Brathwell & Brathwell (No 3)
[2024] FedCFamC1A 102
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Brathwell & Brathwell (No 3) [2024] FedCFamC1A 102
Appeal from: Brathwell & Brathwell (No 3) [2023] FedCFamC2F 1164 Appeal number: NAA 255 of 2023 File number: BRC 7200 of 2015 Judgment of: MCCLELLAND DCJ Date of judgment: 28 June 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the wife seeks indemnity costs from the husband in regard to an appeal he commenced – Where the husband failed to diligently prosecute his appeal – Where the husband brought an oral application at the appeal to adjourn due to illness – Where the oral application was meritless – Where the husband was wholly unsuccessful in the appeal – Where the wife made offers to the husband to settle the appeal which the husband failed to engage with – Where the husband’s conduct in the appeal proceedings caused the wife to expend unnecessary legal costs – Where the husband will receive a distribution of monies held on trust by the wife’s solicitor upon the finalisation of the Application in an Appeal – Where an indemnity costs order against the husband is warranted – Order made for the husband to pay the wife’s costs on an indemnity basis. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR; [2009] HCA 27
Hamod v New South Wales (2002) 188 ALR 659; [2002] FCA 424
House v The King (1936) 55 CLR 499; [1936] HCA 40
I and I (No 2) (1995) FLC 92-625; [1995] FamCA 80
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Prantage & Prantage (Costs) [2014] FamCA 850Number of paragraphs: 20 Date of hearing: 28 June 2024 Place: Brisbane (via videolink) Solicitor for the Applicant: Mr Mylne, Turnbull Mylne Solicitors The Respondent: Litigant in person ORDERS
NAA 255 of 2023
BRC 7200 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BRATHWELL
Applicant
AND: MR BRATHWELL
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.Within 28 days of the date of these orders, the respondent husband pay the costs for the applicant wife on an indemnity basis, in the fixed sum of $17,724.96.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brathwell & Brathwell has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTMCCLELLAND DCJ:
INTRODUCTION
This is an Application in an Appeal filed by the applicant wife, Ms Brathwell, on 19 March 2024 (“the Application”) for an order that the respondent husband, Mr Brathwell pay her costs of the entirety of appeal proceedings, which were commenced by the respondent husband on 14 September 2023 (“the appeal”) and dismissed by a judgment dated 20 February 2024.
The applicant wife seeks that the respondent husband pay her costs of the appeal on an indemnity basis and the costs of and incidental to the Application in the total sum of $17,724.96. In the alternative, the respondent wife seeks that the respondent husband pay her costs of the appeal on a party and party basis and the costs of the Application.
RELEVANT LEGAL PRINCIPLES
The issue of costs in respect to proceedings under the Family Law Act 1975 (Cth) (“the Act”) is to be determined in accordance with s 117 of the Act. That section relevantly provides that:
(1)Subject to subsection (2), subsection 102QAB(6) and sections 117AA and 117AC, each party to proceedings under this Act must bear the party’s 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), (4A), (5) and (6) 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.
[Notes omitted]
The general rule, as set out in s 117(1) of the Act, is that each party to the proceedings shall bear his or her own costs. This is, however, subject to s 117(2) of the Act which provides that, if the Court is satisfied that there are circumstances justifying it, the Court retains a discretion to make such order as to costs as it considers just. Beyond the “essential preliminary” consideration of those matters set out in s 117(2A) of the Act, there is no “additional or special onus” on the applicant for the Court to make an order for costs: Penfold v Penfold (1980) 144 CLR 311 at 315.
In considering whether it is appropriate and just to make an order for costs in favour of a party, it is necessary to take into account and balance all relevant matters referred to in s 117(2A) of the Act in order to determine whether the overall circumstances justify the making of an order for costs.[1] However, that is not to say that one single matter may not ultimately be determinative, nor does any factor set out in that section have priority over another.[2] Ultimately, the weight to be given to each factor is a matter for the presiding judicial officer.
[1] I and I (No 2) (1995) FLC 92-625 at 82,277.
[2] Prantage & Prantage (Costs) [2014] FamCA 850 at [12], citing Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at [41].
