Danks & McCabe
[2017] FamCAFC 41
•2 March 2017
FAMILY COURT OF AUSTRALIA
| DANKS & MCCABE | [2017] FamCAFC 41 |
| FAMILY LAW – APPEAL – PROPERTY – Where the appellant left the courtroom not long after the commencement of the appeal – Where the respondent and the affected person sought that the appeal be dismissed – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs on a party/party basis – Where the affected person sought costs on an indemnity basis – Where there are circumstances that justify orders for costs – Costs ordered in favour of the respondent on a party/party basis – Where the affected person established exceptional circumstances such that his costs should be calculated on an indemnity basis – Costs ordered in favour of the affected person on an indemnity basis. |
| Family Law Act 1975 (Cth) – s 117 |
| Colgate-Palmolive and Anor v Cussons Proprietary Limited (1993) 46 FCR 225 Munday & Bowman (1997) FLC 92-784 |
| APPELLANT: | Mr Danks |
| RESPONDENT: | Ms McCabe |
AFFECTED PERSON: | Robin Michael Smith |
| FILE NUMBER: | MLC | 4677 | of | 2012 |
| APPEAL NUMBER: | SOA | 89 | of | 2016 |
| DATE DELIVERED: | 2 March 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 2 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 September 2016 |
| LOWER COURT MNC: | [2016] FCCA 2367 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In Person |
| SOLICITOR FOR THE APPELLANT: | n/a |
| COUNSEL FOR THE RESPONDENT: | Mr Glass |
| SOLICITOR FOR THE RESPONDENT: | Lampe Family Lawyers |
| COUNSEL FOR THE AFFECTED PERSON: | Mr Mawson, QC |
SOLICITOR FOR THE AFFECTED PERSON: | Owen Dixon Chambers |
Orders
The Notice of Appeal filed on 6 October 2016 be dismissed.
The appellant pay the respondent’s costs of and incidental to the said Notice of Appeal such costs to be assessed on a party/party basis in default of agreement.
The appellant pay the affected person’s costs of and incidental to the said Notice of Appeal such costs to be assessed on an indemnity basis in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Danks & McCabe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: SOA 89 of 2016
File Number: MLC 4677 of 2012
| Mr Danks |
Appellant
And
| Ms McCabe |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
This is a Notice of Appeal filed by the appellant on 6 October 2016 against orders made by Judge Hartnett on 9 September 2016. The appeal was listed for hearing today and the appellant appeared without legal representation. The respondent was represented by counsel and there was an affected person, so described in the documents, namely, Dr Smith, who was represented by senior counsel. The reason for the involvement of Dr Smith is because he has been counsel for the respondent in almost all of the hearings in relation to this long-running matter.
One of the grounds of appeal, namely, Ground 2 in the appellant’s Notice of Appeal, said this:
Her Honour was lead into error in finding that the Appellant was afforded ample opportunity to collect the motor vehicles and chattels in question by the knowingly false and misleading statements made by counsel for the respondent.
Dr Smith was the counsel for the respondent, and thus at the directions hearing when this appeal was listed for hearing, it was recognised that Dr Smith would need to take part in these proceedings, at the very least to address Ground 2, and orders were made for the filing of a summary of argument and list of authorities on behalf of Dr Smith, and providing for his involvement in the hearing.
The appeal commenced, but unfortunately not long after that commencement, the appellant, Mr Danks, packed up and left. On that basis, both the respondent and the affected person have asked me to dismiss the appeal. The respondent also seeks an order for costs on a party/party basis, and the affected person seeks an order for costs on an indemnity basis.
As a result of the appellant packing up and leaving the courtroom, I have no choice but to proceed on the basis that he is no longer pursuing his appeal. In that circumstance I propose to accede to the applications of the respondent and the affected person, and dismiss the appeal. I turn then to the applications for costs.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs any application for costs, including on appeal, and pursuant to that section, and particularly subsection (2), if the court is of the opinion that there are circumstances that justify it in doing so, the court may make such order as to costs as the court considers just. In subsection (2A) there are a number of matters set out to which regard must be had in considering what, if any, order for costs should be made.
Both the respondent and the affected person rely on the fact that, as has transpired, the appeal has been wholly unsuccessful, and clearly, that is a circumstance that justifies orders for costs being made.
The next question is on what basis should those orders be calculated. The usual basis is on a party/party basis, and thus there is no difficulty in making the order sought by the respondent. In relation to the affected person though, as I say, it is sought that costs be awarded on an indemnity basis.
There are many authorities in relation to the question of indemnity costs, and senior counsel for the affected person has referred me specifically to the decision of Chief Judge Holden, sitting alone in the Family Court of Western Australia in Munday & Bowman (1997) FLC 92-784. There his Honour referred to a number of authorities where it had been held that the court has the power to make such an order, and, in particular, referred to an oft-cited decision of Sheppard J in Colgate-Palmolive and Anor v Cussons Proprietary Limited (1993) 46 FCR 225. Why that is an oft-cited decision is that there, Sheppard J dealt directly with the principles that apply in considering an application for costs to be calculated on an indemnity basis, and in particular, set out some examples which in his Honour’s view, would warrant the awarding of indemnity costs, and in many cases since, his Honour’s approach has been accepted and applied.
Two of the examples identified by his Honour have direct relevance to the circumstances in this appeal. The first is as follows, and quoting from Sheppard J (at 233):
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.
And the second example that I specifically refer to is as follows, and again quoting from his Honour’s reasons:
[The] making of allegations knowing them to be false and the making of irrelevant allegations of fraud …
I perhaps can also mention a third example, namely:
The making of allegations which ought never to have been made ...
It seems to me that the circumstances of this case fit easily within those three examples. What they are examples of are exceptional circumstances that justify the court departing from applying the usual rule of costs being assessed on a party/party basis. Here it has been demonstrated that there are the necessary exceptional circumstances.
There is the serious allegation made within Ground 2 that I quoted earlier, and that has been amplified in the summary of argument filed and relied upon by the appellant, namely where he said at paragraph 21:
Mr Smith made knowingly false submissions to the court with the intention to deceive her Honour.
That is an allegation which has not been substantiated. Neither the record nor the submissions made in support of Ground 2 by the appellant establish that claim.
In these circumstances there should be an order for costs in favour of the affected person calculated on an indemnity basis.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 2 March 2017.
Associate:
Date: 17 March 2017
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