Fleming & Schmidt
[2017] FamCAFC 12
•9 February 2017
FAMILY COURT OF AUSTRALIA
| FLEMING & SCHMIDT | [2017] FamCAFC 12 |
| FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – where the trial judge declared that a de facto relationship existed between the parties for approximately 20 years – where the appellant asserts that the trial judge erred in so declaring – where the appellant attempted to re-agitate the same or similar arguments as he did before the trial judge – where the appellant contended that determinative weight ought to have been placed upon those circumstances which he said contra-indicated the existence of a de facto relationship – where the Full Court found no error in the trial judge’s approach – appeal dismissed. FAMILY LAW – SEPARATE APPEAL – COSTS – where the appellant in this appeal sought to appeal a costs order made by the trial judge – where the appellant contended that the trial judge erred in the quantum of costs ordered – where no error is demonstrated – appeal dismissed. |
| Bankruptcy Act 1966 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Fleming & Schmidt [2015] FamCAFC 123 Gronow v Gronow (1979) 144 CLR 513 Harris and Harris (1991) FLC 92-254 House v The King (1936) 55 CLR 499 Lynam, J.L. v. Director-General of Social Security (1984) FLC 91-577 Robinson and Higginbotham (1991) FLC 92-209 Sinclair & Whittaker (2013) FLC 93-551 University of Wollongong v Metwally (1985) 60 ALR 68 |
| APPELLANT: | Mr Fleming |
| RESPONDENT: | Ms Schmidt |
| FILE NUMBER: | DUC | 239 | of | 2013 |
| APPEAL NUMBERS: | EA | 123 | of | 2014 |
| EA | 10 | of | 2015 |
| DATE DELIVERED: | 9 February 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Kent & Cronin JJ |
| HEARING DATE: | 6 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 August 2014 23 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 1625 [2014] FCCA 2997 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Judge | |
| SOLICITOR FOR THE RESPONDENT: | Osborne Legal | |
Orders
EA123 of 2014
The appeal be dismissed.
The appellant, Mr Fleming, pay the costs of the respondent, Ms Schmidt, of and incidental to the appeal, including any reserved costs, such costs to be assessed, on a party/party basis if not agreed.
EA10 of 2015
The application of Ms Schmidt for leave to appeal against the order for a stay of the orders made on 23 December 2014 be dismissed.
The appeal of Ms Schmidt against the order for costs made on 23 December 2014 be dismissed.
There be no order as to costs of this appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fleming & Schmidt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA123 of 2014; EA10 of 2015
File Number: DUC239 of 2013
| Mr Fleming |
Appellant
And
| Ms Schmidt |
Respondent
REASONS FOR JUDGMENT
Appeal EA123 of 2014
Mr Fleming (“the appellant”) appeals from orders made by Judge Dunkley on 5 August 2014 in proceedings under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) between the appellant and Ms Schmidt (“the respondent”) who opposes the appeal.
The trial judge made a declaration pursuant to s 90RD of the Act that the parties lived in a de facto relationship from November 1991 until June 1999 and from December 1999 until 9 February 2013.
That declaration having enlivened the jurisdiction under s 90SM of the Act, the trial judge proceeded to make orders altering the interests of the parties in property.
We are of the opinion that this appeal ought be dismissed and that as it does not raise any question of general principle, reasons for its dismissal in short form ought be given (s 94AAA(7) of the Act). The singular lack of merit in this appeal renders the conclusion that reasons for its dismissal in short form are all that is necessary.
The appellant’s seven grounds of appeal, as these are expressed in his notice of appeal filed on 1 September 2014, do not constitute proper grounds of appeal. Each of grounds 1, 2, 4, 6 and 7 state a conclusion unsupported by particulars or specificity. Consequently, the error or errors purportedly asserted cannot be discerned. The balance of the grounds, 3 and 5, contain complaints by the appellant not of error on the part of the trial judge, but complaints about the conduct of his case by lawyers who acted for him at trial.
The appellant represented himself on the appeal and to the extent that it is possible to discern complaints the appellant seeks to agitate on appeal, these are to be found in his summary of argument filed on 13 August 2015 which is not directed either specifically, or at all, to the discrete grounds of appeal stated in the appellant’s notice of appeal.
