Carron & Laniga
[2022] FedCFamC1A 116
•26 July 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Carron & Laniga [2022] FedCFamC1A 116
Appeal from: Order 1 dated 13 April 2022 Appeal number(s): NAA 81 of 2022 File number(s): BRC 9038 of 2016 Judgment of: AUSTIN J Date of judgment: 26 July 2022 Catchwords: FAMILY LAW – APPEAL – Costs – Jurisdiction – Where the husband appeals from an order dismissing his application to have a costs assessment order set aside – Where after the appeal was filed the primary judge published reasons for judgment re-considering the merits of the application, followed by another set of reasons re-instating the application after conceding she had fallen into error – Where original jurisdiction was exhausted when the dismissal order was made and it could not be revived – Where the orders will be set aside in the exercise of appellate jurisdiction – Appeal allowed in part – Application remitted for rehearing – Costs certificates granted for the appeal. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 43, 138
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 12.8.2, rr 10.13, 12.51, 12.52, 12.53, 12.54, 13.12
Cases cited: Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Carron & Laninga (2019) FLC 93-909; [2019] FamCAFC 115
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Laninga & Carron (No.2) [2022] FedCFamC2F 565
Laninga & Carron (No.3) [2022] FedCFamC2F 951
Newmont Yandal Operations Pty Ltd v The J Aron Corp & The Goldman Sachs Group, Inc (2007) 70 NSWLR 411; [2007] NSWCA 195
Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419
Number of paragraphs: 55 Date of hearing: 26 July 2022 Place: Brisbane The Appellant: Litigant in person Counsel for the Respondent: Mr Leneham Solicitor for the Respondent: Goode Family Lawyers ORDERS
NAA 81 of 2022
BRC 9038 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CARRON
Appellant
AND: MS LANIGA
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
26 JULY 2022
THE COURT ORDERS THAT:
1.The appeal is allowed in part.
2.The order made by the primary judge on 13 April 2022 is varied so as to exclude from its operation the Application in a Proceeding filed on 7 March 2022.
3.The orders made by the primary judge on 20 July 2022 are set aside.
4.The Application in a Proceeding filed on 7 March 2022 is remitted for re-hearing by a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge.
5.Pending the determination of the Application in a Proceeding filed on 7 March 2022, Orders 2 and 3 made by the Judicial Registrar on 22 February 2022 are stayed.
6.The appellant is granted a costs certificate pursuant to 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 him in respect of the costs incurred by him in relation to the appeal.
7.The respondent is granted a costs certificate pursuant to s 6 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 her in respect of the costs incurred by her 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 Carron & Laniga has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
The premise of this appeal is difficult to understand without outlining the convoluted history.
Property settlement orders under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) were first made between the parties in September 2018, but the orders were set aside on appeal in July 2019 and the dispute was remitted for re-hearing (Carron & Laninga (2019) FLC 93-909).
While that appeal was still pending, another order was made on 4 December 2018 requiring the husband to pay the wife’s costs of and incidental to the proceedings (“the costs order”), from which order there was no appeal.
Fresh property settlement orders were made in March 2020 following the re-hearing, from which orders there was no appeal.
On 22 October 2020, after the substantive proceedings were complete, the primary judge ordered the parties to bear their own costs of and incidental to the re-hearing, but confirmed the costs order remained operative.
Well over a year later, on 22 February 2022, the registrar assessed the costs in the sum of $87,287.24 and ordered payment within 28 days (“the assessment orders”).
The assessment orders stimulated a flurry of activity, being:
(a)an Application for Review filed by the wife on 1 March 2022 (“the first application”) – the purpose of which was to review the assessment orders;
(b)an Application in a Proceeding filed by the husband on 3 March 2022, but amended on 12 April 2022 (“the second application”) – the purpose of which was to, in part, stay the assessment orders;
(c)another Application in a Proceeding filed by the husband on 7 March 2022 (“the third application”) – the purpose of which was to set aside the assessment orders; and
(d)a Response to the Application in a Proceeding filed by the wife on 5 April 2022 (“the fourth application”) – the purpose of which was, in part, to vary the assessment orders.
The first application was dismissed by Judge Murdoch on 4 March 2022, from which dismissal order there was no appeal by the wife.
The other three applications were all heard and dismissed by the primary judge on 13 April 2022 in these terms:
1. That all outstanding applications are hereby dismissed.
The husband appealed from the dismissal order, but has since amended the grounds of the appeal and now prosecutes those set out in the Amended Notice of Appeal filed on 1 July 2022.
