COLE & PEARCE

[2010] FamCAFC 61

FAMILY COURT OF AUSTRALIA

COLE & PEARCE [2010] FamCAFC 61

FAMILY LAW - COSTS – Costs of discontinued appeal sought by the respondent – Where mother endeavoured to file Notice of Discontinuance in respect of appeal – Where appeal dismissed – Where the mother’s appeal was sought to be discontinued at late notice – Where the mother’s financial circumstances relevant – If costs ordered Victoria Legal Aid would be required to enforce the order resulting in waste of limited resources otherwise available for legal aid.

Per Coleman J – Impecuniosity not a shield against a costs application – Critical factor is sparing a publicly funded authority from the obligation of expending public funds in pursuit of costs order.

FAMILY LAW - COSTS – Application for costs dismissed.

Family Law Act 1975 (Cth) – s 117
Family Law Rules 2004 – r 42

APPELLANT: Ms Cole

RESPONDENT: Mr Pearce

FILE NUMBER: MLC 13158 of 2007

APPEAL NUMBER: SA 86 of 2009

DATE DELIVERED: 1 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Coleman, Boland and Austin JJ

HEARING DATE: 1 March 2010

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Mr Hennessy

COUNSEL FOR THE RESPONDENT: Mr Whitelaw

SOLICITOR FOR THE RESPONDENT: Stella Stuthridge & Associates

Orders

1. That the appeal is dismissed.

2. No order for costs. 

IT IS NOTED that publication of this judgment under the pseudonym Cole & Pearce 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 MELBOURNE

Appeal Number: SA 86 of 2009
File Number: MLC 13158 of 2007

Ms Cole

Appellant

And

Mr Pearce

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Boland J

1. By notice of appeal filed on 29 September 2009 Ms Cole, who for convenience I will refer to as the mother, filed an appeal against consent orders in a parenting matter made by Dessau J on 7 September 2009.  This morning, Mr Hennessy, who appears on the mother’s behalf, advised us that the mother had endeavoured to file a Notice of Discontinuance in respect of her appeal and indicated that the mother did not wish to continue her appeal.  Mr Hennessy had sought to file a Notice of Discontinuance last Friday. 

2. At the conclusion of these reasons, we propose to make an order dismissing the appeal. 

3. Counsel appearing for the father appeared before us today, and sought that an order should be made that the mother pay the father’s costs in the sum of $2,000.00, inclusive of counsel’s fees.  That application for costs was resisted by Mr Hennessy on behalf of the mother. 

4. It is not in dispute that last Thursday, 25 February 2010, the mother’s solicitor gave notice to the father’s solicitor of the proposal to discontinue the appeal, and that the mother’s counsel became aware on Friday that the appeal was not to proceed today.  It was in these circumstances an order for costs was sought. 

5. We were advised today by Mr Hennessy, in resisting an order for costs, that the mother is a person whose income is derived by way of Centrelink benefits, and that she has no assets of significance.  Mr Hennessy, who appears on her behalf, is from the Community Legal Service in Bendigo, a publicly funded service.

6. Ms Whitelaw of counsel on behalf of the father pointed out to us that the Notice of Discontinuance was sought to be filed late in the day and that Legal Aid would be out of pocket for costs incurred in briefing her and her preparation for the appeal. 

7. We are satisfied that the quantum sought, if we thought it appropriate to order costs, is a most appropriate one in the circumstances. 

8. The relevant provisions of the Family Law Rules 2004 (“the rules”) dealing with discontinuance of appeal are to be found in Chapter 22, r 42. That rule provides if an appeal is discontinued, the Court may, in its discretion, make an order for costs. Any order for costs must be made having regard to the provisions of s 117 of the Family Law Act 1975 (Cth). Section 117(1) provides that unless there are circumstances otherwise justifying costs, each party is to pay their own costs of proceedings.

9. The circumstances to be taken into account by us in this matter include the fact that the appeal has been discontinued at late notice.  The other matter which is relevant to our consideration is the financial circumstances of the parties. 

10. For my part, I would not order costs in favour of the father. In so determining, I have had regard to the mother’s financial position and I find that to be the overriding factor I take into account. It appears to me that if costs were ordered, Victorian Legal Aid would be placed in a position where they would need to take steps to enforce an order for costs. That would merely mean the expenditure of more public money, which could be better used for other purposes for needy litigants. In all the circumstances, I would not depart from s 117(1) and make an order for costs.

Coleman J

1. I agree with the course proposed by Boland J and the reasons put forward by her Honour. In so doing, I would not wish to be seen to be suggesting that the fact that a party in the position of the respondent to this appeal has the benefit of legal aid should operate to disincline the court to award costs were that otherwise appropriate, having regard to s 117(2A). Nor would I wish my agreement with Boland J to be taken as indicating that impecuniosity would necessarily be a shield against a costs application in circumstances such as these. The critical factor in my view is that lastly identified by Justice Boland; namely, sparing a publicly funded authority from the obligation of expending further public funds in what appears likely to be the hopeless pursuit of the fruits of a costs order. I otherwise have nothing to add.

Austin J

1. I also agree with the judgment of Boland J.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  1 March 2010