Fennessy & Gregorian
[2009] FamCAFC 44
•16 February 2009
FAMILY COURT OF AUSTRALIA
| FENNESSY & GREGORIAN | [2009] FamCAFC 44 |
| FAMILY LAW – APPEAL – Application for permanent stay or dismissal of the father’s appeal for want of prosecution – Balancing the entitlement of an appellant to have the merits of his or her appeal considered on the one hand, and the rights of other parties to finality of litigation and undisturbed enjoyment of the fruits of success in that litigation on the other – Failing to dismiss the father’s appeal would be to encourage an abuse of the Court’s processes and constitute a substantial and ongoing injustice upon the mother, the child the subject of the proceedings, the Director General and the ICL FAMILY LAW – COSTS – Director General awarded costs on a party and party basis. FAMILY LAW – COSTS – Indemnity costs – Application by mother for costs on indemnity basis – Whilst contributing to the dismissal of his appeal, and justifying the making of an order for costs, the father’s conduct in the proceedings not considered to be “special or unusual” or of such an “exceptional” kind as to justify the awarding of indemnity costs FAMILY LAW – COSTS – Lawyer and client costs – Whether appropriate to make an order for costs on a lawyer and client basis – Where parties have incurred costs in excess of those which would be covered by an award of party and party costs and in the circumstances it would be regrettable if the mother’s legal advisors were to be limited to party and party costs – Provisions of Rule 19.18(3) considered – Order for costs as agreed or assessed on a “lawyer and client basis” is appropriate |
| The Family Law Act 1975 (Cth) Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 Kohan & Kohan (1993) FLC 92-340 Limousin v Limousin (Costs) (2009) 38 Fam LR 478; [2007] FamCA 1178 Yunghanns v Yunghanns (2000) FLC 93-029; (2000) 26 Fam LR 331 |
| APPELLANT: | MR FENNESSY |
| RESPONDENT: | MS GREGORIAN |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Williams |
| INTERVENER: | Director-General, Department of Child Safety |
| FILE NUMBER: | BRF | 5353 | of | 2003 |
| APPEAL NUMBER: | NA | 06 | of | 2008 |
| DATE DELIVERED: | 26 March 2009 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Coleman, Boland and Thackray JJ |
| HEARING DATE: | 16 February 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 December 2007 |
| LOWER COURT MNC: | [2007] FamCA 1574 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Fennessy, in person |
| COUNSEL FOR THE RESPONDENT: | Ms Brasch |
| SOLICITOR FOR THE RESPONDENT: | Andersons Solicitors |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Williams |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Williams Lawyers |
| COUNSEL FOR THE INTERVENER: | Mr Parrott |
| SOLICITOR FOR THE INTERVENER: | Crown Law |
Orders
That the husband’s Notice of Appeal filed 15 February 2008 be dismissed.
That the husband pay the wife’s costs of and incidental to the said Notice of Appeal in the sum of $11 926.
That the husband pay the costs of the Director-General, Department of Child Safety of and incidental to the said Notice of Appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment under the pseudonym Fennessy & Gregorian is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 06 of 2008
File Number: BRF 5353 of 2003
| Mr FENNESSY |
Appellant
And
| Ms GREGORIAN |
Respondent
And
| Independent Children’s Lawyer |
And
| Director-General, Department of Child Safety |
Intervener
REASONS FOR JUDGMENT
By application filed 19 September 2008 and amended on 23 January 2009 the Director General, Department of Child Safety (“the Director General”) sought orders from this Court in the following terms:
1.That Appeal No 6 of 2008 be struck out for want of prosecution.
2.That the Appellant [Mr Fennessy] not be permitted to file any further proceedings in relation to this appeal without leave of the Family Court.
3.That the Appellant pay the costs of this application.
4.That Appeal No 6 of 2008 be permanently stayed.
5.That the Appellant not be permitted to take any further steps in relation to Appeal No 6 of 2008 until such time as he has lodged his security for costs in the Family Court Registry.
6.That even if the Appellant has lodged his security for costs he not be permitted to take any further steps in relation to Appeal No 6 of 2008 without leave of the Full Court.
7.That Appeal No 6 of 2008 be dismissed pursuant to Rule 22.58 of the Family Court Rules.
