Coopers and Eagles (Costs)
[2011] FamCAFC 122
•9 June 2011
FAMILY COURT OF AUSTRALIA
| COOPERS & EAGLES (COSTS) | [2011] FamCAFC 122 |
| FAMILY LAW - COSTS – Where the appeal succeeded on a question of law – Where the appeal was filed due to the father’s determined resistance to reveal the truth – Where the mother made proper attempts to settle the appeal and progress to a trial – The father to pay the costs of the mother of the appeal and the application for costs on an indemnity basis to be assessed if not agreed – Such costs to be paid from the proceeds of sale of the parties’ property or within three months – Costs certificate granted to the mother for the re-hearing of the parenting applications. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Browne v Green (2002) FLC 93-115 Chamberlin v The Queen (No. 2) 153 CLR 521. Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Collins and Collins (1985) FLC 91-603 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 Fish & Anor (2005) 33 Fam LR 123 Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Harris and Harris (1991) FLC 92-254 In the Marriage of W P J Munday and H J Bowan (1997) 22 Fam LR 321 Mead v Mead (2007) 235 ALR 197 Penfold v Penfold (1980) 144 CLR 311 Weissensteiner v The Queen (1998) 178 CLR 217 Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029 |
| APPELLANT: | Ms Coopers |
| RESPONDENT: | Mr Eagles |
| FILE NUMBER: | BRC | 5388 | of | 2009 |
| APPEAL NUMBER: | NA | 88 | of | 2010 |
| DATE DELIVERED: | 9 June 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | By way of written submissions |
| JUDGMENT OF: | May J |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 1 July 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 736 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Written submissions, Mr Linklater-Steele |
| SOLICITOR FOR THE APPELLANT: | Biggs Fitzgerald Pike |
| COUNSEL FOR THE RESPONDENT: | Written submissions, Mr Carlton |
| SOLICITOR FOR THE RESPONDENT: | Burchill & Horsey Lawyers |
Orders
The respondent father pay the costs of the appellant mother of the appeal and the application for costs on an indemnity basis to be assessed if not agreed.
Such costs to be paid by the father from the proceeds of sale of the parties’ property or within three months, whichever be the earlier.
The Court grants to appellant mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 mother in respect of the costs incurred by the appellant mother in relation to the re-hearing of the parenting applications.
IT IS NOTED that publication of this judgment under the pseudonym Coopers & Eagles (Costs) 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 BRISBANE |
Appeal Number: NA 88 of 2010
File Number: BRC 5388 of 2009
| Ms Coopers |
Appellant
And
| Mr Eagles |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 November 2010 I made orders allowing the mother’s appeal.
It is important to appreciate the background to this application for costs. At the trial which commenced before Coates FM on 1 July 2010 counsel for the mother applied to call Ms H, the father’s previous wife who had not sworn an affidavit but had been subpoenaed. The evidence would have included details of where the father was then living based on various statements made by him to her. This was contrary to the father’s sworn testimony about his circumstances.
As explained in the affidavit filed 1 November 2010 of Ms R, the solicitor for the mother, an important issue at the trial was the place the father lived and his ability to spend time with this very young child.
Directions had been made for the filing of affidavit evidence and subpoenas.
Ms H had not filed an affidavit nor was there available a proof of her evidence. The father’s counsel successfully objected to the evidence being given orally. The Federal Magistrate did not allow the mother’s counsel to call the witness.
The mother appealed from the evidentiary rulings of the Federal Magistrate. On the morning of the appeal, counsel for each party informed the Court that by consent the appeal was to be allowed, the question of costs remained outstanding and that at the re-hearing the mother would call the witness without objection.
The orders made in allowing the appeal included that the evidentiary rulings of Federal Magistrate Coates were set aside and the matter was remitted for hearing before a Federal Magistrate other than his Honour.
It was further ordered that the parties be at liberty to file any affidavit upon which they wish to rely in relation to the question of costs and after the filing of this additional evidence, orders provided for written submissions as to costs.
These further orders have been complied with by both parties. Extensive affidavit material has been filed on behalf of the mother and an affidavit from the father’s solicitor has been filed.
Relevant law
There is no presumption in this court that the successful party will receive an order in their favour for the other party to pay their costs. The court is at liberty to make an order for costs where there are justifying circumstances.
The principles in relation to the discretion to order costs are well settled. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) contains the legislative provisions:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
It is submitted by the appellant mother that s 117AB is of particular relevance in this case. This section prescribes:
Costs where false allegation or statement made
(1) This section applies if:
(a)proceedings under this Act are brought before a court; and
(b)the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
(2) The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings. (own emphasis)
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus placed on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.
In Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ) held that there is nothing to prevent any one factor being the sole determinate for an order of costs to be made.
In this matter the mother seeks orders that would have the effect that the father pay her costs, not on a prescribed scale, but as rendered by her solicitors. With regard to indemnity costs, the principles are also well settled (see Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 and Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029).
