Fowles & Fowles (No 3)

[2024] FedCFamC1A 142

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Fowles & Fowles (No 3) [2024] FedCFamC1A 142

Appeal from:

Fowles & Fowles (No 4) [2023] FedCFamC1F 819

Appeal number:

NAA 305 of 2023

File number:

MLC 8587 of 2015

Judgment of:

ALDRIDGE, CAREW & CAMPTON JJ

Date of judgment:

22 August 2024

Catchwords:

FAMILY LAW – APPEAL – COSTS – Application for indemnity costs – Where the appeal and cross-appeal were wholly unsuccessful – No basis for indemnity costs identified – Each party to bear their own costs of the appeal and cross-appeal.

Legislation:

Family Law Act 1975 (Cth) s 117

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Fowles & Fowles (No 2) [2024] FedCFamC1A 115

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105

Number of paragraphs:

11

Date of last submission:

13 August 2024

Date of hearing:

Determined in chambers on the papers

Place:

Sydney

The Appellant:

Litigant in person

Counsel for the Respondent:

Mr Sheales

Solicitor for the Respondent:

Lander & Rogers

ORDERS

NAA 305 of 2023
MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FOWLES

Appellant

AND:

MS FOWLES

Respondent

ORDER MADE BY:	ALDRIDGE, CAREW & CAMPTON JJ
DATE OF ORDER:	22 AUGUST 2024

THE COURT ORDERS THAT:

1.Each party bear their own costs of the appeal and the cross-appeal.

2.The $100,000 held in trust by the respondent’s solicitors as security for costs pursuant to Order 4 of the orders made on 20 December 2023 be refunded to the appellant.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Fowles & Fowles has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, CAREW & CAMPTON JJ:

1. On 12 July 2024 we dismissed the appeal and cross-appeal against a property settlement order (Fowles & Fowles (No 2) [2024] FedCFamC1A 115). The respondent now seeks an order that the appellant pay her costs of the appeal on an indemnity basis. She did not propose any alternative order. The appellant contends that there should be no costs order such that each party bears his or her own costs of the appeal and the cross-appeal.

2. The appellant’s submissions were not filed in accordance with the orders and no extension of time was sought. We will not have regard to them.

3. On 20 December 2023 the appellant was ordered to pay $100,000 as security for the costs of the appeal. That sum is presently held in trust by the respondent’s solicitor.

4. Pursuant to s 117 of the Family Law Act 1975 (Cth), each party is to bear his or her own costs of the proceedings unless the Court is satisfied that, in all of the circumstances, a different order is just. In considering such an order, the Court must take into account the matters set out in s 117(2A).

5. Indemnity costs were described by the Full Court in Kohan and Kohan (1993) FLC 92-340 as being “a very great departure from the normal standard” (at 79,611). An extensive survey of existing Family Court and Federal Court authority was undertaken by Thackray & Ryan JJ, Murphy J agreeing, in Prantage & Prantage (2013) FLC 93-544. The same conclusion was reached.

6. Abundant authority accepts that Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 compiled a comprehensive but not exhaustive list of matters for which indemnity costs might be awarded.

7. The respondent’s submissions did not identify which, if any, of these categories she embraced. Rather, her submissions merely consisted of a summary of the reasons given by us in rejecting the appellant’s submissions on the appeal itself. That, of itself, does not justify an order for indemnity costs, even if the rejection is in direct and blunt terms.

8. We are not satisfied that there is any basis for the payment of indemnity costs whatsoever.

9. Indeed, there is little justification for any costs order. Both the appeal and the cross-appeal were wholly unsuccessful.

10. There will be no order for costs.

11. The sum held in trust by the respondent’s solicitors as security for the costs of the appeal should now be returned to the appellant.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Carew & Campton.

Associate:

Dated:       22 August 2024