Having seen and heard the parties and witnesses give evidence at trial, the trial judge made adverse credit findings against the appellant (for example, reasons at [88] and following; [124], [133] and [134]) and the trial judge recorded (at [135]) that where the appellant’s evidence was at odds with that of the respondent about factual matters, the respondent’s evidence was to be preferred.
It was not in issue in the proceedings that:
·The parties were in a relationship for more than 20 years;
·That relationship produced two now adult children;
·The parties had agreed for the respondent to undergo surgery in November 1991, funded by the appellant, to reverse an earlier tubal ligation so as to enable the parties to have children together;
·From 1992 until their final separation in February 2013 the parties lived with their children in a common residence, save for a short period of separation in 1999.
The trial judge correctly identified (at [118]) that s 4AA of the Act contains the definition of “de facto relationship”.
The reasons for judgment of the trial judge reflect an entirely orthodox process of fact finding on the central facts which were in issue, in addition to the undisputed facts summarised above, relevant to that definition. The trial judge concluded that the preponderance of the relevant circumstances of the parties’ relationship characterised it as a de facto relationship, within the meaning of s 4AA of the Act, for the periods identified and which thus ended “on or after 1 March 2009” to found the jurisdiction to make property adjustment orders.
Section 4AA of the Act provides:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
(Emphasis as in original)
These provisions render it self-evident, that:
a)The focus of the enquiry in a given instance is upon all the circumstances relevant to the particular relationship under consideration to determine whether or not it is to be concluded, as a matter of fact, that the persons have a relationship as a couple living together on a genuine domestic basis (s 4AA(1)(c));
b)The circumstances to be considered may (or may not) include any of those nine circumstances identified in subsection (2) of s 4AA;
c)Subsection (3) expressly provides that no particular finding in relation to any circumstance is necessary to an overall conclusion as to whether persons have a de facto relationship;
d)The inter-relationship between subsections (3) and (4) means that the Court is entitled to have regard to such circumstances as considered necessary and a discretion exists as to the weight to be attached to any circumstance as considered appropriate;
e)Exclusivity (sexual or otherwise) is not fundamental or necessarily determinative given that subsection (5)(b) provides for a person to be in a marriage and a de facto relationship at the same time; or in multiple de facto relationships at the same time.
In Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair”), the Full Court, in the course of discussing s 4AA of the Act, cited with approval a statement of Fitzgerald J in the Federal Court in Lynam, J.L. v. Director-General of Social Security (1984) FLC 91-577 in the following passage:
51.In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).
52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.
53.Sub-section 4AA(4) provides:
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
54.Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
55.In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said [sic]:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
56.Many of the submissions put by the appellant in the appeal sought to place significant, if not determinative weight, on particular circumstances. Absent the identification of an error on the part of the trial Judge it is difficult for such submissions to succeed. Merely because another judge may have weighed the circumstances differently does not, of itself, demonstrate error.
What was stated by the Full Court in Sinclair at [56] quoted above is apposite to this appeal. Here, the appellant seeks to re-agitate before us the same or similar arguments as were put to the trial judge to the effect that determinative emphasis ought be placed upon those (relatively few) circumstances of the parties’ relationship tending against its characterisation as a de facto relationship. However, it was the “composite picture” the trial judge obviously had regard to as reflected in the reasons for judgment and on the findings made, which were well open on the evidence supporting them, the trial judge reached the determination he did. In our judgment that determination was not only open to the trial judge on the findings made, but was compelled by them.
The appellant’s repeated complaints in his summary of argument about there being no “merger of lives” between the parties, and that this, rather than the statutory definition in s 4AA, is the “test” to be applied, mirrors the arguments that were mounted by the appellant in Sinclair and which were rejected by that Full Court in the following terms:
92.In both written and oral submissions the appellant submitted that the facts did not demonstrate “the manifestation of coupledom” or that there had been “the merger of two lives”. These phrases emerge from the decision of Murphy J in Jonah v White [2011] Fam LR 460 at 471 where his Honour said:
[60]In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
…
[66]The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union — the merger of two individual lives into a life as a couple — that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
93.It is important to note that his Honour’s comments were made in the context of the facts of the matter that was before him. It is clear from reading the judgment as a whole that his Honour had the statutory definition firmly in mind at all times. When dismissing the appeal from his Honour’s decision the Full Court did not disagree with his Honour’s statements of principle but did not apply anything other than the statutory test (Jonah & White ). At 86,682 their Honours said:
It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
94.Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
95.It is also to be remembered, perhaps making the task of a trial Judge applying s 4AA more difficult, that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements. The application of the statutory criteria to reach a conclusion must be done judicially. It is difficult, absent error, for an appeal court to interfere, even if it would not itself have reached that conclusion.
