Brennan and Shaw (Costs)
[2010] FamCAFC 152
•20 August 2010
FAMILY COURT OF AUSTRALIA
| BRENNAN & SHAW (COSTS) | [2010] FamCAFC 152 |
| FAMILY LW - APPEAL – COSTS – Application in an Appeal – Extension of time – Where appeal deemed abandoned – Where application for costs not filed in accordance with rules –Where failure to grant an extension of time will not work an injustice – Application dismissed. FAMILY LAW - APPEAL – COSTS – Where in the circumstances there should be a departure from s 117(1) of the Family Law Act 1975 (Cth) – Where the mother was unsuccessful in respect of the appeal – Where the mother has the capacity to meet the costs orders sought – Where the quantum of costs sought is not excessive – Mother to pay the father’s costs of the stay appeal. |
| Family Law Act 1975 (Cth) – s 117 Family Law Rules 2004 – r 1.14, r 22.43 |
| Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123 |
| APPELLANT: | Ms Brennan |
| RESPONDENT: | Mr Shaw |
| FILE NUMBER: | SYF | 3250 | of | 2006 |
| FIRST APPEAL NUMBER: | EA | 97 | of | 2008 |
| SECOND APPEAL NUMBER: | EA | 102 | of | 2008 |
DATE DELIVERED: | 20 August 2010 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Bryant CJ, Boland & Stevenson JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 August 2008 3 September 2008 |
| LOWER COURT MNC: | [2008] FamCA 656 [2008] FamCA 744 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Ms Brennan in person |
| COUNSEL FOR THE RESPONDENT: | Mr Watkins |
Orders
The father’s application for an extension of time in which to seek costs in appeal no. EA 97 of 2008 is dismissed.
The mother pay the father’s costs of the stay appeal (EA 102 of 2008) in the sum of $2,233.00 unless otherwise agreed such costs to be paid within 28 days of the date of this order.
IT IS NOTED that publication of this judgment under the pseudonym Brennan & Shaw (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 SYDNEY |
Appeal Number: EA 97 of 2008; EA 102 of 2008
File Number: SYF 3250 of 2006
| Ms Brennan |
Appellant
And
| Mr Shaw |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9 June 2009 Mr Shaw (“the father”) filed an Application in an Appeal (Appeal EA 97 of 2008). In his application the father sought an extension of time in which to bring an application for costs, and an order that Ms Brennan (“the mother”) pay his costs in the sum of $2,253.20 or as assessed. Appeal EA 97 of 2008 was an appeal filed by the mother against parenting orders made by Fowler J, but which became abandoned under the Family Law Rules 2004 (“the rules”) because the mother did not file her appeal book. For convenience, in these reasons we will refer to this appeal as “the substantive appeal”.
Shortly after she filed the substantive appeal, the mother filed an appeal against orders made by the trial Judge refusing a stay of his parenting orders. Again for convenience we will refer to that appeal (EA 102 of 2008) as “the stay appeal”. The stay appeal was dismissed by us, and we reserved the father’s costs. We will shortly set out the orders we made at the conclusion of the stay appeal.
The father filed, also on 9 June 2009, an Application in an Appeal in the stay appeal in which he also formally sought an extension of time to seek a costs order and that the mother pay his costs in the sum of $2,233.55 or as assessed. There was no need for the father to seek an extension of time in respect of the stay appeal costs as his application was filed in accordance with orders made when the appeal was dismissed.
On 1 July 2009 orders were made by us that the father file, and serve on the mother, submissions in support of his application to extend time to seek costs in respect of the substantive appeal, and in support of an application for costs (filed in time) in respect of the stay appeal. The orders provided a timetable for the mother to respond to the father’s submissions and for the father to file submissions in reply.
In accordance with the orders the father filed submissions as directed on 20 July 2009, the mother filed submission on 4 August 2009 and submissions in reply were filed on 7 August 2009.
On 4 August 2009 the mother also filed a Response to the father’s Application in an Appeal. The mother sought orders that the extension of time sought be refused and the father’s applications for costs be dismissed.
These are our reasons for making a costs order in the father’s favour in respect of the stay appeal, and dismissing his application to extend time in respect of the substantive appeal.
Background
The mother filed the substantive appeal on 18 August 2008. The mother did not file the appeal book pursuant to orders made by the Appeal Registrar, and on 4 December 2008 the Appeal Registrar wrote to the father, the mother and the independent children’s lawyer (“ICL”) notifying them that the appeal was deemed abandoned. As we have explained, no application for costs was filed by the father in accordance with the rules.
