GALBADON & GALBADON
[2015] FamCAFC 59
•10 April 2015
FAMILY COURT OF AUSTRALIA
| GALBADON & GALBADON | [2015] FamCAFC 59 |
| FAMILY LAW – APPEAL – COSTS – Application for an extension of time to apply for costs upon the discontinuance of an appeal – Where notice of discontinuance not served in time – Where leave granted – Where there was no basis for indemnity costs – Where an order for party/party costs should be made– Costs order made. |
| Family Law Act 1975 (Cth): ss 79, 117 Family Law Rules 2004 (Cth): r 1.14, 22.42 |
| Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 Gallo v Dawson (1990) 93 ALR 479 Kohan & Kohan (1993) FLC 92-340 |
| APPLICANT: | Ms Galbadon |
| RESPONDENT: | Mr Galbadon |
| FILE NUMBER: | WOC | 847 | of | 2012 |
| APPEAL NUMBER: | EA | 99 | of | 2014 |
DATE DELIVERED: | 10 April 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 10 April 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 9 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1070 |
REPRESENTATION
| FOR THE APPLICANT: | Dribbus Kovacevic Lawyers |
FOR THE RESPONDENT: | Mr Galbadon in Person |
Orders
That the applicant be given an extension of time to file an application for costs in the appeal.
That the respondent pay the applicant’s costs of and in relation to the appeal in the amount of $800 within one (1) month.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Galbadon & Galbadon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 99 of 2014
File Number: WOC 847 of 2012
| Ms Galbadon |
Appellant
And
| Mr Galbadon |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
This is an application by Ms Galbadon (“the wife”) for an extension of time to file an application for costs upon the discontinuance of an appeal presented by Mr Galbadon (“the husband”). That appeal concerned orders made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Judge Altobelli on 9 July 2014. For completeness, it needs to be observed that his Honour’s orders and judgment also dealt with complex parenting issues relating to the parties’ three sons. Self-evidently, there was no appeal in relation to those parenting orders.
The husband is the respondent to this application for an extension of time. He opposes the application for costs.
Background
So as to give the application some context, it is necessary to record a few seemingly uncontentious background facts.
The parties married in 2003 and separated in 2012. As I have already mentioned, there are three children from their marriage. Parenting and property proceedings were heard concurrently by Judge Altobelli in three tranches in early 2014. They culminated in the orders of 9 July 2014, to which reference has already been made.
On 4 August 2014, the husband filed a Notice of Appeal in relation to the orders for property settlement.
Directions were made concerning the appeal on 14 October 2014. Relevantly, these required that the appeal books be filed no later than 28 November 2014. It is not contentious that the appeal books were not filed. Given that the appeal was subsequently discontinued, the failure to file the appeal books is a matter of no moment perhaps other than their non-filing probably moderated the costs and effort required from the wife in the appeal.
On 16 January 2015, the husband filed a Notice of Discontinuance. A copy of the notice was not sent to the wife in accordance with the timeframe contained in the Family Law Rules 2004 (Cth) (“the Rules”). In any event, the last day that the wife had to file an application for her costs of the discontinued appeal was 13 February 2014. It was on 23 February 2015 in a telephone conversation between the wife and court staff that she first became aware of the Notice of Discontinuance. By letter dated 4 March 2015, the husband’s then solicitors served a copy of the Notice of Discontinuance.
The applicable rules and principles
The principles relating to an application for an extension of time to file an application for costs are the same as those for an extension of time to file an appeal. The leading authority is Gallo & Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave.
Delay
In my view, the most compelling issue on the application for an extension of time is whether or not the wife has provided an adequate explanation for her delay. I understood it to be conceded that she did provide an adequate explanation. I agree. The failure by the husband to ensure that the Notice of Discontinuance was served in accordance with the rules is, in my view, a complete answer for the wife’s failure to file an application for costs within the time required by the rules. It would occasion an injustice to the wife to not grant her leave to bring the application.
Nature of the litigation
Otherwise, the issue is in relation to property. Although there are ongoing issues concerning the children being dealt with in the Federal Circuit Court the matter with which I am concerned is ultimately money.
