Davila & Huffman (No 2)
[2024] FedCFamC1A 53
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Davila & Huffman (No 2) [2024] FedCFamC1A 53
Appeal from: Davila & Huffman [2023] FedCFamC1F 986 Appeal number(s): NAA 315 of 2023
NAA 322 of 2023File number: BRC 15010 of 2020 Judgment of: GILL, HOWARD & STRUM JJ Date of judgment: 12 April 2024 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals orders made by the primary judge dismissing his oral application to further amend his amended Initiating Application and to rely on a document filed out of time and on the eve of the trial, in circumstances where time was extended and he was given multiple opportunities to file and put evidence before the Court, including when he was represented – Where leave to appeal is required but was not sought – Where the appeal is incompetent such that an application for leave to appeal would make no difference – Where the appellant’s Summary of Argument does not comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the orders appealed from are interlocutory in nature – Where the orders appealed from do not finally determine the appellant’s substantive rights – Where the appellant is not precluded by the primary judge’s orders from again seeking substantive relief – Where s 26(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that an appeal must not be brought in relation to a determination from an application to amend or adjourn an application before the Court – Where procedural fairness was afforded to the appellant – Appeal dismissed – Costs order made. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 71A, 79, 102NA, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.14, 2.54, 13.23, 13.45
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs: 61 Date of hearing: 19 March 2024 Place: Brisbane Counsel for the Applicant: Litigant in person Counsel for the Respondent: Ms Oakley Solicitor for the Respondent: ABA Lawyers Counsel for the Independent Children's Lawyer: Ms Quinn Solicitor for the Independent Children's Lawyer: Parker Family Law ORDERS
NAA 315 of 2023
NAA 322 of 2023
BRC 15010 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DAVILA
Appellant
AND: MS HUFFMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL, HOWARD & STRUM JJ
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.Appeal number NAA315/2023 be dismissed.
2.The appellant pay the respondent’s costs of appeal number NAA315/2023 and appeal number NAA322/2023, fixed in the total sum of $16,932.28.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL, HOWARD & STRUM JJ:
INTRODUCTION
By amended Notice of Appeal filed 18 December 2023 in appeal number NAA315/2023, the appellant appeals from orders made by the primary judge on 23 October 2023 (“orders”).
The orders provided, in effect, that:
(a)The appellant’s oral application to further amend his amended Initiating Application filed 10 October 2023, to seek an order setting aside a Financial Agreement, be dismissed.
(b)The appellant’s oral application to rely on Points of Claim filed 19 October 2023 be dismissed.
(c)Paragraph 2 of the final orders sought in the appellant’s amended Initiating Application filed 10 October 2023 be dismissed.
Having made the orders, the primary judge reserved her reasons for judgment, which were delivered on 21 November 2023. Her Honour’s reasons for making the orders appear at [84]–[104] of her reasons for judgment.
For the reasons that follow, the appeal will be dismissed.
BACKGROUND
On 30 July 2021, the appellant filed an Initiating Application, in what was then the Federal Circuit Court of Australia, seeking that a Financial Agreement between the respondent and him be declared non-binding or that it be set aside.
On 2 August 2021, whilst legally represented, the appellant was ordered to file an affidavit addressing the basis for his application in relation to the Financial Agreement. Whilst it appears that an affidavit was filed, it was described by the primary judge at [88] as being “defective”.
On 4 April 2022, again whilst legally represented, the appellant was ordered to file an affidavit “strictly in accordance with the rules of evidence … addressing specifically and clearly setting out the precise basis for his case with reference to the sections of the Family Law Act…” (at [88]). He did not comply with that order.
On 2 August 2022, the proceedings were transferred from Division 2 (formerly the Federal Circuit Court of Australia) to Division 1 of the Federal Circuit and Family Court of Australia. Although the appellant was then not legally represented, it was noted that the mandatory provisions of s 102NA of the Family Law Act 1975 (Cth) (“Act”) applied and, as such, he was able to obtain legal representation under the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“Commonwealth Scheme”) through Legal Aid Queensland.
On 8 September 2022, whilst legally represented again, an order was made for the appellant to file Points of Claim by 4 November 2022. He did not comply with that order.
On 20 February 2023, the appellant’s then lawyers indicated to a Registrar of the Court that they were unable to file the Points of Claim (which were, by then, overdue by more than three months) until they had inspected the file of the lawyers who acted for him when he signed the Financial Agreement.
On 6 March 2023, leave was granted to inspect that file, which had been produced upon subpoena issued at the appellant’s behest. Nevertheless, nearly three months later, the Points of Claim still had not been filed.
