Eade & Horne
[2021] FedCFamC1A 12
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Eade & Horne [2021] FedCFamC1A 12
Appeal from: Horne & Eade [2021] FCCA 432 Appeal number(s): NOA 13 of 2021 File number(s): ROC 476 of 2019 Judgment of: AUSTIN J Date of judgment: 17 September 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Discontinued appeal – Where the applicant was the respondent in the appeal and seeks an order for the costs thrown away on an indemnity or alternatively ordinary basis – Where the appeal was not “wholly unsuccessful” under s 117(2A)(e) Family Law Act 1975 (Cth) because it was not heard and determined on its merits – Where there were no grounds upon which the applicant’s claim for indemnity costs could reasonably be maintained – Where the applicant was put to legal expense over the five months during which the appeal was pending – Application granted – Applicant’s party/party costs fixed in the sum of $1,500. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 117, 117(2A)(e)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.34, 12.08, 12.17(1)(a), 13.42
Cases cited: Anison & Anison (2019) FLC 93-908; [2019] FamCAFC 108 Number of paragraphs: 16 Date of hearing: 17 September 2021 Place: Brisbane (via video link), Counsel for the Applicant: Mr Cameron Solicitor for the Applicant: CQ Legal Solicitor for the Respondent: Swanwick Murray Roche Lawyers ORDERS
NOA 13 of 2021
ROC 476 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HORNE
Applicant
AND: MR EADE
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
17 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The respondent shall pay the applicant’s costs of and incidental to discontinued Appeal NOA 13 of 2021, fixed in the sum of $1,500.
2.Otherwise, the Amended Application in an Appeal filed on 17 September 2021 and the Response to an Application in an Appeal filed on 16 September 2021 are dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eade & Horne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
On 17 February 2021, a judge of the Federal Circuit Court of Australia (as it was then known) made orders as between the applicant and the respondent concerning their property interests under Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
By way of a Notice of Appeal filed on 17 March 2021, the respondent appealed from one of those orders. The appeal advanced to the point of being listed for hearing before Tree J on 21 September 2021, but the hearing was vacated when the respondent filed a Notice of Discontinuance on 6 August 2021 to discontinue the whole of the appeal.
By way of an Amended Application in an Appeal filed on 17 September 2021, the applicant seeks an order for the respondent to pay her costs of and incidental to the appeal thrown away by reason of the respondent’s discontinuance of it. The application is accommodated by r 13.42 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), though the original Application was filed several days late on 6 September 2021 (r 13.42(3)) and could therefore only be prosecuted with an extension of time (r 1.34). Commendably, the respondent consented to the extension of time being granted.
The Amended Application in an Appeal was supported by two affidavits filed by the applicant’s solicitor on 6 and 17 September 2021.
The respondent filed a Response on 16 September 2021 seeking dismissal of the costs application but, in the alternative, admitting liability for costs fixed in a lesser sum than that sought by the applicant. Effectively, the respondent acknowledged a costs order could well be made against him but challenged the sum sought by the applicant.
Liability
The ordinary rule is that parties to proceedings under the Act bear their own costs (s 117(1)), but that is subject to the exercise of discretion to order otherwise (ss 117(2) and 117(2A)).
While the appeal was not “wholly unsuccessful” (s 117(2A)(e)), because it was not heard and determined on its merits (Anison & Anison (2019) FLC 93-908 at [36]–[42]), its voluntary discontinuance by the respondent caused the applicant to unnecessarily incur costs preparing to defend the appealed order over a period of months (s 117(2A)(c)). The respondent engaged lawyers to institute and represent him in the appeal and on this application, but there was no indication those lawyers acted for him pursuant to a grant of legal aid (s 117(2A)(b)). The respondent did not assert, either on foundational evidence or otherwise, that his financial circumstances were such as to impair his capacity to meet a costs order (s 117(2A)(a)). In aggregation, those factors militate in favour of an order for the respondent to pay the applicant’s ordinary party/party costs.
There were no grounds upon which the applicant’s claim for indemnity costs could reasonably be maintained, which the applicant’s counsel eventually conceded.
Quantum
The applicant’s solicitor deposed that the applicant’s costs of the appeal were quantified in the sum of $2,711.45, but that amount was calculated on an indemnity basis as per the applicant’s retainer agreements with her solicitors and barrister. The applicant did not deign to quantify her party/party costs.
The respondent’s fall-back position was that the applicant was only entitled to party/party costs of $308.64, but he did not adduce any evidence to vindicate that calculation. In submissions, the respondent conceded a more realistic calculation might be $671.73.
Each party contended the other party’s claim was too little or too much, but with the paucity of evidence about the proper quantum of party/party costs, the decision now risks being little better than arbitrary. Nonetheless, given the relatively trifling amount, the dispute should be decided now on the material available.
The appeal was filed in March 2021 and discontinued in August 2021. In May 2021, the appeal was fixed for hearing several months ahead and a timetable set for summaries of argument to be filed in June and July 2021. Neither party filed a summary of argument in compliance with those orders, but the applicant was still surely put to legal expense over the five months during which the appeal was pending.
The evidence adduced by the applicant demonstrates that her overall legal costs in the appeal up until the Notice of Discontinuance was filed, calculated on an indemnity basis, can be approximated at $2,640 (inclusive of GST). Her party/party costs must be somewhat less, but the sum of $671.73 for which the respondent ultimately contended is too parsimonious.
I am satisfied the sum of $1,500 is fair, reasonable and proportionate for the applicant’s party/party costs (r 12.08) and so that sum is fixed in the order (r 12.17(1)(a)).
Additional claims
The applicant’s solicitor deposed the applicant has incurred further costs since the appeal was discontinued and also in contesting the proceedings which are still pending before the primary judge. That may be so, but they are not costs wasted in the discontinued appeal and consequently cannot be incorporated within this application.
The applicant also sought her costs of prosecuting this costs application, quantified by her solicitor at $3,000, but that component of the application is dismissed. The applicant did not address the irony of her incurring greater costs in making this application than she actually reasonably incurred in the substantive defence of the appealed orders. Besides, costs of $3,000 to prosecute an exceedingly short application such as this seem disproportionate to an ordinary claim for party/party scale costs. There is no reason to disturb the ordinary rule under s 117(1) of the Act in respect of this aspect of the application.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 17 September 2021
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