In the Marriage of W P J Munday and H J Bowan (1997) 22 Fam LR 321, Holden CJ relying on the principles articulated in Colgate Palmolive Co v Cussons Pty Ltd noted some examples of circumstances warranting an order for costs on an indemnity basis at 322:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts …
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud …
(c)Evidence of particular misconduct causing loss of time to the court and to other parties …
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions …
(e) An imprudent refusal of an offer to compromise.
Submissions of the appellant
The mother seeks an order for costs against the father, and that the court award her “a quantum of costs by reference to the client costs agreement entered into between the mother and her solicitor”.
The mother, in the alternative, seeks that a costs certificate be granted to her pursuant to ss 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth).
Counsel for the mother submits that the appeal in this matter was based on an error of law and that it “was ultimately successful as such”. It is explained that even though the parties consented to the appeal, there “was present within the proceeding an error of law”.
It is correctly submitted that authority does not prevent orders for costs being made when there is consent (if the question of costs is not agreed), or applications for certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
It is submitted that although the Federal Magistrate was in error at first instance, the fundamental error arose from the conduct of the father. This is said to be due to the fact that the father sought to conceal from the court “his true location and residence”. In support of this submission it is said that:
8.It is to be remembered that the [father] is the person who without doubt:
·knows where he is living and residing
·knows what contact he is having with his other children
·knows of the conversations that he has had with his previous wife as to these matters
9.The [father] is possessed of the information and there can be no doubt that he is actively seeking to curtail the information being provided to the Court.
It is asserted that the father has continuously made false statements to the court to demonstrate that he has not been a resident of the Whitsundays since 3 June 2010. The mother relies on both the affidavits of Ms R and Ms H, filed 1 November 2010, as well as an annexure to Ms N’s affidavit, the father’s solicitor, filed 23 November 2010.
Counsel for the mother submits that “this is a clear case where the Court would apply s.117AB on the basis that there has been a false statement made to the Court”.
In addition, it is submitted that the father could and should have consented to the appeal much earlier. This would have removed the need for the mother to file the additional material relied on and prevented costs being incurred by the appearance of the mother’s legal representatives on 15 November 2010.
The written submissions of the mother explain:
28.Until moments before the Appeal the Father resisted the appeal and put the Appellant to expense.
29.Repeated offers of settlement were made and were either rejected or were not responded to.
30.Even in the face of overwhelming evidence as to the correctness of the appellant’s case the Respondent resisted the appeal until the very last moment.
31.The attitude of brinkmanship demonstrated by the Respondent in the Appeal is entirely consistent with the Respondent’s demonstrated ability to lie to the Court and his demonstrated attitude of seeking to cause the Appealant [sic] loss at every opportunity. (footnotes omitted)
The mother submits that the court should reject the “spurious suggestions that the availability of the [father’s] grant of legal aid was in any way an impediment to settlement or a justification for his conduct in the circumstances”.
Counsel for the mother explains that there is a “significant risk that there will in fact be a loss of all real property by the [mother] due to the bank action and the actions of the [father]”. Numerous examples are relied on in this respect.
It is said that the parties’ financial positions do not mitigate against an order for costs being made, and as such that the father “should not be relived of his responsibilities”.
The mother is said to be in extremely modest circumstances. It is explained that she cares for her young child, is not employed, relies solely on a government benefit, receives no child support, has borrowed money from her family to fund the litigation and has already incurred a significant debt in legal fees. The affidavit of the mother filed 22 November 2010 supports this submission.
Given the considerable expenditure incurred as a result of the appeal, it is the submission of the mother that she should be properly compensated by an order for costs against the father. It is said that any order for costs could be made payable from the proceeds of the parties’ property as a first payment.
In regard to the quantum of costs, it is asked:
58.In the circumstances of this matter to properly compensate the mother for the costs incurred as a result of the father’s action the court would order costs on an indemnity basis to be agreed or failing agreement to be taxed.
59.In the event the Court is of the view that indemnity costs are not called for the Appellant seeks the costs be calculated by reference to the Family Court Scale.
The affidavit of the mother’s solicitor filed 22 November 2010 refers to the Costs Agreement with her client and sets out the schedule of costs. In relation to the appeal the sum is $15,992.07.
Submissions of the respondent
The father seeks that no order as to costs be made, or in the alternative, that costs certificates be issued.
In the father’s written submissions, counsel submits that he is currently employed on a temporary casual basis and has no employment security. The father is said to be in receipt of a legal aid grant for the appeal proceedings.
Counsel for the father explains that the father was unable to contest the appeal and for the matter to be subsequently listed for hearing on costs, as “there was a significant risk that the current grant of aid would have expired necessitating a further grant of funding to be approved for the subsequent costs hearing”. It is submitted that there is no guarantee that the grant of aid would have been approved and it may have resulted in the father being self-represented at the costs hearing.