On 31 May 2023, the primary judge set the proceedings (in which parenting orders were also sought) down for trial, including, relevantly, the discrete issue in relation to the Financial Agreement. The appellant was again no longer legally represented. The primary judge extended the time for him to file his Points of Claim to 21 July 2023. The orders again noted the application of the mandatory provisions of s 102NA of the Act and that legal representation could be organised under the Commonwealth Scheme.
The appellant did not comply with the primary judge’s order made on 31 May 2023, extending the time to file Points of Claim until 21 July 2023, and no application was made, prior to the trial date, for a further extension of time in which to do so.
The appellant thereafter again obtained legal representation, but those lawyers subsequently ceased to act. The lawyers who acted on his behalf at the hearing at first instance were only retained on 10 October 2023, 10 days before the commencement of the trial. No application was made to adjourn the trial, in relation to the Financial Agreement, prior to the trial date.
On 10 October 2023, notwithstanding that he again retained legal representation that day, the appellant filed an amended Initiating Application prepared by him which, unlike the previous iteration thereof, did not seek an order to set aside the Financial Agreement but purported to seek an order for an alteration of interests in property in his favour.
It was not until Thursday, 19 October 2023, less than two business days prior to the commencement of the trial, that the appellant purported to file Points of Claim (well out of time), and it was not until Sunday, 22 October 2023, on the eve of the trial, that notice was given to the respondent that he intended to seek leave to rely thereon. Even then, no notice was given that leave would be sought to further amend the appellant’s amended Initiating Application to seek again a declaration that the Financial Agreement was not binding or an order that it be set aside.
On the first day listed for trial, counsel for the appellant made an oral application to further amend his amended Initiating Application to seek again relief in relation to the Financial Agreement and to rely upon his Points of Claim, which had first been ordered nearly a year earlier.
The primary judge noted that, due to the late filing of the Points of Claim, the respondent did not have the opportunity to file Points of Defence and said that, if the appellant were granted leave, as sought, the trial in relation to the issue of the Financial Agreement would, of necessity, have had to be adjourned. Her Honour recorded at [95] that the appellant conceded that to be the case.
The appellant did not provide any evidence whatsoever to explain the delay in filing his Points of Claim. His counsel submitted that the delay should be understood in the context of his limited understanding of English. However, the primary judge observed that, whilst it might explain the delay between 31 May 2023, when the appellant was not represented, and 21 July 2023, being the further extension of time for the filing of the Points of Claim, it did not explain the delay either prior or subsequent to those dates.
Further, the Financial Agreement was not in evidence before the primary judge, nor did the appellant seek to tender any documents produced by his lawyers at the time he signed that document. Indeed, the primary judge noted that no submissions were made on the merits of the proposed application to set aside the Financial Agreement.
The respondent opposed leave being granted in circumstances where the appellant had repeatedly failed to comply with orders and had provided no evidence to explain the delay in filing Points of Claim. Further, she had spent over $77,000 in legal costs and her anticipated legal costs for the trial relating to parenting matters was estimated to be in the vicinity of $48,000. If the matter were adjourned, she would of necessity incur further costs, whereas the appellant was represented under the Commonwealth Scheme and there was no evidence to suggest he would be required to contribute to his legal fees.
The primary judge also took into account, in considering the appellant’s application, the long history of litigation between the parties; the fact that the appellant had repeatedly filed applications which were subsequently discontinued or dismissed, adding to the respondent’s legal costs; and the appellant’s conduct in litigation in state courts in Queensland between the respondent and him in relation to a protection order.
Referring to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the primary judge said at [102] that, whilst the priority in dealing with an application to amend at a late stage of proceedings was achieving justice between the parties, it was legitimate also to consider the public interest in the proper and efficient use of public resources.
The primary judge said at [103]:
In this case, the decision to reject the [appellant’s] application will have a serious consequence for the [appellant], in that he will not be able to persist with his challenge to the financial agreement.
We consider this issue below; however, suffice it to say, at this stage, that we do not agree the appellant will not be able to persist with his challenge to the Financial Agreement.
