Graft and McCormick (Costs)
[2018] FamCAFC 82
•14 March 2018
FAMILY COURT OF AUSTRALIA
| GRAFT & MCCORMICK (COSTS) | [2018] FamCAFC 82 |
| FAMILY LAW – APPEAL – COSTS – Where the husband sought an order for indemnity costs – Where the wife opposed an order for costs – Whether the circumstances were special or extraordinary – Where the wife had been litigating relentlessly since the making of final parenting orders – Where the appeals were filed to re-agitate finalised matters – Where the father had been put to considerable expense meeting the mother’s claims – Where the circumstances were deemed special or extraordinary – Indemnity costs ordered against the wife. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536 Graft & McCormick [2018] FamCAFC 49 Lenova & Lenova (Costs) [2011] FamCAFC 141 Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207 |
| APPELLANT: | Ms Graft |
| RESPONDENT: | Mr McCormick |
| FILE NUMBER: | CSC | 301 | of | 2009 |
| APPEAL NUMBERS: | NOA | 32 | of | 2017 |
| NOA | 59 | of | 2017 | |
| NOA | 9 | of | 2018 | |
| NOA | 17 | of | 2018 |
| DATE DELIVERED: | 14 March 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | In chambers |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | Written Submissions received 21 March 2018 and 3 April 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 July 2017; 18 October 2017; |
| LOWER COURT MNC: | [2017] FCCA 2828; [2017] FCCA 3281; [2018] FCCA 321 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Pack |
| SOLICITOR FOR THE RESPONDENT: | Collier Lawyers Pty Ltd |
Orders
The appellant wife pay the respondent husband’s costs of and incidental to each appeal and each application in an appeal fixed in the total sum of $14,443.00
The total of the said costs shall be paid within ninety (90) days of the date of this order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Graft & McCormick (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: CSC 301 of 2009
APPEAL NUMBER: NOA 32 of 2017
NOA 59 of 2017
NOA 9 of 2018
NOA 17 of 2018
| Ms Graft |
Appellant
And
| Mr McCormick |
Respondent
REASONS FOR JUDGMENT
On 14 March 2018 I determined the Appeals in each of NOA32 of 2017, NOA59 of 2018, NOA9 of 2018 and NOA17 of 2018. The mother was unsuccessful in each of the appeals and in each of the Applications in an Appeal that she brought additionally.
I delivered reasons ex tempore. By the time the delivery of those reasons had concluded, the mother had left the courtroom. Consequently, I made orders directing each of the parties to file written submissions as to costs which each subsequently did.
On 21 March 2018 the father filed written submissions as to costs and the mother filed her submissions on 3 April 2018. On 17 April 2018 the father filed an addendum to his written submissions out of time, without further argument or leave to do so. I will, accordingly, have no regard to the addendum filed 17 April 2018.
The father seeks indemnity costs, in the sum of $14,443.00, or alternatively that the costs awarded on the “standard basis”, namely party and party costs, and be assessed pursuant to Schedule 3 of the Family Law Rules 2004 (Cth) (“the Rules”). The mother resists any order for costs.
The respondent father’s submissions reference each of the relevant matters to with the Court may have regard when exercising a discretion to order costs contrary to the usual rule that each party should bear their own.[1]
[1]Family Law Act 1975 (Cth) (“the Act”) s 117.
Counsel for the husband submits that while the mother asserts limited financial means, impecuniosity should not be a bar to a costs order being made against her. So much accords with principle (see, for example, Nada & Nettle (Costs);[2] and Lenova & Lenova (Costs)[3]). Additionally, it is submitted on behalf of the father that the mother’s appeals were misconceived and ultimately wholly unsuccessful.
[2](2014) FLC 93-612 at 79,589.
[3][2011] FamCAFC 141.
With regards to the conduct of the parties in the proceedings, counsel for the father submitted that the mother made numerous allegations against the father including that the father was a criminal, and during the hearing of the appeal the mother stated that what she wanted was a revisiting of the 2015 Orders made by Tree J, and thus was not acting bona fide in filing these appeals.
There appears to be no offers to settle, however the father’s legal representation gave the mother notice that if she was unsuccessful at the hearing of the appeals that they would seek indemnity costs.
Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd[4] outlines relevant principles and has been frequently cited in this Court as being applicable to its proceedings. The emphasis is on the necessity for the circumstances justifying an order for indemnity costs being extraordinary: all the more so given the provisions of s 117(1) of the Act.
[4](1993) 46 FCR 225.
It is submitted on behalf of the husband that the following features of the case should be considered, as a whole, as being “special or unusual” and as such justify an order for indemnity costs:
(a) The Mother being wholly unsuccessful in her prosecution of the Appeals.
(b) The grounds of appeal were discursively drawn, chaotic and difficult to follow.
(c) None of the grounds were linked to any error of law.
(d) Allegations were made by the Mother in her Appeal grounds the father is a criminal and committed perjury yet none of these broad allegations were supported by any evidence whatsoever.
(e) That litigation has been on foot now for some 8 years or more with no end in sight.
(f) The voluminous nature of the Appeals and Applications in an Appeal which were ultimately wholly unsuccessful.
(g)That Judge Coker considered awarding indemnity costs in his reasons dated 13 February 2018 however did not do so. Despite this His Honour warned that “in the event of a flagrant continuation of proceedings without any real merit or likelihood of success, any costs order might otherwise be upon the basis of indemnity costs being awarded”.