Given the wife did not cross-appeal, her contentment to abide the decision to dismiss the fourth application should be presumed, thereby leaving for consideration in this appeal only the dismissal of the second and third applications brought by the husband.
In the second application (as amended), the husband sought: the stay of the assessment orders (Order 1); an order for the wife to remove a caveat registered over a parcel of real property (Order 2); and an order confirming that his payment of costs only be required within 28 days of the stay being lifted or the removal of the caveat (Order 3).
Ground 1 in the appeal attacks the dismissal of the second application, contending the primary judge’s discretion miscarried.
In the third application, the husband sought that the assessment orders be set aside pursuant to r 12.51 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
Ground 2 in the appeal attacks the dismissal of the third application, contending the primary judge erred by failing to follow the process set out in Div 12.8.2 of the Rules.
Ground 3 is a more general complaint about the primary judge’s erroneous understanding of the two applications and their “relationship…to previous decisions of the Court”.
Ground 4 asserts bias by the primary judge.
The reasons for judgment
The primary judge did not deliver any ex tempore reasons for the dismissal order made on 13 April 2022. The reasons must be discerned from the transcript.
Once the husband filed his Notice of Appeal on 20 April 2022, the primary judge considered written reasons were required and published same on 5 May 2022 (Laninga & Carron (No.2) [2022] FedCFamC2F 565). But the reasons were not simply a corrected version of transcript, as they entailed the primary judge re-considering the merits of the underlying applications after “having read the transcript … and having revisited the file” (at [4]).
After having done so, her Honour conceded she had fallen into error by peremptorily dismissing the third application, as it was permissibly brought under the Rules and was filed by the husband within time (at [4(a)] and [4(b)]). To correct the error, the primary judge proposed the re-instatement of the third application, together with attendant procedural orders to facilitate it being re-heard by another judge, subject to any further written submissions the parties cared to make (at [5]–[8]).
The steps taken by the primary judge after the dismissal order was made on 13 April 2022 are difficult to fathom. Her Honour exhausted original jurisdiction when the dismissal order was made and it could not be revived after the appeal was filed to correct an intended result which, with the benefit of hindsight, is wrong.
In this instance, the primary judge could only have:
(a)settled oral ex tempore reasons into written form (if there were any), but only within a narrow band of correction (Todorovic v Moussa (2001) 53 NSWLR 463 at [41]–[50]);
(b)employed the slip rule to correct obvious error in the orders or reasons, but the scope for use of which is quite narrow (Burrell v The Queen (2008) 238 CLR 218 at [22]; Newmont Yandal Operations Pty Ltd v The J Aron Corp & The Goldman Sachs Group, Inc (2007) 70 NSWLR 411 at [116]); or
(c)stayed the appealed order pending the disposition of the appeal (r 13.12(3)(b)).
However, the procedural orders pronounced and the written reasons delivered on 5 May 2022 were not the product of any of those exercises.
Written submissions were duly filed (at least by the husband) in response to the invitation contained within the procedural orders made on 5 May 2022. The primary judge then published another set of reasons explaining more orders made on 20 July 2022 to re-instate the third application and to facilitate its determination (Laninga & Carron (No.3) [2022] FedCFamC2F 951).
Ordinarily, such orders would be null and void because the primary judge was functus officio once the dismissal order was made on 13 April 2022. However, the validity of these new orders is now preserved by statute until such time as they are set aside (s 138 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). The orders will be set aside in the exercise of appellate jurisdiction (ss 36(1)(b), 36(1)(c) and 43 of the FCFCA Act).
Grounds 1, 2 and 3
At the hearing on 13 April 2022, these exchanges occurred between the primary judge and the husband:
HER HONOUR: All right. Well, the parties ..... what a mess. I took me a good hour of reading through the material to work out where we’re at. So I just need to ask a couple of preliminary questions. Firstly, has an appeal been filed against the decision made by Judge Murdoch?
[SOLICITOR FOR THE WIFE]: No, it has not.
HER HONOUR: Right. Second question: [to the husband] have you ever filed an application for a review? Not an application in a proceeding, but an application for a review.
[THE HUSBAND]: No, I have not, your Honour.
