D and D (Costs)
[2010] FamCAFC 63
•25 March 2010
FAMILY COURT OF AUSTRALIA
| D & D (COSTS) | [2010] FamCAFC 63 |
| FAMILY LAW – COSTS OF APPEAL – Husband’s appeal against order for costs of trial where husband’s appeal against substantive orders of trial judge upon which order for costs was based had previously been wholly unsuccessful – Husband’s appeal against order for costs of trial dismissed – Husband’s appeal against part of trial judge’s order which provided that husband pay all reserved costs allowed and orders for payment of reserved costs discharged – Wife at liberty to re-apply with respect to such reserved costs – Trial judge’s order for costs included costs previously reserved before other judicial officers and former judicial officers – Court persuaded that trial judge erred in awarding costs previously reserved by other judicial officers in the absence of sufficient knowledge or information with respect to what occurred on each of the occasions upon which costs were reserved by other judicial officers. |
| Family Law Act 1975 s 117(2A) Family Law Rules 2004 (Cth) |
| De Winter v De Winter (1979) FLC ¶90‑605 |
| APPELLANT: | MR D |
| RESPONDENT: | MS D |
| RECEIVER | MR X |
| TRUSTEE IN BANKRUPTCY: | MR Y & MR Z |
| FILE NUMBER: | BRF | 1325 | of | 2002 |
| APPEAL NUMBER: | NA | 98 | of | 2005 |
| DATE DELIVERED: | 25 March 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Coleman & May JJ |
| HEARING DATE: | Written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 December 2005 |
| LOWER COURT MNC: | [2005] FamCA 1191 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | C.J. O’Neill |
| SOLICITOR FOR THE APPELLANT: | Stacks Gray |
| COUNSEL FOR THE RESPONDENT: | Mr Cameron |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That the appeal be allowed in part.
That Order 1 of the orders of 8 December 2005 be amended by deleting from such order the words “including all reserved costs”.
It is noted in connection with Order 2 that notwithstanding the amendment to Order 1 of the orders of 8 December 2005, the wife remains at liberty to re-apply in relation to the reserved costs.
That the Court grants to the Appellant Husband a costs certificate pursuant to the provisions of s 9 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 Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.
That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s 6 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 Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym D & D (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 98 of 2005
File Number: BRF 1235 of 2002
| MR D |
Appellant
And
| MS D |
Respondent
REASONS FOR JUDGMENT - COSTS
On 31 August 2007 this Court delivered Judgment in the substantive property settlement appeal and the husband’s Application for Leave to Adduce Further Evidence in the appeal. Both the Application for Leave to Adduce Further Evidence and the substantive appeal were dismissed for reasons which the Court published.
The orders of the Court of 31 August 2007 provided that the husband’s appeal filed on 29 December 2005 against the trial Judge’s order for costs made on 8 December 2005 be by way of written submissions, and made directions for the filing of written submissions in relation to that appeal.
The Court then also made directions for the filing of written submissions in relation to the costs of the proceedings determined on 31 August 2007.
Submissions have been received in relation to both the husband’s appeal against the trial Judge’s order for costs of 8 December 2005 and the costs of the proceedings determined on 31 August 2007.
The appeal against the trial Judge’s order for costs of 8 December 2005
This judgment is concerned with the husband’s challenge to the order for costs made by the trial Judge with respect to the substantive proceedings made on 8 December 2005. A separate judgment will deal with the costs of the substantive appeal determined on 31 August 2007.
The trial Judge’s order of 8 December 2005 provided that the husband pay the wife’s costs of and incidental to her amended application for final orders filed 16 July 2004, including all reserved costs, and the costs of and incidental to her application for costs, the quantum of such costs to be agreed between the parties within 14 days or, in the absence of agreement, assessed by a Registrar pursuant to Family Law Rules 2004 (Cth).
The orders further provided that the costs payable by the husband to the wife be “paid on the conclusion and/or management” by the husband’s trustee in bankruptcy and “from the parties assets in the possession of the receiver/manager”. The husband’s estate in bankruptcy and assets in the possession of the receiver/manager were also ordered to be charged with the husband’s liability to the wife.