(h)That significant and ongoing costs which have been incurred by the Father in defending Applications and Appeals which have been wholly unsuccessful and without merit.
(Footnotes omitted) (Italics in original)
The wife opposes an order for costs. In her written submissions the wife states the following:
I literally dare the parties to not only proceed and award costs and continue to support and make orders ,you are clearly continuing the misconduct ,corruption and collusion
When I refer to the parties this includes court parties ,Judges and the father and his legal representatives as a group and i note in the hearing of the 14\3\2018 Justice Murphy make reference to himself and Mr Pack the fathers barrister in relation to legal matters and proceedings clearly supporting my claims of collusion
…
(As per original)
The following pages of the mother’s written submissions proceed to outline the mother’s continuing concern with the Orders made by Tree J in November 2015 and the father’s alleged contravention of those orders. The mother also makes contentions about the court file (CSC301 of 2009) being “open” (which I take to mean that there are proceedings on foot). There are no parenting proceedings on foot. The parenting proceedings were finalised by the orders of Tree J in November 2015. Contravention proceedings were brought subsequently, but that does not reopen the parenting proceedings.
The mother states in her submissions that she “currently ha[s] a signed form 17 high court application and affidavit going before a High Court Justice for filing” and that she will “be filing a appeal with the High court” (as per original). I do not understand the relevance of that in relation to the costs of the appeal.
In addition the wife submits the following:
The parties including the family law courts do not have a legal leg to stand on basically as the current orders were illegally provided and the father is in breach of the orders and yet it is still claimed otherwise and Two judges implicated as a result
(As per original)
I take that to mean that the High Court will vindicate her position and set aside all relevant orders. If that occurs then any order for costs I make would, presumably, be also set aside accordingly. That assertion does not militate against a costs order being made.
Finally the mother submits:
The parties on these claims alone do not have any grounds to make their current claims and or the orders especially for costs and to claim the Mothers legal applications and proceedings are not warranted or justified
(As per original)
Indemnity Costs
The Rules require that I have before me the relevant documentation outlining the proper bases for costs incurred by both counsel and solicitor.
Counsel for the husband annexed to his written submission with respect to costs the costs agreements and invoices between the father and his solicitor and counsel. It is estimated that the costs total $14,443.00.
Conclusions As To Costs
For the reasons which follow I am of the opinion that there are circumstances justifying an order for costs (s 117(2)).
I am conscious that the mother represents herself. However, she is an experienced litigant and, as I said during the substantive judgment, has been litigating in respect of these children relentlessly since final parenting orders were made by Tree J on 26 November 2015.
I also reiterate that the appeal proceedings to which the costs application relates embraced one review of a Registrar’s decision; four appeals from decisions of Judge Coker; and three Applications in an Appeal. The tortuous procedural history bringing about those appeals was also outlined in my substantive reasons.
At [31] – [32] of my judgment in the appeal I said:[5]
31.The thrust of most, if not all, of the various appeals and applications that she brings before me today are directed towards two purposes. The first is having me hear from the children in a closed court at which time, it would seem, I am to require the children to tell me their views and to detail to me what the mother asserts is abuse of them by the father. Indeed the mother said before me this morning that the various appeals and applications were “simply designed to remove these orders” (that is the orders of Tree J) which are “aiding and abetting child abuse”.
32.The second and broader purpose is to (as the words from the mother which I have just quoted make clear) re-agitate issues that were heard and determined before Tree J, and to have the orders made by his Honour rescinded (and presumably replaced by other orders).
[5]Graft & McCormick [2018] FamCAFC 49.
The proceedings are, in effect, appeals in name only. What became clear (and what remains clear from the mother’s submissions in relation to the issue of costs) is that they provided a vehicle for what might be described as deep‑seated criticisms of the “family law system” and an opportunity to make allegations, many of them scandalous, against judicial officers and legal practitioners.
That theme is repeated in the mother’s costs submissions where she asserts that:
[The father’s solicitors] even claim I am in breach of three orders again this is clearly false and these are clear legal threats and intimidation supported by Judges
…
The father’s four costs submissions are not only a serious legal error they are grounds for Mr Packs [counsel for the father] and [the solicitor for the father] disbarment and the parties clearly have no concerns with providing these documents and claims and have the family law courts support to do so
…
The orders have essentially allowed and supported the fathers long term abuse of these children and his non compliance of the orders and was clearly shown on the 14/03/2018 again the claims made by the father’s legal representative and justice murphy are not only clearly incorrect and false but very offensive and have criminal ,family law act and ethical ramifications
the deformation and intimidation of the Mother is clearly shown(As per original)
The father has been put to very considerable expense meeting the mother’s claims and all the more so by reason of the sheer number of proceedings to which I have earlier referred.
I acknowledge that the making of an indemnity costs order is a significant and unusual step. I acknowledge that the circumstances need to be special or extraordinary. I consider that the conduct of the mother in and about prosecution of these appeals, particularly when seen in the broader context of the litigation that preceded them and the mother being on notice as to potential costs ramifications, including the making of indemnity cost, puts this particular appeal into a special or extraordinary category.
I have perused the costs agreements and invoices annexed to the father’s costs submissions in respect of the fees charged by his solicitor and counsel. I am unable to see any aspect of them that is unreasonable.
I will order that the wife pay to the husband costs fixed in the sum of $14,443.00. I will take account of the mother’s financial circumstances by permitting her ninety days to pay those costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 27 April 2018
Associate:
Date: 27 April 2018
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