On 14 October 2008 Ms Gregorian (“the mother”) filed an application in this Court seeking the following orders:
1.That pursuant to Rule 22. 58(2) the Appeal NA 06/08 by the Father be dismissed.
2.That the Father pay the costs of the Mother for Appeal NA 06/08 and of this Application on an indemnity basis.
3.Such further or other Orders as this honourable court may deem meet.
Mr Fennessy (“the father”) filed no material in opposition to the applications filed by the Director General or the mother but appeared in person on the hearing of such applications and opposed the granting of relief in the terms of those applications.
Background
To appreciate the applications with which the Court is concerned, some background is required.
On 2 July 2008 the Court made orders determining an application brought on behalf of the mother, the Director General and the Independent Children’s Lawyer (“the ICL”) for orders requiring the father to provide security for the costs of an appeal the father filed against final orders made by Collier J in parenting proceedings between the father and the mother.
The child the subject of those proceedings had been represented by the ICL. The Director General had intervened in the proceedings.
The trial Judge delivered his judgment on 19 December 2007 after a trial which occupied 52 hearing days between 18 July 2005 and 12 September 2006. The father absented himself from the last two days of the hearing of the proceedings.
The father’s Notice of Appeal was amended on 15 February 2008.
For reasons which it published on 2 July 2008, this Court concluded that the father should lodge the sum of $50 000 by way of security for the costs in the appeal on or before 4 August 2008.
The father was further ordered to “file and serve any amended grounds of appeal upon which he wishes to rely together with an outline of all submissions which he intends to make on the hearing of the appeal together with references to the transcript of the trial upon which he relies” “not less than one month prior to the commencement of the hearing of the husband’s appeal”.
It is common ground that the father has not complied with the orders of 2 July 2008. Nor has he made any application for the Court to extend the time for compliance with such orders. The father has never sought special leave to appeal the Court’s orders of 2 July 2008.
Pursuant to the Rules, the father’s failure to comply with the orders of 2 July 2008 renders his appeal abandoned. The father has not ever applied to reinstate his appeal.
Albeit expressed in somewhat different ways, the mother and the Director General each seek that the father’s appeal be terminated and that the father pay the costs of the appeal and the applications to terminate it.
The ICL supports the application of the mother seeking the dismissal of the father’s appeal but seeks no order for costs.
The father’s application for leave to make an oral application to reinstate his appeal
As the transcript of the proceedings on 16 February 2009 would confirm, the father does not accept the orders for security for costs made by the Court on 2 July 2008.
The Court pointed out to the father the consequences of his failure to comply with the orders for security of costs, and the reality that the father had never applied to reinstate his appeal.
The father then sought leave to make an oral application to reinstate his appeal. The Court refused such application. No basis for reinstating his appeal emerged from submissions made by the father on 16 February 2009. It clearly emerged from his submissions that the father does not accept the orders requiring him to lodge security for costs. The father revealed no intention of complying with such orders. The father disavowed any intention of, albeit now well out of time, seeking a grant of special leave to appeal against the orders for security for costs in the High Court.
Objectively, to have allowed the father to make an oral application to reinstate his appeal would in the circumstances have been to encourage an abuse of the Court’s processes. Given that this Court cannot revisit the order for security for costs, and even if it could it has never been presented with any evidence which, if accepted, might incline it to do so, any application by the father to reinstate his appeal would be doomed to failure.
As the Court noted in its Judgment of 2 July 2008, though of itself a substantial sum, the quantum of the security which the father was obliged by those orders to provide ($50 000) represents but a small portion of the costs which the two other parties to the litigation and the ICL have incurred in successfully resisting the father’s claims.
As the Court also noted in its Judgment of 2 July 2008, the father filed no evidence of his financial circumstances in the security for costs application. As the Court further noted, in his submissions, on the one hand the father sought to convey the impression that he had access to funds, whilst on the other left no one in doubt as to the improbability of any of the parties to the proceedings successfully attaching any such funds in satisfaction of any orders made by the Court.
To have granted the father leave to make an oral application to reinstate his appeal would have resulted in either an adjournment, and the further incurring of costs by the other parties and the ICL or, even more unsatisfactorily, the Court relying upon statements made by the father from the Bar table, which would not have been on oath or affirmation, and would not have been able to be tested by those resisting his application.