Nothing to which we were directed by the appellant leads us to conclude that the trial judge erred in any respect in the conclusions the trial judge reached as to the existence of the parties’ de facto relationship within the meaning of s 4AA of the Act.
As to the property adjustment orders made by the trial judge, the appellant seeks first to, impermissibly on appeal, contest items of property and valuations of items of property as adopted by the trial judge, when it is plain that there was no issue joined about these matters at trial. As is reflected at [25] of the trial judge’s reasons, the parties had agreed upon a joint balance sheet setting out the identification and value of the parties’ respective assets, liabilities and financial resources to be taken into account, which balance sheet was admitted as Exhibit C in the proceedings.
The appellant is not entitled to now, on appeal, withdraw from his clear admissions made at trial as to the respective property interests to be considered, and their respective values, nor to raise arguments for the first time on appeal which were not advanced at trial (University of Wollongong v Metwally (1985) 60 ALR 68).
The complaints the appellant mounts about his representation at trial by solicitors and counsel do not elucidate how or in what respects that representation was incompetent as distinct from considered decisions being taken, tactical or otherwise, as to the manner in which the litigation was to be conducted.
Beyond that, the appellant apparently seeks to re-agitate matters as to weight to be given to relevant factors considered by the trial judge in assessing the parties’ respective contributions.
None of the matters advanced by the appellant as to the property orders the trial judge made demonstrates any legitimate basis for appellate intervention in respect of the judicial discretion which the trial judge exercised (House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513). That determination was well open to the trial judge and is consistent with the evidence and the findings the trial judge made on that evidence.
Adjournment application
At the outset of the hearing of this appeal, we rejected the appellant’s application for an adjournment of the appeal, which application was opposed by the respondent. These are our reasons for dismissing that application.
Section 97(3) of the Act requires that the Court endeavour to ensure that the proceedings are not protracted. That section has particular resonance in this case because these already protracted proceedings, in the circumstances now discussed, would be even more so had the appeal been adjourned.
As already noted the subject orders were made as long ago as 5 August 2014. On 23 December 2014 Judge Dunkley granted the appellant’s application for a stay of those orders, pending the determination of the appellant’s notice of appeal filed on 1 September 2014. Whilst the stay was granted on conditions, those conditions do not materially diminish the fact that the respondent has been held out from the benefits to her of the judgment which was delivered on 5 August 2014 by virtue of the stay.
This appeal was first listed for hearing by the Full Court on 19 June 2015. Despite various orders having been made by Appeals Registrars in advance of that date in an endeavour to have the appeal ready for hearing, the appellant had not filed his summary of argument for his appeal.
On 19 June 2015, for reasons then given (Fleming & Schmidt [2015] FamCAFC 123) the Full Court (Finn, Ainslie-Wallace and Le Poer Trench JJ) granted the appellant the indulgence, on his oral application, of adjourning the appeal to allow the appellant a further two months to file his already well overdue summary of argument. Notably, the respondent having appealed from the stay orders made on 23 December 2014 by Judge Dunkley, as well as the costs orders the trial judge made on that date in respect of the trial (appeal number EA10 of 2015), the respondent’s appeal from those orders was necessarily adjourned as well.
The appeals were consolidated and listed for hearing on 4 April 2016. However, on that hearing, it having been revealed that the appellant had recently been declared bankrupt, it was necessary for both appeals to again be adjourned so that the position of the appellant’s trustee in bankruptcy in relation to the appeals could be ascertained. Notably, on that occasion the Full Court (Bryant CJ, Ryan and Aldridge JJ) made an order that the costs of that day incurred by the failure of the appellant to advise the Court of his bankruptcy be reserved.
