Camaro and Camaro (No 2) - [2011] FamCAFC 223

FAMILY COURT OF AUSTRALIA

CAMARO & CAMARO (NO. 2)

[2011] FamCAFC 223

FAMILY LAW ─ APPEAL ─ Leave to withdraw Notice of Appeal ─ Where after the appeal had been set down and called on for hearing, the appellant husband gave instructions to his learned Counsel to seek leave to withdraw the appeal ─ Leave granted to withdraw Notice of Appeal ─ Appeal hereby dismissed

FAMILY LAW ─ COSTS ─ Where the appellant husband is to pay the respondent wife’s costs of and incidental to the appeal, as agreed or assessed on a party/party basis ─ Where the appeal has been an expensive exercise for the respondent wife who has been wholly successful in circumstances where the appellant husband could and respectfully should have withdrawn the appeal sooner

Family Law Act 1975 (Cth); Part VIII; ss 94AAA(6), 117(2A), 117(2A)(e)

Allesch v Maunz (2000) 203 CLR 172
AMS v AIF (1999) 199 CLR 160
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Penfold v Penfold (1980) 144 CLR 311

APPELLANT:

Mr Camaro

RESPONDENT:

Ms Camaro

APPEAL NUMBER:

EAA

2011

FILE NUMBER:

SYC

2011

DATE DELIVERED:

21 November 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

21 November 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

16 May 2011

LOWER COURT MNC:

[2011] FMCAfam 466

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Dura

SOLICITOR FOR THE APPELLANT:

Kazi Portolesi Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Morton

SOLICITOR FOR THE RESPONDENT:

Morton Family Lawyers

Orders

That leave is granted to withdraw the Notice of Appeal deemed to have been filed on or before 31 August 2011.
That the appeal is hereby dismissed.
That the appellant husband pay the respondent wife’s costs of and incidental to this appeal, subsequent to 25 July 2011, as agreed or assessed on a party/party basis.

IT IS NOTED that publication of this judgment under the pseudonym Camaro & Camaro is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EAA 76 of 2011
FILE NUMBER: SYC 29 of 2011