HER HONOUR: Right. Well, that makes this job very easy for me, then, because I’m going to take us through chronologically what has happened, and where there are shortcomings in all of the applications and response that has been filed. … As far as Judge Murdoch is concerned, firstly, I’m not in a position, nor would I ever be in a position, to stay an order made by another judge unless it was ordered by that judge. Secondly, a stay application of a judge cannot be heard unless there is an appeal, and as there is no appeal against the order made by Judge Murdoch, the response requesting that I stay that order has no validity. … So that deals with the issues of Judge Murdoch. But the reality is that she dismissed the review application. As a result of that review application being dismissed, [husband], every single application you have filed has no basis, because there is no review. There can’t be a stay on orders, there can’t be an overturning of suspension of orders where there is no review application file. … There are no substantive proceedings before me to deal with. And I don’t know why, [husband] it was necessary to file four applications that said virtually the same things. I don’t know what you were hoping to do, but filing more material does not make it more real. All it does is an annoyance for everyone. Any comment you wish to be made about what I’ve just said.
[THE HUSBAND]: Yes, your Honour. The application is for the cost assessment to be set aside under rule 12.51. Now, that application was made within the required time.
HER HONOUR: Yes. That’s not relevant. A decision – a judicial – well, a semi- judicial decision has been by Judicial Registrar Turnbull on 22 February 2022, and that was for the payment of costs of 87-odd thousand dollars. Now, if you weren’t happy with that, the correct way to do that is for there to be a review. Otherwise, that decision remains on foot, and there has not been a successful review, or a review filed within time, because the only review that was filed was dismissed because there was no appearance by the wife. So it doesn’t matter – you can put in any application in proceedings that you want, but that – those applications cannot be dealt with, because there is no review.
[THE HUSBAND]: Your Honour, the decision by Registrar Murdoch was made under rule 12.44. Rule 12.51 says that a party who receives a cost assessment order under subrule 12.4(4) may apply to have the cost assessment order set aside within 14 days. That is what I have done.
HER HONOUR: Well, that’s not my understanding of the legislation. If you’re not happy with the decision, it should have been reviewed. And there is no current review. So I am dismissing all of your applications.
…
HER HONOUR: …And [husband] I’m going to make it very clear to you: stop filing multiple applications on the same issues, and think very carefully next time, because the court can make you a vexatious litigant, and you’re just right on the line, at the moment, of my doing so. Do you understand?
[THE HUSBAND]: Yes, I understand, your Honour.
HER HONOUR: All outstanding applications are hereby dismissed. Thank you.
(Transcript 13 April 2022, p.2 lines 14–29, 35–39, 44–45, p.3 lines 2, 6–32, p.5 lines 6–13)
(Emphasis added)
Several errors by the primary judge can be identified during that discourse.
Her Honour seemingly mistook the husband’s challenge to the assessment orders to instead be a challenge to the order made by Judge Murdoch dismissing the first application. The husband did not seek to disturb the order made by Judge Murdoch dismissing the wife’s application.
It was wrong for the primary judge to say “every single application” the husband had filed had “no basis”. Quite properly, he brought an application under r 12.51 of the Rules to set aside the assessment orders, though it was filed in the form of an Application in a Proceeding rather than in the form of an Application for Review as required (r 12.52(1)). Such a technical error should not preclude the application from being entertained.
When the husband told the primary judge of his reliance upon r 12.51 of the Rules, her Honour was in error to say that particular rule was “not relevant”. The husband was entitled to resort to the use of r 12.51 and, while such reliance may not then have accorded with the primary judge’s “understanding of the legislation”, upon reflection, her Honour accepted the probity of the third application (at [4]).
Rule 12.51 provides:
Setting aside a costs assessment order
(1)This rule applies to a party who is liable to pay costs and receives a costs assessment order under subrule 12.44(1) or 12.50(3).
(2)The party may, within 14 days after receiving the costs assessment order, apply to have it set aside.
NoteIf a party wishes to object to a costs assessment order after an assessment hearing has taken place, the party must do so in accordance with Part 12.9.
The husband’s application under that rule was filed within 14 days of the assessment orders, as was required (r 12.53).
Moreover, the husband only filed two applications; not four as her Honour apparently wrongly believed. When the primary judge later published the reasons in May 2022, her Honour still misconceived the applications filed by the husband (at [2(f)], [2(g)], [2(h)] and [2(k)]).
Her Honour was mistaken to say:
There are no substantive proceedings before me to deal with.
While the substantive property settlement proceeding under Pt VIII of the Act was complete, the parties were still contesting the quantum of the husband’s liability for costs in that cause. Her Honour was obliged to hear and determine the husband’s application to set aside the assessment orders on merit. It was a material error of law not to do so, meaning the appeal must succeed.
The wife conceded the order made on 13 April 2022 was beset by error.
Ground 4
This ground and the submissions made in support of it conflate the concepts of actual bias and apprehended bias. Even though it is customary for claims of judicial bias to be entertained first by intermediate courts of appeal (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612), it does not matter in this instance. The errors already identified demand a re-hearing of the third application and the primary judge has already recognised that, upon remitter, she ought be disqualified from further involvement in the litigation (at [5(d)]).
