DISHMAN & DISHMAN - [2020] FamCAFC 15

FAMILY COURT OF AUSTRALIA

DISHMAN & DISHMAN

[2020] FamCAFC 15

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where applicant was given twenty-eight days to pay the filing fee and failed to pay on time – Notice of Appeal voided – No adequate explanation for failure to pay – Where the proposed appeal concerns recusal – Where the proposed appeal is doomed to fail – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant sought leave to file further written submissions and affidavit evidence – No appearance by the respondent –Leave granted in the interests of expediency and finality – Where the further submissions and evidence do not raise anything of substance – Application dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 22.02, 22.03, 22.44, 24.05(1)
Family Law Regulations 1984 (Cth) reg 5

Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
R v Watson; Ex Parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPLICANT:

Mr Dishman

RESPONDENT:

Ms Dishman

FILE NUMBER:

PAC

6114

2018

APPEAL NUMBER:

132

2019

DATE DELIVERED:

28 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

22 & 28 January 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 September 2019

LOWER COURT MNC:

[2019] FCCA 2786

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Matthews Dooley & Gibson

Orders

That the applicant husband have leave to rely on an Application in an Appeal and affidavit by him dated 28 January 2020, which is returnable instanter.
That the applicant husband have leave to rely on the further Written Submissions filed in Court today and called “Additional Submissions in Reply to Her Honour’s Comments”.
That the Applications in an Appeal filed on 5 December 2019 and 28 January 2020 be dismissed.
That the applicant husband pay the respondent wife’s costs in the amount of $3,960 within twenty-eight (28) days of these orders.

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 Dishman & Dishman 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: EA 132 of 2019
File Number: PAC 6114 of 2018

Mr Dishman

Applicant

And

Ms Dishman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

By an Application in an Appeal filed 5 December 2019, Mr Dishman (“the applicant”) seeks to pursue an appeal from the dismissal of his application by the primary judge that he recuse himself from the proceedings. The proposed appeal arises in the context of an application for property settlement brought by Ms Dishman (“the respondent”) against the applicant.
The Federal Circuit Court of Australia operates a docket case management system. The proceedings were docketed to the primary judge who has presided over a number of hearings, including a final hearing, on 23 September 2019. On 28 August 2019, the applicant filed an Application in a Case seeking that the primary judge recuse himself for apprehended bias in the nature of prejudgment. The conduct complained of being the cumulative effect of comments made by the primary judge in various directions hearings. The recusal application was listed on 23 September 2019; the same day as the trial was to commence.
As is required, the recusal application was heard first and, by Order 1 of the Orders dated 23 September 2019, that application was dismissed and judgment delivered ex tempore. The applicant seeks to appeal that decision. The trial continued, albeit, in the absence of the applicant. Although the applicant was forewarned that, if necessary, the trial would proceed in his absence, he withdrew. Judgment was pronounced and final property orders made on 8 October 2019. Although the applicant has not sought to appeal those orders in a strict sense, if he is given permission to appeal the order of 23 September 2019, he seeks to have the now determined property proceedings remitted to the Federal Circuit Court for rehearing by a judge other than the primary judge.
On 30 September 2019, the applicant submitted his Notice of Appeal (EA 97 of 2019) to the Eastern Appeals Registry along with a request for exemption, including deferral of court fees, in effect, seeking to waive or defer payment of the filing fee. The deferral request alone was granted and the applicant was given written notice that he had 28 days to pay the $1,380 filing fee, which was due by 30 October 2019. The applicant did not make the payment or request a further deferral. On 1 November 2019, the Appeals Registry informed the applicant that his Notice of Appeal had been voided pursuant to r 24.05(1) of the Family Law Rules 2004 (Cth) (“the Rules”) and advised that if he wished to pursue an appeal, he would need to file an Application in an Appeal seeking an extension of time to file a new Notice of Appeal. Contrary to the submission by the applicant today, this is not a question of expediency in the Registry, it is simply a question of standard operating procedures given that there was now no extant appeal. In any event, only then did the applicant offer to pay the filing fee but, as the Registry correctly informed him, it was too late.
On 5 December 2019, the applicant submitted a new draft Notice of Appeal (EA 132 of 2019) to the Appeals Registry along with this application, requesting either to reinstate his original Notice of Appeal (EA 97 of 2019) or an extension of time to file his new draft Notice of Appeal. Because the effect of r 24.05(1) is that the original Notice of Appeal had not been filed, it cannot be reinstated (whether pursuant to r 22.44 of the Rules or by any other path). So that it is clear, the submission by the applicant that reg 5 of the Family Law Regulations 1984 (Cth) in effect overrides r 24.05(1), is not accepted. Regulation 5 is not unqualified and it operates subject to directions, which, in my view, includes direction given through the application of the Rules. Thus, the issue is whether the applicant should be given an extension of time to appeal.
By a Response to an Application in an Appeal filed on 15 January 2020, the respondent seeks that the application be dismissed with costs.
Oral argument was heard on this application on 22 January 2020, following which judgment was reserved. The Registry notified the parties later in the week that judgment would be delivered at 2.15 pm today. After the close of business on Friday, 24 January 2020, the applicant emailed further written submissions to the Registry. This morning, the applicant forwarded to the Registry an Application in an Appeal and an additional affidavit both dated today. The submissions, application and affidavit were all rejected for filing. Because they were not filed, this afternoon the applicant sought permission to file those documents in Court and to rely on them. He had in the meantime, at approximately 12.30 pm today, provided the unfiled application and affidavit to the solicitor for the respondent and, having previously forwarded the unfiled additional submissions to the solicitor for the respondent, indicated that he would seek to rely on those documents today. The respondent did not appear this afternoon and it was expedient, in the sense of the most efficient use of Court time and in the interests of finality, that the applicant be given permission to rely on those documents and that they be made returnable instanter. Thus, I heard submissions from the applicant in relation to that additional material.
The applicant was asked to identify what it was in those additional documents that was new in the sense of raising new subject matter or materially enhancing the argument that had been made last week. Nothing had occurred subsequent to the hearing. The receipt for the documents and the Notice of Appeal dated 30 September 2019 were provided and, otherwise, the further evidence and submissions do no more than repeat and to an extent expand on what was said last week.