As Exhibit 1, the trustee’s summary of receipts and payments to 17 August 2016, tendered on the hearing of the appeal reflects, the appellant became bankrupt in respect of outstanding legal fees to the lawyers who acted for him at trial in these proceedings in the amount of $25,882 and a debt to the Australian Taxation Office of $3,772; notwithstanding significant cash reserves held by the appellant, greatly in excess of the total of these debts.
On 2 May 2016 the appellant’s trustee in bankruptcy advised the parties and this Court of his election to join the appeal proceedings pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth) (“the BA”). On 2 December 2016 the trustee certified that the appellant’s bankruptcy was annulled on that date pursuant to s 153A of the BA.
It is clear from correspondence provided to this Court by the appellant’s trustee that no later than 17 October 2016 was the appellant aware of the trustee’s proposal to make a distribution to the appellant’s creditors and upon which the appellant’s bankruptcy would be annulled pursuant to s 153A of the BA.
In circumstances where the parties were advised by the Appeals Registrar on 27 September 2016 of the listing of these appeals for hearing on 6 December 2016, the appellant, by email correspondence to the Appeals Registrar of 1 December 2016, foreshadowed for the first time his intention to apply for an adjournment in the event that he could not secure legal representation alternate to his nominated counsel, to appear for him on the hearing of the appeals.
Against the above background we do not accept that it was only on 1 December 2016 that the appellant was first cognisant of the need to secure legal representation, if he chose to do so, for the hearing of these appeals on 6 December 2016. Moreover, given his historical financial position, even though the annulment of his bankruptcy was only formally certified on 2 December 2016, it was foreshadowed well in advance of that date and it is difficult to accept the appellant’s assertions on the hearing to the effect that he has been financially unable to secure legal representation, if he had chosen to do so timeously.
However, even accepting the appellant’s assertions that he has been prejudiced to some extent by an inability to secure legal representation, we consider that any such prejudice is overwhelmingly outweighed by the further prejudice that would be occasioned to the respondent of yet another adjournment of these appeals, potentially for a number of months before a further listing is possible, and the consequent deprivation to the respondent of the benefits of the judgment she secured as long ago as 5 August 2014.
It was for these reasons that the appellant’s application for an adjournment of the hearing of these appeals was refused.
Costs of appeal EA123 of 2014
The appellant has been wholly unsuccessful in this appeal within the meaning of s 117(2A)(e) of the Act. His financial circumstances are significantly superior to those of the respondent even taking into account the property the respondent is to receive pursuant to the final orders made. The appellant’s conduct, within the meaning of s 117(2A)(c), in failing to file a summary of argument in advance of the hearing of this appeal when it was first listed on 19 June 2015; and his conduct in failing to advise the Court and the respondent of his bankruptcy in advance of the listed hearing on 4 April 2016, is also relevant.
We are of the opinion that there are circumstances that justify an order for costs within the meaning of s 117(2) of the Act. In our judgment an order that the appellant pay the respondent’s costs of and incidental to this appeal, including the costs reserved by the order of the Full Court made on 4 April 2016, is warranted and we so order.
Appeal EA10 of 2015
On 23 December 2014 Judge Dunkley made orders staying the final orders made on 5 August 2014 pending the determination of the appeal from them (EA123 of 2014) and ordered costs in favour of the appellant in this appeal, Ms Schmidt (“the appellant”) against the respondent in this appeal, Mr Fleming (“the respondent”) in a fixed sum; but also stayed that order pending that determination.
By notice of appeal filed on 20 January 2015 the appellant seeks leave to appeal against the stay orders and appeals against the costs orders the trial judge made.
The application for leave to appeal against the stay orders is now rendered nugatory in circumstances where the appeals were heard together and the appeal in EA 123 of 2014 has now been determined by its dismissal. It is therefore not necessary for us to further discuss the application for leave to appeal from the orders staying the orders of 5 August 2014.