It is submitted that the appropriate forum for the mother to challenge the existing evidence of the father in relation to his employment and living situation is at trial and not on appeal. This is the best point on behalf of the father.
It is also said the father notified the mother of his intention to not oppose the appeal upon receiving the further affidavit evidence of the witness. It is asserted that it was the conduct of the mother that hindered the settlement of the matter, as had the mother “provided the material as required under the trial directions, or at a time prior to the filing of the Appeal material, it was likely the matter would have resolved at an earlier stage”. This is not the father’s best point because as said on behalf of the mother, he must have known about his own arrangements including where he was living. Further, reference to the settlement negotiations demonstrates that these submissions have no validity.
It is said that for the mother “to attempt to rely on a situation where the [father] would consent to evidence being adduced from a witness without having knowledge of the content of that evidence is counter to the notion of disclosure and the fairness of the proceedings. The [father] was entitled to be fully informed as to the nature of the evidence from the witness before consenting to any course potentially prejudicial to his interests and the fairness of the proceedings”.
Counsel for the father submits that in the circumstances of this case there are no exceptional circumstances that warrant an order for indemnity costs, or indeed any order for costs made in the mother’s favour.
In the alternative, the father asks that the mother’s application for costs certificates under ss 6 & 8 of the Federal Proceedings (Costs) Act 1981 (Cth) be granted.
Submissions in response- appellant
The mother submits that in the absence of sworn evidence from the father, the court is unable to infer the facts contended by counsel in the father’s written submissions: see Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192; Chamberlin v The Queen (No. 2) 153 CLR 521.
In the absence of an evidentiary foundation, particularly from the father concerning his place of residence and employment the mother asks that the court draw inferences as to his present circumstances. It is correct that despite being afforded the opportunity to give evidence by affidavit of his place of residence and financial circumstances the father has failed to do so apart from concessions made recently in correspondence from his solicitors.
In relation to the question of inferences it is only necessary to refer to Weissensteiner v The Queen (1998) 178 CLR 217 and Mead v Mead (2007) 235 ALR 197. I refer particularly to the judgment of Mason CJ, Deane and Dawson JJ said at 227:
We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
Counsel for the mother submits that it is impermissible for the court to draw inferences as to why the father did not concede the appeal earlier. It is said “it is nonsensical to suggest that had he been made aware of matters previously that he would of conceded the Appeal in a more timely fashion”. This is said to be particularly so given “it was at all times wholly within his knowledge as to what time he was spending with his other children and he knew what he had told his previous wife, as to where he was living and working”.
It is also submitted that there has been no challenge to both the submissions and the evidence that the father was prepared to “advance to the Court a lie and did in fact lie to the Court on the issue of his residence”.
In concluding the written submissions in reply, counsel for the mother states:
19.The Appeal has succeeded on a question of law which has been accepted by the [father]. Proper procedural fairness was not afforded to the [mother] in the trial process. The Appeal was not generated because there was any lack of a timely provision of information, it was generated by a determined resistance by the [father] to reveal the truth which ultimately lead the Court at first instance into error. No other conclusion is now able to be argued for as a matter of law.
Conclusion
The submission to which reference has been made in the previous paragraph is inescapably correct. Given these circumstances I am of the view that the respondent should pay the appellant’s costs.
As the appeal was allowed by reason of the error of the trial judge, the next question is whether an order should be made in favour of the appellant mother for a certificate for the appeal and the new trial. In the unusual circumstances of this case it can be seen that it was the position taken by the father, which at least partly, led the trial judge into error. It would not be appropriate for the father to receive a certificate. The mother is entitled to a certificate for the new trial.
The father should pay the mother’s costs of the appeal in view of his conduct of the proceedings and despite his limited financial circumstances. It is not necessary to rely on s 117AB. The question of where the father is living remains a matter for the Federal Magistrate to decide based on the evidence at a trial. There can be no doubt however, that at best, the evidence the father was prepared to place before the court in this respect was misleading and contrary to what he said to Ms H the person his counsel objected to giving evidence. The father’s instruction to counsel upon the direct question being asked by the Federal Magistrate was that he lived at a Brisbane suburb. (See T/script p 7)
The background to this application demonstrates circumstances which are exceptional as the mother had no choice but to pursue the appeal which should have been conceded immediately. The affidavit of Ms R filed 22 November 2010 includes reference to the proper attempts on behalf of the mother to settle the appeal and progress to a trial which were rejected. The first indication that the appeal would not be opposed was 10 November 2010, however there were further difficulties up to the point of the commencement of the hearing of the appeal.
The father should pay the mother’s costs on an indemnity basis. These costs should be deducted from the father’s share of the property settlement or payable within three months, whichever be the earlier.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 9 June 2011.
Associate:
Date: 9 June 2011
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