Relevant background

In any event, so as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the documents filed in support of this application.
The parties commenced a relationship in 1979, were married in 1984 and separated in 2017. On 19 December 2018, the respondent filed an Initiating Application seeking final property orders. The parties appeared before the primary judge on several occasions for case management hearings, with the matter being fixed for hearing on 23 September 2019.
On 28 August 2019, the applicant filed an Application in a Case seeking, inter alia, that the primary judge recuse himself by reason of remarks and conduct said to have occurred during directions hearings before the primary judge on 12 March 2019, 18 June 2019 and 12 August 2019. The applicant tendered transcripts of these hearings (as well as that of 23 September 2019), which I have read and which in some respects establish that a number of the complaints misstate what occurred.
Ultimately, the primary judge concluded that the tests for disqualification on account of apprehended bias as laid out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) or Johnson v Johnson (2000) 201 CLR 488, had not been satisfied.

Discussion

The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. Discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave. As already mentioned, this tranche of litigation concerns alleged apprehended bias by the primary judge in relation to the substantive proceedings which are for the settlement of property.
Chapter 22 of the Rules deals with appeals. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal within the timeframe stipulated by r 22.03. In this case, the last day for filing an appeal was 21 October 2019. However, as mentioned earlier, the applicant was granted an extension of time to pay the filing fee associated with his Notice of Appeal, which became due on 30 October 2019. Payment was not made by the due date and subsequently the Notice of Appeal was voided pursuant to r 24.05(1). The applicant notes in his affidavit dated 29 November 2019, that his failure to pay the filing fee was “accidental” and that he was unaware that failing to pay the filing fee would be fatal to his appeal (applicant’s affidavit filed 5 December 2019, p.6). Similar sentiments are contained in the applicant’s affidavit filed in Court today.
In any case, the Appeals Registry advised the applicant on 1 November 2019 that he would be required to file an Application in an Appeal if he sought to pursue his appeal. This was not done until 5 December 2019. The applicant does not provide any explanation as to why he took this long to file the present application. At its highest, he deposes to having lost both sets of reasons for judgment and spending some time dealing with Court to obtain replacement copies. In my view, this is a non sequitur.
I am not persuaded that the applicant provided an adequate explanation for his failure to pay the filing fee as directed and thus to file his Notice of Appeal in time. That he took 34 days to file this application bespeaks a lack of attention to the obligations imposed on him by the Rules and directions, efficient conduct of the case and the stressors involved for the respondent by having the proceedings prolonged unnecessarily. I am bolstered in this view by his Honour’s findings concerning the applicant’s failure to comply with rules and directions, relevantly, as to times for filing, for example his Response. The net effect of these matters is that the applicant has not provided an adequate explanation for his delay. But that is not the end of the matter.
In order to determine whether or not compliance with the times fixed by the Rules would have the Rules become instruments of injustice, it is necessary to consider the possible merits of the proposed appeal. The point being, refusal of an application to extend time or to reinstate an unmeritorious appeal would not work an injustice.
In submissions filed today, the applicant says:
7.At paragraph 28 of their submissions, the Respondent’s solicitors accept that there is at least one arguable ground in support of my Recusal Application. In that respect they accept that my Appeal would not be futile or completely devoid of merit.
(Applicant’s Written Submissions filed 28 January 2019, p.1) (As per the original)
However, in my view, this submission misstates the submission made by the respondent. At paragraph 39 of the respondent’s Written Submissions, the respondent says “[t]here is no injustice to the applicant if the application is refused in circumstances where the proposed appeal is devoid of merit as, it is submitted, is the case here” (respondent’s Written Submissions dated 20 January 2020, p.6). I invited the applicant to consider whether he would withdraw paragraph 7 of his submissions, on the basis that it clearly did not take into account the entirety of the submissions made by the respondent on the point. Somewhat surprisingly, the applicant declined to do so. So that it is clear, the submission by the applicant that the respondent conceded there is some merit to his appeal is not accepted. The respondent’s submission is plainly that the proposed appeal is devoid of merit.