Conclusion
There is no option but for the remitter of the proceedings for re-hearing. The wife agreed.
The husband is entitled to have the quantum of the costs for which he is liable to the wife assessed de novo. At this stage he has still not enjoyed any effective exercise of original jurisdiction on that issue by a judge of the Federal Circuit and Family Court of Australia (Division 2).
The third application seeks orders in these terms:
1.That pursuant to rule 12.51 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the orders dated 22 February 2022 made by Judicial Registrar Turnbull concerning costs are set aside.
The Application in a Proceeding filed on 7 March 2022 is remitted for re-hearing by a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge.
However, there is no need to remit the second application for re-hearing, which seeks orders in these terms:
1.That the orders dated 22 February 2022 concerning costs be stayed until the expiry or completion of all avenues of appeal or review allowed by Family Law Act 1975 and Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
2.That the Respondent, Ms Laniga, removes the caveat on the property at Suburb C within 7 days at her expense.
3.That payment of any costs pursuant to the costs assessment order dated 22 February 2022 to be made within 28 days of the lifting of this stay and the removal of the caveat noted in Order 2 unless otherwise agreed to in writing between the parties.
The husband perceived the need for the stay (Order 1) because his application to set aside the assessment orders does not operate to stay the existing orders (r 12.54(3)). On 27 April 2022, about two weeks after the appealed order was made, the husband filed another Application in a Proceeding seeking the stay of the assessment orders, which application seems to be nothing more than mere repetition of this application.
The assessment orders comprise both the assessment of costs at $87,287.24 and an order compelling payment of the costs within 28 days. The husband is challenging the totality of the operative orders made by the registrar, which challenge is conducted by hearing de novo.
No point is served by delaying the consideration of the husband’s stay application until the substantive assessment challenge is heard. An order will now be made staying the operation of Orders 2 and 3 made by the registrar on 22 February 2022 pending the de novo determination of the third application. There is power to do so (s 36(1)(c) of the FCFCA Act). The wife conceded such a stay order could and should be made in the appeal, the absence of which would enable her to enforce the assessment orders while they are still under valid challenge.
The stay of the assessment orders renders otiose the Application in a Proceeding filed by the husband on 27 April 2022, which is seemingly yet to be listed for hearing at first instance.
The husband did not explain the basis upon which the primary judge had power to make any order concerning the removal of a caveat registered over real property (Order 2) in the context of a dispute confined to the assessment of the proper quantum of costs payable by him to the wife. Consequently, the last proposal (Order 3) also falls away.
Accordingly, it is not necessary to remit the second application for re-hearing. The appealed dismissal order shall stand in so far as it dismisses the Amended Application in a Proceeding filed on 12 April 2022.
Despite not filing a cross-appeal the wife sought to argue in the appeal that the fourth application should also be revived and remitted for re-hearing, by its express exclusion from operation of the appealed order, but the submission is rejected. The wife’s sundry applications within the fourth application were dismissed by the primary judge and the absence of any cross-appeal by her stands in the way of its remitter. Nonetheless, there are pragmatic reasons why it should not be remitted.
The remitter of the third application for re-hearing will entail the de novo review of the assessment orders. The wife is entitled to participate in that review hearing and argue her case about the quantum of the costs properly due to her under the unchallenged costs order, for otherwise she would be denied procedural fairness.
The application to set aside Judge Murdoch’s order pursuant to r 10.13(1)(a) of the Rules is unnecessary since, by setting aside that order and thereby reviving the first application, the wife only seeks to review the assessment orders. But she is already entitled to contest the assessment of costs in answer to the third application, which is remitted for re-hearing.
The proposed “vexatious litigant” orders have nothing to do with the assessment of costs and the wife is not estopped from bringing another application of that ilk if she wants. At the time of hearing before the primary judge, the wife’s counsel told her Honour:
[COUNSEL FOR THE WIFE]: Your Honour. Well, we will withdraw the vexatious application moving forward…
(Transcript 13 April 2022, p 5, lines 1–2)
The wife’s application for an injunction restraining the husband’s use of a parcel of real property seems unnecessary because, as the second application implies, she has already registered a caveat over the property. Regardless, she accepted she could make another such application if she was so inclined.
The wife conceded the remaining orders proposed in the fourth application could not be sensibly pursued.
The appeal succeeds for error of law. The parties should have costs certificates for the appeal under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth), for which they both applied.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 26 July 2022
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