CONSIDERATION
In considering s 117(2A) of the Act, I have set out what I consider to be relevant below.
Financial Circumstances of Each Party
The applicant wife's affidavit filed on 19 March 2024, affirms that her solicitor, Mr Turnbull Mylne, is holding funds in trust on behalf of the parties, with each party due to receive a cash distribution, and the respondent husband’s cash distribution being the sum of almost $300,000.
Conduct of the Parties
The respondent husband's Notice of Appeal, filed on 14 September 2023, presented some 61 separate grounds of appeal. Many of those grounds were duplicated and others were incomprehensible and failed to address those matters that the Court is required to consider in determining appellable error in accordance with the principles of House v The King (1936) 55 CLR 499 at 504-505.
The applicant wife contends at paragraph 8 of her written submissions:
The constant appeals, adjournments and applications for adjournments can only be described as vexatious in its effect on preventing the timely implementation of [the primary judge’s] final orders, causing the ‘fruits of the judgment’ to be denied to the Applicant [wife] for nigh on 2 years.
(As per the original)
I accept the applicant wife's submission that the respondent husband's conduct caused untimely delays in the proceedings.
The respondent husband ultimately failed to engage in the appeal he commenced. My judgment of 20 February 2024 notes at [18] that the respondent husband failed to file his Amended Notice of Appeal and Summary of Argument in accordance with orders made by the Court. This conduct from the respondent husband has resulted in the applicant wife incurring unnecessary expense and has also resulted in the unnecessary utilisation of this Court's resources.
Whether Any Party Has Been Wholly Unsuccessful
As earlier detailed, the appeal was dismissed by the Court as a result of the failure of the respondent husband to engage in the proceedings. He was therefore wholly unsuccessful in obtaining the relief he was seeking.
Whether Either Party Has Made an Offer to Settle the Proceedings
On 18 October 2023, the respondent husband was sent a letter from the applicant wife's solicitor placing him on notice as to a costs application on an indemnity basis. [3]
[3] Written submissions of the applicant wife filed on 19 March 2024, paragraph 14(a).
On 23 January 2024, the applicant wife's solicitor sent the respondent husband a further letter with a bona fide offer of settlement. This letter is annexed to the wife's affidavit filed on 19 March 2024 and stated:
It is unlikely in any event that the appeal will succeed and, in that case, you may be required to pay costs, and that may be on the indemnity basis.
You could avoid any such costs risk by simply withdrawing your appeal, and if you do so on or before Monday 29 January 2024 then our client will not seek her costs thrown away.
This offer will close at 4:00pm (local time) on Monday 29 January 2024 and will not be reopened or extended and may be shown to the Court in the matter of costs.
(As per the original)
The respondent husband did not engage with the letters dated 18 October 2023 or 23 January 2024, nor did he communicate with the applicant wife's solicitor in regard to the continuation of the appeal. [4]
[4] Written submissions of the applicant wife filed on 19 March 2024, paragraph 15.
Such Other Matters as the Court Considers Relevant
The applicant wife has been subjected to the expenditure of costs of an appeal filed by the respondent husband in circumstances where the respondent husband failed to properly and diligently prosecute the appeal. He has consistently failed to prepare for court events and failed to file documents in accordance with directions of the Court. The applicant wife was put to unnecessary and unreasonable expense due to the actions of the respondent husband.
The respondent husband has also not engaged with this Application.
DISPOSITION
The principle for an award of indemnity costs was explained in Hamod v New South Wales (2002) 188 ALR 659 at [20]:
Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.
For the reasons I have set out, I am satisfied that the husband's conduct in respect to the appeal is such it would be unreasonable for the applicant wife to have been subjected to the expenditure of legal costs she has incurred in respect to the appeal. I therefore order the respondent husband to pay the costs of the wife on an indemnity basis in the sum of $17,724.96, inclusive of her costs for bringing this Application.
Having considered the parties’ financial and other circumstances and in the absence of evidence from the respondent husband, I consider it appropriate to make the costs ordered, payable within 28 days of the date of this judgment.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 8 July 2024
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