His Honour’s orders further provided that the charge created by his orders be satisfied from any surplus payable to the husband upon completion of his bankruptcy prior to any distribution to him pursuant to the orders for settlement of property made on 11 May 2005.
The trial Judge’s Reasons for Judgment
Having identified the nature and form of the costs order sought by the wife in relation to the substantive proceedings which he determined on 11 May 2005, the trial Judge referred to the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”). He further then turned to the matters which were relevant to the various provisions of s 117(2A) of the Act.
His Honour recorded that the wife was employed as a solicitor with the ongoing financial, developmental, educational and emotional responsibility for the two teenage children of the marriage, without the benefit of child support, whilst the husband was a “bankrupt manufacturer”. His Honour recorded that neither party had achieved “the property outcomes sought in their competing applications as amended”.
Reference was made to the wife’s initial claim to 75-85 per cent of the parties’ assets and to the husband’s concession of an entitlement of the wife of as much as 45 per cent. His Honour also referred to the wife having revised her claim at trial to seek 60-65 per cent of the parties’ assets.
The basis of the wife’s application for costs was identified by the learned trial Judge. The wife was said to have asserted that the husband had acted unreasonably, by bringing “needless applications, with respect to a number of which costs have been reserved” and “forcing her to seek the assistance of the court to resolve intractable procedural disputes”. His Honour recorded the wife’s complaint that the husband’s “history of lack of full candour and proper disclosure” had exacerbated the cost and complexity of the litigation, an example of that being “his ‘dilatoriness’ in notifying her of his impending bankruptcy”.
The trial Judge also recorded the wife’s contention that the first week of the proceedings before him, which related to children’s issues, would have been averted had the husband accepted an offer of settlement made by the wife, or “accepted the conclusions and recommendations of the family report in 2002 and the psychiatric assessment by Dr. [W] in 2004”.
Reference was made to the offer of settlement filed on 17 March 2003 upon which the wife relied in support of her claim for costs, such offer having been forwarded to the husband’s solicitors on 21 March 2003, receipt of the offer having been acknowledged on 7 April 2003. His Honour recorded that under her offer for settlement “the wife would have received less (60%) in 2003 … than she did in 2005 (62.5%) after a fully blown trial”.
The trial Judge referred to the wife’s allegation that she had “made further attempts to settle property matters, including an offer on 25 March 2004 to settle the partnership chattels in substantially the same way as I ultimately ordered”.
Reference was then made to the details of the reserved costs which the wife sought, they being contained in an affidavit sworn by the wife’s solicitor filed on 30 August 2005. His Honour concluded that in neither the affidavit of the husband nor that of his lawyer filed subsequently was the accuracy of the evidence of the wife’s solicitor of 3 August 2005 challenged.
The trial Judge recorded that the husband had been represented throughout the hearing of the substantive proceedings by Counsel instructed by solicitors, and that the husband remained an undischarged bankrupt who was unemployed at the date of trial. He further recorded that the husband’s sources of income, and credit facilities were “unknown” but that it was “clear enough” that the husband “has sufficient means to support himself and somehow fund costly litigation (although it may be being conducted on a speculative basis)”.
Referring to the written submissions on behalf of the husband, his Honour concluded that most of the matters therein addressed “dealt with the leave question and alleged discrepancies in the wife’s lawyer’s affidavit” but did not “really address any of the matters raised by the wife as justifying an order for costs in her favour or, indeed, the relevant paragraphs of s 117(2A)”.
His Honour concluded that:
I am satisfied that there is a possibility of a surplus in the receivership of the property under administration, even after payment of the extraordinary costs of the receiver/manager. The wife is entitled, in my opinion, to the reserved costs for the uncontested reasons given by the wife’s lawyer in sub-pars 21(a) to (h) of her affidavit. She should be compensated on a party/party basis for trial-related costs, namely because of the early offer she made to settle on better terms for the husband than he achieved after a full hearing. She is also entitled to her costs of and incidental to this application.