As to the costs order, the trial judge ordered the respondent to pay the appellant’s costs in the fixed sum of $7,477.50. The trial judge found (at [23] and [24] of the reasons) that the Court should exercise its discretion to make a costs order in the appellant’s favour because “the [o]rders made 5 August 2014 in overall terms were more favourable to her than the written offer that she had made.” The trial judge determined “[h]aving considered the factors in s. 117(2A)” that the respondent should pay the appellant’s costs “calculated from the morning of day 3 of the final hearing being the time he rejected her written offer of settlement” (at [43]). The trial judge determined that the costs payable would be “limited to the last 2 days of the final hearing, and the costs thrown away on 19 November 2014 due to the no-appearance of [the respondent]” (at [44]) (that being an earlier date fixed for the hearing of the costs application).
The trial judge then calculated the relevant costs in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) to arrive at the fixed sum of $7,477.50 (at [45] to [51]).
Before dealing with the appellant’s grounds of appeal it must be noted that a determination as to costs pursuant to s 117 of the Act is quintessentially discretionary. All the more is that of significance where, as here, the complaint is not that no order for costs was made, but that costs should have been ordered on a different or more generous basis. Moreover, relevant to the nature of the discretion involved, a trial judge who has dealt with the litigation as it unfolds will generally have advantages not available to an appeal court to assess the justifying circumstances for an order and what, ultimately, is the “just” order, as mandated by s 117(2) of the Act. Full Court authorities such as Robinson and Higginbotham (1991) FLC 92-209 (“Robinson”) and Harris and Harris (1991) FLC 92-254 (“Harris”) emphasise that it will only be in rare or limited cases that the Full Court interferes with the exercise of discretion as to costs by a trial judge. As the Full Court observed in Harris at 78,711:
Orders for costs are peculiarly a matter which are within the discretion of the trial judge and it is only in the rarest of cases that the Full Court should interfere with a costs order.
In Robinson having observed (at 78,417) that the Full Court “should be very reluctant indeed to interfere with the exercise of discretion in respect of costs”, the Full Court stated the principle governing legitimate intervention as “if the result is plainly unjust or if the discretion was exercised on wrong principles”.
It bears emphasis that each of Harris and Robinson involved challenges as to whether or not a costs order ought to have been made and not, as here, challenges directed to the quantum of costs ordered. We would need to be satisfied that the order for costs actually made was “plainly unjust” or that the discretion as to the amount ordered “was exercised on wrong principles” to warrant appellate intervention. That is, it is not enough that the appellant demonstrate only that a different or more generous order for costs was open to be made; nor is it enough that we or other judges might have, sitting at first instance, made such an order.
Ground 1 of the appeal is founded in substantial part (ground 1(b)) on the premise that the respondent was “wholly unsuccessful in the proceedings”. Ground 1(a), in association, asserts that “the majority of the hearing was occupied by evidence relating to the existence of the de facto relationship”.
In our judgment the premise that the respondent was “wholly unsuccessful in the proceedings”, by necessary implication within the meaning of s 117(2A)(e) of the Act, is misconceived.
The appellant sought the property adjustment orders set out in her amended initiating application filed on 14 May 2014. The respondent succeeded in his defence of those orders to the extent that the orders ultimately made were less favourable to the appellant. Associated with that, by her reply filed on 3 October 2013 the appellant sought a declaration pursuant to s 90RD of the Act that the parties’ de facto relationship commenced in December 1988 and continued until 13 February 2013. Notably, that asserted commencement date preceded the date of acquisition by the respondent of a property which ultimately formed a substantial part of the property interests considered at trial. In the result, the trial judge declared the de facto relationship to have commenced, not in December 1988, but in November 1991 and that it did not subsist between June and December 1999. Plainly, the commencement date of, and the period of, the de facto relationship as found by the trial judge impacted upon the assessment of the parties’ contributions including, for example, the assessment of the initial capital contribution of the respondent.
In Robinson the Full Court observed (at 78,417):
Her Honour then makes a reference to the question of which party was wholly successful but, of course, as counsel for the wife rightly submitted, paragraph (e) deals with a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed.
We would add that the same is true of an appeal without merit which is dismissed. That is, subparagraph (e) of s 117(2A) is directed to the entirety of proceedings which are dismissed and in respect of which it can be said that a party has been wholly unsuccessful in those proceedings. It cannot be concluded that s 117(2A)(e) operated in this case because it cannot be concluded that the respondent was wholly unsuccessful in the proceedings.