Mr Camaro

Appellant

And

Ms Camaro

Respondent

REASONS FOR JUDGMENT

ex tempore

On 25 July 2011, for reasons which the Court then gave, orders were made extending the time within which Mr Camaro (“the appellant”), could appeal against interlocutory orders made in parenting proceedings between himself and Ms Camaro (“the respondent”), by Federal Magistrate Sexton on 16 May 2011.
In its Reasons for Judgment of 25 July 2011 [par 7] the Court referred to the likely practical utility of the appeal which it then granted an extension of time to file. The orders of the Federal Magistrates Court, which gave rise to the proposed appeal, provided [order 6] that dates for final hearing of the parenting and financial proceedings “be confirmed” on 19, 20 and 21 March 2012.
By virtue of the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172, this Court is rarely able to re-exercise the discretion of a Federal Magistrate if an appeal is successful and of necessity, and particularly so in parenting proceedings, the Court almost inevitably remits such proceedings for rehearing if an appeal is successful, as section 94AAA(6) of the Family Law Act 1975 (Cth) (“the Act”) provides. The likely practical utility of pursuing the appeal was thus, at best, problematic. Nevertheless, the Court not being persuaded that the proposed appeal was doomed to failure, and for the reasons which it provided in its judgment of 25 July 2011, granted the appellant his day in Court.
A number of events subsequent to those orders changed the landscape. On 22 August 2011, further pleadings having apparently been filed between 25 July 2011 and that date, the Federal Magistrates Court, of its own motion, transferred the proceedings then pending before it to the trial division of this Court. Not surprisingly in the circumstances the trial dates previously fixed or confirmed for March 2012 were vacated.
On 19 September 2011 the parties attended before a Registrar of this Court. A number of things then occurred which are not material for present purposes. On that day a listing, again before a Registrar on 13 December 2011, was provided.
Amongst the matters listed on 13 December 2011 was apparently an application, or applications, to vary the terms of at least the interim parenting orders made by Federal Magistrate Sexton on 16 May 2011. It will be readily apparent that there were thus, and remained until earlier this morning, two possible avenues by which the interim parenting orders of 16 May 2011 could be revisited. The first was in the event of the appellant’s appeal listed for hearing this day being successful, and the interim parenting issues being remitted for redetermination by a Federal Magistrate pursuant to section 94AAA(6) of the Act or, irrespective of the outcome of the appeal, by an interim hearing of the variation application or applications which the appellant at least had filed prior to 22 August 2011.
In those circumstances, and given the well-known obstacles to success of appeals against discretionary judgments, the potential utility of the pending appeal to this Court can be seen as having become moot. By 28 October 2011, when comprehensive submissions by the appellant’s learned Counsel were filed, the appellant can be seen as having legal representation of a high calibre, and, it can be presumed, receiving advice as to the potential utility of his pending appeal.
Notwithstanding that, the appellant did not instruct his legal advisers to make any approach to the respondent’s attorneys, who by that time had not filed and were not required to have filed their submissions, seeking to terminate the appeal and either avoid any potential costs liability or, at least, mitigate any potential liability.
It is not said critically of the appellant that it was only today, after the appeal had been set down and called on for hearing, that he gave instructions to his learned Counsel to seek leave to withdraw the appeal. By that time, as is not in doubt, Counsel for the respondent had prepared and filed her comprehensive written submissions in opposition to the appeal, that having been done on 17 November 2011.
Counsel for the respondent was ready to proceed today and came to Court with no reason to think that the appeal would not proceed. To the extent that the course adopted by the appellant today, presumably on the advice of his Counsel, has shortened matters, which would have the effect of reducing the time which the respondent’s Counsel, being an attorney appearing as Counsel, could properly charge if costs are awarded. In that sense, if there is an order for costs, it will be financially somewhat advantageous for the appellant that the respondent’s attorney has appeared as Counsel rather than briefing Counsel and attending to instruct Counsel. That would go to the quantum of costs. It does not go to the liability.
Not surprisingly, Counsel for the respondent based the application for costs on a limited number of factors, the most significant being section 117(2A)(e) of the Act which refers to a party having been “wholly unsuccessful”. The Court accepts that the appellant has at all times been bona fide in seeking leave to appeal, prosecuting the appeal and giving instructions to withdraw it. The fact remains, however, that he has been, by withdrawing the appeal, wholly unsuccessful. It is relevant in that context to have regard to the history of events which were alluded to earlier in these Reasons. It is also relevant to have regard to what are traditionally termed the obstacles to success of appeals against discretionary judgments such as this undoubtedly was. The observations of Kirby J in AMS v AIF (1999) 199 CLR 160 in relation to that topic are relevant, as are the judgments of Stephen J in Gronow v Gronow (1979) 144 CLR 513, and many years earlier the High Court in House v The King (1936) 55 CLR 499.
Counsel for the respondent thus submits that, in the absence of any reason for not doing so, the respondent should have her costs of the appeal. Counsel for the appellant has put before the Court everything that could reasonably be advanced in support of the appellant’s opposition to an order for costs being made. He has submitted, amongst other things, that the conduct of the appellant has at all times been bona fide. The Court accepts that. The Court accepts that withdrawing the appeal is evidence of the appellant’s bona fides.