His Honour accordingly made the orders which give rise to this appeal.
The Grounds of Appeal
The husband’s Notice of Appeal contained but one ground of appeal which provided:
1.The judge failed to take into account relevant material and conduct of the parties and failed to give proper weight to the material that he did take into account as acknowledged in correspondence by his Honour Justice Carmody.
The written submissions filed on behalf of the husband addressed a number of topics relevant by virtue of s 117(2A). Under the heading “The financial circumstances of each of the parties” a number of colourful assertions were made. To the extent that those assertions are controversial, as clearly a number of them are, no attempt was made to refer the Court to anything in the Reasons for Judgment of the learned trial Judge or any portion of the transcript of the substantive proceedings before him or any affidavit material in support of such assertions.
Under the heading “Conduct of the Parties”, a number of contentions were raised, notwithstanding, as was acknowledged by learned Counsel for the husband, complaints in relation to the trial Judge’s conclusions with respect to those matters were rejected by this Court when it determined the substantive appeal on 31 August 2007.
It was submitted on behalf of the husband that the “pattern of concealment” which this Court found the trial Judge to have been entitled to find unproven, “continued after trial, both before and after the hearing of the appeal.” Curiously it was submitted that “the facts are not contestable, notwithstanding that the Court declined to allow them to be adduced subsequent to the appeal”. To the extent that we understand what this complaint endeavours to articulate, the complete absence of any reference to any aspect of the trial Judge’s reasoning in his costs judgment, any transcript of proceedings, either before his Honour or this Court, or any affidavit evidence, denies this complaint any prospect of success.
Under the heading “Successful or Not” it was correctly submitted that “[n]either party obtained what they sought.” It was asserted that the husband would not receive any money upon the completion of the receivership. The two reasons advanced in support of that outcome were unsuccessfully agitated in the substantive appeal.
The submissions on behalf of learned Counsel for the husband do not engage with, much less refute, the trial Judge’s conclusions with respect to offers of settlement, either in terms of the making of such offers or their implications. Nor do the submissions of learned Counsel for the husband challenge the trial Judge’s findings with respect to the details of the costs claimed by the wife and accepted by his Honour.
Subject to one matter, nothing raised on behalf of the husband in the submissions to which we have referred provides any foundation for concluding that the trial Judge’s exercise of discretion in relation to the costs of the proceedings before him miscarried in any relevant sense.
It is however necessary to consider the portion of the submissions of learned Counsel for the husband headed “Any Other Matters”. Counsel for the husband referred the Court to an affidavit of the husband’s solicitor, Mr M, filed on 4 July 2006.
It was submitted that the correspondence between Mr M and the Court in relation to the trial Judge’s decision with respect to costs supported the contention on behalf of the husband that his Honour “had not read the affidavit of Mr [M] filed on 3 October 2005 and in particular paragraph 17 of that affidavit”. Necessarily, we will in due course need to refer to Mr M’s affidavit filed 3 October 2005, both generally and with particular reference to paragraph 17.
Reference was made to a letter submitted to have been written by the trial Judge’s associate to the husband’s solicitors on 15 December 2005. It was submitted that such letter “acknowledges that His Honour had not turned his mind to the relevant factual matters contained in the affidavit of 3 October 2005 and the submissions of Counsel.” Clearly any correspondence written on behalf of the trial Judge will require our close consideration.
It was submitted that “His Honour also thought that it was an error on his part that should be corrected by the Court on Appeal” and that “[i]n the light of that acknowledgement it is submitted that His Honour was clearly wrong in the decision that he made and it should be rectified by this Honourable Court”.
Ultimately it was submitted, albeit by reference to complaints which this Court rejected in its Judgment of 31 August 2007 that “the system has failed the husband. He is bankrupt, penniless, denied contact with his children, and has seen what was his equity in the properties disappear in favour of his former wife and her new partner.” It was further submitted that to order the payment of costs against the husband “would at the very least be a nugatory exercise”.
