Huda and Huda and Laham (Costs) - [2018] FamCAFC 127

FAMILY COURT OF AUSTRALIA

HUDA & HUDA & LAHAM (COSTS)

[2018] FamCAFC 127

FAMILY LAW –APPEAL – COSTS – where the trial judge’s interventions during the course of a four day trial demonstrated procedural unfairness – where the appeal was allowed – where each of the appellants sought that the wife pay the costs of their appeals – where the circumstances did not justify an order for costs – where the nature of the error renders it appropriate for costs certificates to issue.

Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Federal Proceedings (Costs) Act 1981 (Cth)

Dickson and Dickson (No. 2) (1999) FLC 92-857; [1999] FamCA 768
Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85
Lenova & Lenova (Costs) [2011] FamCAFC 141
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

IN RELATION TO APPEAL NUMBER NA 47 OF 2016:
APPELLANT:	Mr Huda

FIRST RESPONDENT:

Ms Huda

SECOND RESPONDENT:	Mr Laham
IN RELATION TO APPEAL NUMBER NA 49 OF 2016:
APPELLANT:	Mr Laham
FIRST RESPONDENT:	Ms Huda
SECOND RESPONDENT:	Mr Huda

FILE NUMBER:

BRC

1238

2015

FIRST APPEAL NUMBER:

2016

SECOND APPEAL NUMBER:

2016

DATE DELIVERED:

11 July 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

In Chambers

JUDGMENT OF:

Thackray, Murphy and Kent JJ

HEARING DATE:

In Chambers by way of written submissions

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 June 2016

LOWER COURT MNC:

[2016] FCCA 1256

REPRESENTATION

COUNSEL FOR THE APPELLANT /SECOND RESPONDENT:

Mr P Hackett

SOLICITOR FOR THE APPELLANT /SECOND RESPONDENT:

Bartels Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr G Shoebridge

SOLICITOR FOR THE FIRST
RESPONDENT:

Pullos Lawyers

COUNSEL FOR THE SECOND RESPONDENT/APPELLANT:

Mr C Wilkins

SOLICITOR FOR THE SECOND RESPONDENT/APPELLANT:

Kalyans Lawyers

Orders

Pursuant to the provisions of s 117(1) of the Family Law Act 1975 (Cth) there be no orders as to costs.
In appeal number NA 47 of 2016 the Court grants to the appellant a costs certificate pursuant to the provisions of 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.
In appeal number NA 47 of 2016 the Court grants to each of the first and second respondents 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 and second respondents in respect of the costs incurred by the first and second respondents in relation to the appeal.
In appeal number NA 49 of 2016 the Court grants to the appellant a costs certificate pursuant to the provisions of 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.
In appeal number NA 49 of 2016 the Court grants to each of the first and second respondents 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 and second respondents in respect of the costs incurred by the first and second respondents in relation to the appeal.
The Court grants to each of the parties 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 them in respect of the costs incurred by each of them in relation to the rehearing.

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 Huda & Huda & Laham (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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 47 of 2016; NA 49 of 2016
File Number: BRC 1238 of 2015