Notwithstanding what the primary judge considered to be the serious consequence for the appellant, her Honour concluded that the interests of justice as between the parties would not be served by permitting the proposed further amendment to the amended Initiating Application and permitting him to rely upon the Points of Claim. Further, the primary judge concluded at [103] that “it would not be in the public interest to allocate further limited Court resources to this matter when the [appellant] has had ample opportunity to prosecute his claim”. The primary judge continued at [104]:
In coming to these conclusions, I am particularly influenced by the following:
(a)The failure by the [appellant] to address his delay in filing the Points of Claim, particularly since March 2023;
(b)The history of litigation between the parties in other courts which has involved the [respondent] in significant legal costs as a result of the [appellant] discontinuing applications or them being dismissed;
(c)The failure by the [appellant] to voluntarily pay the [respondent’s] costs as ordered in the District Court;
(d)The likelihood that any prejudice to the [respondent] could not be satisfactorily addressed with a costs order;
(e)The failure by the [appellant] to bring his proposed amendment to his initiating application to the attention of the Court in a timely manner;
(f)The late notice to the [respondent] of his proposed application;
(g)The obligation to ensure that proceedings are not protracted; and
(h) The impact on other litigants if further trial dates were allocated.
In the circumstances, the primary judge ordered that the appellant’s oral application for leave to further amend his amended Initiating Application filed 10 October 2023, to seek an order setting aside the Financial Agreement, and to rely on the Points of Claim filed 19 October 2023 be dismissed and, accordingly, that paragraph 2 of the final orders sought in his amended Initiating Application filed 10 October 2023, namely, for an alteration of interests in property, be similarly dismissed.
APPEAL
The appellant’s amended Notice of Appeal filed 18 December 2023 contains four grounds of appeal. They are, in essence, as follows.
First, it is contended that the appellant’s counsel at first instance was incompetent in not:
(a)making any submissions in regards to the prospects of the appellant’s application to set aside the Financial Agreement;
(b)seeking an adjournment on behalf of the appellant of the application to set aside the Financial Agreement and/or making any submissions about an adjournment of such application–
in circumstances where the application to set aside the Financial Agreement had been listed for trial by the orders of the primary judge made on 31 May 2023, causing the primary judge to fall into error in dismissing the application.
Secondly, it is contended that the primary judge failed to give sufficient weight to the fact that the appellant was, at times, self-represented and had a limited grasp of the English language, causing her Honour’s discretion to miscarry in dismissing the oral applications.
Thirdly, and largely unintelligibly, it is contended at paragraph 5 that:
The exercise of the learned Judge’s discretion in dismissing the Application miscarried in so far as the Respondent had informed the Court that even with the filing on 9 October 2023 [sic] of the Points of Claim of the Appellant, the Respondent would not be in a position to proceed with any Application to set aside the Financial Agreement at Trial and the learned Judge either did not take that into account in making the Orders that she did or that fact was not drawn to her attention.
Fourthly, it is contended that the primary judge failed to consider, in refusing leave to rely on the Points of Claim filed on 19 October 2023, that the appellant had filed evidence on 10 October 2023 setting out why he contended that the Financial Agreement should be set aside.
No leave to appeal was sought in the amended Notice of Appeal which discloses, on its face, that it was drawn by a lawyer, albeit that the appellant appeared in person at the hearing of the appeal. Given the orders the subject of the appeal, which are clearly interlocutory in nature, we consider that leave to appeal would ordinarily be required. However, for the reasons that follow, we consider the appeal to be incompetent by reason of s 26(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), such that it would not be cured by an application for leave to appeal.
We also observe that r 13.23(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) provides that each party to an appeal must file and serve a Summary of Argument and a list of authorities to be relied on.
Rule 13.23(2) provides that a Summary of Argument must:
(a)set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript); and
(b)set out the orders sought (if they differ from the orders sought in the Notice of Appeal or any Amended Notice of Appeal); and
(c)not exceed 15 pages, unless leave to exceed that number has been given; and
(d)be easily legible, using a font size of at least 12 points and 1.5 line spacing; and
(e)have all paragraphs numbered consecutively; and
(f)be signed by the person who prepared the summary of argument; and
(g)include the signatory’s name, email address, telephone number and document exchange number (if any) at which the signatory may be contacted.
Rule 13.23(3) provides that, if a party intends to challenge any findings of fact, the Summary of Argument must:
(a)identify the error (including any failure to make a finding of fact); and
(b)identify the finding that the party contends should have been made; and
(c)state concisely why the finding, or failure to make a finding, is erroneous; and
(d)refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
Rule 13.23(4) provides that issues not identified in the Summary of Argument may not be advanced at the hearing of the appeal, except with the leave of the appeal court.
Rule 13.45 relevantly provides, inter alia, that if an appellant has not met a requirement of the Rules, a court having jurisdiction in the appeal may dismiss the appeal.