In the absence of any rational basis for so doing, the Court refused the father’s application for leave to make an oral application to reinstate his appeal. Upon the Court rejecting his application for leave to make such oral application, the father left the Court and took no further part in the proceedings.
The Director General’s Application
By way of “preliminary submission” it was asserted on behalf of the Director General that “should the appellant father not have filed his security for costs prior to the hearing of this application it is open for the Full Court to conclude that the Appellant Father has no intention of doing so. In such circumstances the appeal should be dismissed for want of prosecution”. [Outline of Submission of the Intervener, par 3, page 2].
The father left the Court in no doubt that he has “no intention” of complying with the orders of 2 July 2008. Although the father asserted in submissions on 16 February 2009 that he lacks the capacity to comply with the order for security of costs, he has not sought to challenge the Court’s finding that he did not lack such capacity in the High Court. The father had told the Court on the hearing of the security for costs application that he had the funds to do so. Nor has the father ever filed any evidence with respect to his financial or other circumstances which, if accepted, might justify an extension of time within which to comply with the security for costs order.
The father’s opinion of the Court’s order for security of costs which he candidly expressed on 16 February 2009 removes any doubt that there might be as to his absence of intention to comply with the Court’s order. He simply rejects the order.
Under the heading “Balance between orders for Dismissal or Permanent Stay or Strike out”, Counsel for the Director General reminded the Court that “the power to dismiss an appeal which may have the effect of prejudicing the rights of the appellant must be exercised with great care”. Counsel also reminded the Court of the authorities which support that proposition.
We accept without hesitation the wisdom of that caveat. Ultimately, the issue becomes one of balancing the entitlement of an appellant to have the merits of his or her appeal considered on the one hand, and the rights of other parties to finality of litigation and undisturbed enjoyment of the fruits of success in that litigation on the other.
The Director-General concluded his submissions as to whether the appeal should be dismissed or permanently stayed by submitting:
18.If this Honourable Court is satisfied that there are adequate reasons for the delay in lodging that security and for the failure of the Appellant to prosecute the Appeal it is submitted that on balance it is in the best interests of the child that the appeal should still be dismissed.
19.Conversely if the Court is satisfied that on balance the interests of justice require the Appellant have the opportunity to prosecute the appeal then the appeal should be permanently stayed or struck out. [Director-General’s submissions filed 23 January 2009].
Whilst there may in practice not be a significant distinction between the courses, the reality is that only an order for dismissal, and consequential extinguishment of the Court’s jurisdiction, brings absolute finality to the proceedings. Although it is difficult to suggest how, as an order permanently staying proceedings does not have that consequence, it may be that the father in this appeal would be potentially advantaged by an order permanently staying his appeal. That would be an unfortunate outcome.
It was, sensibly, and in our view irrefutably, submitted on behalf of the Director General that “it is in the best interests of the subject child that this litigation be finalised”. [Outline of Submission of the Intervener, par 11, page 3].
As we have earlier noted, the parenting proceedings with respect to the parties’ child occupied 52 hearing days, the last of which occurred 2½ years ago. The trial Judge’s decision was made more than 15 months ago.
The father last spent any significant time with the child the subject of the parenting proceedings in mid 2004 when she was 8 years of age. As are the parties, the child the subject of this appeal, who is now 13 years of age, is entitled to finality, irrespective of what, if any, stress or upset the continuation of the proceedings might be causing her.
A number of submissions were made on behalf of the Director General with respect to “Delay/Prejudice.” Beyond recording that nothing to which we have been alerted establishes that the absence of finalisation of the father’s appeal is referrable to the acts or omissions of anyone but the father, we do not need to refer further to those submissions. The logic underpinning them is difficult to refute.
In our view, the circumstances justifying either a permanent stay of the father’s appeal or its dismissal are not materially different. The attraction of an order dismissing the appeal for those resisting it is that, subject only to the father bringing an application for special leave to appeal in the High Court, the lengthy and expensive saga of litigation will certainly be at an end.
An order permanently staying the proceedings must of its nature preserve some prospect of further litigation in this Court. The history of the proceedings suggests that to leave that prospect open when it could be averted would be unjust. From the father’s perspective, if this Court dismisses his appeal, and there is substance in the father’s complaint that he has been unjustly dealt with, he is free to pursue his complaints in the High Court.
