HAYKAL & KRAWIEC
[2013] FamCAFC 40
FAMILY COURT OF AUSTRALIA
| HAYKAL & KRAWIEC | [2013] FamCAFC 40 |
| FAMILY LAW ─ APPEAL ─ COSTS JUDGMENT ─ Where the Court rejected the appellant’s adjournment application ─ Where it was open to the trial Judge to make an order of indemnity costs ─ Where having regard to Sheppard J’s judgment in Colgate Palmolive, and to the undisturbed findings of fact of the trial Judge, his Honour was abundantly justified in exercising his discretion to make an order in the terms provided ─ Nothing raised either by reference to his Honour’s judgment or any further evidence, however informally sought to be adduced by the appellant, provided any basis for finding appealable error by reference to the appellant’s asserted impecuniosity ─ Nothing to which the Court was referred provided a basis for possible appellate intervention ─ Appeal against the cost order of 31 August 2012 dismissed. FAMILY LAW ─ APPEAL ─ COSTS ─ Assessment of costs ─ Where the appellant disputed the quantum of costs sought by the respondent and disputed the capacity to pay ─ Where there is a fund of $5000 which is available ─ Whether the fund should be made available by way of an immediate payment to the respondent or preserved and charged with the respondent’s entitlement if the Court orders that the respondent’s costs be assessed ─ Where to award an immediate payment of costs will do no possible injustice to the appellant but to save him, and the respondent the expense and effort of having a bill assessed, the costs of that exercise potentially being visited upon the appellant ─ Where it is an unusual outcome for the Court to assess costs, but since the costs are of such modest quantum, the cost of having an assessment particularly when nothing raised by the appellant provides any basis for considering that the assessed costs may be inflated or unreasonable would be out of proportion to the amount involved ─ The Court assessed the costs at $5000. |
| Family Law Act 1975 (Cth) ss 117(2), 118 |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 |
| APPELLANT: | Mr Haykal |
| RESPONDENT: | Ms Krawiec |
| FILE NUMBER: | SYC | 731 | of | 2009 |
| APPEAL NUMBER: | EA | 85 | of | 2012 |
| DATE DELIVERED: | 19 March 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Ainslie-Wallace and Ryan JJ |
| HEARING DATE: | 19 March 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 May 2012 31 August 2012 |
| LOWER COURT MNC: | [2012] FamCA 379 [2012] FamCA 748 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr S. Schonell |
| SOLICITOR FOR THE RESPONDENT: | Michael Conley Lawyers |
Orders
Leave having been granted to the respondent to withdraw paragraph 3 of the Application in an Appeal filed on 15 March 2013, the application is thereby dismissed.
note:
Consistent with the application having been withdrawn, there has been no determination of the merits of the application by this Court.
The Notice of Appeal against the costs order of Murphy J of 31 August 2012 be dismissed.
The appellant pay the respondent’s costs of and incidental to Appeal No. EA 85 of 2009 as assessed by the Court in the sum of $5,000.
Payment of such order be charged upon and satisfied out of the sum of $5,000 provided by the appellant as security for costs of the appeal pursuant to the orders of the Court of 24 July 2012.
The Court orders George Anagnostellis trading as Sydney Wide Legal to forthwith pay the sum of $5,000 held by him pursuant to the orders of the Court of 24 July 2012 in accordance with the terms of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haykal & Krawiec 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 85 of 2012
File Number: SYC 731 of 2009
| Mr Haykal |
Appellant
And
| Ms Krawiec |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
COLEMAN J
By Amended Notice of Appeal filed 19 October 2010 pursuant to leave granted Mr Haykal (“the appellant”), appealed against a costs order made against him by Murphy J on 31 August 2012. The costs order was made after his Honour had on 18 May 2012 determined parenting proceedings instituted by the appellant against Ms Krawiec (“the respondent”). Whilst the appellant had appealed against Murphy J’s decision in the parenting proceedings of 18 May 2012, earlier this year, whilst the appellant was represented, a Notice of Discontinuance was filed in relation to that appeal. The effect of the Notice of Discontinuance, quite apart from any implications in terms of costs, was to leave on foot the Amended Notice of Appeal of 19 October 2012, it being clear at all material times that the appellant persisted with his challenge to Murphy J’s costs order.
