Best & Best (No.2) (Costs)
[2013] FamCAFC 41
•22 March 2013
FAMILY COURT OF AUSTRALIA
| BEST & BEST (NO.2) (COSTS) | [2013] FamCAFC 41 |
| FAMILY LAW ─ APPEAL ─ COSTS ─ Where the Respondent sought an order for costs ─ Where the Independent Children’s Lawyer sought an order for costs on an indemnity basis ─ Where the appellant opposed the making of any order for costs in favour of the respondent or the Independent Children’s Lawyer on any basis ─ Where the appellant had been wholly unsuccessful ─ Where the appellant did not assert that an order for costs ought not be made by reason of his or the respondent’s financial circumstances ─ Where the Court was of the opinion that the circumstances justified an order for costs ─ Where the Court was not persuaded that costs should be awarded on other than a party and party basis ─ Nothing to which the Court was referred demonstrated the kind of “exceptional” circumstances which would enliven the discretion to award indemnity cost (see Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248) ─ Appellant ordered to pay the Respondent’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal and the two applications in an appeal to adduce further evidence as agreed or assessed on a party and party basis. |
| Family Law Act 1975 (Cth) |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 |
| APPELLANT: | Mr Best |
| RESPONDENT: | Ms Best |
| INDEPENDENT CHILDREN’S LAWYER: | Michael Davies |
| FILE NUMBER: | WOC 91 of 2010 |
| APPEAL NUMBER: | EA 133 of 2012 |
| DATE DELIVERED: | 22 March 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May and Ainslie-Wallace JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 September 2012 |
| LOWER COURT MNC: | [2012] FamCA 828 |
REPRESENTATION
| THE APPELLANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | DGB Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Jackson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Maguire & McInerney Lawyers |
Orders
The Appellant pay the Respondent’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal and the two applications in an appeal to adduce further evidence as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best (No.2)(Costs) 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 SYDNEY |
Appeal Number: EA 133 of 2012
File Number: WOC 91 of 2010
| Mr Best |
Appellant
And
| Ms Best |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
COSTS
When judgment was delivered in this appeal on 1 February 2013 the Court reserved the costs of the successful respondent and of the Independent Children’s Lawyer (the “ICL”) and invited submissions in support of any application for costs.
On 11 February 2013 submissions were filed on behalf of the respondent in support of her application for costs of and incidental to the appeal.
On 15 February 2013 submissions were filed on behalf of the ICL in support of the ICL’s application for costs.
On 13 March 2013 the appellant filed written submissions opposing the making of any order for costs against him, either in favour of the respondent or the ICL.
It was submitted, undoubtedly correctly, on behalf of the respondent wife that the appellant had been wholly unsuccessful and, on that basis, that the Court should form the opinion that an order for costs was justified.
The balance of the submissions on behalf of the respondent were directed the basis of such order and its suggested quantum. Although the application does not appear to expressly seek an order other than party and party costs, the respondent’s reliance upon a costs agreement between herself and her solicitors suggests that costs are sought on a basis other than party and party.
The ICL sought an order for costs on an indemnity basis. Unsurprisingly, the ICL relied upon the appellant having been wholly unsuccessful in the proceedings. A number of submissions on behalf of the ICL related to the quantum of the costs sought by the ICL in the event that an order was made.
In support of the ICL’s application for costs on an indemnity basis, a number of “special or unusual features” were asserted as justification for making an order for indemnity costs. The crux of those submissions was:
19.In the context of the Appeal being directed to the ICL, it submitted that the Father, if he chose to be properly advised, would have been directed that he had no chance of success against the ICL. By choosing to not seek legal representation, running a case against the ICL before the Full Court, the Father in effect showed disregard of legal principles relevant to the involvement and role of ICLs not just in respect to appellant Family Law litigation, but also in relation to contravention proceedings.
The appellant opposed the making of any order for costs in favour of the respondent or the ICL on any basis.
The great bulk of the submissions of the appellant in relation to the respondent’s application for costs were directed to the quantum of such costs if an award for costs were made rather than to liability for costs. It is unnecessary, and unhelpful to refer to the appellant’s “bucket” submissions which constitute a substantial part of his submissions.
This Court will not be assessing the quantum of any costs which it might consider appropriate to be ordered. In the event that the parties are unable to agree upon the quantum of any costs which the Court awards, the costs will be determined by assessment in the usual manner in which cost disputes are determined.
It is in the context of assessment that the vast bulk of the appellant’s complaints would fall to be determined if the Court makes an award. It is sufficient to record that nothing advanced by the appellant in the context of his “bucket” submissions militates against making a costs order against him if one were otherwise warranted.
We are of the opinion that the circumstances justify an order for costs of and incidental to the appeal and of the two applications in an appeal to adduce further evidence being made against the appellant.
The appellant was undoubtedly wholly unsuccessful in his appeal and the two applications in an appeal to adduce further evidence. The appellant does not assert that an order for costs ought not be made by reason of his or the respondent’s financial circumstances.
We are not persuaded that costs should be awarded on other than a party and party basis. Nothing to which we have been referred demonstrates the kind of “exceptional” circumstances which would enliven the discretion to award indemnity cost (see Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248).
In the course of his extensive submissions in opposition to the ICL’s claim, the appellant appeared to contend that the ICL ought not have participated in the appeal, and to assert that the Court concluded that the ICL ought not have participated in the appeal. A variety of reasons were advanced as to why that was so, including the ICL having declined to participate in the proceedings before Rees J which gave rise to the appeal to this Court.
As Counsel for the ICL submitted, and the Court’s Reasons for Judgment confirm, the appellant’s own grounds of appeal, and orders sought by him in the appeal drew the ICL into the proceedings in this Court. The appellant placed the ICL in the position where, if not obliged to respond to the Notice of Appeal, it was responsible and proper that the ICL do so.
As the Court’s Reasons for Judgment confirm, the ICL was entirely successful in resisting the grounds of appeal directed against the ICL by the appellant.
We are of the opinion that the appellant should pay the ICL’s costs of and incidental to the appeal and application to adduce further evidence in the appeal if there was one. We are not persuaded that the order should be in favour of the ICL should be for indemnity costs.
With respect to the submissions of Counsel for the ICL, nothing to which we have been referred persuades us that “exceptional circumstances” (see Colgate Palmolive) of the kind which the authorities have recognised has been demonstrated, or that an order for party and party costs as agreed assessed would fail to do justice to the ICL.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May and Ainslie-Wallace JJ) delivered on 22 March 2013.
Associate:
Date: 22.03.2013
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