Grange & Grange
[2020] FamCAFC 63
•26 March 2020
FAMILY COURT OF AUSTRALIA
| GRANGE & GRANGE AND ORS | [2020] FamCAFC 63 |
| FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Where only the appellant filed written submissions – Whether the first respondent should pay the appellant’s costs – Where there is no marked disparity in the financial position of the appellant and the first respondent – Where the appellant was wholly successful – Where it was only late in the course of the appeal that submissions were made that led to success – Where in all the circumstances there should be no order as to costs – Costs certificates granted to the appellant and the first respondent for both the appeal and any rehearing. |
| Family Law Act 1975 (Cth) s 117 Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| Grange & Grange and Ors [2019] FamCAFC 205 |
| APPELLANT: | Mr Grange |
| FIRST RESPONDENT: | Ms Grange |
| SECOND RESPONDENT: | Ms A Grange |
| THIRD RESPONDENT: | Ms B Grange |
| FILE NUMBER: | ROC | 580 | of | 2011 |
| APPEAL NUMBER: | NOA | 19 | of | 2018 |
| DATE DELIVERED: | 26 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | Heard by way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 January 2018 |
| LOWER COURT MNC: | [2018] FamCA 30 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Fisher |
Orders
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the first respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.
The Court grants to the appellant and the first respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
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 Grange & Grange and Ors 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 19 of 2018
File Number: ROC 580 of 2011
| Mr Grange |
Appellant
And
| Ms Grange |
First Respondent
And
| Ms A Grange |
Second Respondent
And
| Ms B Grange |
Third Respondent
REASONS FOR JUDGMENT
On 7 November 2019, the appeal in this matter was allowed and orders were made for the filing of written submissions as to costs. The second respondent appeared in person and did not seek a costs order. The third respondent played no part in the appeal.
The appellant filed his written submissions as to costs on the due date, seeking an order for costs against the first respondent. No written submissions were received in reply. On 9 January 2020, the Appeals Registry contacted the appellant and the first respondent raising this failure. In response, the first respondent requested an extension of time until 27 January 2020 to file her written submissions as to costs. The first respondent was advised that she could not seek that extension by email unless she had the consent of the other party.
Nothing further has been received from the first respondent. Consequently, the only submissions before the Court are those from the appellant.
The appellant seeks an order that the first respondent pay his costs in the sum of $22,081.07. This consists of $15,291.02 for counsel’s fees in relation to the appeal, $1,650 for counsel’s fees in relation to preparing the written submissions as to costs and $5,140.05 for disbursements (costs of obtaining the transcript, printing and photocopy costs, stationary and petrol expenses).
The appeal was heard on 19 June 2019. On 11 June 2019, an Application in an Appeal was filed by the appellant seeking leave to rely on an Amended Notice of Appeal dated 11 June 2019, which raised only two grounds of appeal in lieu of the 12 grounds earlier relied upon. Leave was also sought to rely upon an Amended Summary of Argument dated 11 June 2019.
In short, all of the grounds of appeal contained in the original Notice of Appeal filed 27 February 2018 and addressed in the appellant’s Summary of Argument filed 18 December 2018 were disavowed and entirely new grounds of appeal and arguments were relied upon. The efforts of the first respondent’s lawyers to respond to the appellant’s original Summary of Argument were entirely wasted. The sum of $3,093.37 was identified by the first respondent as the value of the work that had become unnecessary.
The amount claimed by the appellant reflects that reality and counsel’s fees for the hearing in the sum of $18,384.39 were reduced to $15,291.02 accordingly.
In proceedings under the Family Law Act 1975 (Cth) (“the Act”), each party is to bear his or her own costs of the proceedings (s 117(1)), unless in all the circumstances, the Court considers that a different order is just (s 117(2)). In considering whether such other order should be made, the Court is to have regard to the matters set out in s 117(2A) of the Act.
The appellant relies on three matters set out in s 117(2A) of the Act.
Firstly, the appellant submitted that there is a marked disparity between the financial positions of the parties and that his means and assets are very modest (s 117(2A)(a)).
The appellant referred to his Financial Statement filed 1 August 2014, which shows that he owned property to the value of $500 and had liabilities estimated to be up to $400,000.
The appellant did not refer to the first respondent’s Financial Statement filed 18 July 2014 which shows that, at that time, she asserted that she owned property valued at $97,000 and had no liabilities. However, the first respondent included as assets, her interests in F Contractors ($40,000) and the Grange Family Trust ($50,000), which had a total combined value of $90,000. The primary judge did not find that to be the case and the best that can be said is that in 2014 the first respondent had assets in the sum of $7,000.
In our primary reasons we said that neither party had any assets at the time of the hearing of the appeal (Grange & Grange and Ors [2019] FamCAFC 205 at [81]). There is no reason to think that the parties’ financial positions are significantly different today. There is no evidence that the first respondent has any capacity to meet the proposed costs order.
The appellant’s second submission is that the first respondent persisted in an argument that completely lacked merit, which wasted the Court’s time and which required correction on appeal.
We do not accept this to be the case. The positions that both parties took before the primary judge were rejected by his Honour. It was only very late in the course of the appeal that submissions were made that led to success on the appeal. By that stage, almost all of the costs involved with the appeal had been incurred.
This does not support an order for costs.
Finally, the appellant asserted that he was wholly successful in the appeal. This is a valid consideration under s 117(2A)(g) which favours the appellant’s case.
Taking these matters into account, we are satisfied that the interests of justice will be best served by there being no order as to costs. In that circumstance, it is appropriate that costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) are granted to the appellant and the first respondent for both the appeal and any rehearing.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Aldridge JJ) delivered on 26 March 2020.
Associate:
Date: 26 March 2020
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