Estrada & Nemes
[2021] FedCFamC1F 172
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Estrada & Nemes [2021] FedCFamC1F 172
File number(s): BRC 14181 of 2019 Judgment of: HOGAN J Date of judgment: 2 November 2021 Catchwords: FAMILY LAW – COSTS – Indemnity costs – Where the father seeks that the mother pay his costs thrown away on an indemnity basis – Where the trial was adjourned due to the mother’s assertion that she had been admitted to hospital and was unable to appear – Where the mother’s conduct was deliberate – Where the adjournment of the trial was totally the consequence of the mother’s conduct in representing that she was incapacitated and unable to appear at the same. Legislation: Family Law Act1975 (Cth) s 117 Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCA 64
Estrada & Nemes [2021] FamCA 619
Estrada & Nemes (No. 2) [2021] FamCA 621
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division: First Instance Number of paragraphs: 16 Date of hearing: Considered in Chambers after hearing oral submissions made on behalf of the applicant on 23 August 2021 and the respondent being afforded the opportunity to be heard by the provision of written submissions Place: Brisbane Counsel for the Applicant: Mr McGregor Solicitor for the Applicant: Evans Brandon Family Lawyers The Respondent: No appearance Counsel for the Independent Children's Lawyer: Mr Ashcroft Solicitor for the Independent Children's Lawyer: Dooley Solicitors ORDERS
BRC 14181 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ESTRADA
Applicant
AND: MS NEMES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Within 60 days of the date of this order, the respondent mother pay the applicant father’s costs thrown away by the adjournment of the trial listed to commence on 17 May 2021 and that such costs be paid on an indemnity basis and fixed in the amount of $29,810.00.
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 the pseudonym Estrada & Nemes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
After Ex Tempore Reasons were delivered on 23 August 2021 to finalise the parenting proceedings between these parents,[1] counsel for the father made oral submissions in support of an application that the mother pay his client’s costs of the adjournment of the hearing on 17 May 2021 when it was stood over until 18 May 2021 and on 18 May 2021 when the trial was adjourned to 23 August 2021 and that the same be ordered to be paid on an indemnity basis.
[1] Estrada & Nemes (No. 2) [2021] FamCA 621.
As the mother did not appear on 23 August 2021, I ordered that a Transcript of the submissions made by counsel for the father in relation to costs be obtained, marked as an Exhibit and provided to the parties; that, within 14 day of the receipt of the Transcript of submissions in relation to costs, the mother file and serve any submissions in response to the father’s application for an order for costs against her; that, within 7 days of receipt of any submissions by the mother, the father file and serve any further submissions, strictly in reply; and that, thereafter, the father’s oral application for an order for costs be considered in Chambers.
The Transcript of submissions referred to above was sent to the parties by email at 5.00 pm on 1 September 2021.
The mother has not filed any submissions in relation to the father’s application that a costs order be made against her.
Broad summary of relevant circumstances
I do not intend to repeat here the lengthy chronology of events I outlined on 23 August 2021 in explaining the decision to proceed to determine the parenting proceedings that day notwithstanding the mother’s failure to appear.
Instead, I incorporate the following paragraphs of the Ex Tempore Reasons delivered that day in support of the decision to hear the matter on an undefended basis[2] into these Reasons in order to provide context for the consideration of the father’s application for an order that the mother pay his costs thrown away, on an indemnity basis, by the adjournment of the 5 day trial which had been listed to commence on 17 May 2021: [28]–[43] inclusive; [49]–[53] inclusive.
[2] Estrada & Nemes [2021] FamCA 619.
Counsel for the father submitted, in essence, that the Court would be persuaded that the following circumstances justify the Court departing from the usual course that parties to proceedings under the Family Law Act 1975 (Cth) bear their own costs[3] and, instead making an order that the mother pay the father’s costs thrown away by the adjournment of the trial:
(a)the mother had applied on 14 May 2021 to adjourn the upcoming trial on the basis that she was awaiting funds so that she could afford to engage legal representation for the same; and
(b)the mother’s failure to appear at Court on 17 May 2021 – which was ostensibly because she had allegedly been injured and admitted to hospital – resulted in the 5 day trial being adjourned on 18 May 2021 until 23 August 2021; and
(c)subsequent investigations about the medical certificate provided by the mother to the Court in support of her asserted incapacity to appear at the trial in May 2021 suggested, at the very least on a prima facie basis, that the mother had forged the same and provided it to the Court in order to persuade the Court to take the course that it did; and
(d)by virtue of the actions summarised very briefly above (and in more detail in the paragraphs of the earlier Judgment incorporated earlier into these Reasons), the mother deliberately engineered the adjournment of the matter; and
(e)as a consequence of the mother’s deliberately false and manipulative actions (which counsel for the father described as “a deliberate, deceitful action” taken in order to achieve the adjournment), the father was put to additional costs that he would not otherwise have incurred – namely, the costs thrown away as a consequence of the “engineered” adjournment of the trial until August 2021.
