Gallea & Gallea

[2021] FedCFamC1A 13

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Gallea & Gallea [2021] FedCFamC1A 13

Appeal from:

Gallea & Gallea [2020] FCCA 2602

Appeal number(s):

EAA 147 of 2020

File number(s):

CAC 265 of 2018

Judgment of:

STRICKLAND, AINSLIE-WALLACE & WATTS JJ

Date of judgment:

21 September 2021

Catchwords:

FAMILY LAW – APPEAL – COSTS – Where the respondent mother seeks costs calculated on an indemnity basis – Where the appellant father was wholly unsuccessful in the appeal – Where the respondent mother sent a letter of offer prior to the appeal – Where that offer is to be given no weight – Where the authorities relating to indemnity costs were not referred to – Where the conditions for making an indemnity costs order are not satisfied – Order for costs on a party/party basis.

Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) (repealed)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

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

Munday v Bowman (1997) FLC 92-784

Division:

Division 1 Appellate Jurisdiction

Number of paragraphs:

20

Date of last submissions:

18 August 2021

Date of hearing:

In Chambers

Place:

By way of written submissions

The Appellant:

Self-represented litigant

Solicitor for the Respondent:

Dimocks Family Lawyers

ORDERS

EAA 147 of 2020
CAC 265 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR GALLEA

Applicant

AND:

MS GALLEA

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

STRICKLAND, AINSLIE-WALLACE & WATTS JJ

DATE OF ORDER:

21 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The father pay the mother’s costs fixed in the sum of $6,800 within 28 days.

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).

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

REASONS FOR JUDGMENT

STRICKLAND, AINSLIE-WALLACE & WATTS JJ:

INTRODUCTION

1. On 9 August 2021 the Full Court of the Family Court of Australia made orders dismissing the father’s appeal, filed on 15 October 2020, appealing final parenting orders made by a judge of the Federal Circuit Court of Australia on 18 September 2020.

2. On 22 April 2021 the following procedural orders were made in this appeal:

   11.Any party who intends to seek an order for costs at the conclusion of the appeal, subject to the outcome of the appeal, must file and serve no later than seven (7) days prior to the first day of the sittings in which the appeal is listed for hearing, an itemised Schedule of Costs sought on a party/party basis at the scale prescribed pursuant to Schedule 3 of the Family Law Rules 2004 (Cth), and be in a position to address the Full Court as to costs (including quantum) whether sought by or against that party, at the conclusion of the hearing.

   12.Failure to comply with the above order will prevent an application for costs being made to the Full Court without the leave of the Court. In the event of leave being sought it may result in the hearing of the application for costs being adjourned, the appeal thereby not being concluded, and/or leave being granted on terms, including as to the payment of costs by a defaulting party or that party’s legal representative.

3. The mother’s Summary of Argument filed 30 June 2021 foreshadowed the mother’s intention to seek an order for indemnity costs on the basis that the appeal lacked reasonable prospects of success and should not have been pursued.

4. On 22 July 2021 the mother filed a Schedule of Costs but it was out of time.

5. The then relevant scale was contained in Sch 3 of the Family Law Rules 2004 (Cth) (“the 2004 Rules”) (now repealed). Schedule 3 has been replicated in the new Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules (Cth) (“the 2021 Rules”); albeit with an increase in item rates for which we will make some allowance.

6. At the time of the hearing before us, the mother filed no Schedule of Costs on an indemnity basis. The list of authorities upon which the mother relied, did not refer to any authority relevant to the circumstances in which an order for indemnity costs would be made. In addition, the former r 22.53(3) of the 2004 Rules (now r 13.54(3) of the 2021 Rules) requiring the mother’s costs agreement with her lawyers to be served upon the father, had not been complied with.

7. Before us, senior counsel for the mother indicated that a claim for costs would not be made that exceeded the amount in the Schedule of Costs that had been provided. That Schedule claimed an amount of $17,526.86 (purportedly at scale).

8. On 9 August 2021, at the request of senior counsel for the mother and because a written offer had been made, orders were made for the filing of further submissions in relation to costs. The mother filed further written submissions on 16 August 2021. Those submissions renewed the application for indemnity costs, provided a copy of the mother’s costs agreement with her solicitors, provided a new Schedule of Costs which included a revised set of items this time costed at both the scale in Sch 3 of the 2004 Rules ($11,751.13) and on an indemnity basis ($19,483.06), and a written offer that was sent to the father.

