Drysdale and Drysdale (Costs)

[2011] FamCAFC 161

FAMILY COURT OF AUSTRALIA

DRYSDALE & DRYSDALE (COSTS) [2011] FamCAFC 161

FAMILY LAW - APPEAL – Costs – Husband ordered to pay the wife’s costs of and incidental to his application for leave to appeal

Family Law Act 1975 (Cth); s 117(2A)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
CDJ v VAJ (1998) 197 CLR 172
House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
Rutherford and Rutherford (1991) FLC 92-255

APPELLANT: Mr Drysdale

RESPONDENT: Ms  Drysdale

FILE NUMBER: BRC 7238 of 2010

APPEAL NUMBER: NA 120 of 2010

DATE DELIVERED: 9 August 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 1 April 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 15 October 2010 (as amended 9 December 2010)

LOWER COURT MNC: [2010] FMCAfam 1379

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Bourke

SOLICITOR FOR THE APPELLANT: Family Law Solutions

COUNSEL FOR THE RESPONDENT: Mr Fermanis

SOLICITOR FOR THE RESPONDENT: Conroy Stewart Spagnolo

Orders

1. That the husband pay the wife’s costs of and incidental to his application for leave to appeal filed 21 December 2010 as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment under the pseudonym Drysdale & Drysdale (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 120 of 2010
File Number: BRC 7238 of 2010

Mr Drysdale

Appellant

And

Ms  Drysdale

Respondent

REASONS FOR JUDGMENT

(Costs)

introduction

1. On 1 April 2011, for reasons it then published, the Court refused Mr Drysdale (“the husband”) leave to appeal against interlocutory financial orders made in the Federal Magistrates Court in proceedings between himself and Ms Drysdale (“the wife”).

2. The wife having sought costs of the husband’s unsuccessful application, Counsel for the husband sought, and was granted the opportunity to make submissions opposing the orders sought by the wife.

3. The period of 28 days in which to make submissions in opposition to the wife’s claim provided for by the Court’s orders of 8 April 2011 has long since expired. The Appeals Registry file does not reveal that any submissions have been filed on behalf of the husband. The wife’s attorneys had not, as at the date of their letter to the Appeals Registrar of 24 June 2011, received any submissions on behalf of the husband.

4. The terms of the order in relation to costs of 8 April 2011 were not inadvertent. As experienced Counsel representing the parties before the Court on 1 April 2011, when the husband’s application was agitated, clearly recognised, by reference to the provisions of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), the wife was prima facie entitled to costs if, as transpired, the husband’s application was dismissed. That being so, rather than require the wife to file written submissions in support of her application, thereby potentially increasing the costs which the husband would ultimately have to pay, the Court ordered that the husband file any submissions upon which he wished to rely in opposition to the wife’s claim.

5. Lest it be thought, or suggested, that the orders with respect to costs of 8 April 2011 in some way involved impermissibly reversing the onus with respect to the wife’s application, presumably in reliance upon ss 117(1) and (2) of the Act, the Court does not believe it to have thus erred. Having regard to the well known obstacles which confront appeals against discretionary judgments (see House v The King (1936) 55 CLR 499 at 504-505, Norbis v Norbis (1986) 161 CLR 513 at 539-40, CDJ v VAJ (1998) 197 CLR 172 at 230-31), and the law in relation to applications for leave to appeal (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, and Rutherford and Rutherford (1991) FLC 92-255), the husband’s application being “wholly unsuccessful”, in the absence of compelling reasons advanced on his behalf for not doing so, an order for costs in the wife’s favour would flow in the circumstances of this case.

6. Obliging the husband, he having sought to do so, to advance reasons why the wife should not have an order for costs was both logical and, as noted earlier, potentially to the husband’s financial advantage, in that he was thereby not at risk of having to pay the costs of written submissions on behalf of the wife.

7. Lest it also be thought, or suggested, that the husband’s failure to file submissions in opposition to such an order is the basis upon which the Court proposes to make an order for costs against him, that is not, and should not be the case.

8. The husband’s failure to file any submissions in opposition to the wife’s application potentially renders easier the task of persuading the Court to form the opinion that the circumstances justify a costs order, but does not absolve the Court from having to exercise its discretion judicially and reach that conclusion by reference to s 117(2A) before making an order in the wife’s favour.

9. In Penfold v Penfold (1980) 144 CLR 311 at 315 the High Court said:

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117 (2) in “a clear case”.

10. The most obvious basis upon which the Court would, and does form the opinion that an order for costs is justified is that the husband has been “wholly unsuccessful”. No more can usefully said about that topic. The legislation makes it a factor upon which the Court can rely, as it does in this case, in forming the requisite opinion.

11. Although the husband has not advanced any other fact or circumstance which might disincline the Court to form the requisite opinion, nothing emerging from the judgment of the Federal Magistrate which gave rise to the husband’s application for leave to appeal, or any matter emerging during the course of the appeal proceedings or recorded in the Court’s judgment of 8 April 2011, provides a rational basis for declining to form the requisite opinion.

12. Of particular relevance in that regard are what might be described as the “curious” aspects of the husband’s financial circumstances, as disclosed by him before the learned Federal Magistrate.

13. The Court is satisfied that the circumstances of this application justify an order for costs in the wife’s favour.

14. The Court is not persuaded that any fact or circumstance should enliven the jurisdiction to award costs other than on a party and party basis as agreed or assessed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Justice Coleman delivered on 9 August 2011.

Associate:

Date: 09.08.11