Fryer and Fryer (Costs)
[2008] FamCAFC 69
•29 May 2008
FAMILY COURT OF AUSTRALIA
| FRYER & FRYER (COSTS) | [2008] FamCAFC 69 |
| FAMILY LAW - APPEAL – From decision of Family Court Judge – COSTS – Full Court made orders allowing an appeal against property settlement orders and a consequent costs order – Full Court ordered that the parties’ applications for property settlement and the wife’s application for costs be remitted for further hearing before trial Judge – The orders also provided the opportunity for the parties to make an application for costs of the appeal by way of written submissions – Each party sought costs of the appeal or alternatively, costs certificates – The husband sought that the Full Court order for remission be amended such that the remission be before a different trial Judge – Both parties’ applications for costs dismissed – Wife granted a costs certificate in relation to the appeal and the remission – Husband’s application for amendment dismissed |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Autodesk Inc and Another v Dyason and Others (No 2) (1993) 176 CLR 300 Brott and Joachim (2006) FLC 93-259 DJL v Central Authority (2000) 201 CLR 226 |
| APPELLANT: | MR FRYER |
| RESPONDENT: | MS FRYER |
| APPEAL NUMBER: | SA | 5 | of | 2007 |
| FILE NUMBER: | MLF | 1388 | of | 2005 |
| DATE DELIVERED: | 29 May 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Warnick, May & Boland JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 December 2006 |
| LOWER COURT MNC: | [2006] FamCA 1357 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Ingleby |
| SOLICITOR FOR THE APPELLANT: | Harwood Andrews Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Geddes QC & Ms Johns |
| SOLICITOR FOR THE RESPONDENT: | Taussig Cherrie & Associates |
Orders
That the husband’s application for costs of the appeal be dismissed.
That the wife’s application for costs of the appeal be dismissed.
That the court grants to the respondent wife a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
That the court grants to the respondent wife a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise payments under that Act to the respondent wife in respect of the costs incurred in relation to such further hearing as takes place as a result of remission of the application for property settlement.
That the husband’s application to amend Order 3 of the orders of the Full Court made 22 November 2007 be dismissed.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the husband’s application to amend by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party within 21 days of the date hereof.
That the other party have a further 14 days within which to make written submissions in answer thereto by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party.
That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Melbourne Registry of the Family Court and serving it on the other party within a further 7 days.
IT IS NOTED that publication of this judgment under the pseudonym Fryer & Fryer (Costs) is approved 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: SA 5 of 2007
File Number: MLF 1388 of 2005
| MR FRYER |
Appellant
And
| MS FRYER |
Respondent
REASONS FOR JUDGMENT
On 22 November 2007, we made orders allowing an appeal against property settlement orders and a consequent costs order, made by Mushin J in December 2006. We ordered that the parties’ applications for property settlement and the wife’s application for costs be remitted for further hearing before Mushin J. The orders also provided the opportunity for the parties to make an application for costs of the appeal by way of written submissions. Arising out of our orders:
· Each party seeks costs of the appeal or alternatively, certificates under the relevant Federal legislation; and
· The husband seeks that we amend our order for remission to provide that the rehearing be before a judge other than Mushin J.
Costs
In the appeal, in the summary of argument for the wife, her counsel had conceded that the trial Judge had “double-counted” an asset. However, her counsel argued that the error could be corrected under the “slip-rule” and need not lead to a successful appeal. We formed the view that the relevant ground must succeed. Upon us so informing counsel for both parties, arguments in respect of other grounds were not developed, but the focus turned to the orders that should follow the success of the appeal because of the error conceded.
In support of his application that the wife pay the costs of his successful appeal, the husband argues that firstly, her concession that there had been an error – first made in a letter of 27 July 2007 - came too late to avoid costs of the appeal, heard on 13 September 2007. In any event, the wife did not concede that the appeal should succeed.