Some nine grounds of appeal (with numerous sub-grounds and particulars thereto) are presented which essentially challenge his Honour’s failure to find that the fair-minded lay observer would apprehend bias. It is not suggested that his Honour misstated the applicable principles but rather, that the primary judge erred in their application. Some of the grounds relate to his Honour’s remarks made at various directions hearings, while others concern his Honour’s reasons for judgment on the property application. These latter matters are said to confirm the applicant’s contention that his Honour had predetermined the outcome.
As the primary judge understood, to found a recusal based on suspected prejudgment, it must be “firmly established” (British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [45]) that a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” to be decided (Ebner [6]). To satisfy that test, the applicant must identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue (Ebner [8]) and demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision-making (Ebner [8]).
During oral addresses, the applicant acknowledged that the impugned remarks and matters are fairly set out in his Honour’s reasons for judgment. In the interests of brevity, they may be summarised as follows:
·that the respondent did not file an affidavit in reply [21] – [23];
·the respondent’s solicitors did not help the applicant as the Court had indicated they would [24] – [26];
·the respondent had failed, in her duties of disclosure, with respect to an inheritance, or that she has been mistaken or wrong in her evidence regarding the registered proprietorship of parcels of real estate [27] – [35];
·the applicant was given “short shrift” [ 36] – [43];
·issues relating to the respondent’s disclosure [44];
·the Court failed to inquire whether the respondent could file her material more urgently than ordered [45];
·prejudgment occurred by indicating “equal division” as a starting point [46] – [47];
·the judge used an inappropriate metaphor concerning “smoking” [48] – [50];
·the applicant’s material was not read [51] – [54];
·threats were made to the applicant [55] – [58];
·the case was trivialised [59] – [60];
·threats were made that the applicant would lose control over the outcome of the case [61] – [63];
·issues concerned with electronic filing [64] – [65];
·the judge made deliberate attempts to unsettle the applicant [66];
·the applicant was humiliated [67] – [69]; and
·the applicant was unable to give his input as to the decision made in August concerning trial directions [70] – [73].
It should be noted at the outset that none of the remarks resulted in a contemporaneous recusal application albeit, in some instances, objection was taken to the remarks (for example in relation to the remarks about smoking). However, the question of waiver (see Vakauta v Kelly (1989) 167 CLR 568) was not raised below and thus the primary judge did not address the question of whether the applicant’s delay in making his application in a timely manner amounts to a waiver of any right to do so. Rather, on the basis of the principles that emerged from Ebner, the primary judge determined that the conduct complained of, whether considered individually or as a whole, would not cause a fair-minded lay observer to reasonably apprehend that he might not bring an impartial mind to the resolution of proceedings.
The hypothesised observer would understand that modern case management techniques may well see a judge actively involved in the conduct of a case long before the case comes to judgment. And, that “[j]ust as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views” (Antoun v The Queen (2006) 224 ALR 51 at [32]) (“Antoun”). Where these views are couched appropriately, at the proper time and in due sequence, no reasonable apprehension of bias will arise (Antoun [27]).
In R v Watson; Ex Parte Armstrong (1976) 136 CLR 248 (“Watson”) at 264, the plurality explained that it is important not to exaggerate the significance of remarks made by a judge in interlocutory proceedings. And, that as a general rule, in that setting, anything a judge says in the course of argument will be tentative and exploratory. The qualification should not be overlooked and as the facts in Watson make clear, there will be cases where such statements indicate a concluded view.
As the listed matters recorded at [22] above would suggest, the applicant raised a significant number of matters which he said justified recusal. However, as none of those matters prompted a contemporaneous recusal application, I will discuss the matters most proximate to the recusal application. As a matter of logic it is the matters that occurred on that occasion which caused the applicant’s concerns to crystalise and prompted the recusal application.