History of the proceedings
The history of the proceedings is undoubtedly complex. That is evident from his Honour’s reasons for judgment and the volume of litigation that has continued in the lower court. However, the history of the litigation in the Appeals Division is unremarkable and, in fact, deceptively simple.
Should leave be given?
There is nothing about the history of the proceedings or the nature of the litigation which would weigh in favour of or against an extension of time. The delay having been satisfactorily explained, I am satisfied that the applicant should have the extension of time that she seeks.
Costs application
It would be apparent from these reasons thus far that the focus of the proceedings this morning has, in fact, been on whether or not an order for costs should be made, and if an order for costs is made, the quantum of those costs.
The application presented by the wife was initially for costs on an indemnity basis. She did not comply with the rules concerning an application for indemnity costs. In particular, the court was not provided with details of the terms of the costs agreement entered into with her solicitors. Although the quantification of those costs was provided orally, the court was not placed in a position to consider an account calculated by reference to the cost agreement.
Apart from those matters, which would have been fatal to the application for indemnity costs, there was nothing in the evidence relied upon by the wife in her application in support of the claim for indemnity costs which brought this case close to anything like the cases where an order for indemnity costs might be made (see Kohan & Kohan (1993) FLC 92-340 and Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225).
I go into this at some length because it is disconcerting to see so many applications for indemnity costs which are devoid of merit and disconnected from principle. It is something that needs to stop. In any event, as a consequence of exchanges, the claim for indemnity costs was abandoned in favour of a claim for party/party costs. What was an application which sought some $3,168 fell to a claim of $1,153.90, inclusive of the application for costs.
Section 117 of the Act is the governing provision in relation to applications for costs. The starting position is that in proceedings under the Act, parties ordinarily bear their own costs. Unlike other jurisdictions, costs do not follow the event. However, by reference to the factors indicated in s 117(2A) of the Act, if the court is satisfied there are justifying circumstances for an order for costs, it is there that the relevant factors are to be found. In my view, there are justifying circumstances, they being an appeal which was initiated and then discontinued.
Looking then to the s 117(2A) factors, there are two relevant matters. First, the financial circumstances of the parties. As his Honour’s recent judgment indicates, the parties have some, but not significant, assets. As a consequence of the orders which his Honour made, the wife has a greater share of their available property. However, the husband has a significant income, found by his Honour to be in the vicinity of $12,000 per week.
At the time of the hearing, the wife had the primary care of the parties’ three children and was not in paid employment. She no longer has the primary care of the three children. His Honour ordered that all three children reside with the husband and there be a significant period of time during which they would not spend time with their mother. The two younger children remain in the husband’s care. The elder child has returned to reside with the wife. The effect of this is that the husband carries a significant component of the costs for the children, and his evidence suggests that he is also paying not insignificant child support for the elder child who is with the wife. Notwithstanding that he has fewer assets than the wife and carries a greater share of the total costs for the children, his total financial circumstances are in the immediate and longer term likely to be superior to the wife’s. The application of s 117(2A)(a) weighs in favour of the wife.
The other relevant factor is that the husband initiated an appeal process which he discontinued as a consequence of which the wife incurred legal expenses unnecessarily. In my view, that factor also weighs in favour of an order for costs. That the parties continue to litigate elsewhere does not influence one way or the other the outcome of this application for costs. If there are costs to be dealt with as a consequence of those ongoing proceedings, they can be dealt with in the Federal Circuit Court and have no bearing on this application today.
The net effect of this is that I am satisfied an order for costs should be made in favour of the wife. The question which then arises is what should the quantum of those costs be? On a party/party basis, the amount sought is $1,153. I do not understand how, when the wife settled the appeal index herself, attended the procedural hearing before the registrar without legal representation, it is she who needs some five hours of work to be undertaken by her solicitors. I do not want that to be interpreted as my questioning whether or not that work was done, but it still has the flavour of costs sought by reference to an indemnity rather than a party/party claim. Based on the court’s experience about the work that is required in appeals, the appropriate order is in the amount of $800.
I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 10 April 2015.
Associate:
Date: 21 April 2015
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