Before considering the submissions on behalf of the wife in response to the submissions of Counsel for the husband, and the status of what seemed to be an attempt to rely upon further evidence in the absence of an application for leave to adduce further evidence, it is convenient to set out in detail the material referred to in the submissions of learned Counsel for the husband under the heading “Any Other Matters”.
Paragraph 17 of the affidavit of Mr M of 3 October 2005 upon which Counsel relied asserted:
17)With respect to paragraph 21 of the Affidavit:
a) (21(a)) The Order of the Honourable Justice Jordan of 26 April 2002 by Order 9 reserved costs to “the adjourned hearing date”; presumably that relating to spousal maintenance. There is no evidence in the Affidavit that the issue was raised by the Wife at such a hearing.
b) (21(b)) This relates to an amended application of the Husband which eventually came on for Hearing on 13 June 2002. A copy of the Orders was not attached to the Affidavit of [Ms B] and is attached (MM3). The Application of the Father filed 15 May 2002 and the Response filed 11 June 2002 were adjourned and costs were reserved. We did not represent Mr [D] at that time but it is my understanding that as a result of that Application it was agreed that Mr [P] would prepare a Family Report. He was instructed by both parties on 30 July 2002.
c) (21(c)) The Husband was not represented at the time the Application was filed on or about 9 September 2003 and we are instructed Mr [T] appeared at very short notice at the Hearing before Justice O’Reilly on 18 September 2004 as he was in the Court.
From the Reasons for Decision published by her Honour it is apparent the Wife sought a permanent injunction. As her Honour says, at page 2, “Indeed, much of the Wife’s material was hearsay and belief, it is proper that the application be treated as interlocutary [sic]”. A proper reading of the Order and the Reasons for judgment shows that the Wife was not wholly successful contrary to what is asserted by [Ms B].
d) (21(d)) This was an application by the Wife for the sale of the partnership assets and other chattels at the [N] property. It was the first Hearing at which we represented Mr [D]. The Orders made by consent bear no real relationship to those sought by the wife and the said chattels and assets are still the subject of litigation before this Court.
e) (21(e)) This is an Order of Justice O’Reilly made 23 January 2004 partly on an Application by the Husband to have the children separately represented. The Wife opposed such representation and was wholly unsuccessful. [Ms B] attached at RB24 a copy of the Order made 22 January 2004. The Correct Order is attached (MM4).
With respect to the Orders made by Justice O’Reilly on 9 June 2004 and which are not attached to the Affidavit of [Ms B], no orders were made with respect to costs. The solicitor for the Wife also fails to refer to an Offer of Settlement filed by the Husband on 8 April 2004 (MM5). Comparison of that offer with the Order made 9 June 2004 shows the Husband was mostly successful in his application.
f) (21(f)) My statements with respect to Paragraph 21(e) apply.
g) (21(g)) My statements with respect to Paragraph 21(e) apply.
h) 21(h) This refers to an Order of Federal Magistrate Rimme [sic] made 16 August 2002 and the Wife has already claimed interest on her Proof of Debt in bankruptcy “from 22/01/04 to the date of bankruptcy (07/07/04) at 9.55%”.
In the letter written on behalf of the trial Judge on 15 December 2005 upon which Counsel relied it was said:
Re: [D] and [D] – BRF 1325/2002 – Costs Application
I refer to your letter of 13 December 2005 and the Reasons for Judgment (Costs) made by his Honour Justice Carmody on 8 December 2005.
His Honour advises in relation to your query in the second paragraph of your letter that he cannot recall whether having read or considered paragraphs 17 and 18 of the affidavit filed by Mr [M] on 3 October 2005. He was clearly mindful of it because he mentioned it at paragraph 22 of his Reasons. However, it is highly unlikely that he would have made the comment in the second sentence of paragraph 22 of his Reasons if he had been aware of paragraphs 17 and 18 of the affidavit filed 3 October 2005. Clearly, those paragraphs of the affidavit amount to a challenge to the accuracy of par 21 of Ms [B’s] affidavit.
They also raise matters of substance which would have affected consideration of the application.
