Genesalio & Genesalio (No 4)
[2023] FedCFamC1A 216
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Genesalio & Genesalio (No 4) [2023] FedCFamC1A 216
Appeal from: Genesalio & Genesalio (No 2) [2023] FedCFamC1F 611 Appeal number: NAA 223 of 2023 File number: MLC 7657 of 2018 Judgment of: AUSTIN, CHRISTIE & SCHONELL JJ Date of judgment: 6 December 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the applicant sought leave to appeal an order dismissing his application for the primary judge’s disqualification – Where the conduct relied upon to establish apprehended bias was not made clear – Where the complaint of the denial of procedural fairness is rejected – Where the transcript of the hearing ably demonstrates that the applicant was given a fair opportunity to present his case for disqualification – Where the ground pleading inadequacy of reasons is without merit – Where several of the grounds were not addressed in the applicant’s summary of argument or oral submissions and, without elaboration, remain bare assertions and must be rejected – Where the applicant cannot demonstrate the primary judge’s decision is attended by sufficient doubt to warrant appellate scrutiny – Leave to appeal refused – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VIII, s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 67, 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17 and r 13.23
Cases cited: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260
Genesalio & Genesalio (2023) 67 Fam LR 186; [2023] FedCFamC1A 109
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 60 Date of hearing: 1 December 2023 Place: Heard in Sydney (via Microsoft Teams), delivered in Melbourne The Applicant: Litigant in person Counsel for the First Respondent: Mr Dinelli KC and Ms Frederico Solicitor for the First Respondent: Mazzeo Lawyers The Second Respondent: Did not participate ORDERS
NAA 223 of 2023
MLC 7657 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR M GENESALIO
Applicant
AND: MS GENESALIO
First Respondent
MR GENESALIO
Second Respondent
ORDER MADE BY:
AUSTIN, CHRISTIE & SCHONELL JJ
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The appellant shall pay the first respondent’s costs of and incidental to the appeal, fixed in the sum of $25,000.
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 Genesalio & Genesalio (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, CHRISTIE & SCHONELL JJ
This is an application for leave to appeal and, if granted, an appeal from the judgment of a judge of the Federal Circuit and Family Court of Australia (Division 1) refusing the applicant’s disqualification application. The appeal lies pursuant to s 26(1)(h) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).
For the following reasons, the application for leave to appeal is dismissed.
Background
The underlying proceedings comprise a financial cause for property settlement orders between spouses under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
The applicant is the husband’s brother who, over his objection, was joined by the primary judge as a party to the proceedings on 26 April 2023. The applicant’s application for leave to appeal from that joinder order, together with other miscellaneous procedural orders, was summarily dismissed (Genesalio & Genesalio (2023) 67 Fam LR 186).
While that earlier application for leave to appeal was still pending, on 4 July 2023, the applicant filed an application in the original proceedings seeking these orders:
1.Stay the orders made on 26 April [2023] pending the outcome of the appeal NAA141 of 2023.
2.The primary judge recuse herself from the proceeding and dismiss all orders made on 26 April [2023].
The pending appeal proceeding was dismissed two days afterwards, so the first of those orders, proposing the stay of the appealed orders, became redundant. The second aspect of the second proposed order, seeking “dismissal” of the orders made on 26 April 2023, was also rendered redundant because there could be no basis upon which to discharge the orders when they remained valid and binding following dismissal of the application for leave to appeal.
Consequently, the only aspect of the application which the applicant could press and which needed to be entertained was the first part of the second proposed order, seeking the primary judge’s disqualification.
That application was heard and dismissed by the primary judge. The order was pronounced orally on 11 July 2023, though it seems the sealed orders were not published until 25 July 2023, in conjunction with the reasons explaining the decision.
The primary judge made this order:
1.That paragraph 2 of the [applicant’s] Application in a Proceeding filed 3 July 2023 seeking that the primary Judge recuse herself is dismissed.
The current application for leave to appeal is brought from that order.
Leave to appeal
The applicant appreciates that he needs leave to appeal from the judgment dismissing his disqualification application (s 28(3)(f) of the FCFCA Act).
The grant of leave ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
The applicant fails at the first step because he cannot demonstrate the primary judge’s decision is attended by doubt.
Proposed grounds of appeal
There are 12 proposed grounds of appeal, but they are pleaded and particularised over five type-written pages in the Notice of Appeal filed on 21 August 2023.
Without intending disrespect, some of the grounds are very difficult to comprehend. Those that can be comprehended are bare allegations, not elaborated in the applicant’s Summary of Argument.