The stay appeal was dismissed by the Full Court and the following orders were made:
1.That the appeal be dismissed.
2.That the respondent father’s costs be reserved to the Full Court determining the substantive appeal (EA 97 of 2008).
3.That, in the event that the substantive appeal does not proceed to determination, there be liberty to re-list the matter before the Full Court on the question of the respondent father’s costs of this appeal.
Application for costs (the stay appeal)
As we have briefly explained, this was the mother’s appeal against the refusal of Fowler J to stay parenting orders pending an appeal. She was wholly unsuccessful in the appeal.
In support of his application for costs the father deposed that on 23 May 2009 he wrote to the mother. In the father’s letter he referred to the two appeals. He further noted he had filed an application for security for costs in respect of the substantive appeal, which application became unnecessary “because [the] appeal was dismissed” (in fact abandoned).
The father sought that the mother pay his costs as follows:
Appeal against Stay $2,253.20 Appeal in Substantive Proceedings $2,233.55 My Application for Security for Costs $630.00 Total $5,116.75
The sums sought do not correspond with the sums sought in his application.
The father deposed that the mother did not reply to this letter.
In paragraph 7 of his affidavit the father deposed to his financial circumstances. He said he owns a home unit purchased in August 2006 for $870,000.00 and subject to a mortgage of $644,000.00. The property is rented and he receives rental of $690.00 per week. He further deposed to owing $16,800.00 to a bank by way of an unsecured personal loan and a credit card debt of $9,900.00. He also said he has a debt to his father of approximately $85,600.00 for legal fees to date, as well as other borrowings from his father and sister.
The father deposed that he lives in his mother’s home and that he is employed as a professional in the transport industry in receipt of a gross income of $168,000.00 per year.
In her submissions filed 4 August 2009, the mother referred to the disparity in her income and that of the father. She asserted she has been supporting the child of the marriage, as well as her new husband due to his unemployment. She disputed the father’s assertion that she has assets or savings.
The applicable law
Section 117 governs costs of the parties in proceedings under the Family Law Act 1975 (Cth) (“the Act”). It provides 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.
(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123 the Full Court discussed, at paragraph 41 of their reasons, the effect of s 117(2A) as follows:
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.
Discussion
We are satisfied in the circumstances of this case there should be departure from s 117(1). The predominant matter we take into account under s 117(2A) is the mother’s lack of success in respect of the stay appeal. While we have had regard to the disparity in the parties’ earning positions no corroborative material was produced by the mother to support her assertion she was shortly to become unemployed. Rather, in her submissions she submitted the father’s salary of $200,000.00 was “more than double” her income. We are satisfied the mother has the capacity to meet the costs order sought in the father’s application.
We also have regard to the quantum of costs sought by the father in his application. The sum sought is not excessive. We acknowledge the father was represented by counsel at the hearing of the stay appeal, and written submissions were prepared on his behalf. He was also represented by counsel when the appeal was expedited. We propose to order that the mother pay the father’s costs of Appeal No EA 102 of 2008 in the sum of $2,233.00.
Application to extend time to seek costs (the substantive appeal)
In his affidavit in support of his application to extend time filed 20 July 2009 the father conceded that the application for costs should have been lodged on or before 28 December 2008.
He further deposed to being involved in further proceedings with the mother, in which he is seeking costs of the substantive proceedings before Fowler J in the sum of $105,415.00 from the mother or her solicitor, Mr Brennan. Mr Brennan is the mother’s brother and represented her in the proceedings before Justice Fowler.
At paragraph 5 of his affidavit, the father explained that he had not filed an application for costs in respect of both appeals because he was “engrossed in the substantive proceedings costs application”. He further said if he was successful in those proceedings he had determined he would not seek costs of the appeals “to avoid further costs and further proceedings”.
At the date of swearing the father’s affidavit he deposed the costs proceedings before Fowler J had not, at that time, been determined and that the mother had sought leave to appeal an interlocutory order of the trial Judge made 23 April 2009 associated with those proceedings.
The father conceded he did not take any action to seek costs of the appeals until the mother filed her latest appeal (EA 48 of 2009). The father asserted that although he was out of time the mother would not suffer prejudice as she was still involved in litigation in the Court. He further submitted the costs he is seeking are modest and that his costs were based on counsel’s fees incurred on a “direct access” brief basis.
The mother in her affidavit sworn 4 August 2008 pointed out that the father’s application is made approximately eight months after the time expired under the rules. The mother submitted the father provided no adequate explanation as to why he delayed in filing his application for costs after the appeal was deemed abandoned.
