Hester and Ealley
[2010] FamCAFC 98
•18 May 2010
FAMILY COURT OF AUSTRALIA
| HESTER & EALLEY | [2010] FamCAFC 98 |
| FAMILY LAW - APPEAL – APPLICATION FOR COSTS OF ABANDONED APPEAL – Extension of time to file appeal books consented to by respondent – Further extension sought by appellant which was not consented to – Failure to file appeal books within time – Appeal deemed abandoned – Respondent seeks costs for period between institution of appeal and grant of legal aid – Whether quantum excessive – Appellant’s solicitor advised by counsel that the appeal had no prospects of success – Application granted |
| Family Law Act 1975 (Cth) |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Rice and Asplund (1979) FLC 90-725 Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029 |
| APPELLANT: | Mr Hester |
| RESPONDENT: | Ms Ealley |
| FILE NUMBER: | PAC | 1361 | of | 2009 |
| APPEAL NUMBER: | EA | 106 | of | 2009 |
| DATE DELIVERED: | 18 May 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Boland and Cronin JJ |
| HEARING DATE: | 18 May 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1015 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Ms Paton Georgiou & Co Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Ladopoulos |
| SOLICITOR FOR THE RESPONDENT: | Lamrocks Solicitors & Attorneys |
Orders
The appeal filed 14 September 2009 be dismissed.
The father pay the mother the sum of $1103.30 together with the costs of the application in an appeal filed 18 March 2010 to be assessed.
IT IS NOTED that publication of this judgment under the pseudonym Hester & Ealley is approved 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 106 of 2009
File Number: PAC 1361 of 2009
| Mr Hester |
Appellant
And
| Ms Ealley |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
May J
Introduction
On 14 September 2009 the father filed a notice of appeal against orders made by Federal Magistrate Donald. The orders of the Federal Magistrate made on 17 August 2009 dismissed the father’s application to vary existing final parenting orders and required the father to pay the mother’s costs.
The father failed to file and serve the appeal books within time, despite being granted an extension of time, by consent. Consequently, the father’s appeal was deemed abandoned.
The application with which we are now concerned is the mother’s. She seeks orders that the father pay her costs of the appeal on an indemnity basis.
Background
The parties have two daughters, K and C, born in 2001 and 2003 respectively. Final parenting orders were made in relation to the children on 8 September 2004 by Federal Magistrate Scarlett.
The father filed an application to vary those final orders which came before Federal Magistrate Donald on 17 August 2009. His Honour referred to the well known decision of Rice and Asplund (1979) FLC 90-725, and determined that there was insufficient evidence to establish a significant change in circumstance which warranted a re-hearing of the parenting issues. The orders of the Federal Magistrate dismissed the application and in paragraph 2 required:
(2)The Applicant Father pay the Respondent Mother’s costs as agreed or taxed according to scale within 90 days.
As I have already observed, the father instituted his appeal against those orders on 14 September 2009.
On 22 September 2009 the solicitors for the father wrote to the solicitors for the mother seeking a stay of execution of order 2 pending the outcome of the appeal.
On 6 November 2009 procedural orders were made by a registrar settling the appeal book index and for the filing of material. The appeal books were to be filed and served on or before 8 January 2010.
In a letter dated 10 November 2009 the solicitors for the mother indicated that she consented to a stay of execution of the costs order pending the outcome of the appeal.
On 6 January 2010, two days before the appeal books were due to be filed, the mother received a letter from the father’s solicitors requesting an extension of time of six weeks within which to file the appeal books to 19 February 2010. The mother consented.
In a letter dated 17 February 2010, faxed on 18 February, the solicitors for the father wrote to the solicitors for the mother and requested a further extension of time. The letter stated:
You will recall that you very kindly consented to an Application to amend the Timetable to allow an extension of time for filing the Appeal Books.
Progress has been made. David Dura of Counsel has been briefed. Mr Dura is presently settling the grounds of appeal for inclusion in the Appeal Books. Obviously the final form of the Appeal Books cannot be settled and nor can the Appeal Books be filed or served until such time as the final form of the Notice of Appeal is settled and filed.
