Bulow & Bulow (No. 2)
[2022] FedCFamC1A 25
•24 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bulow & Bulow (No. 2) [2022] FedCFamC1A 25
Appeal from: Bulow & Bulow (No. 5) [2021] FedCFamC2F 166 Appeal number(s): NAA 57 of 2021 File number(s): ADC 1674 of 2014 Judgment of: AUSTIN J Date of judgment: 24 February 2022 Catchwords: FAMILY LAW – APPEAL – COSTS – Where costs orders were previously made in relation to a trial completed in 2017 – Where the orders required the appellant to pay some interlocutory costs, but otherwise provided for each party to bear their own costs – Where the costs order was duly paid – Where the matter proceeded to trial for a second time after an appeal which did not disturb the prior costs orders – Where the wife filed an application for costs in relation to the first trial – Where the primary judge made a mistake of fact, wrongly believing that a portion of the interlocutory costs was still outstanding and determined the application – Where the husband appeals from that order – Where the appealed order is irreconcilable with the order for costs already paid – Where the appealed order is repugnant to the order that each party shall bear their own costs – Appeal allowed – Re-exercise – Appealed order set aside and the wife’s costs application dismissed – Husband granted a costs certificate in relation to the appeal. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Cases cited: Bulow & Bulow (2019) FLC 93-885; [2019] FamCAFC 3
Bulow & Bulow [2022] FedCFamC1A 19
Clayton v Bant (2020) 95 ALJR 34; [2020] HCA 44
Number of paragraphs: 27 Date of hearing: 24 February 2022 Place: Newcastle (via video link) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 57 of 2021
ADC 1674 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BULOW
Appellant
AND: MS BULOW
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
24 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Order 1 made on 13 October 2021 is set aside.
3.The Application in a Case filed by the respondent on 18 December 2017 and all Responses filed by the appellant in answer thereto are dismissed.
4.The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the disbursements incurred by him in relation to the appeal.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bulow & Bulow (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This is an appeal by the husband from a costs order made against him in the respondent wife’s favour by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 13 October 2021 in respect of proceedings concluded between the parties by another judge under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) years before in November 2017.
Both parties were unrepresented in the appeal. The wife resisted the appeal but, for the reasons which follow, it must succeed.
Background
Property settlement orders were first made between the parties on 22 November 2017.
The orders were structured to incorporate, within Order 1(a), an award of costs in favour of the wife against the husband in the total sum of $11,889 which related to some separate interlocutory disputes earlier in the proceedings. Aside from the specific provision for such interlocutory costs, another order was made requiring the parties to otherwise bear their own costs of the proceedings in these terms:
3. As and from the making of these orders:
…
b.The parties each pay their own costs of and incidental to these proceedings SAVE AND EXCEPT the costs of any transfer necessary to give effect to these orders as otherwise provided for herein;
The husband appealed against the property settlement orders and the appeal was allowed in January 2019 against some, but not all, of the orders (Bulow & Bulow (2019) FLC 93-885).
Orders 1(a) and 2 were set aside in the appeal, but the remaining orders were affirmed. The Full Court expressly noted the order for interlocutory costs was not discharged, despite Order 1(a) being set aside, saying:
A.An order that the husband pay the wife's costs in the sum of $11,889 was not the subject of a specific order by Judge Heffernan but rather was incorporated within Paragraph 1 (a)(i) of the orders made on 22 November 2017. The order for costs remains undisturbed by these orders.
In December 2017, while that appeal was still pending, the wife filed an application seeking an order against the husband for her costs of and incidental to the entire first-instance proceedings. Her costs application was evidently in direct conflict with Order 3(b) made in November 2017 concerning the overall costs of those proceedings, which order eventually survived the appeal, and therefore had to be and should have been summarily dismissed. However, the impropriety of the wife’s application was not identified, then or since, by anyone other than the husband.
The wife’s costs application was successively adjourned to April 2018, November 2018 and February 2019, by which time the result of the appeal was then known. The application was again adjourned until April 2019 to allow for a conciliation conference but, when the property settlement dispute failed to settle, it progressed to trial for a second time in August 2020. In the meantime, the outstanding costs application related to the first trial lay dormant.