[3] Family Law Act 1975 (Cth) s 117(1).
The mother’s failure to participate in the proceedings in a meaningful way, including her failure to take up the opportunities extended to her on numerous occasions to file affidavits, means that the Court has very, very limited knowledge of the mother’s current financial circumstances.[4] However, as authority makes clear, even impecuniosity is not a bar to the making of an order for costs.[5]
[4] Family Law Act 1975 (Cth) s 117(2A)(a).
[5] See, for example: D & D (Costs) (No 2) (2010) FLC 93-435.
The father appeared in the proceedings via privately funded legal representatives at a not insignificant cost and borrowed funds for this purpose;[6] the mother had the opportunity to be assisted by way of legal aid but chose not to take up that opportunity;[7] whilst the trial was not necessitated by the mother’s failure to comply with previous orders of the Court that she file affidavits and the like,[8] the adjournment of the trial in May 2021 was totally the consequence of her conduct in representing that she was incapacitated and unable to appear at the same.[9]
[6] Family Law Act 1975 (Cth) s 117(2A)(a).
[7] Family Law Act 1975 (Cth) s 117(2A)(b).
[8] Family Law Act 1975 (Cth) s 117(2A)(d).
[9] Family Law Act 1975 (Cth) s 117(2A)(c).
I have no hesitation at all in accepting the submissions made by counsel for the father that the circumstances as outlined justify the making of an order that the mother pay the father’s costs thrown away by the standing over of the trial on 17 May 2021 and its ultimate adjournment on 18 May 2021. Similarly, I have no hesitation at all in concluding that the circumstances surrounding the adjournment of the trial in May 2021 until August 2021 justify the making of an order that the mother pay the father’s costs thrown away by that adjournment.[10]
[10] Family Law Act 1975 (Cth) s 117(2).
Given my comments about the mother’s conduct, albeit expressed on a prima facie basis, it is appropriate that I record that the order for costs to be made is not made to punish the mother for her conduct but is, rather, a consequence of her deliberate conduct: as a result of her conduct, the father incurred costs which were thrown away because of the adjournment of the trial in May 2021 and which would not otherwise have been incurred.
Authority establishes that, unless there are exceptional circumstances, an order for costs should be made on a party and party basis.[11] In Colgate-Palmolive Co v Cussons Pty Ltd[12] Sheppard J noted some of the circumstances regarded as warranting the exercise of the discretion to award costs on an indemnity basis, saying at 256:
…Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC (NSW) (CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
[11]See, for example: D & D Costs (No. 2) (2010) FLC 93-435 in which the Full Court of the Family Court extensively reviewed earlier authorities, including Limousin & Limousin (Costs) (2007) 38 Fam LR 478 and Kohan and Kohan (1993) FLC 92-340; see also Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248.
[12] (1993) 118 ALR 248.
In Yunghanns & Ors v Yunghanns & Ors and Yunghanns[13] the Full Court of the Family Court specifically acknowledged that the “category” of cases that may give rise to an indemnity order is not closed, saying at 87,471:
…It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought. All that is required is that the Court asked to exercise the discretion be satisfied that some “particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis”: per Shepherd J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233.
[13] (2000) FLC 93-029.
In the present case, I am easily satisfied that the particular facts and circumstances surrounding the adjournment of the trial in May 2021, inclusive of the matter being stood over until 18 May 2021 when that order was made, warrant the making of an order for payment of costs other than on a party and party basis and that the order as to costs which is just in this case is one which will see the mother pay the father’s costs thrown away by the adjournment on an indemnity basis.
I consider it appropriate to fix the quantum of costs which the mother will be ordered to pay; I do so in order to avoid the father being put to additional costs in attempting to agree quantum, particularly having regard to the mother’s failure to engage in the proceedings, and because I am assisted by evidence quantifying the father’s costs thrown away on an indemnity basis.
Having regard to the evidence of Mr Evans[14] and to the submissions made by counsel for the father in support of the quantification of the same, I accept the total amount of the costs incurred by the father which were thrown away as a consequence of the May 2021 adjournment of the 5 day trial, calculated on an indemnity basis, is $29,810.00; I also consider it just that an order is made for the mother to pay the same to the father within 60 days of the making of the order for payment.
[14] Affidavit of Dean Evans filed 16 May 2021, paragraphs 3 and 4.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 2 November 2021
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