Counsel for the appellant has sought to rely upon the appellant’s financial circumstances in opposition to an order being made noting that the appellant is in receipt of Centrelink benefits. The Court understands the respondent to similarly be in receipt of Centrelink benefits. Neither party is in receipt of Legal Aid. It is not contentious that the respondent received about $14,000 from the sale of the property previously owned by the parties at B and that the appellant received nothing from the proceeds of sale. That was always going to be the case given the terms of the orders of the Federal Magistrates Court of 16 May 2011 which have never been sought to be challenged before this Court. The Court is obliged to take into account financial circumstances. As the High Court has made clear in Penfold v Penfold (1980) 144 CLR 311 at 315, the exercise of discretion is neither impelled or constrained either by the need to find special or other circumstances or any circumstances of a party.
There are cases where the financial circumstances or apparent financial circumstances of a party disincline a Court to exercise the discretion to award costs. There is, however, no requirement that apparent impecuniosity is a bar to making an order. That is particularly so where, as is the case here, it is not accepted that the appellant is impecunious. The Court takes into account, to the extent that there is evidence in that regard, the financial circumstances, but would not decline to exercise the discretion to award costs if it were otherwise persuaded that it should do so in reliance upon them.
The conduct of the parties to the proceedings has been alluded to. With respect to the appellant, by 28 October 2011, at which time he was represented by Counsel, he had a choice. That choice was to either do what he has sensibly instructed his learned Counsel to do today and withdraw his appeal and pursue the variation application, of which this Court became seized on 19 September 2011 at the latest, and which he knew was going to be listed before the Court on 13 December 2011, and thereby seek to obviate a costs order or minimise the impact of such order or proceed with the appeal. It is not said critically of the appellant that he did not withdraw the appeal until today. The reality is that, having exercised his right to maintain the appeal until today, he is deprived the opportunity to point to offers or actions designed to limit the damage in terms of the other party’s costs.
The respondent was entitled to and, indeed was obliged to prepare this appeal for hearing today. It is not suggested that the respondent was ever advised or led to believe otherwise. Regrettably for the appellant, the facts emerge unequivocally as being that this appeal has been an expensive exercise for the respondent who has been wholly successful in circumstances where the appellant could and, with respect, should have done much sooner than he did, what he sensibly has done today, to allay the very considerable expense which has been visited upon the respondent of simply reacting in accordance with directions and being wholly vindicated in her resistance of the appeal would not, in the Court’s view, be just or equitable.
The Court is accordingly satisfied that it is of the opinion, having had regard to matters that are relevant within the context of section 117(2A), to award the respondent her costs of the appeal.
The second issue requiring determination which is no less intense is whether or not the order for costs should be stayed pending determination of the proceedings for settlement of property. Counsel for the appellant sought such an order on the basis, essentially, that a stay order would be the “most efficient and cost effective” way of dealing with the matter. The evidence does not reveal a source either by way of current periodic income or capital from which the costs order could readily be satisfied.
As is not in doubt, the respondent is entitled to the benefit of her success. The only avenue of appeal against the costs order, which would be potentially available to the present appellant, would be by way of application for special leave to appeal to the High Court. Whilst the capacity of this Court, as currently constituted, to fall into appealable error can never be underestimated, it is difficult to see any possible basis upon which a costs order in this appeal could excite the interest of the High Court in a special leave application. In other words, the entitlement of the respondent to the fruits of success can be considered as absolute or virtually absolute.
The authorities are clear that a stay of an order, if granted, will generally be granted only in exceptional circumstances. Nothing to which the Court has been referred reveals the circumstances to be exceptional. Whilst there is the prospect of the appellant being awarded funds from the modest assets of the parties which remain to be divided by a final order pursuant to Part VIII of the Act, that is by no means certain and, with respect, learned Counsel for the appellant has not submitted that it was. There is a prospect that it is. Counsel for the respondent disputed, by reference to a number of circumstances, that the appellant’s ability to satisfy an order for costs was as limited as the appellant’s Counsel submitted.
Whilst on the face of it, it is difficult to see how, other than out of whatever might be awarded to the appellant in the property settlement proceedings, the respondent could successfully recover costs awarded to her in the interim, allowing of course, for the time it would take for those costs to be assessed in the absence of agreement, the Court is not persuaded that the respondent should be denied the opportunity, such as it may be, to enjoy the fruits of her success in relation to costs. That said, in the absence of some realistic basis upon which an enforcement application might be assessed as having sound prospects of success, it would be regrettable if the very limited resources of these parties were even further depleted by yet another interlocutory application.
Hopefully, whatever the respondent proposes to do to seek to recover her costs, assuming that she has a certificate of taxation or whatever the current version of a certificate of taxation is, would be raised, in the context of and consolidated with the pending applications which will come before the Court on 13 December 2011. On such evidence as there is before this Court, it would, to use the colloquial, appear to be throwing good money after bad to commence yet another separate or discrete interlocutory application. That is a matter for the respondent. Ultimately, if the appellant’s position is as dire as his learned Counsel has submitted on his instructions, the utility of such an application would appear problematic and it may well prove to be a case of the respondent throwing limited good money after bad.
The Court is not persuaded that it should adopt the course vigorously urged upon it by Counsel for the appellant and deny the respondent the opportunity to seek to recover the costs which have been awarded to her.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 21 November 2011.

Associate:

Date: 28.11.2011