HANTS & HANTS - [2018] FamCAFC 18

FAMILY COURT OF AUSTRALIA

HANTS & HANTS

[2018] FamCAFC 18

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time within which to seek an order for costs in relation to an abandoned appeal – Delay involved was minimal and the husband was on notice of the wife’s intention to pursue an order for costs – Appropriate in the interests of justice that the extension of time be granted.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs on an indemnity basis in relation to the abandoned appeal – Appeal deemed abandoned by operation of the Family Law Rules 2004 (Cth) – No explanation given by the husband for the failure to prosecute the appeal – The husband is not impecunious and was wholly unsuccessful in the proceedings – Order for costs in favour of the wife – Nothing about the conduct of the matter or behaviour of the husband to warrant an order for costs on an indemnity basis – Husband to contribute to the wife’s costs in fixed sum.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

APPLICANT:

Ms Hants

RESPONDENT:

Mr Hants

FILE NUMBER:

PTW

2798

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

1 February 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

1 February 2018

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

28 February 2017

LOWER COURT MNC:

[2017] FCWAM 45

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney

SOLICITOR FOR THE APPLICANT:

Rattigan Kearney & Bochat

COUNSEL FOR THE RESPONDENT:

Ms Oakley

SOLICITOR FOR THE RESPONDENT:

Self-represented litigant

Orders

The time within which the applicant had to seek an order for costs be extended to 16 November 2017.
The respondent contribute to the applicant’s costs of and incidental to the appeal and of the application for costs fixed in the sum of $2,750 to be paid within 28 days of the date hereof.

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 Hants & Hants 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 11 of 2017
File Number: PTW 2798 of 2015

Ms Hants

Applicant

And

Mr Hants

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before the Court today is the Application in an Appeal filed by Ms Hants (“the wife”) on 16 November 2017 in which she seeks an order for indemnity costs arising out of the abandonment of an appeal, which was deemed abandoned as a result of the appellant’s failure to file the appeal books within the prescribed time. The respondent to this application, who was the appellant in the appeal, is Mr Hants (“the husband”).
It has been accepted by the wife today that her application for costs was a little out of time because the time in which she had to seek an order for costs began to run on the day the appeal books were not filed, not on the day the correspondence was sent by the Appeals Registrar advising that the appeal was deemed abandoned.
The question therefore becomes whether or not the Court ought to exercise the discretion which is conferred by the Family Law Rules 2004 (Cth) (“the Rules”) to extend the time in which the wife has to make such an application to excuse the relatively short period in which she failed to seek an order for costs.
In support of the exercise of the discretion in her favour, counsel for the wife refers first to the fact that the amount of time involved is small and, secondly, to the fact that the husband was on notice that the wife wanted to pursue an order for costs because an attempt had been made to deal with that issue by correspondence within the time period prescribed.
Ms Oakley, counsel for the husband who appears today pro bono, says that just as her client is prepared to accept that under the Rules his appeal was deemed abandoned, the wife ought to accept that under the Rules she is precluded from pursuing her application for costs. The weakness, with respect, in that argument is that whilst the Rules do make certain provisions, and do, in this instance for example, deem an appeal to be abandoned, the Rules also provide for relief from the operation of the Rules – and extensions of time can and often are sought.
Accordingly, had the husband sought an extension of time within which to provide the appeal books, such relief would commonly have been granted, provided there was some acceptable excuse for the delay and there was a substantial issue to be raised on appeal. Ms Oakley’s argument, although the appropriate one to make in the circumstances, is not, in my view, as convincing as the proposition put by counsel for the wife; namely that the time is short and the husband was on notice that costs were to be an issue.
Therefore, in my view, it is appropriate in the interests of justice that the question of costs relating to the abandoned appeal be dealt with on its merits rather than on the basis of what is a technicality. Accordingly, the time within which the applicant had to seek an order for costs will be extended to 16 November 2017.