The parties appeared at a directions hearing on 12 August 2019; the applicant in person and the respondent by her solicitor. The proceedings had already been listed for trial in relation to which the primary judge had made directions, including as to the date upon which affidavits were to be filed. By an Application in a Case filed on 10 July 2019, the applicant sought to vary those directions so that he could have the respondent’s evidence before he went abroad on 25 August 2019 (until 13 September 2019). As it stood, the trial affidavits were to be filed by 30 August 2019. Further, the applicant proposed that the respondent file her affidavit shortly before him so that he would be in a position to reply to her evidence.
The Application in a Case was not filed electronically and, when the proceedings were called his Honour knew that there was an application filed but he was unaware of the orders sought or the evidence upon which the application was based. His Honour said:
HIS HONOUR:        Mr Ford.
MR FORD:   Good morning, your Honour. I appear for the respondent wife.
HIS HONOUR: Thank you. Mr Dishman, you’re here ---
[THE APPLICANT]:   Morning, your Honour.
HIS HONOUR:        Thank you. Now, doing the best I could last night on the portal, you’ve got a hearing date and there’s an application in a case, but it’s not electronically filed, so I don’t know what it says. What are you wanting me to do, Mr Dishman.
[THE APPLICANT]:   Yes, your Honour. This morning, I forwarded a submission to your associate, okay, and the submission is on the basis of – these submissions were made in support of my application in a case filed on 10 July 2019.
HIS HONOUR:        Yes.
[THE APPLICANT]:   I am seeking amended procedural orders which will require [the respondent] to file her final affidavit shortly ahead of me ---
HIS HONOUR:        Yes.
[THE APPLICANT]:   --- so that I may be in a position to reply to [the respondent’s] factual claims ---
HIS HONOUR:        So you want me ---
[THE APPLICANT]:   --- in my final affidavit.
HIS HONOUR:        --- to hear an appeal from my own orders?
(Transcript 12 August 2019, p. 2 lines 1-32)
Of these exchanges and the applicant’s complaint, the primary judge said:
Electronic filing
64.At paragraph 45, complaint is raised that a statement was made at the commencement of the proceedings in August:
There’s an application in a case, but it’s not electronically filed, so I don’t know what it says.
65.That statement is clear and apparent from the transcript. The [applicant] has filed many documents electronically, some not. The simple reality is that the matter was last listed on a Monday. I had returned from Canberra after a week of sitting away from registry and had had no opportunity to physically view the file. I had simply stated to the [the applicant] that his application had not been read, although I was aware it was there. It was very quickly made clear by the [applicant] what was sought. The document was found and read and the matter proceeded, including on the basis of reading the submissions provided – provided, I hasten to add, that morning (it is unclear if or when they were served on the [respondent’s] counsel or if prior to that morning). This complaint could not found recusal.
Deliberate attempts to unsettle the [applicant]
66.At paragraph 47, complaint is raised that certain statements were made to the [applicant] regarding the filing of documents, particularly the absence of electronic filing, to “unsettle me”. Nothing could be further from the truth. It was clearly disclosed to the [applicant] that whilst I was aware that his application had been filed, I did not know what it sought. What it sought was ascertained very quickly, including with the [applicant’s] involvement.
Humiliation
67.At paragraph 53, complaint is raised that the court was seeking to humiliate and destabilise the [applicant] by saying to him, “You want me to hear an appeal from my own orders?” That is the effect of the [applicant] seeking to vary the nature of the trial directions. The parties were required to file by a date certain and to file simultaneously. The [applicant] sought that the [respondent] file a document that she is not and could not be required by the rules or any civil procedure to file, that is, an affidavit in reply to the [applicant’s] affidavit filed in support of his response, a document that is not read at hearing and thus need not be responded to.
68.It is a simple statement of reality. Ultimately, however, the [applicant] was successful in obtaining a variation of the orders, not to the extent that he sought, but varied nonetheless. So much is made clear in paragraph 54.
