GEORGE & GEORGE
[2016] FamCAFC 19
•17 February 2016
FAMILY COURT OF AUSTRALIA
| GEORGE & GEORGE | [2016] FamCAFC 19 |
| FAMILY LAW – APPLICATIONS IN AN APPEAL – Where there was no attendance by the applicant at the hearing – Where the history of the applicant’s conduct is relevant – Where appropriate measures were taken to inform the applicant of the hearing – Where it can be assumed that the applicant was aware of the hearing – Applications dismissed. FAMILY LAW – COSTS – Where the respondent sought costs on an indemnity basis – Where the applicant’s conduct in the proceedings and failure to appear to argue his own applications justified an order for costs – Where there were no exceptional circumstances justifying an order for indemnity costs – Costs awarded on a party/party basis. |
| Family Law Act 1975 (Cth) – ss 117 (1), (2) and (2A) Family Law Rules 2004 (Cth) |
| APPLICANT: | Mr George |
| RESPONDENT: | Ms George |
| FILE NUMBER: | SYC | 7612 | of | 2011 |
| APPEAL NUMBER: | EA | 21 | of | 2015 |
| DATE DELIVERED:: | 17 February 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 17 February 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 January 2015 |
| LOWER COURT MNC: | [2015] FamCA 29 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC |
| SOLICITOR FOR THE RESPONDENT: | York Law |
Orders
The Applications in an Appeal filed by the applicant husband on 22 December 2015 and 31 December 2015 be dismissed.
The applicant husband pay the respondent wife’s costs of and incidental to the husband’s applications of 22 December 2015 and 31 December 2015, such costs to be assessed on a party/party basis in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 21 of 2015
File Number: SYC 7612 of 2011
| Mr George |
Applicant
And
| Ms George |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
There are two applications before the Court today, namely an Application in an Appeal filed by Mr George (“the husband”) on 22 December 2015 and an Application in an Appeal also filed by the husband on 31 December 2015. Although there is some difficulty in understanding the precise orders that the husband seeks in those applications, for the purposes of the Court, the first application has been treated as an application to review the Appeal Registrar’s decision of 15 December 2015, and the second application has been treated as an application to reinstate his appeal. I will elaborate on that shortly.
When the matter was called on this morning there was no appearance by the husband. I am told by my court officer that the matter has been called in the precincts of the Court and there has been no response. Further, Mr Richardson SC, who appears today for Ms George (“the wife”), tells me that there have been no communications received by his instructing solicitor from the husband which would explain the failure of the husband to appear today.
I am also told by Mr Richardson that his instructor forwarded an email to the husband this morning advising of documents to be relied upon by the wife and authorities to be referred to. There has been no response to that email. Apparently there was also a telephone call to the husband’s telephone number which went to voicemail, and a message was left.
In those circumstances, namely and specifically, the failure by the husband to appear this morning, Mr Richardson seeks that the applications to which I have referred be dismissed. It is necessary though to put the applications into context, and to do that I will need to refer to some of the background of this matter. For that purpose I note, helpfully, that Mr Richardson has tendered a chronology which assists in that regard.
Background
On 27 January 2015, final property settlement orders and reasons for judgment were delivered in this matter by Watts J. The husband, who it seems determined to appeal those orders, failed to file a Notice of Appeal within the time permitted under the Family Law Rules 2004 (Cth) (“the Rules”) and on 25 February 2015 he filed an Application in an Appeal seeking to extend the time to file a Notice of Appeal.
On 11 March 2015, that application was heard by Ryan J and orders were made granting the husband an extension of time to file his Notice of Appeal by no later than 4 pm on 20 March 2015.
On 20 March 2015 the husband filed a Notice of Appeal.
On 10 April 2015 the wife filed a Notice of Cross-Appeal.
Subsequently, the husband, as is required under the Rules, filed a draft index to the appeal books.
On 27 April 2015, the Appeal Registrar advised the parties that the matter was listed for a first procedural hearing on 2 June 2015.
On 26 May 2015, the Appeal Registrar provided the parties, in the usual way, with a copy of the proposed draft procedural orders, and a list of exhibits for consideration in anticipation of the procedural hearing listed on 2 June 2015.
On 1 June 2015, the wife’s solicitor wrote to the Appeal Registrar confirming the wife’s agreement to the draft procedural orders. However, there was no response to the Appeal Registrar by the husband.