His Honour advises that there is probably not much that can be done to rectify the situation except by way of agreement between the parties or appeal. The slip rule is inapplicable in the circumstances.
His Honour asked me to inform you that he would not ordinarily explain or justify Reasons for Judgment. However, in light of the apparent oversight (which he cannot explain), he has asked me to provide you with the above information in the hope that it will avoid any prejudice to either party and assist resolution whether by litigation or negotiation.
His Honour asks me to apologise to the parties for any inconvenience that this lapse may have caused.
The letter written on behalf of his Honour of 15 December 2005 having referred to paragraph 18 of Mr M’s affidavit, it is appropriate that we set out what appeared in paragraph 18 of that affidavit:
18)The solicitor for the Wife fails to mention the Court appearance on 19 Jul 2004 at which all the parties were required to attend on one days [sic] notice when Justice O’Reilly recused herself from further Hearing the matter. A transcript of those proceedings is attached. (MM6).
A transcript of the date in question is in fact attached to Mr M’s affidavit.
On behalf of the wife it was submitted, correctly in our view, that despite the husband’s assertion before the trial Judge that the wife should not be granted leave to seek costs out of time, no challenge to the trial Judge’s conclusion with respect to costs in relation to that issue has been raised in this Court.
On behalf of the wife it was acknowledged that, notwithstanding that the “possibly inappropriate behaviour of the Husband in directly approaching the learned trial Judge after judgment had been given on the costs application” without prior notice to the wife, “one is left with the situation in which the learned trial Judge seemingly concedes that the Husband’s evidence on the costs application had been misunderstood by the learned trial Judge”. It was submitted that “Prima facie a misapprehension of the evidence constitutes a ground of appeal. However, given the unparticularised nature of the learned trial Judge’s communication about any mistake, it does not automatically follow that the appeal is bound to succeed”.
It was submitted that this Court should consider the appeal against the trial Judge’s order for costs “in light of the outcome of the substantive appeal in this matter”. A number of submissions were then made in relation to the consequences of this Court’s dismissal of the husband’s appeal against the trial Judge’s substantive orders.
It was submitted on behalf of the wife that “the effect of the decision in the substantive appeal is to vindicate the trial Judge’s observations regarding both the Husband’s reliability and conduct of the litigation, which factors were relevant to the exercise of the trial Judge’s discretion under s.117”.
We need not go further than recording that this Court’s rejection of the husband’s substantive appeal, and his application for leave to adduce further evidence, denies the husband a basis for asserting that the trial Judge’s exercise of discretion in relation to the wife’s costs application miscarried insofar as it was reliant upon findings of fact which have been demonstrated on appeal to have been erroneous in any material respect. Ultimately that does not however significantly advance matters given the content, or perhaps more significantly absence, of the submissions of learned Counsel for the husband in this appeal to which we have earlier referred.
If the submission on behalf of the wife implies that rejection of the substantive appeal in some way reinforces the trial Judge’s exercise of discretion with respect to the costs of the substantive proceedings, save to the extent that we have indicated, we do not accept that such is the case. It is conceivable that, though “vindicated” in the substantive appeal, for reasons unrelated to any aspect of the substantive appeal the exercise of discretion in relation to costs could be found to have miscarried.
As the submissions of learned Counsel for the wife astutely recognise, the real issue for consideration in this appeal arises by virtue of the matters raised on behalf of the husband under the heading “Any Other Matters” to which we have earlier referred. Objectively, nothing to which we have earlier been referred by learned Counsel for the husband would provide a basis for appellate intervention.
It is appropriate to refer to the detail and closely reasoned submissions of Counsel for the wife in relation to what might be thought the most significant post judgment developments. The submission that “[i]t is really only para 17 [of Mr [M’s] affidavit of 3 October 2005] that is of relevance to the question of costs” is in our view well founded although, as the written submissions of learned Counsel for the husband make clear, that is the only paragraph asserted on behalf of the husband to have relevance for the purpose of this appeal.