It is appropriate that we refer to the submissions made on behalf of the mother in support of her application that the appeal be dismissed before articulating our conclusion.
Having referred to the father’s failure to comply with the orders for security of costs made on 2 July 2008, it was submitted on behalf of the mother that:
4.The issue of [Mr Fennessy]’s income or access to funds was fully explored by the Full Court at the hearing of the application for security. Accordingly, the issue for today is not whether [Mr Fennessy] can afford to comply with the order; the issue is the consequences of [Mr Fennessy]’s non-compliance with an Order of this Court. [Mother’s Submissions re Father’s Non-Compliance, par 4, page 2].
It was also submitted, correctly in our view, that:
5.Equally, the issue is not whether the Court should have ordered the security in the first place; that issue has been decided and no appeal has been filed against it. Again, the issue is simply one of non-compliance, or put differently, bringing a children’s matter to an end. [Mother’s Submissions re Father’s Non-Compliance, par 5, pages 2 & 3].
The Court was, again correctly, reminded of the “purpose of security for costs”, it being submitted that the failure to dismiss the father’s appeal in this case would occasion substantial financial and non-financial injustice to the mother and the other parties to the proceedings.
It was ultimately submitted that failing to dismiss the appeal would leave the mother and the child without finality. The appeal would “hang over their shoulders like the sword over Damocles” if any order short of dismissal were made. [Mother’s Submissions re Father’s Non-Compliance, para 3, page 10].
It is in our view necessary, as Counsel for the Director General’s submissions correctly suggest, to give consideration to the right which the father will be denied if his appeal is dismissed. We are not assisted in that task by the father’s failure to file an outline of the submissions which he intended to make on the hearing of his appeal, or to provide references to the sound recording of the trial by which he proposed to advance his complaints.
The order requiring the father to provide an outline of submissions containing references to the transcript of the trial was made without any apparent objection from the father on 2 July 2008. Eight months later nothing has been filed by the father. The Court dealt with “the provision of transcript” in its judgment of 2 July 2008. As the Court’s Orders of 2 July 2008 make clear, the father had available to him in electronic form the transcript of the proceedings before the trial Judge. The father has not suggested that his failure to file and serve material pursuant to Order 5 of the orders of 2 July 2008 is in any way referrable to his inability to access the transcript, or that he was financially constrained in terms of compliance with the directions.
The position is thus that the appellant father has done nothing to help himself in establishing that dismissal of his appeal would, or is likely to deny him the right to agitate a claim having possible merit. Under the heading “The merits of the Appeal” the Court considered what the father informed it were his challenges to the decision of the trial Judge during the hearing of the security for costs application.
Having considered the various grounds of appeal articulated by the father in his Amended Notice of Appeal filed 15 February 2008, and noted the concessions made by the father during the course of his submissions during the hearing of that application, the Court concluded:
48.Notwithstanding the absence of an obvious foundation for success in the husband’s grounds of appeal, or his written argument and oral submissions, we are not persuaded that the appeal is entirely devoid of merit. The matters which the husband wishes to agitate with respect to [Professor N]’s evidence cannot in our view be regarded as necessarily hopeless. In fairness, the husband acknowledged during the hearing of the applications before this Court for security for costs that “this appeal will rise or fall – well it’ll prosper or it’ll fail, I should say, on the evidence of [Professor N]”. On the material which the husband has presented to this Court, that concession was appropriate. No other basis for appellate challenge emerges from the husband’s material. [Reasons for Judgment, 2 July 2008, par 48].
Those grounds had been described in the preceding paragraph of the Court’s judgment in the following terms:
47.One issue addressed by the husband in his grounds of appeal relates to the evidence of [Professor N], an expert in psychiatry who gave evidence at trial. [Professor N] provided reports detailing psychological evaluations of the parties for the purposes of determining contact with and residence of the child. The evidence given by [Professor N] rejected allegations of sexual abuse of the child by the husband and did not suggest that the husband should be denied contact with the child. The husband asserts that the evidence given by [Professor N] was unnecessarily shortened, and was also not taken into account by the trial Judge. [Reasons for Judgment, 2 July 2008, par 47].