The applicant was granted leave to rely upon his Summary of Argument, even though it was filed late and exceeded the page limit imposed by r 13.23(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Notwithstanding such indulgences, the applicant insisted that he be allowed as long as he needed to make his oral submissions, which we declined. The Court is bound to ensure the litigation before it is despatched as quickly, inexpensively and efficiently as possible, for which purpose the Court is empowered to limit the length of submissions (s 67 and s 69(2)(e) of the FCFCA Act). In total, the applicant was given about 80 minutes to make his oral submissions, together with a further 10 minutes to reply to the brief oral submissions made by the wife.
In summary, the grounds of appeal comprise complaints of:
(a)actual bias, or alternatively, apprehended bias (Grounds 2, 3, 4 and 5);
(b)failure to provide procedural fairness (Ground 8);
(c)an apprehension that justice is not seen to be done (Ground 6);
(d)failure to give adequate reasons (Ground 1);
(e)acting on wrong principle (Ground 7);
(f)erring on the facts (Ground 10);
(g)discretionary errors (Grounds 9 and 11); and
(h)the result was plainly unreasonable and unjust (Ground 12)
The grounds complaining of bias and the denial of procedural fairness will be addressed first, as required (Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
Bias (Grounds 2, 3, 4 and 5)
Grounds 2 and 5 comprise an impenetrable compound of idealised policy, principles, and asserted facts, lacking any syntactic cohesion, though the grounds are clearly enough attempts to articulate allegations of actual bias, with alternative claims of apprehended bias.
Grounds 3 and 4 are more succinct claims of only apprehended bias.
The expansive text of these four grounds of appeal exposes the applicant’s dissatisfaction with the primary judge’s conduct at, and the decisions flowing from, three prior court events heard on 4 May 2022, 12 July 2022, and 21 November 2022. It was the last of those hearings which resulted in the orders made on 26 April 2023, from which the applicant formerly unsuccessfully sought leave to appeal.
It is apparent from the primary judge’s reasons, delivered on 25 July 2023 to explain the dismissal of the applicant’s disqualification application, that the applicant contended her Honour’s bias sprang from two sources only: judicial conduct at the hearing on 21 November 2022 and the content of the reasons given to explain the orders which flowed from it, later published on 26 April 2023.
The primary judge said this in the reasons:
20.The [applicant] contends that as a result of the conduct of the hearing before me on 21 November 2022 and orders made on 26 April 2023, I should disqualify myself from hearing the matter on the basis of apprehended bias.
…
24.The [applicant] identified four matters he contends support his application that I be disqualified from hearing the matter on the basis of apprehended bias. They are that:-
•I did not require the wife to amend her Statement of Claim to remove what the [applicant] contends are “misrepresentations” contained in that document;
•I failed to make a finding that the wife has no triable claim, having regard to the evidence before the Court;
•During the [applicant’s] submissions I questioned him in relation to income earned by an entity controlled by him. He submits that such conduct by me demonstrates an unreasonable suspicion as to his actions, giving rise to an apprehension of bias; and
•My observations as to the manner in which the [applicant] presented his case was mocking of him and gives rise to an apprehension of bias.
The applicant does not now contend the primary judge incorrectly summarised his position. No such contention would have been open to make, given the applicant’s various exchanges with the primary judge during submissions to clarify his position. The best example is this:
HER HONOUR: Just so that I’m clear, the next basis – it seems to me – there are three aspects, it would seem, that emerge from your submissions as to apprehended bias. I’ve already referred to the first. The second would be your submission that I’ve been given enough facts to find that there’s no triable claim, and that amounts to an apprehension of bias. And then the third limb would seem to be the exchange on page 75 of the transcript, which, you says, gives rise to me - - -
[THE APPLICANT]: Apprehension.
HER HONOUR: - - - being suspicious of you and your submissions, and, therefore, that gives rise to an apprehension of bias.
[THE APPLICANT]: Correct.
HER HONOUR: Is that a fair summation of what you’ve just said to me?
[THE APPLICANT]: Yes.
HER HONOUR: All right. So there’s three limbs.
[THE APPLICANT]: Yes.
(Transcript 11 July 2023, p.65 lines 20–40)
(Emphasis added)
The fourth category of complaint advanced by the applicant about being mocked, referred to in the reasons for judgment (at [24]), was agitated by the applicant following the above exchange.
The correctness of the primary judge’s summation of the applicant’s position (at [20] and [24]) poses numerous insurmountable obstacles for him in these appeal proceedings.