The husband failed to appear at the procedural hearing on 2 June 2015, and the Appeal Registrar made orders providing for the husband to file his appeal books by 14 July 2015 and his summary of argument and list of authorities by 25 September 2015. It is apparent from the appeal file that the Appeal Registrar emailed the husband a copy of those orders.
On 14 July 2015, namely the date when the appeal books were due to be filed, the husband filed an Application in an Appeal and a supporting Affidavit seeking an extension of time to file the appeal books. That application was considered by the Appeal Registrar at a procedural hearing on 16 July 2015. Again, the husband did not appear at that hearing. Nevertheless, the Appeal Registrar made orders extending the time to file the appeal books to 30 July 2015.
On 17 July 2015, the Appeal Registrar emailed copies of the orders made on 16 July 2015 to the husband and the wife’s solicitor. On that same day, the husband forwarded to the Appeal Registrar a handwritten Application in an Appeal and an Affidavit which the husband described as additional to and in support of the application and affidavit filed by him on 14 July 2015.
On 18 July 2015, the husband sent an email to the Appeal Registrar and to the wife’s solicitor enclosing an Application in an Appeal and Affidavit. In that email the husband stated that he had inadvertently attached the wrong affidavit to his email of 17 July 2015.
The husband’s further applications to which I have just referred were not accepted by the Appeal Registrar for filing because, of course, the Appeal Registrar had determined the husband’s application of 14 July 2015 on 16 July 2015.
The appeal books were not filed by the husband pursuant to the order of the Appeal Registrar on or before 30 July 2015.
On 13 August 2015, the Appeal Registrar wrote to the parties advising that the matter was listed before the Full Court on 3 September 2015 for consideration of dismissal of the husband’s appeal.
On 17 August 2015, the husband filed an Application in an Appeal. Again, unfortunately, it was difficult to discern precisely what orders the husband was seeking therein, but it seemed that he was seeking a reinstatement of his appeal.
On 2 September 2015 the husband filed a further Application in an Appeal and an Affidavit seeking that additional orders be added to his application of 17 August 2015, that various applications filed by him previously be “properly heard”, and that various procedural processes be reviewed.
On 3 September 2015, the matter came before the Full Court and orders were made as follows:
(1)On or before 4 pm on 25 September 2015 the husband file an amended notice of appeal in typewritten form containing proper grounds of appeal which allege appellate error by the trial judge.
(2)In the event that the husband does not comply with Order 1 of these orders, then the appeal and the cross-appeal will stand dismissed as from 4 pm on 25 September 2015.
(3)In the event that the husband complies with Order 1 of these orders, then, on or before 30 November 2015, he shall:
a)file in the Eastern Region Appeal Registry, four copies of the appeal books (together with a certificate pursuant to chapter 22, rule 22.20(2) of the Family Law Rules 2004 (Cth)) and a summary of argument, and a list of authorities; and
b)serve two copies of the appeal books (together with a copy of the certificate), and a copy of the summary of argument, and a list of authorities on the respondent wife; and
Orders 3 and 5 of the orders made by the Appeal Registrar on 2 June 2015 and Order 1 of the orders made by the appeal registrar on 16 July 2015 are varied accordingly.
(4)In the event that the husband does not comply with Order 3 of these orders, then, the appeal and the cross-appeal will stand dismissed as from 4 pm on 30 November 2015, and Order 4 of the orders made by the Appeal Registrar on 2 June 2015, and Order 2 of the orders made by the Appeal Registrar on 16 July 2015 are discharged.
(5)In the event that the husband complies with Order 3 of these orders, then, the respondent cross-appellant wife shall file and serve her summary of argument in relation to the appeal and the cross-appeal on or before 4 pm on 29 January 2016.
(6)The husband shall file and serve a summary of argument in response to the wife’s summary of argument in relation to the cross-appeal on or before 4 pm on 26 February 2016.
(7)Orders 5, 6, 7 and 8 of the procedural orders made by the Appeal Registrar on 2 June 2015 are discharged.
(8)The husband pay the wife’s costs of the proceedings today assessed at $3500, inclusive of GST such costs to be paid within 28 days.
(9)Otherwise, the applications contained in the following documents are dismissed:
a)the application in an appeal filed by the appellant husband on 17 August 2015 (including any other applications referred to therein);
b)the response to an application in an appeal filed by the respondent wife on 2 September 2015; and
c)the application in an appeal filed by appellant husband on 2 September 2015.
