
Significantly, the email did not anywhere expressly or impliedly seek an adjournment of the proceedings before the Court today. Other than to the extent that I have indicated, the husband did not raise any matter of substance in relation to the merits of his proposed appeal. Nothing emerging from the email suggests that the husband had any intention to participate in the proceedings before the Court today.
On 24 May 2012 the Court again emailed the husband. That email commenced by referring to the husband’s email dated 23 May 2012, and correspondence earlier in the year. Quite properly, the email deflected the assertions raised by the husband in the body of his email of 23 May 2012, and proceeded to reiterate yet again that the appeal was listed:
…to proceed to hearing on Wednesday 30 May 2012. …
The letter concluded:
In the event you choose not to appear the Court may determine the appeal in your absence and consider the application made by the respondent for this appeal to be dismissed.
The evidence to which I have referred satisfies me that, as a matter of natural justice, the husband has had every reasonable opportunity to appear before the Court in person, by email, or by telephone in opposition to the wife’s application that his application for leave to appeal be dismissed.
As the transcript of the hearing before the Court earlier this morning would confirm, the matter of natural justice with which the Court was initially concerned related to that part of the wife’s application filed 16 May 2012 which sought that the husband pay the wife’s costs of and incidental to the application for leave to appeal filed 22 November 2011, on an indemnity basis.
For my part, those concerns have been allayed by reason of two emails, copies of which counsel for the wife has tendered before the Court. The first of those, dated 17 May 2012, was directed to the husband at the same email address as that to which the Court’s emails were directed. Those emails as I earlier recorded resulted in a response from the husband on at least one occasion. The attorney for the wife provided the husband with a copy of the wife’s application filed 16 May 2012 and the affidavit in support of it by emailing them to him.
On 22 May 2012, again by email, the husband was further provided, at the email address previously used, with a further copy of the application and the affidavit of the wife’s attorney. The application records, in clear and unequivocal terms, order 4:
That the husband pay the wife’s costs of and incidental to this application and the appeal on an indemnity basis or such other basis as this Honourable Court deems appropriate.
There is no evidence that the emails to which reference has been made, or any of them were returned by the wife’s attorney’s internet service provider
The foundation for the indemnity costs sought by the wife would be readily apparent to a layperson from the affidavit of the wife’s attorney. In those circumstances, for my part, I am satisfied that to proceed to hear and determine both the application to dismiss the application for leave to appeal, and if it be dismissed, to entertain the wife’s application for indemnity costs would not offend any principle of natural justice.
In short, the husband has had every reasonable opportunity to be heard. As Kirby J has observed in the past, natural justice is the opportunity to be heard, and there is only so much that can reasonably be done to facilitate the opportunity to be heard. If a litigant steadfastly declines to participate in the process, having been afforded every reasonable opportunity to do so, that ought not, and in my view, in the circumstances of this case should not rebound on the opposing party.
The principles governing the application for leave to appeal itself are not in doubt and do not require other than the briefest mention. In Rutherford and Rutherford (1991) FLC 92-255 the Full Court of this Court adopted the principles adopted by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170. The effect of so doing was that, for the application for leave to be successful, the husband needed to demonstrate an error of principle and/or that to refuse to allow leave to appeal would visit upon him a substantial injustice.
Where, as is the case here, the husband has filed nothing which gives any real indication of the basis of his complaint the task of determining whether either or both of the tests referred to in Rutherford (supra) could be established is difficult. That difficulty ought not, in my view, rebound upon the wife.
In the Notice of Appeal, the proposed grounds upon which Forrest J’s decision was sought to be impugned were articulated in a series of paragraphs. Having read those closely, and read the trial judge’s reasons for judgment closely, for my part, I doubt whether a number of those proposed grounds could succeed, in so far as they are based upon erroneous assumptions as to what the trial judge found or the basis for it. Nothing emerging from Forrest J’s reasons for judgment suggests to me that the husband’s appeal, as it has been presented, satisfies either of the requirements to which the Court referred in Rutherford (supra).
Little more can usefully be said about the possibility of merit. In any event, in adversarial proceedings it is not, in my view, incumbent upon counsel for the wife to demonstrate the negative, that is to say, to demonstrate that the proposed grounds could not be successful. There is an assumption that the trial judge’s decision was correct, as the authorities make clear. That assumption is not lightly rebutted, and it is for the appellant or proposed appellant to do so.
