DAKIN & SANSBURY - [2012] FamCAFC 129

FAMILY COURT OF AUSTRALIA

DAKIN & SANSBURY

[2012] FamCAFC 129

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the appellant did not appear before the Federal Magistrate at the hearing on 30 January 2012 – where the Federal Magistrate determined to proceed and hear the matter in the absence of the appellant – where final orders were made by way of property settlement and spousal maintenance – where the Notice of Appeal is completely inadequate – where an adjournment was granted to enable the appellant to file an amended Notice of Appeal in proper form – where no amended Notice of Appeal as ordered was filed nor was an application made seeking a further extension of time to file – where the appellant makes oral applications for short adjournments – where the appellant is not able to put adequate reasons to the court as to why a further adjournment should be granted – where the respondent opposes any further adjournment – adjournment applications dismissed – inadequate grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks costs in the sum of $4,300 – where it is apparent that those costs are well outside the Family Law Scale – where the respondent then sought costs calculated on an indemnity basis – where there are no exceptional circumstances and no basis for awarding indemnity costs – where the appellant opposes any order for costs – where there should be an order for costs made on a party/party basis – costs ordered in the sum of $1,000.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248
D & D (Costs) (No 2) (2010) FLC 93-435
Kohan and Kohan (1993) FLC 92-340
Yunghanns and Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

APPELLANT:

MS DAKIN

RESPONDENT:

MR SANSBURY

FILE NUMBER:

MLC

3048

2010

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

3 August 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

3 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 January 2012

LOWER COURT MNC:

[2012] FMCAfam 81

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Appellant appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Kiernan

SOLICITOR FOR THE RESPONDENT:

Cahill & Rowe Family Law

Orders

The oral applications for adjournment made by Ms Dakin today be dismissed.
The Notice of Appeal filed on 7 February 2012 be dismissed.
The appellant pay the sum of $1,000 by way of costs thrown away.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dakin & Sansbury has been approved by the Chief Justice 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: SOA 9 of 2012
File Number: MLC 3048 of 2010

MS DAKIN

Appellant:

And

MR SANSBURY

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Today I have before me a Notice of Appeal filed by Ms Dakin on 7 February 2012. The appeal is against orders made by Federal Magistrate Bender on

30 January 2012.
The Federal Magistrate had before her three applications comprising final orders applications and an application for spousal maintenance, and that day was to be the commencement of the trial in relation to those applications. However, as her Honour recorded in her reasons for judgment, there was no appearance by the applicant, Ms Dakin. The respondent appeared by counsel, and her Honour determined to proceed and hear the matter in the absence of