(10)In the event that the appeal proceeds, the appeal and cross-appeal be accorded the priority that they would have been given if the husband had complied with the initial orders made by the Appeal Registrar on 2 June 2015.
IT IS NOTED that if an early hearing date became available it will be offered to the parties.
The husband attended that hearing before the Full Court on 3 September 2015.
On 25 September 2015, the husband filed an Amended Notice of Appeal. Two issues arose though in relation to that Amended Notice of Appeal. First, the Full Court had required that that Amended Notice of Appeal be typewritten, because previous handwritten documents filed by the husband had been difficult to decipher. The position in relation to the Amended Notice of Appeal was that some of it was typed, but not all of it. The second issue was whether the Amended Notice of Appeal contained what could be described as proper grounds of appeal. The relevance of that was that the Full Court on 3 September 2015, as part of the order made, had required the husband in that Amended Notice of Appeal to set out proper grounds of appeal. The problem with his initial Notice of Appeal filed on 20 March 2015, was that it was not apparent what errors were being complained of, and more importantly, whether there were any appealable errors identified.
Those two issues were raised by the wife’s solicitors with the Appeal Registrar, submitting that, in those respects, the husband had not complied with the orders made by the Full Court on 3 September 2015. Subsequently, namely on 15 December 2015, the Appeal Registrar informed the parties that although it was questionable whether most of the grounds of appeal were proper grounds asserting appealable error, the Appeal Registrar did not consider that no appellable error was asserted, and also indicated that the Amended Notice of Appeal, albeit it was not completely typewritten, substantially complied with the order of the Full Court. I note that there has been no application by the wife’s solicitor in relation to that matter, and it is not an issue that is directly relevant to the applications that are to be determined today.
That said, on 30 November 2015, the husband attended at the Registry of this Court and attempted to file what he says were his appeal books. However, it was determined by the Appeal Registrar that the documents presented for filing could not be received because they were not in the appropriate form or format. As I understand it, from the documents subsequently filed on behalf of the husband and indeed, as is apparent from the appeal file, what the husband presented at the Registry was four cardboard boxes containing unbound A4 material. Thus, those documents were not accepted for filing as being appeal books that could be received by this Court.
Apparently, the husband was advised at that time to seek the wife’s consent to an extension of time to file appeal books. As I understand it, that consent was sought but not forthcoming. In other words, the request was refused.
On 1 December 2015, the husband sought to file an Application in an Appeal and a supporting Affidavit seeking an extension of time to file the appeal books.
On 15 December 2015, the Appeal Registrar informed the husband that his application and affidavit of 1 December 2015 had not been accepted for filing as, in accordance with the orders of the Full Court on 3 September 2015, the appeal stood dismissed as on and from 4 pm on 30 November 2015, namely as a result of the failure to file appeal books by that time. It is necessary to also mention that in that same correspondence, the Appeal Registrar advised that in the alternative the appeal was taken to be abandoned as at 4 pm on 30 November 2015 due to the husband’s failure to file the appeal books in time.
On 22 December 2015, the husband filed an Application in an Appeal and supporting Affidavit which mirrored the application and supporting affidavit which he had attempted to file on 1 December 2015. That application was received for filing by the Appeal Registrar and is the application that I have earlier referred to as being the application treated by the Court as an application seeking a review of the decision of the Appeal Registrar made on 15 December 2015.
On 31 December 2015, the husband filed a further Application in an Appeal and a supporting Affidavit seeking a number of orders. As I have indicated already, that application has been treated by the Appeal Registrar as seeking a reinstatement of the appeal. There are a number of other orders sought in that application, but I will not refer to those now; it is unnecessary in the circumstances that have arisen today.
On 4 February 2016, the Appeal Registrar forwarded a letter to the parties, and also emailed that letter to them, advising that the two applications referred to were listed for hearing on 17 February 2016 at 10 am before Strickland J sitting in the Sydney Registry of the Family Court of Australia. I note that, according to the appeal file, that letter has not been returned, for example, and thus I proceed on the basis that it was received by the husband. Equally, there is no indication in the appeal file that the email, for example, “bounced back”, and I proceed on the basis that that email was received at the email address of the husband.