Whilst it may be that “a great deal of the evidence” in the affidavit of the wife’s solicitor to which the trial Judge referred in his Reasons for Judgment was “effectively uncontested” it was, at least inferentially, conceded that paragraph 17 of Mr M’s evidence did put in contest the contentions contained in the paragraph of the wife’s solicitor’s affidavit to which his Honour referred.
We have earlier set out paragraph 17 of Mr M’s affidavit. It is appropriate that we also set out paragraph 21 of the affidavit of the wife’s solicitor (Ms B) to which Counsel for both parties and the trial Judge (at paragraph 22 of his Reasons for Judgment) referred. Paragraph 21 of Ms B’s affidavit read:
21.During the course of these proceedings Orders have been made where the costs of the Application were reserved. Details of those Orders being:
(a) Order of Justice Jordan dated 26 April 2002. The question of costs was reserved. The Wife’s Amended Form 3 Application, which was filed on 16 April 2002, sought interim orders at Annexure “B”. The Wife in that Interim Application was successful in relation to the Interim Orders sought at 1, 2, 3, 4, 6 and 8 of that Interim Application. The Orders sought are in fact reflected in the Order of Justice Jordan and to that end the Wife was successful in her Application and seeks the costs of that Application which were reserved. Exhibited hereto and marked with the letter “RB17” is a true copy of that Amended Application. Exhibited hereto and marked with the letter “RB18” is a true copy of Justice Jordan’s Order.
(b) Order of Registrar Dittman dated 13 June 2002. On that day, the Husband filed an Amended Application in relation to children issues. Exhibited hereto and marked with the letter “RB19” is a true copy of that Application. The Husband was wholly unsuccessful in that Application and the Wife seeks the costs of and incidental to that Application that were reserved.
(c) Order of Justice O’Reilly dated 19 September 2003. The costs of the Wife’s Application in relation to the injunction were reserved to the Trial Judge. The Wife filed an Application in Form 8 on 11 September 2003 seeking an injunction and restraining the Husband from accepting any finance to pay out the mortgage and further encumbering the property. The Wife was wholly successful in that Application as is reflected in the Order of Justice O’Reilly and [the] Wife seeks the costs of and incidental to the Application of that day. Exhibited hereto and marked with the letter “RB20” is a true copy of that Form 8. Exhibited hereto and marked with the letter “RB21” is a true copy of Justice O’Reilly’s Order dated 19 September 2003.
(d) Order of Judicial Registrar Smith dated 8 December 2003. The Wife filed an Application in Form 8 on 31 October 2003, seeking the various Orders (inter alia) that [Mr R] be appointed Receiver for the partnership assets. Exhibited hereto and marked with the letter “RB22” is a true copy of that Application. The Order of Judicial Registrar Smith, which reflected Minutes of Consent signed by the parties, indicates that the Wife was wholly successful in her Application to appoint the Receiver. Exhibited hereto and marked with the letter “RB23” is a true copy of that Order.
(e) Order of her Honour Justice O’Reilly dated 23 January 2004. The Husband filed a Form 8 Application for partial property settlement on 5 January 2004. Justice O’Reilly reserved cost of the Hearing of 5 January 2004 to the Trial Judge. She also adjourned the Husband’s Form 8 Application to 8 March 2004 when the matter was listed before Judicial Registrar Smith when the costs were again reserved to the Trial Judge. The Husband’s Form 8 Application was adjourned again to 14 April 2004 before Justice O’Reilly. On that day the Husband, through his solicitors, sought leave to amend his Form 8 Application which was filed on 5 January 2004 as it was defective and Justice O’Reilly told the Receiver the terms of the amendment which appears in the Order. The costs of that day were reserved.
The Wife seeks the costs of the Hearing of 5 January 2004, the costs of 8 March 2004 and the costs of 14 April 2004. The Husband’s Form 8 Application was defective and to that end, three (3) court appearances were necessitated until his solicitors were given leave to amend. The Wife was compelled to attend with her legal representatives on three (3) days as a result of the continued adjournment of the Husband’s defective application and has unnecessarily incurred the cost of each appearance.
