Bukari & Bukari (No 6)
[2023] FedCFamC1A 136
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bukari & Bukari (No 6) [2023] FedCFamC1A 136
Appeal from: Bukari & Bukari (No 4) [2023] FedCFamC2F 562 Appeal number(s): NAA 113 of 2023 File number(s): PAC 3346 of 2020 Judgment of: SCHONELL J Date of judgment: 18 August 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Costs – Where both parties sought costs following an appeal that was abandoned – Where the appeal was abandoned due to the husband’s failure to file the transcript in time – Where there was no utility to the appeal – Where the husband’s conduct led to the incurring of costs for the wife – Where the proceedings were wholly unsuccessful – Costs ordered in a fixed sum in favour of the wife. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
Cases cited: Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Number of paragraphs: 28 Date of hearing: 16 August 2023 Place: Sydney Counsel for the Applicant: Ms Yu Solicitor for the Applicant: AS Family Lawyers The Respondent: Litigant in person ORDERS
NAA 113 of 2023
PAC 3346 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BUKARI
Applicant
AND: MR BUKARI
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.The respondent husband’s application for costs is dismissed.
2.The respondent husband pay the applicant wife’s costs in the sum of $2,500, with such costs to be paid within 28 days.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Bukari & Bukari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
Before the Court for consideration are cost applications from both parties following an appeal that was deemed abandoned.
The applicant wife (“the wife”) seeks costs on an indemnity basis in the sum of $3,532.50 or alternatively on a party/party basis in the sum of $2,500.
For his part, the respondent husband (“the husband”) seeks costs against the wife on an indemnity basis in the sum of $5,570.
For the reasons that follow, I propose to make an order for costs in favour of the wife.
The wife relied upon the following documents:
(1)Application in an Appeal filed 3 August 2023; and
(2)Affidavit of wife filed 3 August 2023.
The husband relied upon the following documents:
(1)Application in an Appeal filed 14 August 2023; and
(2)Affidavit of husband filed 16 August 2023.
BACKGROUND
On 24 March 2023, a judge of Division 2 of the Court delivered reasons for judgment and made final property orders between the parties. The husband appealed those orders by filing a Notice of Appeal on 31 March 2023 and later an Amended Notice of Appeal on 3 April 2023 (“the primary appeal”).
On 14 April 2023, the husband filed an application seeking a stay of the final property orders to which the primary judge granted a partial stay of on 28 April 2023. The husband filed a Notice of Appeal against those orders on 1 May 2023 (“the stay appeal”).
On 16 May 2023, the appeal registrar summarily dismissed the stay appeal after the husband failed to show cause as to why it should not be dismissed given the various deficiencies within the Notice of Appeal.
On 24 May 2023, the appeal registrar made procedural orders in relation to the primary appeal, which included an order for the husband to file a transcript of the trial before the primary judge by 21 June 2023.
On 25 May 2023, the matter came before me for a judicial review of the appeal registrar’s decision to summarily dismiss the stay appeal. On that date, I set aside the appeal registrar’s order and ordered that the primary and stay appeals be consolidated and heard before me on 25 July 2023.
On 21 June 2023, the primary appeal was deemed abandoned under r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) as a consequence of the husband’s failure to file the whole transcript in time.
On 23 June 2023, the husband filed an application seeking the reinstatement of the primary appeal. On 28 June 2023, the husband filed another application seeking a review and discharge of the procedural orders made by the appeal registrar on 24 May 2023, namely the obligation of the husband to file a transcript of the whole trial before the primary judge.
On 28 June 2023, the appeal registrar made procedural orders with respect to the stay appeal. Those orders required the husband to file the transcript of the trial by 10 July 2023.
On 4 July 2023, Austin J heard and dismissed both applications, and a costs order was made in favour of the wife on the basis that both applications were wholly unsuccessful. Despite being invited to do so and despite there being no utility to the stay appeal in circumstances where the primary appeal remained abandoned, the husband did not consent to the stay appeal being dismissed. Consequently, the stay appeal remained listed for hearing before me on 25 July 2023.
On 10 July 2023, the stay appeal was deemed abandoned under the Rules due to the husband’s failure to file the transcript by the date ordered.
DISCUSSION
The wife seeks her costs of the stay appeal in circumstances where overall the husband’s appeal was taken to have been abandoned. Not unsurprisingly, her counsel contended that she has been put to costs which she should never have had to meet.
Somewhat curiously, the husband seeks an order for his costs. He contended that the determination of the stay arose as a consequence of either the fault of the appeal registrar or alternatively because of the conduct and fault of the wife. He seemed to contend that she had been unreasonable and had she acted reasonably, then the application before me would never have been made. With the greatest of respect, the submission misses the point entirely, namely that he was the person who instituted the appeal and that the application in an appeal arose entirely as a consequence of the filing of his Notice of Appeal when ultimately it was of no utility.
I am not satisfied that this is a matter that warrants the making of an order on an indemnity basis. The authorities make it plain that an order for indemnity costs is not one that is made lightly and there should be circumstances of an exceptional kind that warrant orders for costs on an indemnity basis. In Kohan & Kohan (1993) FLC 92-340, their Honours in the Full Court observed at 79,614:
The intent of s117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the Court may make such order as the Court considers just. As we have pointed out, the Court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O. 38 r. 2, the provisions of O. 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O. 38 r. 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v. Wright (No.2) “(supra); Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534; Hobartville Stud v. Union Insurance Co. (1991) 25 NSWLR at 368 to 370.
Indemnity costs orders are still an exception in this and other jurisdictions. …
I am not satisfied that in this case there are exceptional circumstances that warrant the making of a costs order.
An application for costs is governed by the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”), which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … 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
Dealing now with the relative subsections in s 117(2A).
The financial circumstances of the parties are set out in the judgment of the primary judge. I am satisfied that the husband has the capacity to meet an order in favour of the wife.
Neither party is in receipt of legal aid. The conduct of the husband is a relevant consideration in circumstances whereby his failure to comply with orders and directions of the Court directly led to the incurring of costs by the wife. I am also satisfied that the husband has been wholly unsuccessful in the proceedings.
In all the circumstances, I am satisfied that an order should be made for the husband to pay the wife’s costs. The Rules and authorities make plain that I can fix an amount of costs. The wife seeks $2,500 and I am satisfied that that is a reasonable sum. Accordingly, I will fix costs in the sum of $2,500 to be paid by the husband within 28 days.
In relation to the husband’s application for costs, I am not satisfied that there is any warrant for the making of an indemnity costs order or for that matter any warrant for making an order for costs at all. The wife was entirely within her rights to resist the stay application and entitled to insist upon the correctness of the decision. The entirety of the costs incurred by the wife is directly a function of the conduct of the husband and has nothing to do with the wife’s conduct. There is no basis whatsoever for the making of an order for costs in favour of the husband. I dismiss the husband’s application for costs. I will make orders accordingly.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 18 August 2023
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