At the commencement of the proceedings before the Court this morning, the appellant sought an adjournment of the proceedings. At that time, there were a number of aspects to the proceedings, the first being the appeal against the costs order of 31 August 2012, the second being the costs of that appeal and the discontinued appeal, and the third by virtue of an application in an appeal filed by the respondent on 15 March 2013 being an application by the respondent for an order against the appellant pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”), the nature of which could for present purposes, without inaccurate oversimplification, be described as an application declaring the applicant a vexatious litigant.
The last mentioned application was, sensibly in my view, withdrawn on instructions by Counsel for the respondent. There left remaining for determination the appellant’s challenge to Murphy J’s order for costs of 31 August 2012, the costs of that appeal, and the costs of the discontinued appeal against Murphy J’s order in the parenting proceedings of 18 May 2012.
The appellant asserted that he, being a litigant in person, was not prepared or able to proceed with his case or cases before the Court today, he having, if I heard him correctly, terminated the services of his previous attorney some two weeks ago. Whether he terminated them or they terminated the appellant is not relevant, in my view, for present purposes.
The simple position is that the appellant has had two weeks within which to prepare himself to present his appeal and/or resistance to costs applications brought by the respondent. On the appellant’s own submissions, with respect to him, nothing was objectively likely to be any different on any adjourned occasion. Any adjournment could only be on the basis not only that the appellant would be ordered to pay the costs of today, but would as a condition precedent to having the opportunity to be heard on a later occasion, comply with such costs order. It was potentially thus a situation where not only was no useful purpose, particularly for the appellant, likely to be served by granting an adjournment, but so doing was on balance, in my view, likely only to be conducive to an even greater costs burden falling upon him than might otherwise have been the case.
Confirmation for the Court’s rejection of the appellant’s adjournment application was, in my view, abundantly provided by the submissions which the appellant then proceeded to make in relation to the issues before the Court. Without doubt, and without denying the earnestness of those submissions, they were, with respect to the appellant, in my view, wholly misconceived, utterly irrelevant to the issues before the Court, and proof of the wisdom of refusing to allow this exercise to be prolonged for one more day than is absolutely necessary.
The history of non-compliance with directions in relation to the appeal provides further support, in my view, for the refusal of the adjournment. As is not in doubt, on 11 December 2012, at a time when according to the record the appellant was represented, directions for the filing of appeal books were made and the last relevant date for that appears to have been 20 December 2012.
Whilst appeal books were undoubtedly filed, whether in accordance with those directions or not, there certainly has not ever been a summary of argument filed by or on behalf of the appellant. The submissions made by the appellant before the Court today, in my view, demonstrate clearly that the absence of those submissions at a time when the appellant was unrepresented would have had no bearing and could have no bearing on the outcome of the proceedings before the Court. As the transcript of the appellant’s submissions would make clear, despite the Court on at least two occasions during the time the appellant made his submissions explaining to him, I believe in simple and clear terms, what the issues were, no attempt was made by the appellant to engage with the relevant topics.
Perhaps that is because, as the appellant reminded the Court on at least two occasions during the course of his address, he asserts that he has no income other than Centrelink benefits, asserts that he has no assets, and proclaimed that he would meet any order made against him by paying $7 per week from his Centrelink payments. The Court was, in my view, thus amply justified in refusing the adjournment.
As the authorities make clear, natural justice is not absolute. It is a relative concept and involves, as this case does, balancing, on the one hand, the entitlement of a citizen of this country to test a decision of a judge at first instance before a bench of three judges in the appeal division, against the entitlement of the successful respondent to litigation to have finality, and to have the right to pursue the enjoyment of the fruits of success in the litigation. That balance is, in my view, comfortably tipped in favour of the Court determining the proceedings today as it has done and will do.