Secondly, the wife’s argument that the error could have been corrected under the slip rule was rejected by the Full Court and was, as described in the submissions for the husband, “not reasonably open”.
Alternatively, the husband sought a costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981.
The wife sought an order that the husband pay her costs of and incidental to the appeal on a party/party basis. Alternatively, she sought a certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981. She also sought a costs certificate in respect of the new trial under s 8(3) of the same Act.
The wife partly based her claim on a finding in our reasons for allowing the appeal that the husband had led the trial Judge into error. Her submissions were:
5.The Full Court noted … that the appellant had failed to comply with the orders of Mushin J dated 29 March, 2006 which required the appellant to file a Form 13 financial statement and affidavit of evidence in chief and complete income tax returns on his own behalf and of entities controlled by him … . The Full Court concluded that the appellant’s failure to comply with that order is “the genesis of the error in “double counting” the sum of $118,400 made by the trial judge”.
6.… the Full Court noted that “the husband after appearing in Court, refused to take part in the proceedings”. Later, at paragraph 29 the Full Court observed that “…the husband was a significant contributor to the difficulties in which the trial Judge found himself in hearing the matter…”
…
8.In no way could it be said that the respondent’s conduct gave rise to the Appeal. At paragraph 16 of the Judgment the Full Court noted “The wife at all times filed the necessary material and complied with orders and directions”. Further, at paragraph 35 of the Judgment the Full Court confirmed that the appeal should be allowed and noted that such outcome was “unfortunate…for the parties, especially the wife who diligently prepared for trial.”
As to relevance of the conduct of the husband leading up to and at trial, to the issue of costs of the appeal, the Full Court said in Brott and Joachim (2006) FLC 93-259 at 80,402:
31.In Russo v Resource Development International Pty Ltd (No.2) [2003] NSWSC 446, Young CJ considered a claim by a defendant, against whom the plaintiff had wholly failed, that the plaintiff pay the defendant’s costs. Young CJ referred to a finding that he had made in the course of the hearing, that he could not believe the evidence of the particular defendant and posed for himself the question:
“[8] The question of principle then is how far can a court deprive a successful litigant of his costs because, to put it at its highest, it is found that in a matter not connected with the reasons for which that person succeeded, he has fabricated a document which was deployed in evidence and has maintained that the document was not fabricated.
[9] There is no doubt at all that there are some circumstances where the court may deprive a successful party of his or her costs of the action.…”
32.His Honour then reviewed various decisions, commencing with that of the House of Lords in Donald Campbell & Co Ltd v Pollack [1927] AC 732. He quoted what Viscount Cave (at 812) said with regard to the exercise of discretion:
“the Judge ought not to exercise it against the successful party except for some reason connected with the case. Thus, if – to put a hypothesis which in our Courts would never in fact be realized – a judge were to refuse to give a party his costs on the ground of some misconduct wholly unconnected with the cause of action or of some prejudice due to his race or religion or…to the colour of his hair, then a Court of Appeal might well feel itself compelled to intervene. But when a judge, deliberately intending to exercise his discretionary powers, has acted on facts connected with or leading up to the litigation which have been proved before him or which he has himself observed during the progress of the case, then it seems to me that the Court of Appeal…is prohibited by the statute from entertaining an appeal from it.”
While we accept that the wife unsuccessfully resisted the appeal and the arguments that the “slip rule” could be utilised to correct the trial Judge’s error were weak, we consider that the husband’s conduct is so powerful a factor that it should disentitle him to a costs order, or a certificate.
In her submissions in reply, the wife raised some criticisms of the husband’s conduct of the appeal itself. In view of our conclusion just expressed it is unnecessary to deal with these criticisms or the response to them on behalf of the husband.
As far as the wife’s costs are concerned, the position is that, while she conceded the mathematical error, she unsuccessfully argued for an application of the slip rule. However, in our view, it is appropriate that she receive a certificate, both in respect of the appeal and the costs of any further hearing of the remitted matters.