It is clear beyond doubt that the father’s challenge to the trial Judge’s decision was said by him to relate solely to the evidence of Professor N, and to the weight given to it by the trial Judge. The orders made on 2 July 2008 removed any impediment which there might previously have been to the father accessing the transcript of Professor N’s evidence. There is no evidence that the father has been unable to do so subsequent to the making of that order.
The father, a very experienced, and at times successful litigant in person, knew what it was he sought to demonstrate in reliance upon the evidence of Professor N. The concession appearing in the Court’s judgment of 2 July 2008 leaves no scope for doubt in that regard.
Whilst the Court accepted, for reasons then given, that the father’s appeal was not necessarily “entirely devoid of merit”, without any explanation for his failure to do so, the father has completely failed to file any material with respect to Professor N’s evidence and the errors which he asserts the trial Judge made with respect to such evidence. He has accordingly chosen not to demonstrate the possible existence of merit in his appeal.
Having had the benefit of the doubt on 2 July 2008, and failed to file submissions in support of his assertions, it is difficult to see on what basis the father could avoid having his appeal dismissed. Put simply, the father has had an abundance of opportunity to advance his appeal but has failed completely to take up those opportunities.
Kirby J explained in Lindon v The Commonwealth (No. 2) (1996) 136 ALR 251 at 256 that:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418].
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J] or is advancing a claim that is clearly frivolous or vexatious [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91].
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [Coe v The Commonwealth (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. [Coe v The Commonwealth (1979) 53 ALJR 403 at 409.] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [Church of Scientology v Woodward (1980) 154 CLR 25 at 79.] A question has arisen as to whether O 26, r 18 applies to part only of a pleading. [Northern Land Council v The Commonwealth (1986) 161 CLR 1 at 8.] However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
The circumstances as we have detailed them persuade us that the father’s appeal should be dismissed. Those same circumstances persuade us that failing to do so would be to encourage an abuse of the Court’s processes and constitute a substantial and ongoing injustice upon the mother, the child the subject of the proceedings, the Director General and the ICL.
We are not unmindful of the reality that the mother, the Director General and the ICL are all, directly or indirectly, publicly funded in this litigation.
Costs
The Director General sought an order for costs on a party and party basis. The mother sought costs on “an indemnity basis”.
Two issues arise, they being whether an order for costs is justified in all the circumstances, and if so, on what basis costs should be ordered.
The circumstances which have led us to conclude that the father’s appeal should be dismissed are strongly supportive of forming the opinion required by s 117(2) of the Family Law Act that orders for costs against the father are justified. It is unnecessary to restate those matters.
The Director-General seeks costs on a party and party basis and we will so order.
Regrettably, those costs will probably require assessment but we will preserve the possibility that they may be agreed.
So far as the application for indemnity costs on behalf of the mother is concerned, as was canvassed with learned Counsel for the mother during the course of the hearing on 16 February 2009 we perceive that there may be some difficulties in that regard.
Amongst other places, indemnity costs were discussed by the Full Court in Limousin & Limousin (Costs) (2008) 38 Fam LR 478; [2007] FamCA 1178 in the following terms:
41.The decision of the Full Court of the Family Court (Strauss, Lindenmayer and Bulley JJ) in Kohan and Kohan (1993) FLC 92-340; (1992) 16 Fam LR 245 held that nothing in s 117 or 123 of the Family Law Act1975 (“the Act”) prevents the Court making an order for costs on an indemnity basis. It was recorded at FLC 79,614; Fam LR 258 (citations omitted):
The intent of s 117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the court considers just. As we have pointed out, the court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O 38 r 2, the provisions of O 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. Order 38 rule 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v Wright (No 2); Wentworth v Rogers (No 5); Hobartville Stud v Union Insurance Co.
Indemnity costs orders are still an exception in this and other jurisdictions.
42.The principles underpinning indemnity costs were summarised by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 at 256:
(2)The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis …
(3)This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it …
(4)In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course …
43.In the decision of Yunghanns v Yunghanns (2000) FLC 93-029; (2000) 26 Fam LR 331 the Full Court of the Family Court (Lindenmayer, Holden and Mullane JJ) acknowledged that the category of cases in which an indemnity costs order is appropriate is not closed. It was recorded in paragraph 31:
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.