RECORDED: NOT TRANSCRIBED

Pursuant to the extension of time granted earlier today, I have before me now the wife’s application for costs, on an indemnity basis, of and incidental to the appeal that the husband filed on 7 April 2017 against orders made by Magistrate Moroni, as his Honour then was, on 13 March 2017.
The appeal was, on its face, properly constituted and seemingly bona fide. The wife appropriately engaged legal representation to deal with the appeal that she was then facing and, appropriately enough, her solicitors briefed counsel, who it is said spent some three hours becoming familiar with the brief and then appeared at the only hearing that took place before the Appeals Registrar when various directions were made in relation to the conduct of the appeal.
Along the way, there was a little difficulty with the appeal related to the filing of an amended appeal book index which incurred some costs and, in the course of that, there was a dispute as to whether the appeal had been abandoned as a result of a failure by the husband to file an amended appeal book index. The Appeals Registrar ruled on that matter in favour of the husband.
Subsequently, the husband failed to file the appeal books by the due date resulting in the appeal being deemed abandoned by operation of the Rules. No request was made for the reinstatement of the appeal. At no point in the process has the husband given any explanation for the failure to prosecute the appeal and one is left to infer that there was either a shortage of funds to meet solicitors’ costs and counsels’ fees or that the husband had been advised that the chances of success were not such as to warrant prosecution of the appeal.
The appeal having been deemed abandoned and no application having been made for reinstatement, the husband was wholly unsuccessful in the proceedings, leading to this application for costs sought on an indemnity basis. If costs are ordered, the Court is asked to assess them to avoid the expense associated with the taxation.
The significance of costs being sought on an indemnity basis is not as grave here as it is in some cases because the amount being sought is calculated in accordance with the scale in the Rules. Nevertheless the significance of an order for indemnity costs is that the wife would, subject to any other order, recover all the costs incurred, including costs which would be described as “solicitor and client” costs rather than “party and party” costs and also would arguably entitle the wife to obtain payment for costs not properly incurred.
The legislative context in which I must make this determination is well known. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that subject to other provisions of the Act, most particularly subsection (2) of s 117, each party to a proceeding should bear his or her own costs. Section 117(2) goes on to provide that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to various other provisions, make such order as to costs and security for costs as the Court considers just.
The matters I am obliged to take into account in coming to my decision are those set out in s 117(2A).
The first of those matters is the financial circumstances of each of the parties. I have no current evidence and am therefore left to rely upon the position at the time of trial, which is essentially that this couple had between them a not overly large, but on the other hand a not small, pool of assets measured ultimately in the hundreds of thousands of dollars. At the time, the husband was in full time employment and the wife was in part time employment. The only matter that is in doubt is an issue raised by Ms Oakley in her submissions in which she points out that there was controversy, or at least doubt, at the trial as to whether the wife might at some stage live in a de facto relationship. The wife today has not led any evidence about that issue and Ms Oakley invites me to make a Jones v Dunkel [(1959) 101 CLR 298] inference.
I am not sure that in the absence of any other evidence it is available to me to rely upon Jones v Dunkel, but even if the wife were living in a de facto relationship with someone else at the present time, I would not consider the financial circumstances of either party to be of any significance other than to note that the husband, against whom the order for costs is sought, is far from impecunious.
Neither party was in receipt of legal aid (s 117(2A)(b)).
Subparagraph 117(2A)(c) deals with the conduct of the parties. Here I am dealing only with the conduct associated with the appeal proceedings. The husband’s conduct in relation to the filing of the amended appeal book index was not quite in accordance with requirements but apart from that minor issue, this is not a relevant consideration.
Subparagraph 117(2A)(d) does not strictly apply. Subparagraph (e) is clearly the matter of greater significance. The husband’s appeal has been wholly unsuccessful and, as I have mentioned, in circumstances where no explanation has been provided as to why he, having put the wife to expense, then simply did not prosecute the appeal.
The next factor that is potentially relevant is whether there has been an offer in writing to settle the proceedings. I note that an offer was made, but, as Ms Oakley has pointed out in her submissions, that offer is not before the Court and it is not a matter I consider appropriate to take into account.
Otherwise, the Court is invited to have regard to any other matters that it considers relevant. In this case, the factor of overwhelming significance is the husband having been wholly unsuccessful in the appeal proceedings. That factor alone, noting that the husband is not impecunious, leads me to conclude that it is appropriate that I depart from the position set out in s 117(1) and that there should therefore be an order for costs in favour of the wife.
The next question is whether those costs should be awarded on an indemnity basis. Mr Kearney in his submissions states that they should be awarded on such a basis because the husband has been wholly unsuccessful and also because no explanation was provided as to why the appeal was not prosecuted.
In response, Ms Oakley has drawn attention to the authorities which say that circumstances should ordinarily exist of an exceptional kind before a court departs from the ordinary rule relating to costs being ordered on a party and party basis and by reference to the relevant scale of costs.
If the husband had gone ahead with his appeal, mounted all of his arguments and put the wife to even more expense but, ultimately, had lost, this would not have jumped out as the sort of case in which an order for indemnity costs would have been made. I accept Ms Oakley’s submissions that there is nothing about the conduct of this matter or the behaviour of the husband that would make it appropriate for costs to be awarded on an indemnity basis.
That then leaves the Court to consider whether to fix the costs or direct that the costs be assessed if not agreed by the parties. In this regard, as a number of recent Full Court judgments have made clear, it is now the strong desire of the Appeal Division judges that the parties, the Court and particularly the registrars should be saved the cost, time and worry of having costs assessed, particularly in very straightforward matters, such as this. Neither counsel seeks to be heard against that proposition.
Ms Oakley has drawn attention to some of the authorities about the fixing of costs, and again reference will be seen to these in the recent decisions of the Full Court to which I have referred. In a nutshell, the exercise of the discretion to fix costs must be approached by the Court in a way that is logical, fair and reasonable but, on the other hand, the Court has authority to apply a much broader brush than would be applied on a taxation of costs.
As I have earlier said, the wife’s response, having been presented with an appeal, was to appropriately incur costs with her solicitors and counsel. There are also the costs associated with the successful application for costs that has been made and the appearance here today, which now has taken an hour.
Exercising the broad discretion available to me; looking at the information provided by the wife; but accepting the merit in submissions made by Ms Oakley about the lack of specificity in the information provided about who did the work and what the work was, particularly the work done in the solicitors’ office; I intend to fix the costs in the sum of $2,750.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 1 February 2018.

Associate:

Date: 26 April 2018