Findlay and Daniels (No 2) - [2013] FamCAFC 184

FAMILY COURT OF AUSTRALIA

FINDLAY & DANIELS (NO. 2)

[2013] FamCAFC 184

FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where appellant failed to appear and emailed Appeals Registrar on morning of hearing of matter in Full Court seeking an adjournment because of ill health and asserting non-disclosure by the husband in property settlement proceedings in 2010 – Where there was no medical evidence of the wife’s ill health – adjournment not allowed.

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Application for costs of abandoned appeal – Where the appeal was abandoned by failure of the wife to file appeal books – Where costs sought on an indemnity basis – Where no circumstance justifying an order for costs on an indemnity basis – Where there had been a previous order that Wife pay the husband’s costs – Wife to pay the husband’s costs of the appeal and the costs of the husband’s application to be assessed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 22.13(3), 22.43, 22.43(1) and (2)

APPELLANT:

MS FINDLAY

RESPONDENT:

MR DANIELS

FILE NUMBER:

MLC

1996

2008

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:	18 October 2013
PLACE DELIVERED:	Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Faulks DCJ, May & Murphy JJ

HEARING DATE:

18 October 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 October 2012

LOWER COURT MNC:

[2013] FamCA 864

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

No appearance by or on behalf of the appellant

SOLICITOR FOR THE RESPONDENT:

Respondent appeared in person

Orders

The wife pay the costs of the husband of the appeal filed on 1 November 2012 together with the costs of the application filed 2 July 2013. Such costs to be assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Findlay & Daniels has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 79 of 2012
File Number: MLC 1996 of 2008

Ms Findlay

Appellant

And

Mr Daniels

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

MAY J

At the outset of this matter we informed the applicant, Mr Daniels, that the Appeals Registrar, had received an email from Ms Daniels, who we assume is the respondent, Ms Findlay, to this application. The email was received this morning at 9.11am.
The email says this:
Subject: I have had a seizure.
The body of the email then says:
I am physically unable to attend today. I attach two documents: Statement from [South African Bank] showing funds my ex did not disclose at Trial. Second is ASIC search showing he had a Superannuation Fund from 2008 but did not disclose the funds at Trial.
I request The Bench for an adjournment as Mr [Daniels] must explain the non disclosure to the Honourable Court.
The first observation I could make is that there is no medical evidence at all to support the assertion that the respondent has had a seizure. The basis of the request for an adjournment appears to be the allegation that Mr Daniels has not disclosed relevant documents to the Court.
The application today is only in relation to costs and has nothing to do with the long ago resolved property settlement.
It might also be useful to refer to a letter sent by the Appeals Registrar on 19 July 2013 to Ms Findlay which says as follows:
Enclosed stamped copy response and affidavit both filed 17 July 2013 for service upon the applicant.
You may wish to seek legal advice as to the orders sought by the applicant. On my reading, Mr [Daniels] seeks that you pay his costs of the appeal. The order made on 13 June 2013 relates to the costs associated with your applications filed 10 May 2013 and 29 May 2013.
It is thus obvious that Ms Findlay could have been in no doubt as to what the proceedings were today. In the absence of any medical evidence or any other proper reason why this matter should be adjourned I would not allow the adjournment.
I will turn now to the application before us. In an application in an appeal, filed 2 July 2013, the husband asked that pursuant to r 22.43 of the Family Law Rules 2004 (Cth) an order be made that the wife pay the costs of an appeal on an indemnity basis. The appeal was filed by the wife on 1 November 2012. It is also asked that the wife pay the costs of this application.
In the supporting affidavit, the husband explains that on 13 June 2013, an order was made dismissing the appellant’s application for an extension of time to file the appeal books. As the appeal books have not been filed as directed, the appeal was taken to be abandoned by operation of r 22.13(3).
On the basis of the appellant being “wholly unsuccessful” the husband asked for costs and that costs be on an indemnity basis. He has a costs agreement with his lawyer. The costs agreement is annexed to his affidavit.
The bill received from the lawyers on account of the appeal is $2462. It is that amount that the husband seeks to be ordered to be paid by the wife. The costs include the sum of $1980 being on account of barrister’s fees to appear on 5 February 2012.
Rule 22.43(2) provides that any application for costs in relation to an abandoned appeal must be filed within 28 days of the date that the appeal became abandoned. In this case, the appeal became abandoned on 17 June 2013 so that the husband’s application is within time.
On 13 June 2013, an order was made dismissing the appellant’s applications filed 10 May 2013 and 29 May 2013. It was also ordered on that date that the wife pay the costs of the husband of and incidental to the applications in an appeal, such costs to be assessed in default of agreement.
Pursuant to that order of Strickland J, made on 13 June 2013, the husband has forwarded to the court an application for assessment of those costs. There is nothing further the Full Court can do in that respect.
The question remains whether the husband can seek costs from the appellant wife in relation to the appeal. Rule 22.43(1) provides that in relation to an appeal which becomes abandoned, the appellant may be ordered to pay the costs of all other parties.
The long history of this matter is recounted in the reasons for judgment of Strickland J given on 13 June 2013 when he dismissed the wife’s applications. It is not necessary to say any more in that respect.
As to this costs application, the wife filed a response on 17 July 2013 where she asks that the application be dismissed. In her accompanying affidavit, the wife appears to take issue with the order for costs made by Strickland J and in particular that as the husband appeared for himself, he should not be entitled to costs for his lawyers. That is a matter for the assessment process.
There appears to be one difficulty in relation to this application to which the applicant refers in his second affidavit filed 30 September 2013. The difficulty is that the order has already been made about the costs of the wife’s application in an appeal although not on the basis the husband now seeks.
We cannot make any further order in relation to costs of the dismissed applications. The usual process must be followed to recover the costs in that respect.
The costs of the appeal generally remain an outstanding matter. As explained in his affidavit, the husband seeks costs of $2462 in relation to the dismissed appeal and $1379 for the dismissed applications.
The provisions of section 117 of the Family Law Act 1975 (Cth) provide that costs orders may be made where circumstances justify such an order. In the circumstances of the appeal being taken to have been abandoned the husband should have a costs order in relation to the legal expenses related to the appeal.
As the wife complains about the fees rendered, the best course is to have those costs assessed together with the earlier order of the costs made by Strickland J. It is not a case where the costs order should be made on an indemnity basis.
The orders that I would propose are that the wife pay the costs of the husband of the appeal together with the costs of the application filed 2 July 2013. Such costs to be assessed.

FAULKS DCJ

I agree with orders proposed by her Honour and for the reasons given orally.

MURPHY J

I also agree with the orders proposed by May J. I agree with her Honour’s reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, May and Murphy JJ) delivered ex tempore on 18 October 2013.

Associate:

Date: 19 November 2013