The Wife filed a Response in Form 2A on 28 April 2004, which at paragraphs 2, 3 and 4 reflect the Orders made by Justice O’Reilly on 9 June 2004, namely Orders 1, 2 and 6 of that Order. To that extent the Wife was successful in relation to her response to the Husband’s Form 8 Application and seeks the cost incurred.
(f) Order of Judicial Registrar Smith dated 8 March 2004. The costs of that day were reserved to the Trial Judge and I refer to paragraph (e) above in relation to same.
(g) Order of Justice O’Reilly dated 14 April 2004. Both parties’ costs of that day were reserved. Again I refer to paragraph (e) hereof in relation to same and the Wife seeks her costs of that day.
(h) Order of Justice O’Reilly dated 22 January 2004. At paragraph 2 of Annexure “A”, it was ordered by consent that the Wife’s costs pursuant to the Order of Federal Magistrate Rimmer dated 16 August 2002 of $2,510.00 attract interest as and from 22 January 2004 until the date of payment at a rate applicable from time to time under the Act. Exhibited hereto and marked with the letter “RB24” is a true copy of that Order.
Annexed to the affidavit, and identified in the manner referred to in paragraph 21 was each of the documents therein referred to.
In the submissions of learned Counsel for the wife, each of the subparagraphs of paragraph 21 of the wife’s solicitor, Ms B’s affidavit was discussed, and submissions made as to the significance of each of the occasions which those subparagraphs of paragraph 21 addressed.
After so doing, it was submitted on behalf of the wife that:
17.In the premises, it is submitted that at its highest the grounds [sic] of appeal available to the Husband is that the learned trial Judge overlooked the Husband’s evidence about the history of reserved costs in this matter. The history of reserved costs in this matter was just one of a range of factors which the Wife urged upon the learned trial Judge as relevant to his exercise of discretion to award costs. Even if that oversight on the part of the learned trial Judge is deemed sufficient to ground an appeal, it is submitted that such an appeal would not ultimately overturn the result if only because the overall body of the evidence concerning the exercise of the relevant discretion supports the original costs order made by the learned trial Judge.
As is not in doubt, there were essentially two components of the order for costs made by the learned trial Judge. The first of those components can be seen as the costs reserved by other judicial officers on dates between 26 April 2002 and 9 June 2004. It does not seem to be suggested that any of the orders for reserved costs during that period was made by the trial Judge.
It does not seem to be suggested that, save to the extent that Mr M sought to do so in his affidavit filed 3 October 2005, that the transcript of any of the occasions when costs were thus reserved was before the learned trial Judge for the purpose of determining the costs reserved on those occasions. His Honour was accordingly determining the fate of the costs reserved by other judicial officers in the absence of detailed knowledge of what occurred on any of those occasions when costs had been reserved.
His Honour having concluded that there was no “challenge” to the accuracy of paragraph 21 of the wife’s solicitor’s affidavit, it is unsurprising that his Reasons for Judgment do not refer to any particular occasion when costs were reserved. As is at least inferentially conceded on behalf of the wife, the learned trial Judge erred in finding that there had been no challenge to the accuracy of paragraph 21 of the wife’s lawyer’s affidavit. The terms of the letter written on behalf of the trial Judge on 15 December 2005 leave little room for concluding otherwise. The logic reflected in the second paragraph of the letter written on his Honour’s behalf is difficult to reject.
In our view, the learned trial Judge proceeded, at least with respect to the question of costs previously reserved by other judicial officers to exercise his discretion in reliance upon an error of fact. The question then becomes whether that error of fact was material to the exercise of his discretion.
In De Winter v De Winter (1979) FLC ¶90‑605 Gibbs J said (at 78,092):
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p.137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 .L.R. 621, at p.627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. … The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
In our view, his Honour’s error of fact was material to the exercise of his discretion in relation to the costs of proceedings reserved by other judicial officers. What conclusion his Honour would have reached had he not erroneously concluded that there was a “challenge” to the accuracy of the claims made by the wife’s solicitor’s affidavit is uncertain.