9. The father filed submissions on 18 August 2021, seemingly because an order had been made giving him an opportunity to respond to the mother’s submissions on costs, however those submissions did not mention the issue of costs. They enclosed material that might be relevant to the father’s compliance with Orders 24 and 25 made by the primary judge on 18 September 2020 about him attending certain courses which in turn might be relevant to some future parenting application in the event that he fulfils the requirements of Orders 7 and 8 (that he obtain a mental health assessment and consequential orders). These submissions otherwise renew the father’s plea to have a more expansive relationship with his son and are not relevant to the present costs application.

10. The mother’s submissions filed 16 August 2021 which renew the application for an indemnity costs order, again did not refer to any authority relevant to granting indemnity costs, the sole relevant submission being that we would find the appeal lacked any reasonable prospects of success and should not have been pursued.

11. In Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225 at 233, Sheppard J referred to the courts’ “settled practice” that where the court orders one party to pay another party’s costs, the order is for costs to be paid on a party/party basis. His Honour went on to say “there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice”.

12. In Munday v Bowman (1997) FLC 92-784 at 84,660, Holden CJ highlighted an example of when indemnity costs may be awarded a situation where it appears that an action has been commenced or continued in circumstances where a party properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.

13. Given that the father has not been referred to authorities such as these by the mother it is unsurprising that he has not attempted to refer to any.

14. In this case, the grounds of appeal, drafted with legal assistance, set out arguable grounds. However, at the hearing of the appeal, the father did not articulate or argue matters relevant to the grounds. Whilst we accept that the father continued the appeal, highly motivated by the conviction that his son would benefit from unsupervised time with him, we do not accept that the conditions for making an indemnity costs order are satisfied.

15. We have not been informed about the parties’ respective financial circumstances but it is apparent that neither party is in receipt of a grant of legal aid.

16. The mother sought to rely upon a written offer that had been made to the father on 22 July 2021. That offer invited the father to withdraw the Notice of Appeal by filing a Notice of Discontinuance and pay the mother’s costs of $14,656.33. Given that that amount is more than the amount that the mother now seeks on a party/party basis, no weight can be attached to that offer.

17. We do however find that the following matters relevant to s 117(2A) of the Family Law Act 1975 (Cth) justify an order for party/party costs in the mother’s favour:

    ·the father was wholly unsuccessful;

    ·the father’s Summary of Argument did not comply with the procedural orders or in any way address the grounds of appeal upon which he was relying; and

    ·the father’s oral submissions did not go to any asserted error made by the primary judge.

    QUANTUM OF COSTS

18. The submissions filed on 16 August 2021 have updated the mother’s Schedule of Costs. Eleven items that were not in the original Schedule have been added. Even with those new items added, the overall amount on scale now claimed has been reduced from $17,526.06 to $11,751.13. This reduction from the previous Schedule of Costs has occurred because of an adjustment as a result of:

    ·the attendance by the instructing solicitor at the appeal hearing being reduced from six hours to one hour;

    ·the attendance of senior counsel at the appeal being charged at less than three hours rather than a whole day; and

    ·senior counsel’s fees for a conference being eliminated.

19. The current Schedule however contains a number of items which we would query or which we would otherwise not allow:

    ·there is a claim for six hours of chambers work by senior counsel which is said to have an item value at scale of $4,950 but a value on an indemnity costs basis of $2,200 (we are unable to understand how that could be). The scale figure under the 2004 Rules of $4,950 appears in Sch 3 at item 201 for senior counsel. As senior counsel for the mother conceded before us, this appeal did not justify an appearance by senior counsel. The item charge for this work at top scale rate for junior counsel is $2,471;

    ·there is a charge by senior counsel for a hearing of less than three hours in the sum of $3,454.91 which again is the rate at item 203 for senior counsel under the former Sch 3. The top junior counsel rate under the former Sch 3 $1,210;

    ·charges are made for drafting and producing submissions as to costs, which we do not allow; and

    ·a disbursement is also charged incurred with an organisation apparently involved in the preparation of the bill of costs.

20. Taking those matters into account and having regard to the slightly increased figures in the 2021 Rules, we find that it is just for an order to be made in respect of this appeal that the father pay the mother’s costs in the fixed sum of $6,800 within 28 days.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Ainslie-Wallace & Watts.

Associate:
Dated: 21 September 2021