The purported Summary of Argument filed by the appellant does not comply with the requirements of the Rules in several respects:
(a)Contrary to r 13.23(2)(a), the purported Summary of Argument does not set out each ground of appeal and, for each such ground, a statement of the arguments setting out the points of law or fact and any authorities relied on. Indeed, we are left to attempt largely to divine the arguments, and the points of fact or law, upon which the appellant might seek to rely in support of his grounds of appeal.
(b)Contrary to r 13.23(2)(d), the purported Summary of Argument is not “easily legible, using a font size of at least 12 points and 1.5 line spacing”. Further, contrary to r 2.14(1)(a), it is not typed. Rather, it is handwritten and not easily legible.
The purported Summary of Argument is therefore both largely unintelligible and illegible.
Counsel for the respondent, doing the best she could, endeavoured to respond to the grounds of appeal in her Summary of Argument, albeit in the absence of any proper Summary of Argument in support thereof by the appellant. However, for the reasons which follow, it is not necessary for us to substantively determine each, or any, of the four individual grounds of appeal, in dismissing the appeal, as we have already indicated above we shall do. That is not only, or even primarily, by reason of non-compliance with the Rules, albeit that the appeal could properly be dismissed on this ground alone.
The respondent submits that each of the grounds of appeal is prohibited by s 26 of the FCFCOA Act.
Section 26(1) of the FCFCOA Act specifies the appeals which the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine including, by paragraph (b) thereof, a judgment of the Federal Circuit and Family Court of Australia (Division 1) exercising original jurisdiction. The orders of the primary judge fall within s 26(1)(b).
However, s 26(2) of the FCFCOA Act provides that an appeal must not be brought from a judgment referred to in sub-section (1) if the judgment relevantly is, inter alia:
·a determination of an application for leave to amend the grounds of an application to the Federal Circuit and Family Court of Australia (Division 1) (s 26(2)(a)(iii)); or
·a decision to adjourn or not adjourn a hearing (s 26(2)(a)(ii)).
The gravamen of the appellant’s complaints on appeal is that the primary judge dismissed the oral application made by counsel on his behalf to further amend his amended Initiating Application filed 10 October 2023, to seek an order setting aside the Financial Agreement, and to rely on the Points of Claim filed 19 October 2023; did not adjourn the trial or, at least, that aspect thereof; and, accordingly, dismissed paragraph 2 of the final orders sought in his amended Initiating Application filed 10 October 2023, namely, for an alteration of interests in property.
Given the factual and legal matrix of this case, this appeal is not the appropriate vehicle in which to consider the interplay between s 26(2) of the FCFCOA Act and the fundamental requirement for procedural fairness.
Grounds of appeal in relation to procedural fairness are challenges to the integrity of the administration of justice, and thus should be dealt with first, before other discrete grounds of appeal: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at 581, 611-612, 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]. A failure to afford procedural fairness will amount to an error of law: Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321.
Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases: Kioa v West (1985) 159 CLR 550 at 582. However, it is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it, such that, where a party has had a sufficient opportunity to put forward his or her case, it may be necessary for the Court to make a decision for the sake of doing justice to the other party and to other litigants: Aon Risk Services Australia Limited v Australian National University at [94].
In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40], Gaudron and Gummow JJ said:
Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.
(Footnotes omitted)
No such issue arises in the present case. Putting to one side the oral applications on behalf of the appellant for leave to further amend his amended Initiating Application, filed less than a fortnight earlier, to seek an order setting aside the Financial Agreement, and to rely on the Points of Claim filed well out of time 19 October 2023, the only relevant application before the primary judge (other than in relation to parenting issues) was that contained in paragraph 2 of the final orders sought in his amended Initiating Application, namely, for an alteration of interests in property.
Although the Financial Agreement was not in evidence before the primary judge, it was an agreed fact between the parties that there was such an agreement in existence. In contention between them was whether it should be set aside or, possibly, whether it was binding. Indeed, the Points of Claim filed by the appellant (very belatedly and not in compliance with orders of the Court), and included in the Appeal Book, state at the commencement thereof that the application of the appellant was “to set aside a Binding [sic] Financial Agreement” (emphasis added). Further, there are references therein to:
·the “Binding Financial Agreement” [sic] being signed by a solicitor, purportedly for the appellant, stating that she had provided advice to him, albeit that he contended she had not done so (at paragraph 11(a));
·the “Binding Financial Agreement” [sic] being “voidable”, such that it “should be set aside”, by reason of, inter alia, misrepresentation, unconscionable conduct, undue influence and nondisclosure on the part of the respondent (at paragraph 13).