We are not persuaded that his Honour would necessarily have reached the same conclusion with respect to costs previously reserved by other judicial officers had he not erroneously believed that the accuracy of what was asserted on behalf of the wife to have then occurred was not controversial. To the extent that it has been submitted on behalf of the wife that this Court would reach the same conclusion as did the trial Judge, and thus that the appeal should be rejected, we do not accept that such is the case.
Without a transcript of the proceedings on the occasions when costs were reserved, we would be in no position to exercise the discretion created with respect to costs by s 117 of the Act in accordance with the provisions of s 117(2A) of the Act. With respect to him, the learned trial Judge, in the circumstances as they have emerged, was also in no position to thus exercise the discretion in relation to costs. To the extent that his Honour’s order related to costs reserved by other judicial officers on earlier occasions, the husband’s appeal should succeed. It remains to consider the appeal against the remainder of his Honour’s order for costs.
As we have earlier noted, the submissions on behalf of the husband, save to the extent to which we have referred in dealing with the part of the submission headed “Any Other Matters”, do not disclose on their face any substantial challenge to the learned trial Judge’s order for costs of the proceedings other than on those occasions when costs were reserved by other judicial officers on the dates referred to in the affidavits of each of Ms B and Mr M.
It is not without significance that the trial Judge’s order related to costs incurred after 16 July 2004, a date more than twelve months after the wife made an offer to settle which his Honour concluded to have been less favourable to the wife than the substantive order made by him on 11 May 2005.
Significantly, no submission made on behalf of the husband challenges the trial Judge’s findings or conclusions with respect to the offers of settlement. So far as the proceedings with respect to children were concerned, the trial Judge was clearly and justifiably influenced by the fact that the husband persisted with such proceedings notwithstanding the wife having, in October the previous year, made an offer which, if accepted, would have avoided the proceedings, as would the husband’s acceptance of the conclusions and recommendations of the Family Report in 2002 and psychiatric assessment by Dr W of 2004.
As with the offer of settlement in relation to financial matters, nothing submitted on behalf of the husband challenges the trial Judge’s findings or conclusions with respect to the children’s proceedings. Nothing to which we have been referred establishes that the trial Judge’s discretion miscarried in ordering that the husband pay the wife’s costs of and incidental to her amended application filed 16 July 2004 on a party/party basis.
Save in relation to the husband’s appeal against that part of the trial Judge’s orders of 8 December 2005 which related to “all reserved costs” prior to 16 July 2004, the husband’s appeal should be dismissed. Nothing to which this Court has been referred demonstrates that the trial Judge erred in any relevant sense in awarding the wife her costs of her successful application for costs, notwithstanding that we propose allowing the husband’s appeal against the trial Judge’s order with respect to costs reserved prior to July 2004.
The husband’s appeal against the order for reserved costs prior to July 2004 being successful, it is necessary to consider what should result from such success. As noted earlier, this Court is in no position to re-exercise the discretion of the trial Judge, even if invited to do so. As is not in doubt, each of the occasions when costs were reserved by judicial officers other than the learned trial Judge are highly controversial. Resolving disputed issues of fact, presumably by ultimately referring to the transcript of the proceedings on those occasions would be necessary before the fate of those reserved costs could be determined in accordance with s 117 of the Act. Transcript of more than one occasion might be necessary in connection with certain of the reserved costs.
In our view, if the wife wishes to pursue costs previously reserved, she should have that opportunity, although the utility of doing so is extremely questionable having regard to the husband’s financial position and to the matters mentioned in paragraph 62. This is particularly so in the light of what remains of the trial Judge’s orders for costs of 8 December 2005. The orders we propose making will constitute no impediment to the wife pursuing previously reserved costs if she wishes to.
Costs
The appeal in relation to costs having been partially successful, in our view both the parties should have a costs certificate with respect to such appeal. We do not consider that either party should have a costs certificate with respect to any re-hearing of the wife’s application for costs previously reserved by other judicial officers.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 25 March 2010
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