I would, in those circumstances, dismiss the application for leave to appeal. I would make an order for costs in favour of the successful respondent to the husband’s application for leave to appeal, in part on the basis that it has been wholly unsuccessful, but, given that such applications can only be wholly successful or wholly unsuccessful, I would not rely entirely upon that.
I would place greater reliance upon the fact that, having filed his Notice of Appeal and seeking leave to appeal, the husband has done nothing to prosecute his proposed appeal. His inactivity has, as the wife’s attorney’s affidavit clearly reveals, put the wife to expense in resisting the application. The husband’s conduct in the proceedings is relevant under section 117(2A) of the Act. I would be of the opinion that in the circumstances, an order for costs is thus justified.
The next issue is whether those costs should be on a party and party basis or, as sought by counsel for the wife, on an indemnity basis. Pursuant to rule 19.08(3) of the Family Law Rules 2004 (Cth) the Court has been provided with a copy of a costs agreement between the wife and her attorneys. It was suggested by counsel for the wife, in discussion with Justice Strickland during the hearing of the application earlier this morning, that the terms of the agreement, are ultimately more a matter for taxation or assessment than the question of whether indemnity costs should be ordered.
Having read the costs agreement, I do not perceive anything emerging from it which would disincline me to exercise the discretion to award indemnity costs if it were otherwise enlivened.
In Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248 Sheppard J of the Federal Court extensively reviewed the authorities in relation to the discretion to award indemnity costs. His Honour’s judgment has been adopted on numerous occasions by this Court in the years since it was delivered, and I believe accurately reflects the law applicable in this Court to applications for indemnity costs.
I refer, briefly, to the principles or guidelines which Sheppard J suggested could be distilled from the authorities to which he had earlier referred in his judgment. His Honour recorded that “the ordinary rule [was] that, where the court orders the costs of one party to litigation be paid by another party, the order is for payment of those costs on the party and party basis.” His Honour recorded that, and as is not in doubt, party and party costs will, in many cases, fall short of a complete indemnity. His Honour proceeded, at page 256, to say that:
… 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 departing from the usual course. ..
Sheppard J recorded, by reference to authority of long standing, particularly in England, but also in Australia, that:
… the court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. …
In other cases, the test had been expressed as there being the need for:
… some special or unusual feature in the case to justify the court in departing from the ordinary practice. …
His Honour recorded, at page 257, that:
… Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule….
At page 257, Sheppard J reiterated that:
… the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice. …
I conclude that, having regard to Sheppard J’s reference, in the passage to which I earlier referred to, the difference between party and party costs and indemnity costs, and to the circumstances of this case, to decline to depart from the usual rule would constitute an injustice to the wife.
As is not in doubt, the husband in this case, as was his right, sought leave to appeal against an interlocutory decision. The record reveals that, beyond filing a Notice of Appeal, the husband has done nothing to prosecute that appeal. The husband’s inactivity has placed the wife in the position where, notwithstanding that she is the respondent to the husband’s application for leave to appeal, the wife, to use the colloquial, had to “make the running”, incurring very considerable costs of a solicitor and client nature, a substantial part of which I apprehend may well not be covered by an award of party and party costs.
In my view, the circumstances revealed by the evidence, as such, that the Court would be doing little short of condoning a mischief were it to decline to exercise the discretion to award indemnity costs.

strickland j

I agree with the reasons of the presiding judge and the orders proposed. However I wish to mention one matter in addition in relation to the application for leave to appeal. In the notice of appeal which comprises that application, the husband, as he is required to do, set out facts in support of his application for leave to appeal. There are three paragraphs under that heading. The first two of those paragraphs are nothing more than a repeat of two of the grounds of appeal referred to by the presiding judge. Those two facts, if they can be described as such, appear to me to be in support of a submission that there has been an error of principle.
The third fact is not a repeat of a particular ground of appeal, but simply says nothing more than that his Honour in finding as he did, namely, that the Family Court of Australia was not a clearly inappropriate forum, has caused a substantial injustice. That said, it can be seen that that fact is, presumably, in support of a claim that there has been a substantial injustice caused within the meaning of Rutherford’s case to which the presiding judge has referred.

For my part, none of those facts, and particularly without there being any elaboration of those facts in the form of, for example, a summary of argument being filed by the husband alter the presiding judge’s determination that the application for leave should be dismissed and my agreement with that.

murphy j

I agree in the orders proposed and with Justice Coleman’s reasons. I have nothing to add.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Strickland & Murphy JJ) delivered on 30 May 2012.

Associate:

Date: 14.06.2012