Mr Huda

Appellant /Second Respondent

And

Ms Huda

First Respondent

And

Mr Laham
Second Respondent/Appellant

REASONS FOR JUDGMENT

On 10 May 2018, this Court allowed appeals by the husband and Mr Laham against property settlement orders made by Judge Vasta on 17 June 2016 (“the appeal reasons”).[1] The orders made by the Full Court provided for the filing of written submissions as to costs. Written submissions were subsequently filed by each of the parties.
[1] Huda & Huda and Laham (2018) FLC 93-837.
The husband and Mr Laham seek that the wife pay their costs of and incidental to both appeals and the rehearing. In the alternative for both appeals, each of the husband and Mr Laham seek certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
The wife resists an order for costs in both appeals and instead seeks that certificates issue for both the appeal and the rehearing.
It is unnecessary to repeat details of the appeal reasons. The central conclusion was that over the course of a four-day trial for settlement of property, the purpose, tone and frequency of interventions by the trial judge during cross-examination amounted to procedural unfairness. The impugned interventions by the trial judge related to the existence of a debt owing by the husband to Mr Laham in excess of $580,000.00 pursuant to an asserted loan or loans. The wife alleged that no such loan or loans existed.[2]
[2]Huda & Huda and Laham (2018) FLC 93-837 at [5] – [7].
Given our conclusion that the result was affected by procedural unfairness, it was unnecessary to consider the remaining grounds of appeal contained in each appellant’s Notice of Appeal, except for a brief discussion as to whether his Honour was ostensibly biased. That assertion was rejected.
Section 117(2) of the Family Law Act 1975 (Cth) (“the Act”) permits this Court to make an order for costs where “the court is of opinion that there are circumstances that justify it in doing so”. In considering whether such an order should be made, the Court must have regard to the matters identified in s 117(2A).
In his written cost submissions, the husband states the following in seeking to justify the making of a costs order against the wife:[3]
It is appropriate to make an order for costs against the [wife] because:
(a)the [wife] has the ability to meet a costs order as she is joint owner of two real properties with the [husband] having net equity in excess of $1M and otherwise seeks a property adjustment order in her favour [s.117(2A)(a)];
(b)the [wife] was wholly unsuccessful in respect of each appeal [s.117(2A)(e)];
(c)the [wife] was at all times represented by counsel and solicitors and ought to have known of the risks of not consenting to the appeals, especially after receiving each appellants outlines in each appeal.
(Footnotes omitted)
[3] Husband’s costs submissions filed 30 May 2018 at paragraph 4.
Mr Laham adopts those submissions and asserts additionally that because his “involvement in the case is more akin to a proceedings in a civil action”,[4] that further justifies the making of costs orders against the wife because the usual course in such proceedings is that costs follow the event. It could be said that such a matter is captured by s 117(2A)(g) of the Act, as relating to “such other matters as the court considers relevant”.
[4] Mr Laham’s costs submissions filed 31 May 2018 at paragraph 5.
In relation to s 117(2A)(a), counsel for the wife in his written submissions refers to the wife’s Financial Statement filed during the proceedings below, which identify her earnings as modest (about $540/week in wages in addition to some Government benefits).
In relation to s 117(2A)(e), counsel for the wife acknowledges that the husband and Mr Laham were successful in both appeals. However, counsel highlighted the observations made by this Court in the appeal reasons to the effect that the assertions of the type there made by the successful appellants are never easy to evaluate.[5]
[5] Huda & Huda and Laham (2018) FLC 93-837 at [61] – [64]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [14] (Basten JA).
Further, counsel referred to the wife’s complaint “throughout the trial that both the Husband and Mr [Laham] had failed in their obligations to make disclosure of documents in relation to the alleged debt”.[6] That conduct is an important consideration (s 117(2A)(g));[7] it contributed significantly to the factual issues giving rise to the dispute. We reiterate what was said at the conclusion of the appeal reasons:
79.In case there should be any doubt on the part of either of the parties or Mr [Laham], it should be appreciated, including in respect of any submissions made in respect of the costs of the appeal, that our conclusions as to procedural unfairness should not be seen as a vindication of the husband’s or Mr [Laham’s] position with respect to the factual issues live in the proceedings below.
[6] Wife’s costs submissions filed 31 May 2018 at paragraph 9(a).
[7] See, Parke & The Estate of the Late A Parke (2016) FLC 93-748 at [19] – [42] and the Full Court’s discussion of Dickson and Dickson (No 2) (1999) FLC 92-857.
The appellants also assert that the wife “ought to have known” the risks of not consenting to the appeals. Be that as it may, we have not been directed to any “offer in writing” (s 117(2A)(f)) having been made. It has been said by the Full Court that, because in this jurisdiction costs do not follow the event (s 117(1)), a party cannot rely upon a costs order to dissuade another party from defending litigation and “[a] timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation”.[8]
[8]Lenova & Lenova (Costs) [2011] FamCAFC 141 at [11].
In our opinion the circumstances of the instant case do not justify an order for costs. It will be ordered that each party bear their own costs of and incidental to the appeals.
Each of the parties sought certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) both for the appeal and the retrial. The nature of the error renders it appropriate for those certificates to issue and we will so order.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy and Kent JJ) delivered on 11 July 2018.

Associate:

Date: 11 July 2018