I further note that on that same date, namely 4 February 2016, the assistant to the Appeal Registrar telephoned the parties advising of the listing of the applications referred to and indicating that correspondence to that effect would be emailed and posted to the parties that day. In relation to the husband, the assistant to the Appeal Registrar telephoned the mobile number the court has, and according to the file note in the appeal file, there was no answer but a message was left on voicemail advising of the hearing date and time, confirming that there would be email advice and correspondence to that effect forwarded by the Registry that day, and also leaving a telephone number if there were any issues or difficulties about that.
In that regard, nothing has been heard from the husband subsequent to 4 February 2016 in relation to the listing of this matter today. There has been nothing filed. There has been no correspondence either by letter or by email and there has been no telephone communication. However, I proceed today on the basis that the husband is aware of the hearing today, having been appropriately notified and informed of that by the Appeal Registry.
Conclusion
In those circumstances, namely the failure by the husband to attend the hearing of his applications today, and noting the history of the matter that I have outlined earlier, and in particular the failure by the husband to attend procedural hearings on 2 June 2015 and 16 July 2015, but noting that the husband attended before the Full Court on 3 September 2015 when orders were made, the order that I make is that the Application in an Appeal filed by the husband on 22 December 2015 and the Application in an Appeal filed by the husband on 31 December 2015 be dismissed.
Costs
As a result of the order that I have made, namely dismissing the two applications in an appeal filed by the husband, the wife makes an oral application for costs. The costs sought are calculated on an indemnity basis and total $19,377.60. In that regard an Affidavit of the wife’s solicitor sworn on 16 February 2016 has been tendered to me which annexes copies of the relevant costs agreements and provides an itemised schedule of the costs sought.
As with any costs application it is governed by s 117 of the Family Law Act 1975 (Cth). The relevant sections are:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The first issue for this Court is whether there should be an order for costs, and that is dependent upon whether there are circumstances that justify an order for costs.
The circumstance relied upon in that regard is primarily the failure of the husband to attend the hearing today to argue his own applications. Mr Richardson also refers me generally to the history of this matter and the failure by the husband to comply with orders and directions. Thus, reliance is placed very much on the conduct of the husband in the running of these proceedings.
In addition, Mr Richardson relies on the fact that, as a result of the dismissal of the applications, the husband has been wholly unsuccessful. I know there is some debate about whether, in circumstances where the merits of an application have not been heard and determined, and that is the case here, it can be that the husband has been wholly unsuccessful. However, I do not need to engage in that debate because I am satisfied that the conduct of the husband, primarily in terms of his failure to attend today, but also generally in terms of his failure to comply with orders and directions in these proceedings, provides ample circumstances for there to be an order for costs in favour of the wife.
It is sought that costs be calculated on an indemnity basis. The principles in relation to indemnity costs are well settled and the authorities clearly stipulate that to depart from the usual or ordinary rule that costs be calculated on a party/party basis there must be exceptional circumstances demonstrated. In that regard, the exceptional circumstances relied upon by the wife relate, again, very much to the conduct of the husband in the running of these proceedings, namely his failure to attend to argue his applications today, and the history of the proceedings in terms of the husband’s failure to comply with orders and directions. The consequence of the conduct of the husband is said to be that, in his failure to attend today and argue his own applications for example, he has left the wife with significant legal costs having been appropriately incurred in responding to the applications, and in preparing the matter for hearing today, when there was no indication by the husband that he would not attend.
Mr Richardson also submits that it would be unfair to the wife in the circumstances to be left with the burden of the costs that she has incurred.
However, I do not consider the circumstances outlined to be exceptional, and thus I am not prepared to make an order that the costs be calculated on an indemnity basis, and I propose to make an order that costs be paid on a party/party basis. Mr Richardson sought that, in order to finalise the proceedings today, I fix the costs. I do not have any schedule calculating the costs on a party/party basis but, in any event, I would not have been prepared to make a specific order fixing the costs today because the husband of course is unaware of this application, he has not been served with the affidavit that has been tendered, and it is appropriate that he have the opportunity, if costs cannot be agreed, which I will allow for in my order, to challenge any item of cost claimed, even on a party/party basis.
I appreciate that that may mean that these proceedings continue with the consequent problems that have arisen in the past again arising, but that is unavoidable in the circumstances.
I certify that the preceding forty-four (44) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 17 February 2016.
Associate:
Date: 23 February 2016
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