As was the case in Limousin (supra), the following passage from the Judgment of Shephard J in Colgate-Palmolive (supra) is instructive (at 257):
… 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 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; Maitland Hospital v Fisher (No 2); Crisp v Kent) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). (citations omitted)
Whist we are not unsympathetic to the mother’s claim, we are not persuaded that the jurisdiction to award indemnity costs has been enlivened. Objectively, in this Court, as opposed to what may have occurred in the proceedings prior to the filing of his Notice of Appeal, the father has unsuccessfully resisted an application for security for costs and, by failing to comply with the order made in that regard, materially contributed to the Court’s conclusion that his appeal should be dismissed. The father’s acts or omissions in the appeal are relevant to the costs incurred by the mother’s solicitors in response to such acts and omissions.
It would in our view be impermissibly extending the principles governing the awarding of indemnity costs to do so in this case. Whilst contributing to the dismissal of his appeal, and justifying the making of an order for costs, we do not consider the father’s conduct of the proceedings in this Court to be “special or unusual” or of such an “exceptional” kind as to justify the awarding of indemnity costs. Nor in our view does the father’s conduct constitute “extraordinary conduct” sufficient to justify the making of an order for indemnity costs (see Yunghanns (supra)).
It remains however to consider whether it would be appropriate in the circumstances to make an order for costs on a lawyer and client basis.
As is generally known, parties to litigation frequently, and reasonably, incur costs in excess of those which would be covered by an award of party and party costs. The evidence suggests that has been the case in this appeal. In the circumstances it would be regrettable if the mother’s legal advisors were to be limited to party and party costs. Rather than awarding party and party costs the court may order that a party is entitled to costs as assessed on a lawyer and client basis (Rule 19.18(1)(b)). The Court may consider the matters set out in Rule 19.18(3). Rule 19.18(3) provides:
(3)In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
Notwithstanding that the father failed to file any material by which the “importance, complexity or difficulty” of the issues raised by him in the appeal might be gauged, the material earlier filed by the father, and the reality that the trial of the proceedings occupied 52 hearing days, combined with the father being a litigant in person imply a degree of complexity or difficulty in the appeal (Rule 19.18(3)(a)).
The father’s “behaviour in the case” can be regarded as supportive of an order for solicitor and client costs. As we have earlier recorded, the father made no attempt to apply for an extension of time within which to comply with the orders for security of costs. The father made no application to reinstate his appeal after failing to comply with the order for security for costs. The father has provided no explanation on oath or affirmation by way of explanation of his failure to comply with the security for costs order or the directions in relation to the presentation of his appeal (Rule 19.18(3)(b)).
We are unable to comment productively on “the rates ordinarily payable to lawyers in comparable cases” (Rule 19.18(3)(c)).
Rule 19.18(3)(d) is not relevant as the father has not had a lawyer at any material time.
The evidence before the Court in support of the application for security for costs reveals the substantial time “properly spent on the case” by the mother’s legal advisors and is supportive of an order for solicitor and client costs (Rule 19.18(3)(e)).
The “expenses properly paid or payable” would usually be a matter for agreement or assessment, our concern being whether, having regard to the matters to which we have referred, a departure from an order for party and party costs is appropriate. Having regard to the matters to which we have referred, we are persuaded that an order for costs as agreed or assessed on a “lawyer and client basis” is appropriate.
We have the benefit of a certificate from Legal Aid, Queensland in relation to the mother’s solicitor/client costs in accordance with the Legal Aid scale. The certificate provides a considerably detailed break-up of such costs. It is improbable that any assessment of solicitor/client costs in accordance with the Legal Aid scale would be reduced on assessment by a Registrar. As the certificate confirms, the Legal Aid scale is lower than the Family Court scale by approximately 20%.
Realistically, for Legal Aid to have approved such costs in accordance with its statutory and other obligations, Legal Aid would have to have been satisfied as to the reasonableness of doing the work for which costs were sought and that the costs thus sought were in accordance with the Legal Aid scale. In those circumstances, and given that the father has, in the security for costs application, been provided with a detailed break-up of the mother’s costs, putting the mother to the expense and inconvenience of assessing costs could not be justified.
We will accordingly make an order against the father for the mother’s lawyer and client costs quantified in accordance with the certificate provided to us.
I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 26 March 2009
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