DENNY & BARTLETT
[2020] FamCAFC 182
•28 July 2020
FAMILY COURT OF AUSTRALIA
| DENNY & BARTLETT | [2020] FamCAFC 182 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant wife’s application for costs of a discontinued appeal was brought one day late – Delay explained – Where the wife would suffer an injustice if leave is not granted – Application allowed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs of a discontinued appeal – Where the respondent husband’s discontinued appeal sought to challenge spousal maintenance and interim property settlement orders – Where the wife incurred costs unnecessarily – Application allowed – Husband to pay the wife’s costs of the discontinued appeal and this application. |
| Family Law Act 1975 (Cth) ss 94AA, 94AAA, 117 Family Law Rules 2004 (Cth) Schedule 3, r 1.14 |
| Gallo v Dawson (1990) ALR 479; [1990] HCA 30 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 |
| APPLICANT: | Ms Denny |
| RESPONDENT: | Mr Bartlett |
| FILE NUMBER: | PAC | 5587 | of | 2017 |
| APPEAL NUMBER: | EAA | 41 | of | 2020 |
| DATE DELIVERED: | 28 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 14 July 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 March 2020 |
| LOWER COURT MNC: | [2020] FCCA 678 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Khalil Family Lawyers Pty Ltd |
| SOLICITOR FOR THE RESPONDENT: | Taylor & Scott Lawyers |
Orders
The time for the wife to file an application for costs of the discontinued appeal be extended to 17 June 2020.
The husband is to pay the wife’s costs thrown away by reason of the discontinuation of appeal EAA 41 of 2020 fixed in the sum of $2,431.
The husband is to pay the wife’s costs of and incidental to this application fixed in the sum of $1,364.03.
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 Denny & Bartlett 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 41 of 2020
File Number: PAC 5587 of 2017
| Ms Denny |
Applicant
And
| Mr Bartlett |
Respondent
REASONS FOR JUDGMENT
Ms Denny (“the wife”) seeks an order for costs of a discontinued appeal instituted by Mr Bartlett (“the husband”). The Notice of Appeal was filed on 6 April 2020 and pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), it was determined that the appeal would be heard by a single judge. The appeal concerned orders for spousal maintenance and interim property settlement.
The wife also seeks leave pursuant to r 1.14 of the Family Law Rules 2004 (Cth) (“the Rules”) to extend the filing of her application to the date of filing, it being filed one day late, on 17 June 2020. In the affidavit in support of the extension filed on the same date, the wife’s solicitor said that the late filing of the application was entirely her fault due to her miscalculating the date for filing.
It is helpful to give some background to the making of the orders to provide context to the application.
Background
The order from which the husband appealed was made on 9 March 2020 by a judge of the Federal Circuit Court on the wife’s application for lump sum spousal maintenance and for other financial orders. Written reasons for the orders made were delivered to the parties on 25 March 2020.
The wife’s claim was for $100,000 as lump sum interim spousal maintenance and she set out her needs, reflected in that amount, as being: for the children’s prospective school fees for 2020 ($5,000); a proposed eight day cruise to be taken by the children and wife in the summer holidays ($9,202); a donation to a church over Christmas ($2,000); a musical instrument ($7,000) and her incurred legal fees of $38,938.
The primary judge ordered the husband pay to the wife the sum of $11,000 being made up of the prospective school fees and $6,000 for the purchase of a musical instrument. His honour also ordered she be paid $50,000 by way of interim property settlement to be applied towards her legal fees. The husband’s appeal challenged the spousal maintenance and interim property settlement orders.
It seems from the husband’s affidavit filed in the application, that following the making of the orders, he, through his solicitor, attempted to negotiate a lesser payment with the wife to avoid him appealing the order. The settlement attempts were unsuccessful.
On 6 April 2020, the husband filed a Notice of Appeal against the primary judge’s orders. On 14 May 2020, the primary judge stayed the operation of the orders.
The appeal was listed before a judge of the Appellate Jurisdiction of the Family Court for a procedural hearing on 13 May 2020. Both the husband and the wife had counsel appearing for them at the procedural hearing and the appeal was listed for hearing on 10 June 2020.