In these circumstances we regretfully request your consent to a further extension of time for filing the Appeal Books of say another four weeks. …
In her affidavit sworn in support of the costs application, the mother explained that she emailed her solicitors on 19 February 2010, after she was informed of the further request for an extension, and indicated that she did not agree. This was apparently not read by her solicitor until 22 February. On that day the solicitors for the mother wrote to the solicitors for the father and advised them that the mother did not consent to any further extension of time.
By a letter dated 23 February 2010, the Appeals Registrar advised the parties’ solicitors that the appeal was “taken to be abandoned” because of the failure to file the appeal books within time. The father has not filed any further applications.
On 15 March 2010, the mother’s solicitors wrote to the father’s solicitors and said:
We note that now that the father’s Appeal has been deemed abandoned we are seeking compliance with Order 2 of the Orders made 17 September 2009 and ask that the father pay the mothers costs as set out in our letter dated 17 September 2009 immediately to our office and noting that in the event the Mother did not consent to the stay of his Costs Order that he would have been required to pay it by 16 November 2009.
We have been provided with information in relation to the costs agreement between the mother and her solicitors. The mother was provided with a grant of legal aid for the appeal effective from 10 November 2009. The bill from the solicitors up to that date is annexed to the mother’s affidavit, and it is claimed that the father should pay the mother’s costs related to the appeal, fixed in the sum of $1103.30, for work from 24 September 2009 to 10 November 2009.
The mother’s financial circumstances are that she is living in a de facto relationship but has no income and limited assets. In her affidavit in support of her application, the mother states in paragraph 34:
[The father] is assessed to pay $881 per month in Child Support for the 2 children. To the best of my knowledge this amount incorporates any arrears that have been owing since in or about 2003. From in or about August 2009 to in or about November 2009 I did not receive any Child Support and to the best of my knowledge the arrears owing in or about November 2009 were approximately $9000. Since in or about November 2009 I am aware that the Child Support Agency has been garnishing [the father’s] income.
Relevant Law
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs costs. Section 117(1), (2) and (2A) provide as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
An application is made that the order be made by this Court on an indemnity basis. The principles related to ordering costs on such a basis are well known. There must be some “exceptional” circumstances which would justify such an order.
In particular, I have regard to Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 where his Honour provided a number of examples where a court might consider an award of indemnity costs. The categories of cases giving rise to an indemnity costs order are not limited. In Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029 Lindenmayer and Holden JJ, citing Sheppard J in Colgate Palmolive, said at 87,471:
All that is required is that the Court asked to exercise the discretion be satisfied that some ‘particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis’
Discussion
The applicant in this case asks for costs primarily because the appeal was deemed abandoned.
The solicitor for the respondent argued that an order for costs should not be made and also argued that the quantum as claimed was excessive. It was particularly submitted that as there had been a grant of legal aid, no order for costs should have been made by the Federal Magistrate against the father. However, there has, as has already been observed, been no application filed to seek that the appeal be reinstated. In fact, the solicitor told us that counsel had advised her that there were no prospects of success in the appeal. It is therefore difficult to understand how this submission can assist resisting an order for costs arising out of the appeal being deemed abandoned.
It was then argued that the solicitors for the mother should have applied for legal aid at an earlier time in relation to the appeal. The sum sought by way of costs appears to be in the gap prior to legal aid being granted. The claim for costs is over a very discrete period from 24 September 2009 to 10 November 2009.
I am of the view that there is no substance in the arguments as presented to us by the solicitor for the respondent father.
Finally, in relation to quantum, it is submitted that the sum of $720 to attend at the directions hearing was excessive. As the solicitor is from Penrith, some distance away, the charge seems entirely reasonable.
Conclusion
Although the sum claimed is the total fee for the period to which I have referred, it should not be described in the traditional sense as an indemnity cost. In my view it is entirely appropriate, by reference to the history of the matter to which I have referred, that the father pay the sum of $1103.30, together with the costs of the application filed 18 March 2010.
Boland J
I agree with the reasons of the presiding judge, and I have nothing further to add.
Cronin J
And I agree with the views and the proposed orders as expressed by May J, and I have nothing further to add.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 8 June 2010
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