Huffman and Gorman (Costs)

[2016] FamCAFC 175

FAMILY COURT OF AUSTRALIA

HUFFMAN & GORMAN (COSTS) [2016] FamCAFC 175

FAMILY LAW – APPEAL – COSTS – Where the appellant appeals an order that he pay the costs of the respondent of and incidental to his dismissed application in a case – Where the trial judge’s decision is not “plainly wrong” and he has not erred in the exercise of his discretion – Where there is no merit in the grounds of appeal – Appeal dismissed.

Family Law Act 1975 (Cth) – s 117(2A)

Gronow v Gronow (1979) 144 CLR 513
Huffman & Gorman [2014] FamCA 150
PBF v TRF (2005) 191 FLR 294
Penfold v Penfold (1980) 144 CLR 311

APPELLANT: Mr Huffman

RESPONDENT: Ms Gorman

FILE NUMBER: PAC 3882 of 2011

APPEAL NUMBER: EA 71 of 2014

DATE DELIVERED: 5 September 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Sydney

JUDGMENT OF: Strickland, Murphy & Austin JJ

HEARING DATE: 17 August 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 20 May 2014

LOWER COURT MNC: [2014] FamCA 323

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Maddox

SOLICITOR FOR THE APPELLANT: Caldwell Martin Cox

COUNSEL FOR THE RESPONDENT: Mr Connor

SOLICITOR FOR THE RESPONDENT: Martin Street Lawyers

Orders

1. The appeal be dismissed.

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 Huffman & Gorman (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 SYDNEY

Appeal Number: EA 71 of 2014
File Number: PAC 3882 of 2011

Mr Huffman

Appellant

And

Ms Gorman

Respondent

REASONS FOR JUDGMENT

Strickland and Murphy JJ

Introduction

1. By Notice of Appeal (EA 71 of 2014) filed on 16 June 2014, Mr Huffman (“the father”) appeals against an order made by Foster J on 20 May 2014 providing for the father to pay the costs of Ms Gorman (“the mother”) of and incidental to the Application in a Case filed by the father on 9 December 2013, such costs to be assessed in default of agreement. The appeal is opposed by the mother.

Background

1. On 24 October 2013 the father raised before a Registrar his wish for a number of recordings, transcripts of those recordings, and photographs contained on various USB drives to be provided to the single expert psychiatrist, Dr K, appointed to prepare a report in the parenting proceedings between the parties. On this date, the Registrar directed the father to file an affidavit in support of this application within one month. An affidavit was then filed by the father, but not until 2 December 2013.

2. The father also filed a formal Application in a Case for this purpose on 9 December 2013, which application was subsequently amended on 23 December 2013. The mother opposed the orders sought by the father.

3. The amended application was heard by his Honour on 7 March 2014. Orders were made and reasons for judgment were delivered on 17 March 2014, pursuant to which the father’s application was dismissed (see Huffman & Gorman [2014] FamCA 150). The question of the costs of this application was reserved and the parties were directed to provide written submissions on this issue.

4. On 20 May 2014 his Honour ordered that the father pay the mother’s costs of and incidental to the application. This is the order the subject of the appeal.

Summary of Reasons for Judgment delivered 20 May 2014

1. The trial judge commenced his reasons for judgment by providing a brief background to the costs order (at [1] – [7]).

2. His Honour then considered the law as it related to costs, in particular ss 117(1) and (2) of the Family Law Act 1975 (Cth) (“the Act”). His Honour noted that “[a]lthough s 117(2) requires a finding of justifiable circumstances as an essential preliminary to the making of an order for costs, there is no additional or special onus on an applicant who seeks an order for costs” (see Penfold v Penfold (1980) 144 CLR 311) (at [8] – [10]). His Honour then canvassed the matters relevant to determining what order, if any, should be made pursuant to s 117(2A) of the Act (at [11]).

3. In relation to these matters, his Honour opined that there “is nothing to prevent any one factor being the sole determinant for an order for costs” (see PBF v TRF (2005) 191 FLR 294) (at [12]).

4. His Honour noted that the issue for determination was whether the general rule in s 117(1) was displaced.

5. His Honour then turned to consider the matters set out in s 117(2A). First, his Honour noted that there was “no evidence as to the parties’ financial circumstances before the Court, save that there are pending property proceedings” (at [15]).