The assertion in ground 1(a) that “the majority of the hearing was occupied by evidence relating to the existence of the de facto relationship” overlooks that the appellant was contending for a commencement date of the de facto relationship of December 1988 and that, in the result, the trial judge ordered costs in favour of the appellant for two days of the four days of the hearing. It also overlooks what was in issue, in terms of the property adjustment orders the appellant was seeking, based upon the outcome of, inter alia, the assessment of the parties’ respective contributions.
Ground 1(c) focuses upon an offer of settlement made by the appellant on 27 May 2014 which was withdrawn the next day by the further offer made of 28 May 2014 upon which the trial judge acted. We are not persuaded that the trial judge was plainly wrong to disregard the earlier offer in the circumstances or that the result reached is plainly unjust. On one view, even if the 27 May 2014 offer were relied upon, the costs for 27 May 2014 (solicitors and counsel) would likely have already been incurred at the time of its making and the trial judge actually ordered the costs of both final days of the hearing, 28 and 29 May 2014, in favour of the appellant.
We find no merit in ground 1.
Ground 2 asserts error in the trial judge finding that a concession was made on behalf of the wife that costs “should” be calculated in accordance with Schedule 1 of the FCC Rules. It is submitted that “could” was the concession. Review of the transcript of the hearing of the application on 27 November 2014 in conjunction with the written submissions in support of this ground, renders the conclusion that this ground is an exercise in semantics rather than substance and is thus unsustainable (transcript, 27 November 2014, p. 25, l. 15 - p. 26 l. 5).
Ground 3 contends that the trial judge erred in assessing the amount of costs. Review of the same part of the transcript just referred to reveals that counsel then appearing for the appellant provided no assistance whatsoever to the trial judge as to the amount to be calculated in accordance with Schedule 1. The affidavit evidence in support of the application did not descend to particularity as to what “disbursements” were appropriately referable to the last two days of the hearing, and the costs thrown away on 19 November 2014; nor was any certification for counsel sought.
The trial judge was left to apply Schedule 1 which he appears to have accurately done. It is not demonstrated that the trial judge actually made any error in his calculations or that the result is plainly unjust. Ground 3 thus fails.
Grounds 4(a) and 6 contain the same complaint to the effect that the trial judge did not make an order for costs in favour of the appellant in respect of the whole of her application for costs. The appellant’s application for costs filed on 27 August 2014 sought this order:
The Respondent pay the Applicant’s costs as and from 13 August 2013.
In support of that application the appellant filed an affidavit deposing to, inter alia, the total amount of her solicitor and own client costs incurred from 13 August 2013 at $69,346.30. The application as framed in this manner, containing no assessment of party and party costs, was self-evidently an application for indemnity costs. Only on the hearing of the application did the appellant’s counsel confirm that what was actually sought was costs on a party and party basis, yet no evidence was provided as to the quantum of costs assessed on a party and party basis in respect of any period.
The trial judge recorded at [50] of his reasons for judgment:
As [the appellant] has not been as successful in her costs application as she originally sought, there will be no order with respect to her costs of arguing that application on 27 November 2014.
We find no error on the part of the trial judge in limiting the costs ordered in favour of the appellant in respect of her application for costs. There is no merit in these grounds.
As no written or oral argument was addressed by the appellant to grounds 4(b) and (c) we will not burden these reasons with lengthy discussion of them. All that needs to be noted is that ground 4(b) revisits the topic of the appellant’s offer of settlement we have already addressed; and ground 4(c) is based upon the premise that the respondent was “wholly unsuccessful in the proceedings”, a premise which is unsustainable for the reasons we have earlier discussed.
Ground 5 contains a challenge to the trial judge ordering a stay of the costs order he made pending finalisation of the respondent’s substantive appeal in EA123 of 2014. It is now unnecessary to deal with this ground given that it is rendered nugatory by the determination of the substantive appeal.
As we find no merit in any of the grounds of appeal against the costs orders the trial judge made this appeal is to be dismissed. As the respondent represented himself on this appeal and incurred no costs in relation to it there will be an order that there be no order for costs of this appeal.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Kent and Cronin JJ) delivered on 9 February 2017.
Associate:
Date: 9 February 2017
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