(As per the original)
Although obviously the applicant did not seek to prosecute an appeal against the earlier directions, his Honour’s mistaken view was corrected and he went on to deal with the application on a proper basis: that is, as an application to simply vary an earlier direction.
The next impugned remarks are now set out:
[THE APPLICANT]: And we’ve tried to organise for them to try and provide us with this document beforehand, but we’ve been ---
HIS HONOUR: Who’s the “us” because you look remarkably like an individual to me. You don’t need to speak in the third person, but – or second person, but [the respondent] clearly can’t file her material by 21 July. It has come and gone. Why can’t you both just file by 25 August?
(Transcript 12 August 2019, p. 3 lines 17-23)
Of these remarks his Honour said:
69.At paragraph 56, it is suggested that the Court had sought to humiliate the [applicant] by picking on a trivial point that he had used the terms “us” and “we” when he was an individual. There was no attempt to humiliate the [applicant]. He was requested several times to indicate who he was referring to by “we”. He continued until further comment was made. It is a matter for the [applicant] how he chooses to conduct his case, ultimately, but it is unhelpful and confusing to refer to himself in the plural or third person. The same complaint is repeated in paragraph 57.
As it transpired, the applicant successfully persuaded the primary judge to revisit the trial directions and the earlier directions were varied so as to bring forward the date on which affidavits were to be filed. An additional order was made which required disclosure of any document that would be tendered or relied upon at the hearing prior to 23 August 2019. The applicant complained that these directions were made without input from him and that his Honour failed to have regard to a written submission filed by the applicant that morning. Of those matters, the primary judge said:
Lack of input
70.At paragraph 62, the gist of the complaint is raised that the [applicant] had not had the benefit of input to the decision that was made in August. Nothing could be further from the truth. He obtained a variation of the trial direction as he sought. It is again complained that his documents had not been read. That would appear to be on the basis that I had failed to confirm to him to the contrary. That is not my role.
71.On at least two occasions in the transcript a clear statement is contained that the document has being read word for word. It is also indicated, as previously noted, that much of that contained within the document was unhelpful and irrelevant.
72.At paragraph 85, the [applicant] complains that he was not given the opportunity to present his case – presumably, the case for variation of the orders, as that is all that the matter was listed for in August - not to hear the case, not to determine what issues were in dispute. They are matters for trial. It was simply sought to ascertain what the parties were actually in dispute about. It was made abundantly clear from the [respondent’s] perspective what was in dispute. The [applicant] made very clear, through his written submissions, what was in dispute - issues relating to the [respondent’s] inheritance, his income and the proprietorial ownership of parcels of real estate.
73.Again, the paragraph concludes with the complaint that the Court had attempted to humiliate the [applicant], make fun of him, and twisted and trivialised everything he had to say. I simply reject this submission.
(As per the original)
These matters provide a fair overview of the flavour and style of matters which the applicant said would trouble the hypothetical bystander. The primary judge did not agree and was undoubtedly correct in this determination. Whether considered individually or cumulatively, the case for recusal was not made out.
As to his Honour’s reasons given for the property orders, the statement by the applicant that “[t]he [j]udge’s [r]easons about the [p]roperty proceedings clearly lack appearance of any justice being done” (applicant’s affidavit filed 5 December 2019, p.9 paragraph 84) is not a fair analysis of the trial reasons and does not establish the point.
The proposed grounds do not demonstrate that this is an appeal with any prospects of success and I am plainly satisfied that the proposed appeal would be doomed to failure. Or, to adopt the words used by the solicitor for the respondent in their submissions dated 20 January 2020, the proposed appeal is “devoid of merit” (respondent’s Written Submissions dated 20 January 2020, p.6 paragraph 39).