The dismissal by the primary judge of the appellant’s oral applications in relation to the Financial Agreement was not a substantive determination thereof on the merits.
In the circumstances, the only relevant application by the appellant before the primary judge was for an alteration of interests in property pursuant to s 79, in Part VIII, of the Act. However, s 71A(1)(a) of the Act provides that Part VIII does not apply to financial matters to which a financial agreement that is binding on the parties to the agreement applies. Having dismissed the oral applications, it was an agreed fact that there was a financial agreement that was prima facie binding on the parties, such that Part VIII and, in particular, s 79 did not apply. Accordingly, the primary judge dismissed the final order sought by the appellant in his filed amended Initiating Application for an alteration of interests in property. Again, that was not a substantive determination thereof on the merits.
Accordingly, insofar as may be relevant, we do not agree with the primary judge insofar as the primary judge said at [103] that her decision to reject the appellant’s oral applications would have a “serious consequence for [him], in that he will not be able to persist with his challenge to the financial agreement”.
When we raised this issue with counsel for the respondent, in the course of the hearing of the appeal, she properly conceded that, so analysed, the orders made by the primary judge on 23 October 2023, which are the subject of this appeal, did not thereafter, and do not hereafter, prevent the appellant from applying to have the Financial Agreement declared not binding or otherwise set aside and, if successful, for an alteration of interests in property pursuant to s 79 of the Act. In the circumstances, no issue of procedural fairness could arise; the appellant retains all of his rights.
In the circumstances, the appellant’s appeal is incompetent in law, by reason of s 26(2) of the FCFCOA Act and, for the reasons aforesaid, there has been no procedural unfairness. Accordingly, it is not necessary to consider whether or not leave to appeal would otherwise have been required in this case. The appeal will be dismissed.
However, that is not to say that any of the four grounds of appeal have any merit, even if the appeal were not proscribed by s 26(2). We are not satisfied that there was any incompetence on the part of the appellant’s counsel at first instance. The appellant was legally represented for the majority of the proceedings at first instance, from the institution until the conclusion of the trial. Insofar as he asserts that he has a “limited grasp of the English language”, he did not have an interpreter at trial or before us. His evidence, filed on 10 October 2023, setting out why the Financial Agreement should be set aside was irrelevant, given that the amended Initiating Application filed by him that day did not seek such relief.
Counsel for the respondent, in her Summary of Argument, submits, inter alia, and we agree, that:
·whilst counsel for the appellant did not make submissions to the primary judge about any merits of the substantive case to set aside the Financial Agreement, there was no miscarriage of justice, in circumstances where r 2.54 of the Rules provides that the Court may disallow an amendment of a document including if the amendment is “frivolous, vexatious, or not in accordance with the rules [sic] or an order”; the appellant had failed to comply with three previous orders to file the Points of Claim; there was no evidence filed by him to explain his delay; and the Financial Agreement was not in evidence, nor was any document produced by his lawyers at the time he signed the Financial Agreement; and
·counsel for the appellant made it plain to the primary judge that, should leave to further amend his Amended Initiating Application and to rely on the Points of Claim be refused, his alternative position was to seek an adjournment.
COSTS
In addition to the orders of the primary judge made on 23 October 2023, which are the subject matter of this appeal, the primary judge also made parenting orders on 21 November 2023. Her Honour’s reasons for judgment, delivered on that date, dealt with both the orders and the subsequent parenting orders. The appellant filed two Notices of Appeal, one in this appeal, and the other in appeal number NAA322/2023 from the parenting orders. Initially, one appeal was listed before us on 19 March 2024 and the other appeal was listed before us on 20 March 2024. However, we directed that both appeals be listed before us and heard concurrently on the former date.
Concurrently with these orders and reasons for judgment, we have also made orders dismissing appeal number NAA322/2023 and delivered reasons for judgment therefor.
In relation to the costs of both appeals, after discussions with counsel for the respondent at the conclusion of the hearing thereof, she conceded that the amount sought, on a party/party basis at scale, if both appeals were dismissed, is in the total sum of $16,932.28 (rather than that sum in respect of each of the appeals, as originally sought in her costs notices filed in both of the appeals). This is not a case where, on the authorities, it would be appropriate to order costs on an indemnity basis. However, the appellant having been wholly unsuccessful in relation to both appeals, within the meaning of s 117(2A)(e) of the Act, we are of the opinion that there are circumstances that justify an order for costs in favour of the respondent pursuant to s 117(2) and we shall order accordingly in the amount sought.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Gill, Howard & Strum. Associate:
Dated:12 April 2024
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