The Court endeavoured to explain to the appellant that his appeal against Murphy J’s order for costs of 31 December 2012 was made more problematic by virtue of the discontinuance of the appeal against the orders in the parenting proceedings of 18 May 2012. That said, having prior to the appeal being called on this morning, notwithstanding that the appeal against the orders of 18 May 2012 had been discontinued, read the appeal books in relation to that appeal, for my part the advice which was, presumably, given to the appellant which led to the filing of a Notice of Discontinuance was not only correct advice, but almost the only advice which a competent lawyer could in the circumstances have given to the appellant. It had the impact of limiting the costs which the appellant was at risk of having to pay had he prosecuted the appeal.
In relation to the appeal against the costs order, as Murphy J’s reasons of 31 August 2012 make clear, the fact or circumstance which most directly, and properly enlivened his Honour’s discretion to form the opinion required by s 117(2) of the Act was his conclusion that the appellant’s application in the parenting proceedings was demonstrably without possible merit. Without referring to it in detail, that reality permeates the reasoning which Murphy J revealed in relation to the appellant’s liability for costs. As Murphy J correctly recorded in paragraph 44, were the substantive appeal, that is, the appeal against the parenting order of 18 May 2012, to be successful, that may have had implications for the costs order.
Given that the appeal has not been successful, this Court must approach the appeal against the costs order on the basis that the numerous and adverse findings of Murphy J which led to his summary dismissal of the father’s parenting application was correct.
For my part, whilst clearly a matter involving the exercise of discretion, on the undisturbed findings of fact recorded by Murphy J in his decision in the parenting proceedings of 18 May 2012, to have declined to form the opinion that the circumstances justified a costs order would not only have been erroneous but almost, if not, perverse. Nothing which the appellant has put to this Court, in my view, begins to demonstrate appealable error in relation to the order for costs. His Honour was amply justified on the undisturbed findings of fact of 18 May 2012 in forming the requisite opinion.
The second issue to consider is whether, having determined that a costs award was appropriate, it ought, as would usually be the case, have been on a party and party basis or ought to have been, as Murphy J concluded it should, on an indemnity basis. In the course of his reasons for judgment, Murphy J referred, accurately, to the principles governing the discretion to award indemnity costs and the authorities which are relevant in that regard. In particular his Honour referred to what is generally regarded as the most authoritative and helpful statement, that of Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248. His Honour then proceeded, having, I believe, correctly stated the law to apply the law to the facts.
Nothing which the appellant has raised or which, for my part, I have gleaned from His Honour’s reasons for judgment gives the slightest disquiet as to the correctness of His Honour’s decision. It was, in my view, well open to the trial Judge to make an order of indemnity costs.
The third relevant or potentially relevant aspect of the trial Judge’s decision was the quantification of the indemnity costs which his Honour concluded were appropriate to be ordered. His Honour, with great respect and with considerable foresight, framed an order which, although the appellant would no doubt not see it so, provided potentially a shield in terms of his liability for costs pursuant to the costs orders which his Honour made.
As is plain from the terms of order 2, his Honour, on the basis revealed in his reasons for judgment, formed the prima facie view perhaps, for want of a better way of describing it, that $69,202.02 represented a reasonable quantification of the indemnity costs which might be recoverable from the appellant. Quite properly, however, his Honour did not make an order in those terms. Instead, his Honour provided, as the appellant sought, that he have the opportunity to have those costs assessed, however, if the respondent’s indemnity costs were assessed as equal to or exceeding $69,202.02, the appellant should, in addition pay the mother’s costs of that assessment on an indemnity basis.
Having regard to Sheppard J’s judgment in Colgate Palmolive, and to the undisturbed findings of fact of the trial Judge of 18 May 2012, in my view his Honour was abundantly justified in exercising his discretion to make an order in those terms. The appellant has raised nothing which, if accepted, could constitute a reasonable challenge to that order. It remains, in my view, only to consider the last matter which the appellant raised in the context of the costs appeal, that being his asserted impecuniosity.