The first is that the present expansion of the bias complaint within the grounds of appeal to include references to even earlier hearings held on 4 May 2022 and 12 July 2022 is illegitimate. In the application for leave to appeal, the applicant can only advance arguments as to why the primary judge erred in dismissing his disqualification application on the foundational grounds as were submitted to her Honour (Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307 at [15]). He cannot now dredge up even more ancient complaints, not put to her Honour. This Court does not make an original decision about whether the primary judge should be disqualified. Rather, supposing leave to appeal is granted to the applicant, this Court only decides whether the primary judge erred by dismissing the disqualification application actually made to her Honour.
The second is that the applicant’s lawyers made no disqualification application to the primary judge at the hearing on 21 November 2022, or at any time thereafter, before the orders resulting from that hearing were pronounced on 26 April 2023. If there were grounds for such an application, which is not to imply there were, any such application must have been waived (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588).
The third is that, when the applicant sought leave to appeal from the orders made on 26 April 2023, none of the proposed grounds of appeal alleged either actual or apprehended judicial bias to vitiate the judgment (Genesalio & Genesalio at [6], [7], [16] and [25]), so it now seems an opportunistic artifice for him to raise the complaint of bias about those former events in this application for leave to appeal from different and more recent orders.
The fourth is that this is an intended appeal from the order made by the primary judge on 11 July 2023 – not from the orders formerly made by the primary judge on 26 April 2023. No amount of voluble discontent with the April 2023 orders, which remain valid and binding following the dismissal of the earlier application for leave to appeal from them, helps prove the July 2023 order is vitiated by error.
The fifth is that the applicant complained to the primary judge of only apprehended bias at the hearing in July 2023 – not actual bias – which is quite different from the dual position he now adopts. The applicant’s present indecision about whether he alleges the primary judge’s actual or apprehended bias tends to deprive both allegations of force because the disparate tests for each cannot be conflated (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33], [67], [68] and [73]).
The sixth is that the current proposed appeal from the July 2023 order on grounds of bias is not made good just by repeating the arguments made to and rejected by the primary judge. The applicant must be able to show some material error in her Honour’s assessment and rejection of his disqualification application.
The final problem confronting the applicant is that his allegations of bias – both actual and apprehended – within the current grounds of appeal are premised upon assertions of the primary judge falling into legal or factual error by making the April 2023 orders and by failing to realise or accept her Honour had done so when later entertaining the disqualification application in July 2023. But bias is not demonstrated by showing, let alone by merely alleging, that the primary judge fell into appealable error (Michael Wilson & Partners Ltd v Nicholls at [116]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). The commission of some inadvertent error does not inexorably mean the primary judge is, or appears to be, biased against the party afflicted by the error.
The applicant could not cavil with this point because he had this exchange with the primary judge:
HER HONOUR: But it’s not – I don’t think there’s any debate that not only should justice be done but it be seen to be done, but a decision that is contrary to the one that you seek in and of itself does not found an application for bias. Judges have to make decisions in the running of the court. And sometimes, the applicant is successful; sometimes, the respondent is successful. But because a judge makes a decision contrary to the one that is sought by a party – that in and of itself does not found an application for a judge to disqualify themselves for the next hearing.
[THE APPLICANT]: I completely agree with your Honour.
(Transcript 11 July 2023, p.12 lines 25–33)
The applicant’s submissions, both written and oral, offered no solution to any of the above problems. The grounds are without merit.
Procedural fairness (Ground 8)
This ground, which is not addressed at all in the applicant’s Summary of Argument and was not elaborated orally, is pleaded as follows:
8. The learned Primary Judge failed to afford procedural fairness
(As per the original)
The complaint of being denied procedural fairness is rejected.
The concept of procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]). The rules of natural justice, which do not have immutably fixed content, are applied practically to ensure fairness (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99–100; National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312). In this instance, the provision of procedural fairness required that the applicant be given a fair opportunity at the hearing on 11 July 2023 to present his case for the primary judge’s disqualification. The transcript of the hearing ably demonstrates he was given such a fair opportunity.
At the outset, the applicant was permitted to rely upon all of the written material he desired, which included two sets of written submissions, two affidavits, and the transcripts of two earlier hearings conducted on 12 July 2022 and 21 November 2022.
Having established the material upon which the applicant relied, he was then given several hours to make supplementary oral submissions, the transcript of which covers 70 typewritten pages. The hearing commenced at 10.12 am, with the applicant’s submissions beginning shortly thereafter. His submissions did not conclude until 1.18 pm, allowing for an intervening break of 24 minutes.