Conclusion and costs

It follows that I accept the submission made on the behalf of the respondent that the applicant should not be granted an extension of time to appeal when the appeal is doomed to fail. To allow the proposed appeal to proceed would be burdensome to the respondent and take up scarce court resources to no useful effect. The application will be dismissed as will the application that was filed today.
In the event the application was unsuccessful, the respondent seeks her costs in the amount of $3,960. This amount is approximately half the respondent’s actual costs.
The applicant opposes the order for costs. He gives evidence that he has retired, has health issues and by reason of the property orders, is required to pay the respondent $350,000 and discharge the mortgages over two properties (Property B and Property C) which he seeks to retain. The gravamen of his submission is that additional costs would occasion him some financial difficulty.
In his Written Submissions presented today, the applicant says the costs application should be dismissed on the basis that no formal application has been made. It has already been established today that by Order 2 of the Response to an Application in an Appeal filed 15 January 2020, the respondent plainly sought costs against the applicant.
The next submission is that the application for costs should be dismissed because no copy of the fees agreement has been produced. The respondent does not seek indemnity costs or the totality of her solicitor and client costs and, it was not necessary or a requirement under the Rules that the fee agreement be produced. It should be observed that this request is only made today and no attempt had been made by the applicant earlier to call on the fee agreement. Again, that is something of a non sequitur as it is not required by the Rules.
The next submission made by the applicant is that the respondent’s solicitor should have been in a position to make a proper analysis of his scale costs. I agree that the solicitor for the respondent was unable to indicate the totality of the respondent’s costs calculated at scale. He did indicate however, that the costs sought are something like half of the respondent’s actual costs. Given the modest amount of costs in issue, the inability to give the precise calculation is not a matter that troubles me.
The next submission is that“[i]n any event, given the fact that [the respondent’s solicitor] considered my Grounds of appeal to be hopeless there should not have been need to spend much time on them” (applicant’s Written Submissions filed 28 January 2020, paragraph 37(d)). I pause to observe that this submission is inconsistent with the earlier submission made at paragraph 7 of the applicant’s Written Submissions filed today. The solicitor for the respondent caused to be filed a Response, an affidavit and Written Submissions. The material presented amply justifies the time said to have been spent on the respondent’s response to this application.
The next submission is:
[The respondent’s solicitor] failed to identify the cases which I found. Given that he has a duty to provide not only cases in favour of his client but which will assist the court, it would seem that [the respondent’s solicitor] spent much less than eight hours in preparation for this matter.
(Applicant’s Written Submissions filed 28 January 2020, paragraph 37(e))
This submission does not establish the point.
The applicant correctly reminds the Court of the provisions of s 117 of the Family Law Act 1975 (Cth), which I agree govern the determination of this application for costs.
The respondent received some $1.79 million (predominantly cash) by way of property settlement and is in a slightly better financial position than the applicant. For the respondent, it is submitted that the applicant’s lack of success in the application amounts to justifying circumstances for an order for costs and justifies the orders sought. This submission should be accepted. The amount sought is modest and more than justified by the work necessarily undertaken. Even if the payment of costs causes the applicant some financial discomfort, that is a situation of his own making. Furthermore, impecuniosity is no barrier to an order for costs.
It is appropriate that the amount sought be paid within 28 days.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 28 January 2020.

Associate:

Date: 31 January 2020