Again, according to the husband’s affidavit, at that procedural hearing, there was a discussion of the commercial reality of conducting an appeal in relation to an interim order for $11,000, regardless of whether the primary judge had erred in making that order.
It is to be borne in mind that the context of the discussion about the commercial reality of pursuing the appeal was the husband requiring leave to bring the appeal, it being against an interim financial order (s 94AA of the Act). The test for whether leave will be granted is well established and requires the satisfaction of two matters: first, that the decision in question is attended with sufficient doubt to warrant the grant of leave and secondly, that a substantial injustice will result from a refusal of leave to appeal (Medlow and Medlow (2016) FLC 93-692 at [57]).
In light of the, relatively, small amount being challenged in the appeal, there was a serious question, properly raised by the judge conducting the procedural hearing, that even if error was demonstrated, the husband may not be able to establish that substantial injustice would result if leave is not granted.
In the result however, the husband chose to discontinue the appeal.
Before doing so, again, according to the husband’s affidavit, he sought the wife’s agreement that if the appeal was discontinued, there would be no order as to costs. That was refused. The wife’s solicitor made it clear that she would seek her costs if the appeal was discontinued.
On 18 May 2020, the husband filed a Notice of Discontinuance of the appeal.
Leave to extend the time to file an application for costs
The wife’s application for costs of the discontinued appeal was brought one day late. I accept that the fault is in the wife’s solicitor’s miscalculation of the time in which the application was to be commenced.
In determining whether there ought to be an extension of time in which to bring the application, it is necessary to consider whether strict application of the rules would work an injustice. Part of that consideration involves the delay, its extent and the reason for it and a consideration of the history of the proceedings, the conduct of the parties, the nature of the litigation, and whether any injustice would flow if there was a refusal to extend time (see Gallo v Dawson (1990) ALR 479 at 480).
Here, the delay was trifling and the reason for it explained. The husband was never in doubt that the wife sought her costs of the discontinued appeal and, in my view, to refuse to grant an extension of time in which to bring the application would work an injustice. Thus I propose to grant an extension of time in which to file the application.
The application for costs of the discontinued appeal
The wife argues that the husband’s conduct in filing an appeal only to discontinue it caused her to incur costs which have been thrown away because of the discontinuance.
The husband opposes the making of any costs order, arguing that he should not be “punished” with a costs order when he very promptly discontinued the appeal after the procedural hearing. The husband’s affidavit, and indeed, the submissions made on his behalf were at pains to stress that the appeal had been brought “in good faith” and that it had been discontinued “begrudgingly”, perhaps in order to defeat a submission that the husband’s conduct was such as to give rise to an order for costs.
Section 117(1) of the Act is the governing provision concerning costs and provides the general rule that, subject to s 117(2), each party to proceedings under the Act should bear his or her own costs. Section 117(2) requires a finding of justifying circumstances of an order for costs. If so found, the court may make such order for costs it considers just. In considering what order, if any, should be made, the court is required to have regard to the factors listed in s 117(2A).
Here the wife contends that an order should be made having regard to the husband’s conduct in instituting the appeal and later withdrawing it
(s 117(2A)(c)). It is unarguable that the wife incurred costs preparing unnecessarily for the appeal.
While no doubt the husband’s decision to appeal was well intentioned and brought “in good faith”, the commercial reality of pursuing the appeal together with the hurdle of requiring a grant of leave would have been well understood by those who advised him. His actions in instituting the appeal and then discontinuing, is conduct which has caused the wife to bear costs of preparing for and attending at the directions hearing. I am satisfied that this justifies an order for costs as sought by the wife.
The costs claimed are in accordance with Schedule 3 of the Rules and are in the sum of $1,854.13. An order will be made in the amount of $2,431 as sought in the wife’s Application in an Appeal.
Costs of this application
Further, the wife seeks her costs of this application. The sum sought is $1,364.03 and is also calculated according to the appropriate scale.
The wife’s application for costs having succeeded, the husband’s opposition to them has been wholly unsuccessful (s 117(2A)(e)) and he should pay her costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 28 July 2020
Associate:
Date: 28 July 2020
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