At several points, the primary judge attempted to politely corral the applicant but, when he wanted to press ahead undeterred, he was allowed to do so. For example:
HER HONOUR: So I want you to engage with the application. It’s half past 11. We – you’ve been on your feet now for about an hour and a quarter, and so far I think you’ve identified one aspect – one factual matter that you say gives rise to an apprehension of bias.
(Transcript 11 July 2023, p.36 lines 8–11)
(Emphasis added)
HER HONOUR: … It’s quarter to 12. How much longer do you think you’ve got in the way of - - -
[THE APPLICANT]: Well, I’m going to continue just reading - - -
(Transcript 11 July 2023, p.43 lines 36–39)
(Emphasis added)
HER HONOUR: What I’m interested in understanding before I rise is how much longer you think you’ve got by way of submissions.
[THE APPLICANT]: Well, I think at least half an hour, your Honour.
(Transcript 11 July 2023, p.44 lines 6–9)
(Emphasis added)
HER HONOUR: All right. I’m going to ask you to pause. I want you to take a breath. I want you to review your notes, and my goal will be to conclude your submissions by half past 12 …
(Transcript 11 July 2023, p.46 lines 39–41)
(Emphasis added)
HER HONOUR: … So how much longer do you think you need?
[THE APPLICANT]: Five minutes, 10 minutes.
(Transcript 11 July 2023, p.48 lines 7–9)
HER HONOUR: It strikes me, [the applicant], that this application by you is an attempt to reargue the joinder decision. That’s what – that’s the impression I’m - - -
[THE APPLICANT]: Well, you’ve got the wrong impression. I will finish off, and that way, you will understand what I’m getting to when I finish it off. …
(Transcript 11 July 2023, p.51 lines 4–8)
(Emphasis added)
HER HONOUR: … I want you to conclude these submissions before lunchtime - - -
[THE APPLICANT]: Yes.
HER HONOUR: - - - so I’m not going to interrupt you any further.
[THE APPLICANT]: Well, I will continue on. I will continue on. …
(Transcript 11 July 2023, p.59 lines 36–42)
(Emphasis added)
HER HONOUR: … Now, how much more have you got to go?
[THE APPLICANT]: Not much. Not much.
HER HONOUR: I want to conclude your submissions before we break for lunch.
[THE APPLICANT]: Yes.
(Transcript 11 July 2023, p.69 lines 2–9)
(Emphasis added)
HER HONOUR: … You’ve had all morning save for a 20-minute break.
(Transcript 11 July 2023, p.69 line 22)
HER HONOUR: … I’m dealing with an application in relation to apprehended bias. I take it you’ve concluded your submissions on that point.
[THE APPLICANT]: Yes.
HER HONOUR: You have. You’ve - - -
[THE APPLICANT]: About the review?
HER HONOUR: No, about the bias. Have you concluded your submissions about bias?
[THE APPLICANT]: Well - - -
HER HONOUR: It seems to me you’ve provided very fulsome submissions.
[THE APPLICANT]: I think so, your Honour.
HER HONOUR: All right.
[THE APPLICANT]: I will leave it at that.
(Transcript 11 July 2023, p.75, lines 1–22)
(Emphasis added)
The applicant cannot say he was rushed. He finished his submissions when he was good and ready. The complaint of the denial of procedural fairness is rejected.
The appearance of justice (Ground 6)
This ground contends the primary judge erred by dismissing the disqualification application because “there is an apprehension that justice is not seen to be done”.
Such mischief is said to arise because the primary judge:
(a)gave insufficient weight to the applicant’s submissions;
(b)gave insufficient weight to the applicant’s evidence “in defence”;
(c)failed to “follow legal precedents”;
(d)failed to award “wasted costs” in his favour;
(e)made an injunction binding the applicant’s conduct in respect of single experts;
(f)ordered the applicant to bear a proportion of the single expert’s fees;
(g)ordered the valuation of assets, which assets the applicant alleges he owns to the exclusion of the spouses;
(h)failed to “protect the court’s processes…from an abuse” by failing to apply the law and block the wife’s claims upon assets he alleges he exclusively owns;
(i)“approached the evidence and submissions of the defence in circumspect”, but did not apply the same level of scrutiny to the interlocutory case advanced by the wife;
(j)made a comment at the interlocutory hearing “which is at odds with the subsequent attitude and approach” adopted by her Honour; and
(k)failed to take any action when becoming aware the wife’s counsel withheld a relevant authoritative decision.
The ground and its particulars can be rejected for three reasons.