Orders were made on 15 March 2021 (but amended under the slip rule on 12 April 2021) to determine the property settlement proceedings for a second time. The husband’s appeal from those orders was recently dismissed by the Full Court on 18 February 2022 (Bulow & Bulow [2022] FedCFamC1A 19).
Among the orders made at first-instance in March 2021 was this:
2.Nunc pro tunc, the husband is to pay the costs of the wife in the amount of ELEVEN THOUSAND, EIGHT HUNDRED AND EIGHTY NINE DOLLARS ($11,889.00)
nothingnoting that paying of this amount has already been effected by the parties in compliance with orders 1(a)(i) and (ii) of the orders of Judge Heffernan dated 21 November 2017.The trial judge also noted this in the sealed orders:
A.Order 3 of the orders of Judge Heffernan dated 21 November 2017 was not set aside by the Full Court in [Bulow & Bulow (2019) FLC 93-885].
So, if it is not already apparent from that summary, even though:
(a)the interlocutory costs order in the sum of $11,889 in relation to the first trial stood and had been duly paid (confirmed by Order 2 made in March 2021);
(b)the final order requiring the parties to otherwise bear their own costs of the proceedings up to and including the first trial in November 2017 remained in force (Order 3 made in November 2017, confirmed by Notation A made in March 2021); and
(c)an appeal was still then pending from the second set of property settlement orders made in March 2021;
the wife’s outstanding costs application in relation to the first trial was entertained by a different judge in August 2021 (as the original judge had retired).
In deciding to hear the costs application arising from the first trial while the husband’s appeal from the second set of orders was still pending, the primary judge said:
28.In these circumstances, it is not beyond the bounds of possibility that the Full Court will find that Judge Heffernan’s discretion miscarried in respect of the splitting order made by him in the absence of the husband. In these circumstances, the Full Court may itself re-exercise that discretion or remit the case back for a third hearing. In such circumstances, it is arguably premature to consider cost arising from the first trial given that the ultimate outcome of the case may not be reflective of the offer to settle made by [the wife].
29.However, it seems to me that there was no impediment to the trial judge determining the application for costs prior to the hearing of the appeal. In fact, this seems would have been the preferable course, as the Full Court could then have determined any outstanding controversy flowing from such a course. Without wishing to be disparaging of either myself or [the husband], it seems improbable that he would easily accept any adverse order for costs made against him and is likely therefore to launch yet another appeal, as is his entitlement.
30.Given there is an appeal on foot, in these circumstances, it seems to me to be the preferable course that I determine the outstanding costs application, in respect of the first trial, which if necessary can be reviewed, by the Full Court in the currently pending appeal process.
The appealed order made by the primary judge on 13 October 2021 was in these terms:
1.Within twenty eight (28) days of the date of this order, the respondent pay the applicant a lump sum of costs fixed at FIFTEEN THOUSAND DOLLARS ($15,000.00).
The appealed order was attended by this notation:
A.There is a previous order of this Court where the respondent was directed to pay to the applicant a lump sum of costs fixed at FIVE THOUSAND AND FORTY FOUR DOLLARS ($5,044.00) and NOTING THAT this costs order remains outstanding.
Two things stand out.
First, the appealed order is repugnant to Order 3(b) made on 22 November 2017.
Secondly, the notation is irreconcilable with Order 2 made on 15 March 2021, since the paid costs of $11,889 incorporated the wife’s discrete claim for $5,044.
The appeal
With due respect for the efforts of the husband, his grounds of appeal are difficult to understand and should be recited in full. They are as follows:
1.Orders for costs made by His Honour [the primary judge] on 13 October 2021 in case ADC1674/2014 (Bulow & Bulow (No 5) [2021] FedCFamC2F 166), are plainly wrong and in a matter which was res judicata, as follow:
1.1The matters of costs (“ADC1674/2014 Costs”) agitated by the “wife” in the Application in a Case filed on 18 December 2017 in case ADC1674/2014 were res judicata by Order 3(b) of final orders made by Judge Heffernan on 22 November 2017: “The parties each pay their own costs of and incidental to these proceedings”
1.2The “ADC1674/2014 Costs” were re-affirmed by Orders (8.), (9.), (10.) and (11.) of orders made by the Full Court on 18 January 2019 in the case SOA3 of 2018 from ADC1674
1.3The “ADC1674/2014 Costs” were then undisturbed by the orders made by Judge Heffernan on 15 March 2021 following the re-hearing.