Accepting for the purpose of this ruling but not for one minute making a finding of fact in reliance upon acceptable evidence that the appellant’s financial position is as he asserted it, and as I have earlier recorded it, that would not, in my view, constitute in the circumstances of this case a basis for disturbing Murphy J’s decision. Murphy J dealt with that issue to the extent that it appears to have been raised before him by the appellant. Nothing which has been raised either by reference to his Honour’s judgment or any further evidence, however informally sought to be adduced by the appellant, provides in my view any basis for finding appealable error by reference to the appellant’s asserted impecuniosity.
Section 117(2A) obliges the Court to have regard to financial circumstances. Neither the section nor any authority to which the Court has been referred establishes that, if it be the fact, impecuniosity is a bar to making an order for costs. It is not and for good reason. A case such as this provides, in my view, a graphic illustration of why that is, and should be so. Nothing to which the Court has been referred providing a basis for possible appellate intervention. My view is that the appeal against the cost order of 31 August 2012 should be dismissed.
ainslie-wallace j
I agree with the orders proposed by Justice Coleman, and his reasons for so doing, and I have nothing further to add.
ryan j
I agree with the reasons given by Justice Coleman, and the orders that he proposes.
coleman j
As with the other aspects of the proceedings, the appellant disputes the quantum of costs sought by the respondent and disputes the capacity to pay. The argument distils somewhat in the circumstances of this case because there is a fund of $5000 which is available. There are two questions. The first is whether that fund should be made available. In my view, it should. The only question is whether it should be made available by way of an immediate payment to the respondent or preserved and charged with the respondent’s entitlement if the Court orders that the respondent’s costs be assessed.
Counsel for the respondent in my view sensibly and reasonably, to use the colloquial, sought to “take the money and run”. That course has some attraction. Simply because it is a pragmatic resolution does not mean that it thus becomes an appropriate exercise of judicial discretion. Counsel’s fees in relation to the appeal not the subject of earlier cost orders have been submitted at $1500 plus GST, a figure which, speaking only for myself, seems disturbingly modest.
It could not possibly be suggested that it is other than reasonable. The appellant disputed that it was reasonable to incur the cost of Counsel and that Counsel’s instructing attorney should have appeared. I do not accept that that is so, but even if that had been so, I suspect that Counsel’s instructing attorney appearing as Counsel would have been entitled to claim a fee no less than, and probably at scale in excess of that which Counsel has sought when preparation was taken into account. On either basis, allowing Counsel’s fee in the sum advised by Counsel was, in my view, entirely reasonable.
So far as solicitor and client costs are concerned, as Ryan J has identified, annexure H to the respondent’s recent affidavit contains an itemised bill of costs on both an indemnity and a party and party basis. Largely for reasons which would be revealed by the transcript of discussion with Counsel for the respondent, for my part, I am not persuaded that “exceptional circumstances” in the appeals have been demonstrated, and that an award of party and party costs would not do justice to the case.
But the party and party costs of Counsel’s attorney as recorded in exhibit H approximate $3600. The figure of $5000 sought is thus less than the costs reasonable to be claimed would be. In those circumstances, to award an immediate payment is to do no possible injustice to the appellant but to save him, and the respondent the expense and effort of having a bill assessed, the costs of that exercise potentially being visited upon the appellant in any event.
The submissions of the appellant before the Court today, and his repeated assertion that he would meet any costs order by paying $7 per week are influential in my thinking that the interests of justice would be better served, and served without any possible unfairness or detriment to the appellant if the ledger were closed by making an order that the $5000 currently provided as security for costs be the quantum of the respondent’s costs of and incidental to the appeals to this Court, and I would so order.
It is an unusual outcome for this Court to assess costs, but where the costs are of such modest quantum as sought in this appeal, or in these appeals, the cost of having an assessment particularly when nothing raised by the appellant provides any basis for considering that the assessed costs may be inflated or unreasonable would be out of proportion to the amount involved, and I would be comfortable taking the robust approach of assessing the costs at $5000.
ainslie-wallace j
I agree with the proposed order for costs of Justice Coleman, and his reasons, and I do not wish to add anything.
ryan j
I too agree with the reasons given by Justice Coleman, and the order for costs he proposes.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace and Ryan JJ) delivered on 19 March 2013.
Associate:
Date: 22.03.2013
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