6. Next, his Honour considered the mother’s submission that a relevant consideration was the father’s conduct in secretly recording conversations between the parties, and the accuracy of these recordings. His Honour found that such a consideration was not relevant to the question of costs because s 117(2A)(c) is concerned with the “interlocutory conduct of the parties” (at [15]).

7. In relation to s 117(2A)(e), his Honour noted that the “mother in her Case Outline of 6 February 2014 adopted a position that was ultimately adopted by the Court”. Despite the father’s assertion that his application was a “procedural hearing and a ‘skirmish’”, his Honour found that “the mother was required to meet the father’s application that was ultimately unsuccessful” (at [15]).

8. Finally, his Honour considered the father’s submission that the application was appropriate in the circumstances of the matter. His Honour rejected this assertion, and cited the father’s own contention that the matters agitated by the application were not matters to be dealt with in an interim hearing where the parties did not have the benefit of cross-examination. His Honour noted that this was precisely what the father sought to do (at [15]).

9. Therefore, having considered the s 117(2A) factors relevant to the application, his Honour found that a departure from the general rule in s 117(1) was justified as the father was wholly unsuccessful in his application and the mother was required to incur expenses in order to resist it (at [16]).

Grounds of Appeal

1. The grounds of appeal relied on by the father in this appeal are as follows:

   (1)That His Honour erred in the exercise of his discretion in accordance with section 117(2) of the Act.

   (2)That His Honour erred in finding as a fact that “the independent children’s lawyer” opposed the Orders sought by the Father.

   (3)That His Honour gave no consideration or insufficient weight to the absence of financial information in accordance with section 117(2)(a) of the Act.

   (4)That His Honour erred in the exercise of his discretion when he failed to give reasons for not making an Order jointly sought by each of the parties, that the issue of costs be adjourned to the conclusion of the hearing.

   (5)That His Honour erred in finding that the material sought be furnished to the report writer was prima facie inadmissible by reason of illegality.

   (6)That His Honour erred when he found that the application was untimely and inappropriate.

   …

Discussion

Ground 1

1. This ground asserts that the trial judge erred in the exercise of his discretion in making an order that the father pay the mother’s costs of and incidental to his dismissed application. In support of this ground, the father refers to the factors in s 117(2A) and contends that his Honour’s consideration of these factors led to a decision by his Honour which was plainly wrong.

2. The principles applicable in cases where there is a challenge to a discretionary judgment are well known and an appellant who seeks to challenge a discretionary decision faces a difficult task.

3. As Stephen J said in Gronow v Gronow (1979) 144 CLR 513 at 519 - 520:

   The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

4. Thus, to succeed in a challenge of this kind, it must be established that his Honour’s decision was plainly wrong.

5. First, the father complains that despite the trial judge acknowledging that there was “no evidence of the parties’ financial circumstances before the Court”, it is unclear whether his Honour gave weight to the written submissions of the mother as to her financial circumstances, which the father argued were an attempt to “give evidence from the bar table” and thus should not have been considered.

6. The father then asserts that where there was “no evidence as to the father’s capacity to pay any award of costs” his Honour should have reserved the issue of costs to be dealt with at the conclusion of the trial by the trial judge who “would have been in a position to assess the financial positions of the parties”.

7. The difficulty with the first of these submissions is that at [15] of his reasons for judgment his Honour expressly found that there was no evidence as to the parties’ financial circumstances and the father has not referred us to any part of his Honour’s reasons or the record generally which indicate his Honour considered the submissions of the mother (which plainly were not evidence) in making an order for costs.

8. As to the second submission, it is clear that both parties sought an order for costs based on the result of the application. While the father may consider that it would have been more appropriate for his Honour to reserve the issue of the costs to be dealt with after trial, for his Honour not to do that does not sound in appellate error. His Honour was completely justified in making the order sought by the mother who was put to the time and expense of opposing the father’s unsuccessful application.

9. Next the father submits that his Honour erred in finding that the father was “wholly unsuccessful” in his application. In support of this submission the father relies upon the fact that by the commencement of trial the trial judge (Hannam J) had made orders in similar terms to those sought by the father in his application. However, we consider that this submission is misguided. Even if the orders sought by the father were made at a later stage in the proceedings, at the time the application was before his Honour he considered that it was untimely and inappropriate to make the orders for the reasons provided at [38] – [41], namely:

   38.It is common ground that there are in excess of 1000 pages of transcript and there are significant issues between the parties as to the timing of the various recordings and significantly the integrity of same.