2.His Honour [the primary judge] misdirected himself into wrongful exercise of judicial discretion and jurisdictional error in a res judicata matter with the decision reaffirmed by the appellate jurisdiction and re-hearing, and where the statutory stare decisis mandates the Court was functus officio in this matter.
3.His Honour [the primary judge] failed to take into account material evidence filed and submitted by the “husband”, and in contrast, His Honour has taken into account irrelevant facts and dishonest submissions made by the “wife” to issue the orders of 13 October 2021, which are aiding and abetting the fraudulent claims made by the wife in her Application in a Case filed 18 December 2017.
4.The orders made by [the primary judge] on 13 October 2021 are plainly wrong, the reasons offered for making the orders are untruthful, specifically the fabricated malicious assertion of the orders that: “UPON NOTING THAT: There is a previous order of this Court where the respondent was directed to pay to the applicant a lump sum of costs fixed at FIVE THOUSAND AND FORTY FOUR DOLLARS ($5,044.00) and NOTING THAT this costs order remains outstanding.”; “Reasons for Judgement” [85-86]
(As per the original)
It is unnecessary to address the grounds seriatim, as the appealable errors can be succinctly identified, though not all of the husband’s contentions about error are correct.
The wife’s costs application should have been summarily dismissed because binding orders were made between the parties in respect of the wife’s legal costs arising out of the proceedings up to and including the first trial in November 2017. Her fresh claim for the costs of that trial was estopped because the parties’ rights in respect of costs were conclusively resolved by an intact judgment (Clayton v Bant (2020) 95 ALJR 34 at [26]–[29], [32]–[36], [39]–[42], [50]–[51], [56] and [65]–[70]). The wife was awarded interlocutory costs of $11,889, which were later duly noted as having been paid. Otherwise, the parties were ordered to bear their own costs of and incidental to the proceedings up until November 2017, save for the costs of any transfer of property to give effect to the orders (which did not comprise any part of the wife’s application for legal costs filed in December 2017).
In any event, the primary judge made a mistake of fact when determining the application. His Honour wrongly believed that a portion of the interlocutory costs already due to the wife were still outstanding. His Honour said $5,044 was unpaid (at [85] and Notation A made on 13 October 2021), when in fact that sum comprised part of the larger sum of $11,889, which the original judge confirmed had already been paid to the wife (Order 2 made on 15 March 2021). It cannot be discerned the mistake had no effect upon the quantification of costs at $15,000 in the appealed order (at [85]–[86]) and so the mistake cannot be discounted as being immaterial.
Contrary to the husband’s belief, the orders made by the Full Court in January 2019 to finalise the first appeal have no bearing on this appeal. Those particular orders (Orders 8–11) only regulated the costs of the first appeal and the grant of costs certificates in respect of the appeal and the re-hearing under the Federal Proceedings (Costs) Act 1981 (Cth). They did not affect the costs orders already made pertaining to the first trial.
The husband contended the primary judge erred by hearing and determining the costs application before his second appeal from the substantive property settlement orders was determined. Arguably it was unwise to do so, as the primary judge candidly noted (at [28]), but it was not necessarily an error which vitiates the appealed order.
Disposition
The appeal succeeds.
In the re-exercise of discretion, the appealed order is set aside and the wife’s costs application filed in December 2017 is dismissed – along with the numerous Responses the husband filed in answer to it.
As a self-represented litigant, the husband sought an order compelling the wife to pay his disbursements in the appeal, but his application is rejected. The appeal succeeded due to an error of law and so he shall have a costs certificate for the appeal. The wife, who was also self-represented, did not have any disbursements to recoup.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 25 February 2022
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