Ms Dakin. Her Honour as a result made final orders by way of property settlement and spousal maintenance. She dismissed Ms Dakin’s application for spousal maintenance and in effect, in relation to property settlement, ordered that both parties retain what they then each had. In addition, her Honour made an order for costs against the applicant.
It is from those orders that the appeal was brought.
The Notice of Appeal first came before me on 21 June 2012, and having read the Notice, I indicated at that time to Ms Dakin that it was completely inadequate, and that if she wished to pursue an appeal she would need to file an amended Notice of Appeal setting out grounds of appeal which identified errors allegedly made by the Federal Magistrate. As was apparent from the Notice of Appeal, and as I referred to on that day, what Ms Dakin had set out under the heading “Grounds of Appeal” was 11 pages of narrative detailing, from her point of view, historical facts without at any point setting out a recognisable ground of appeal identifying an error made by the Federal Magistrate.
I also record that on that day I raised with Ms Dakin that if she was seeking to complain that the Federal Magistrate proceeded to hear the application in her absence, then an appeal was not the appropriate course to follow, and that there was Full Court, and indeed High Court authority, which provided that in those circumstances the proper course is to make an application back to the Federal Magistrate seeking that the Federal Magistrate set aside or discharge her orders. I indicated to Ms Dakin that if that was her sole complaint then her appeal for that reason alone could not proceed.
In response Ms Dakin indicated to me that there were other matters about which she wanted to complain relating to the orders made by the Federal Magistrate, and that in order to enable the Notice of Appeal to proceed she was not raising any complaint in that appeal about the Federal Magistrate hearing the matter in her absence. That of course did not solve the problem of the inadequacy of the Notice of Appeal, and as I also expressed to Ms Dakin, as the Notice of Appeal stood, given that there was no error identified, I would have had no option but to dismiss the appeal on the application of the respondent.
However, Ms Dakin indicated that she would like some time to prepare an amended Notice of Appeal and she sought four weeks. I granted that application and as I indicated in my remarks made on that day, I was prepared to give Ms Dakin that one more chance to prepare and file an appropriate Notice of Appeal. I indicated though to Ms Dakin that if no amended Notice of Appeal was filed in the period of the adjournment then, subject to any submissions that may be made by Ms Dakin on the day, I would be dismissing the Notice of Appeal. Indeed, as it happened I was able to give Ms Dakin six weeks rather than the requested four weeks to attend to the preparation and filing of an amended Notice of Appeal.
Today it is apparent that Ms Dakin has not filed an amended Notice of Appeal, nor has there been any application made to the court seeking an extension of the time that I allowed so that Ms Dakin could have more time to prepare that document. What has happened is that Ms Dakin has appeared, again unrepresented, and she has indicated that she has made a number of enquiries as to what she can do and how she can go about preparing and filing an amended Notice of Appeal. She says, and these are my words, she has drawn a blank; she claims that she has not been able to get any assistance from anybody, and she says that no-one seems to know what to do in these circumstances. I have made the obvious comment to Ms Dakin that I do not accept that submission, but be that as it may, that is what Ms Dakin has put to me today.
Ms Dakin has also come to court with a bundle of documents which she spread across the bar table and she indicated to me that if I was prepared to adjourn the matter to Monday, she would be able to file an amended Notice of Appeal in accordance with those documents. I asked Ms Dakin to hand up the documents so that I could ascertain whether there would be any value in adjourning the matter for that short period of time because of course, if the amended Notice of Appeal still was inadequate and failed to identify and allege any error by the Federal Magistrate, then there would be little point in adjourning the matter to Monday.
Ms Dakin duly handed up a bundle of documents. I did not count them precisely because they were not numbered, but it seemed to me that there was of the order of approximately 20 pages, there were two or three typewritten pages at the commencement of that bundle and the balance of the bundle then comprised variously photographs, correspondence and other like documents. I took some time to read through the typed material that was at the commencement of the bundle, but it immediately became apparent to me that Ms Dakin had not taken any notice of what I had said to her on 21 June because this so-called amended Notice of Appeal was no better than the initial Notice of Appeal. The typed pages simply recounted historical facts in the same way that her original Notice of Appeal did, without clearly raising recognisable grounds of appeal identifying alleged errors by the Federal Magistrate.
Ms Dakin then changed her application and sought an adjournment to Friday of next week. My response to that was to seek from Ms Dakin a sensible and viable proposal by her, indicating how in that time she would be able to prepare and file an amended Notice of Appeal which satisfied the requirements, and set out grounds of appeal which identified alleged errors by the Federal Magistrate in a way that could allow that Notice of Appeal to proceed. I attempted on at least three occasions to have Ms Dakin provide that proposal, but she was unable to do so.
Nevertheless, I proceed on the basis that I do have an oral application before me by Ms Dakin to adjourn this matter again to enable her to prepare and file an amended Notice of Appeal.
That application is opposed and Mr Kiernan has reiterated the application made by the respondent on the last occasion, and that is for a dismissal of the Notice of Appeal.
I am not prepared to grant a further adjournment to Ms Dakin. If the documentation that she came along with today could be treated as an appropriate and adequate Notice of Appeal, and if all she needed was a short adjournment to Monday to file that, I would have been favourably disposed to grant that application. As I say though, looking at the documentation that