First, the fundamental proposition of appealable error due to “justice not being seen to be done” is not a recognisable ground of appeal and, hence, is incompetent. Justice is seen to be done if litigants are afforded procedural fairness and their grievances are determined by an ostensibly impartial judge. The anterior rejection of Grounds 2, 3, 4, 5 and 8 removes any doubt about the existence of those foundational requirements in this instance.
Secondly, some of the facts which are asserted to particularise the ground are complaints about the orders made on 26 April 2023 and the hearing which preceded them in November 2022. They are not complaints of error in respect of the dismissal order made by the primary judge on 11 July 2023, with which this prospective appeal is concerned. None of those particulars can substantiate the ground because the applicant’s grievances with the orders made on 26 April 2023 were rejected by the summary dismissal of his former application for leave to appeal from those orders.
Thirdly, in respect of the complaints made more specifically about the primary judge’s decision embodied within the orders made on 11 July 2023, respectfully, they amount to no more than disaffection with the primary judge’s dismissal of his application. They do not illuminate error of any sort.
Adequacy of reasons (Ground 1)
This ground of appeal is pleaded as follows:
1.The learned Primary Judge in her reasons for decision failed to give adequate reasons for making the order (order no.1) dismissing the [applicant’s] Application in a Proceeding seeking the primary judge disqualify herself.
(As per the original)
Yet, while the ground ostensibly relates to the order made on 11 July 2023, the applicant’s Summary of Argument in relation to this ground complains of inadequate reasons given for the earlier orders made on 26 April 2023, which complaint is irrelevant to this appeal.
The only submission made in support of the ground is as follows:
60.In relation to the decision made on 25 July 2023, the [primary judge] has failed to give adequate reasons which demonstrate a logical path of reasoning to arrive at her conclusion as a matter of fact or in law.
(As per the original)
The generic submission is rejected. After having correctly identified the legal principles applicable to claims of apprehended bias (at [22]–[23]) and the bases upon which the applicant contended her Honour ought be disqualified (at [24]), the primary judge methodically de-constructed all of the applicant’s arguments in relation to each point (at [25]–[45]).
Absent any better explanation of how the primary judge’s reasons for the dismissal order made on 11 July 2023 (referred to as 25 July 2023) were inadequate, the ground is without merit.
Remaining grounds (Ground 7, 9, 10, 11 and 12)
These remaining grounds of appeal are pleaded as follows:
7. The learned Primary Judge acted on the wrong principle.
…
9. The learned Primary Judge took into account irrelevant matters
10. The learned Primary Judge erred on the facts
11. The learned Primary Judge failed to take into account a material consideration
12. The learned Primary Judge’s decision is plainly unreasonable and unjust
(As per the original)
These grounds are not addressed in the applicant’s Summary of Argument at all, contrary to the requirements of r 13.23(2)(a) of the Rules. Nor were they the subject of any oral submissions, so they remain bare assertions. Without any elaboration, they must be rejected.
Disposition
The application for leave to appeal is dismissed.
The wife sought her party/party costs of opposing the leave application, which she quantified at $25,000. The applicant opposed the costs order, but chose not to address the quantum of the costs.
The written reasons advanced by the applicant for why he should not be fixed with a costs order are rejected as ill-founded, as they call to aid common law authority relevant to other civil jurisdictions (Oshlack v Richmond River Council (1998) 193 CLR 72) and advance his personal impressions of the improper manner in which the original proceedings have so far been conducted by the primary judge and the respondent wife’s lawyers. The applicant seemed undeterred when informed his allegations of misconduct by others in the original proceedings has no bearing upon the question of costs incurred in the appellate proceedings. He orally contended the wife’s financial circumstances were superior to his own, not least because she recently deposed to having a large credit balance in a bank account.
The liability for costs in this appellate proceeding is governed by the provisions of s 117 of the Act. The wife should have her costs for these reasons: the applicant conceded he has assets, even if not an income stream, and so his financial circumstances do not militate against a costs order (s 117(2A)(a)); the applicant conducted this appeal in a such a misconceived way that the wife’s costs were unnecessarily increased by having to cover a large volume of written material, including multiple transcripts, multiple judgments, and lengthy intricate submissions and by having to meet multiple interlocutory applications (s 117(2A)(c)); and the appeal was wholly unsuccessful (s 117(2A)(e)).
The wife’s party/party costs are fixed at $25,000 in reliance upon r 12.17(1)(a) of the Rules.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Christie & Schonell. Associate:
Dated: 6 December 2023
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