BRANGUS & BRANGUS
[2011] FamCAFC 153
•22 July 2011
FAMILY COURT OF AUSTRALIA
| BRANGUS & BRANGUS | [2011] FamCAFC 153 |
| FAMILY LAW - APPLICATION IN AN APPEAL – where the wife seeks an extension of time to file an application for costs – where no submission was received from the husband – where the justice of the case lies in extending the time for the filing of the application. FAMILY LAW - COSTS – the wife seeks that the husband pay costs in relation to his Notice of Appeal as agreed or as assessed – where there are circumstances which justify an order for costs being made – costs order made. |
| Family Law Act 1975 (Cth) s 117 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Brangus |
| RESPONDENT: | Mr Brangus |
| FILE NUMBER: | PAC | 3957 | of | 2007 |
| APPEAL NUMBER: | EA | 26 | of | 2010 |
| DATE DELIVERED: | 22 July 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Ainslie-Wallace JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 February 2010 |
| LOWER COURT MNC: | [2010] FamCA 117 |
| REPRESENTATION |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
ORDERS
The time for the wife to file her application for costs be extended nunc pro tunc to 21 September 2010.
The husband pay the wife’s costs of and incidental to the Notice of Appeal filed on 2 March 2010 as agreed or as assessed in default of agreement.
IT IS NOTED that publication of this judgment under the pseudonym Brangus & Brangus 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 SYDNEY |
Appeal Number: EA 26 of 2010
File Number: PAC 3957 of 2007
| Ms Brangus |
Appellant
And
| Mr Brangus |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before us is an application in an appeal filed by the wife on
21 September 2010 seeking in effect an extension of time to file an application for costs, and if an extension is granted, an order for costs.
Background
On 2 March 2010 the husband filed a Notice of Appeal against orders made by Stevenson J on 5 February 2010.
On 9 April 2010 the husband filed an application for a stay of the orders made by Stevenson J.
On 4 May 2010, before Le Poer Trench J the application for stay was not pursued. His Honour though made an order that the husband pay costs in the sum of $1,500.00.
On 13 July 2010 Cohen J dismissed the husband’s stay application.
On 17 August 2010 the husband’s appeal was deemed abandoned pursuant to
r 22.13 of the Family Law Rules 2004 (Cth) as a result of the husband failing to file a draft appeal index as required by that rule.
The wife had 28 days to file an application for costs, but due to a miscalculation sought to file that application by facsimile on 17 September 2010, four days late.
On 21 September 2010 the wife filed the application before us now. That application first came before us on 2 February 2011 when the husband appeared in person with the assistance of an interpreter, and the wife was represented by her solicitor.
Although the husband’s solicitors had been served with the application and the affidavit in support, we were not satisfied that the husband had had sufficient notice of the application. Accordingly we made the following orders:
(1)That the Appeal Registrar send to Mr [Brangus] at [C Street, G] under cover of a dated letter, the following documents:
(a)Application in an Appeal filed on behalf of the wife on 21 September 2010;
(b)Affidavit in support of the Application filed on behalf of the wife on 21 September 2010;
(c)Minute of orders sought filed on behalf of the wife today (2 February 2011);
(d)Affidavit of Nicole Stevens filed on behalf of the wife today (2 February 2011);
(e)The transcript of the Full Court proceedings today
(2 February 2011); and(f)A sealed copy of these orders.
(2)That the Appeal Registrar send a copy of the letter referred to in Order 1 together with the documents referred to in sub-paragraphs (e) and (f) of Order 1 (but omitting all other documents referred to in Order 1) to the solicitor for the applicant wife at the same time as the letter and documents referred to in Order 1 are sent to Mr [Brangus].
(3)That Mr [Brangus] have 30 days from the date of the Appeal Registrar's letter referred to in Order 1, to file at the Appeal Registry, and serve on the solicitor for the applicant wife, written submissions addressing the questions as to why he should not be ordered to pay the costs of his abandoned appeal and as to why the application for costs filed on behalf of the wife should not be accepted for filing out of time.
(4)That the solicitor for the applicant wife have 30 days from the date of service of Mr [Brangus’s] written submissions to file in the Appeal Registry and serve on Mr [Brangus] written submissions in response to his submissions.
It is noted as [sic] that soon as possible after the expiration of the period provided for the wife's solicitor to file written submissions in response, the Full Court will deliver a written judgment in relation to the wife’s application.
On 24 February 2011 the Appeals Registrar sent to the husband the documents including the transcript of the hearing on 2 February 2011 as required by our orders.
The husband has not complied with our orders and accordingly the wife seeks that her application be determined and orders made.
Discussion
In the circumstance of not having received any submission from the husband we propose to extend the time for the filing of the application for costs nunc pro tunc to 21 September 2010.
We have before us the affidavit of the wife’s solicitor, Nicole Stevens filed on
1 February 2011 which explains the reason for the failure to file the application within the required 28 day time period. Ms Stevens erroneously thought that the 28 day period ran from the date of the letter received from the court advising that the appeal was deemed abandoned.
We accept that explanation and observe that the husband has not suggested that he has suffered any particular prejudice as a result of the short delay in filing the application.
The law in relation to applications for an extension of time is well settled, and the High Court case which is often cited of Gallo v Dawson (1990) 93 ALR 479. In particular we refer to what McHugh J said at 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.
In assessing where the justice of the case lies a number of factors are relevant, including in particular the extent of the delay and whether there are adequate reasons which explain the delay.
In our view, given the reason for the delay, and the short delay involved, the justice of the case here lies in extending the time for filing the application.
We turn then to the application for costs itself. In the application the wife sought that the husband pay on an indemnity basis her costs of and incidental to the Notice of the Appeal, the husband’s application for a stay, and the application itself.
However, in the minute of order tendered to us on 2 February 2011 and forwarded to the husband the only order sought in this regard was that the husband pay the wife’s costs as agreed or assessed in relation to the husband’s appeal. We find this is a far more appropriate application given that no submissions were put to us that would justify costs being awarded on an indemnity basis, and there has already been an order for costs made in relation to the husband’s stay application.
We also observe that wisely the wife is no longer pursuing the other orders sought in the application of 21 September 2010, namely an order for enforcement of the order for costs made by Le Poer Trench J on 4 May 2010, and an order in effect for security for costs pending finalisation of the application for costs.
In relation then to the order now sought, that application is governed by s 117 of the Family Law Act 1975 (Cth) which provides as follows insofar as it is relevant:
(1)[Party bears own costs] 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) [Costs Orders] 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) [Matters relevant to costs order] 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 consider relevant.
The questions for us are whether there are circumstances which justify an order for costs and if so what that order should be, and in deciding that we are directed to the factors set out in sub-paragraph (2A).
Once again we note that the husband has chosen not to make any submissions in accordance with our order, and we have no difficulty in finding that an order for costs is justified. The husband filed a Notice of Appeal and as a result the wife has incurred legal costs and disbursements. However, these costs and disbursements have been rendered unnecessary by the husband’s failure to prosecute his appeal.
In terms of what orders should be made and bearing in mind the relevant factors arising under s 117(2A) it is appropriate for the wife to have her costs of and incidental to the appeal given the conduct of the husband in first bringing the appeal, and then in not diligently prosecuting it.
Thus we propose to make an order that the husband pay the wife’s costs of and incidental to the appeal as agreed or as assessed in default of agreement.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Ainslie-Wallace JJ) delivered on 22 July 2011.
Associate:
Date: 22 July 2011
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