Glover & Webster (No. 2)

[2021] FedCFamC1A 91

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Glover & Webster (No. 2) [2021] FedCFamC1A 91   

Appeal from:	Webster & Glover [2021] FamCA 127
Appeal number(s):	NOA 23 of 2021
File number(s):	BRC 11228 of 2016
Judgment of:	AINSLIE-WALLACE & ALDRIDGE JJ
Date of judgment:	17 December 2021
Catchwords:	FAMILY LAW – APPEAL – COSTS – Circumstances do not justify a costs order being made – Application dismissed.
Cases cited:	Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Number of paragraphs:	7
Date of last submissions:	14 December 2021
Date of hearing:	By way of written submissions
Place:	In Chambers
The Appellants:	Self-represented litigant
Counsel for the Respondents:	Mr Bunning
Solicitor for the Respondents:	Damien Greer Lawyers

ORDERS

NOA 23 of 2021
BRC 11228 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS GLOVER

First Appellant

R PTY LTD

Second Appellant

AND:

MR WEBSTER

First Respondent

S PTY LTD

Second Respondent

ORDER MADE BY:	AINSLIE-WALLACE & ALDRIDGE JJ
DATE OF ORDER:	17 DECEMBER 2021

THE COURT ORDERS THAT:

1.The respondents’ application for costs is dismissed.

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 Glover & Webster (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AINSLIE-WALLACE & ALDRIDGE JJ:

1. On 19 November 2021, the appeal in this matter was dismissed. The first respondent now seeks an order that the first appellant pay his costs.

2. On 19 November 2021, a member of the bench that heard the appeal retired. The parties have consented to the remaining two judges determining the costs application.

3. The appeal was dismissed because the first appellant became a bankrupt shortly before the appeal was to be heard. Consequently, she no longer had the requisite standing as a person interested in the appeal.

4. The first appellant remains a bankrupt. There is no evidence of any means, such as income, which she might have that would be sufficient to meet a costs order.

5. The merits of the appeal were not determined because of the difficulties with the first appellant’s standing. The Court cannot now try a hypothetical appeal but there is nothing in the material that we have read that indicates that the appellant acted unreasonably in bringing the appeal (Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624). Indeed, there was a basis for thinking that the appeal outcome had reasonable prospects of success.

6. We are not satisfied in the circumstances that it is just that there be a costs order in this matter.

7. The application for costs will be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace & Aldridge.

Associate:

Dated:       17 December 2021