The mother further deposed that the appeal was not dismissed as asserted by the father, but abandoned by her due to financial reasons. Accordingly she submitted it was not dismissed by the Full Court as being without wholly without merit because no determination was made by the Full Court. As in respect of the stay appeal, the mother relied on her financial position in opposing the application to extend time.
In his affidavit in support of his application to extend time the father does not address the basis on which he seeks costs should the extension of time be granted. However, in his earlier affidavit filed 9 June 2009, he refers to an “itemised account of [his] costs (on a party-party basis ie scale rate)” that he seeks in respect of the substantive appeal in the quantum of $2,253.20. Those costs include two hours for professional time for perusing the mother’s Notice of Appeal and the Application for Expedition and a conference regarding the appeal, one hour for perusal of directions from ICL and instructions to an agent to attend. The schedule includes a sum for court attendance on 7 October 2008 in the sum of $928.00.
Relevant law
The principle to be applied in considering an application to extend time under the rules is embodied in the requirement that the discretion is exercised to ensure that strict compliance with the rules does not work an injustice.
Rule 22.43 of the rules deals with an abandoned appeal. It provides as follows:
(1) If the appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all other parties.
(2) An application for costs of an abandoned appeal must be filed within 28 days after the date the appeal became abandoned.
There is no dispute that the father did not file any application in accordance with r 22.43. Thus r 1.14 of the rules, which has general application, is relevant. Rule 1.14(1) provides as follows:
A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
Discussion
In this case there is no dispute that the appeal was abandoned by reason of the failure of the mother to file appeal books. As we have already set out the rules provide in such circumstances that the respondent to an appeal can seek an order for costs. Thus, the rules contemplate that a party who has been unfairly put to costs by reason of the institution of an appeal should not be prejudiced for costs thrown away as a result of the appeal being deemed abandoned.
In the event that the father had filed his application for costs within the time provided in the rules his application would have been given careful consideration by the Court. But the father did not pursue such an application, and from his own affidavit material it is clear that he made a decision not to pursue any costs associated with the abandoned appeal.
The father explained his delay by reference to the fact of the ongoing litigation between the parties over costs of the trial before Fowler J, where the quantum in issue is significantly more than the present sum claimed, and further that this application was only pursued when the mother filed her present appeal against interlocutory orders in the costs proceedings arising out of the trial before Fowler J. It may be implied from this evidence that the father’s motive in seeking costs out of time is motivated by reasons other than ones directed to compensation.
Further in considering any prejudice to the father, we note that the dates and appearances set out in the schedule of costs on which the father seeks to rely does not accord in some respects with the orders made in this matter and retained on the Full Court file.
The mother’s appeal was filed on 18 August 2008. On 8 September 2008 Boland J heard the mother’s application for expedition of the appeals and granted expedition of both appeals. Her Honour also directed the Appeal Registrar to conduct a procedural hearing in respect of the substantive appeal, which procedural hearing occurred on 2 October 2008. That procedural hearing was conducted with the father being represented by a solicitor, who also mentioned the matter on behalf of the ICL. However, no Notice of Address for Service was ever filed by the solicitor on the father’s behalf. The only other appearance was on 12 November 2008 when Mr Watkins of counsel appeared by telephone. On that occasion the Appeal Registrar directed listing the before Boland J on 14 November 2008 be vacated, and it was noted that in the event the mother did not file her appeal books by 27 November 2008 the appeal would be deemed abandoned.
We are satisfied, even if we considered an indulgence should be granted to the father to extend time to apply for costs we could not with confidence make orders in accordance with the schedule annexed to the father’s affidavit given the inconsistencies in the dates in respect of which costs are claimed in that schedule and the orders and appearances recorded in the appeal file.
The central issue to be determined is whether the failure to grant an extension of time will work an injustice on the father in all the circumstances. We do not think so. This is because the father, on his own evidence, asserted he had no intention to bring an application for costs in respect of this abandoned appeal until he became aware of the present appeal proceedings. He does not offer any cogent reason for his delay, or of any substantial financial prejudice to him if these costs are not paid by the mother. The legal costs claimed by the father do not accurately reflect appearances recorded in the appeal file, and the father did not retain solicitors to appear for him. No opposition was advanced by counsel for the father on 8 September 2008 when the application for expedition of the stay appeal and the substantive appeal was before the Court. That application is one in which respect of which we have ordered the mother pay the father’s costs. To order costs for that appearance in the substantive appeal would represent “double counting”. Taking into account all these matters we do not propose to extend time to the father to bring his costs application in respect of the substantive appeal some eight months out of time.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 20 August 2010.
Associate:
Date: 20 August 2010
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