The husband’s application that we amend the order for remission to Mushin J
Order 3 of the orders of 22 November 2007 was:
3.That the parties’ applications for property settlement and the wife’s application for costs be remitted for further hearing before Mushin J.
At paragraph 42 of our reasons for judgment in support of the orders, we said:
…the remission will be for the purposes of Mushin J:
(1)reconsidering the “assets and liabilities” table in light of these reasons and any further evidence as his Honour may receive; and
(2)reconsidering the s 75(2) factors and the justice and equity of any orders.
As indicated, the husband seeks:
1.That order 3 of the orders of the Full Court dated 22 November 2007 be amended by providing that the proceedings be remitted for rehearing before a Judge other than the learned trial Judge.
On 10 March 2008 we made directions for that application to be dealt with by way of written submissions and these we have now received.
In the written submissions for the husband, Dr Ingleby refers to the position, taken for the husband on appeal, that remission be to a judge other than the trial Judge, and to the matters then raised in support of that proposal. Dr Ingleby submits that the Full Court overlooked the issue of the identity of the judge to whom any remission was made. He referred to paragraph 43 of our reasons. As earlier seen, in paragraph 42 we set out the purposes for which the matter was remitted to Mushin J. Then, in paragraph 43, we said:
43.This course is consistent with the submissions made by each counsel although we are aware not one that either directly suggested. (See transcript 13 September 2007 at pages 8 and 18 (Dr Ingleby’s submissions) and pages 19-20 (Mr Geddes QC)).
Our reference in that paragraph was to the course of a limited remission, not to the identity of the trial Judge. In short, there has not been an oversight. This we think apparent from the judgment.
In our reasons for the orders of 22 November 2007, we specifically said:
3.…At the hearing of the appeal counsel for the appellant asked for a rehearing before another trial Judge.
4.…This leaves various questions including … whether the matter should be remitted for further hearing by the trial Judge or before another member of the trial division.
We also said:
38.However, the real difficulty as we see it, is the percentage that should be applied especially considering matters pursuant to s 75(2). We do not see that there can be any real challenge to the judgment of the trial Judge up to that point.
…
42.We are mindful of the significant costs already incurred by the wife and the conduct of the husband. Bearing in mind those factors and that it would create some real difficulties especially for the wife if this matter were to begin again in its entirety the better course would be to remit the matter to the trial Judge where the sum of $118,400 can be excluded from the pool, the proceeds of the house sale can be included and his Honour can consider any evidence as directed by him. …
Even if this Court’s jurisdiction to re-open matched that of the High Court of Australia, we do not think we would be able to re-open on the basis argued. In Autodesk Inc and Another v Dyason and Others (No 2) (1993) 176 CLR 300 Mason CJ said of the jurisdiction of the High Court to re-open:
4.…However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
Of even greater significance is what was said by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in DJL v Central Authority (2000) 201 CLR 226, in answering in the negative the question of whether the Full court of the Family Court had power to re-open its final orders after their entry (at 248):
The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as “a superior court of record”. Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.
We are satisfied that we are “functus officio” and that the matter now rests with Mushin J, to deal with, no doubt, in light of whatever applications and submissions in support are made to him.
Because Mushin J retains full control of the future of the applications remitted to him, we reject Dr Ingleby’s proposition that:
Any application to the learned trial judge that he disqualify himself might be held barred by the final 3 words of paragraph 3 of the Full Court’s orders.
We also reject the proposition that the order for remission to the trial Judge was a “procedural matter”.
The remission to Mushin J is not equivalent to the selection of a judge from a roster or to some like administrative decision. The return of the application to him for further consideration is effectively to treat him as part-heard, still seized of the case.
For these reasons we intend to dismiss the husband’s application for amendment of Order 3 of the orders of the Full Court made 22 November 2007.
Cost of the application to amend Order 3
The wife sought such costs in her response, but the issue has not been addressed by the husband. We will provide a short period for written submissions on this point.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 29 May 2008
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