Ms Dakin has prepared, it is no better than the Notice of Appeal that is currently before the court, and thus there is little point in adjourning the matter even for that short period of time.
As to the adjournment to Friday, I am also not prepared to grant that adjournment. Ms Dakin has had ample opportunity today to set out for me a proposal as to how she would usefully use that time to prepare and file an amended Notice of Appeal, but she has failed to do so.
Thus I propose to formally dismiss the oral applications to adjourn.
Given that the only Notice of Appeal that is before the court is the Notice of Appeal filed on 7 February 2012, and in summary, that Notice of Appeal does not contain a recognisable ground of appeal identifying any error by the Federal Magistrate, I propose to dismiss that Notice.
I now have before me an application for costs by the respondent.
That application is opposed by the appellant.
The amount of costs sought is a total of $4,300 split up as to $1,850 for counsel fees and $350 for solicitor’s costs in relation to the first hearing on 21 June 2012, and $2,100 comprising $1,750 counsel fees and $350 solicitor’s costs in relation to the hearing today.
Mr Kiernan initially indicated that those costs were calculated in accordance with the Family Law Scale however, upon looking at the Scale it readily became apparent that they were well outside the Scale. For example there is Item 203 in Schedule 3 to the Family Law Rules 2004 (Cth), covering short attendances taking less than three hours, and the range of fees is $170 to $795. That is counsel fees and solicitor fees would of course be on top of that, but equally, on the Scale, they would be less than the $350 sought for solicitor’s costs in relation to each hearing.
Mr Kiernan then sought an order for costs calculated on an indemnity basis. He has made submissions to me in support of that application suggesting that the appeal was without merit, and that the hearings have been, in my words, a complete waste of time. He says it has been a futile exercise and the appellant’s conduct in bringing the appeal in the way that she did, in failing to file an amended Notice of Appeal, and in her presentation today, can only be described as vexatious, and, indeed, bordering on contempt.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs any application for costs whether it is in the context of an appeal or a first instance hearing and relevantly that provides as follows:
(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.
In summary that section provides for each party to bear their own costs but where there are circumstances that justify an order for costs then an order for costs can be made, and such order is to be made taking into account the factors set out in s 117(2A) of the Act.
There are a number of relevant factors in s 117(2A), not the least of which is the respective financial circumstances of the parties. I know very little about that though. I only have the reasons for judgment delivered by the Federal Magistrate, and that does provide some detail of their financial circumstances. I also observe that as part of her Honour’s orders she ordered the appellant to pay costs of $8,000.
As to other factors, perhaps the most significant is, and to use the terminology of s 117(2A)(e), the appellant has been wholly unsuccessful in the proceedings in that her Notice of Appeal has been dismissed. There is also her conduct as detailed by Mr Kiernan.
In the circumstances I have no difficulty in finding that there are circumstances that justify an order for costs.
The next question is on what basis that order should be made namely, on a party/party basis or an indemnity basis. If it is on a party/party basis then the Scale of Costs set out in Schedule 3 to the Family Law Rules 2004 applies. For example, as I have earlier identified, item 203 would apply to counsel fees and that gives a range of $170 to $795.
Mr Kiernan though, to repeat, has now made an application for indemnity costs. The principles that apply in respect of such an application are well settled. The basic principle is that for an order for indemnity costs to be made exceptional circumstances have to be demonstrated, and examples of the circumstances that would warrant indemnity costs have been set out in a number of authorities starting with the oft-quoted and oft-referred to Federal Court decision of Sheppherd J of Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248. That decision has been followed in a number of Full Court cases in this court including Kohan and Kohan (1993) FLC 92-340, Yunghanns and Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 and D & D (Costs) (No 2) (2010) FLC 93-435, and the principle has not changed.
Here I am not satisfied that there are exceptional circumstances. I have to take into account that the appellant has been acting in person and she has done the best she can with her limited knowledge of the law and procedure. She has been misguided in the Notice of Appeal that she has filed. I am concerned, and I have expressed this already, with her conduct in the sense of her failure to take up the opportunity that I gave her to prepare and file an amended Notice of Appeal, and also her presentation today in her inability to provide the court with an amended Notice of Appeal, and to put a proposition which would justify an adjournment of the matter such that within a reasonable period of time, an amended Notice of Appeal, in proper form and providing an adequate basis for the appeal to proceed, could be filed and served. However, there is nothing unusual or exceptional about that, and I am not prepared to make an order for costs on an indemnity basis.
Thus costs will be on a party/party basis. My choice though is to fix an amount or send the matter to taxation. My usual practice is to look to fix an amount if I can rather than put the parties to the cost and the time of having costs assessed. Taking into account the Scale of Costs that apply I propose to make an order that the appellant pay the sum of $1,000 by way of costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 3 August 2012.

Associate:

Date: 22 August 2012