   39.The provision of the recordings and transcripts to the Single Expert, it is agreed, would further delay the finalisation of the Single Expert report and involve the parties in significant additional expense in terms of the Single Expert considering the voluminous transcript and listening to the actual recordings.

   40.In circumstances where there is a significant dispute between the parties as to the timing and integrity of the recordings, the Single Expert will be placed in a difficult position, as he is unable to make determinations of fact.

   41.It will be a matter for the Court at trial to determine the admissibility of and the integrity of the recordings, if they are sought to be relied on by the father.

10. His Honour then dismissed the application in its entirety. In these circumstances, we struggle to see how it can be asserted that the application was anything but “wholly unsuccessful” at the time his Honour determined it. This is the case regardless of what occurred later in the proceedings.

11. Finally, the father challenges his Honour’s consideration of “other relevant matters” pursuant to s 117(2A)(g) of the Act. In particular, the father asserts that his Honour erred in finding that the father’s application was inappropriate because the evidence was “prima facie inadmissible”, and the application was “not appropriate for determination on an interim basis, without the testing of the parties’ evidence”.

12. The father asserts that his Honour erred in respect of these findings in circumstances where there “were strong grounds for the evidence being admissible” and where the evidence was ultimately admitted at trial. Further, the father contends that if his Honour was correct in finding that the matter could not be dealt with on an interim basis, his Honour should have adjourned the issue of costs to be dealt with by the trial judge who would have been in a position to decide the appropriateness of the application at a later stage in the proceedings.

13. In respect of these submissions, at [41] (see above at [25]) his Honour clearly expressed that the admissibility of the evidence would “be a matter for the Court at trial to determine”.  As the father has not sought to appeal his Honour’s order dismissing the application, the father cannot now seek to challenge this finding.

14. In any case, this finding arose in the context of an interim hearing where the evidence could not be properly tested by his Honour in order to determine its admissibility. Thus, it was clearly open to his Honour to find that the application was inappropriate at that stage of the proceedings. As we have also explained, the fact that the evidence was ultimately admitted by the trial judge does not demonstrate error by his Honour in making the order that he did.

15. Further, as we have said above, the father may consider that the issue of costs would have been more properly dealt with at the conclusion of the trial, but the mother sought her costs of the application which his Honour found to be wholly unsuccessful. In those circumstances, his Honour was clearly justified in making the order sought by the mother.

16. There is no merit in this ground.

Ground 2

1. The complaint in this ground is that the trial judge erred at [3] of his reasons for judgment in finding that the Independent Children’s Lawyer (“ICL”) opposed the orders sought by the father in his application.

2. We accept the submission of the father that there is no evidence that the ICL directly opposed the application of the father. It is clear from the transcript of the hearing that the ICL’s submissions were directed to the practicalities of the orders sought as they related to the time and expense of the single expert considering all of the evidence, rather than what the ICL considered should be the success or otherwise of the application.

3. However, it is difficult to see how this finding affected his Honour’s order, and reveals appealable error. Indeed, the father has been unable to demonstrate that this finding has led to any error in his Honour’s reasoning.

4. Thus, while we agree that his Honour erred in finding that the ICL opposed the father’s application, we do not consider that this error warrants appellate interference.

Ground 3

1. At [15] of his reasons for judgment, it is clear that his Honour had regard to the lack of evidence available to him:

   There is no evidence as to the parties’ financial circumstances before the Court save that there are pending property proceedings.

2. On that basis, it cannot be asserted that his Honour did not consider, or did not place sufficient weight on this issue. His Honour has clearly done so, but determined that an order for costs could be justified by reference to other s 117(2A) factors.

3. There is no merit in this ground.

Ground 4

1. In this ground the father complains that his Honour failed to give adequate reasons for making an order for costs in circumstances where both parties sought that the issue of costs be adjourned to the conclusion of the trial.

2. As has been explained earlier in these reasons, this submission overlooks the fact that the mother’s primary position in her response and written submissions was that she receive her costs. His Honour then notes at [14] of his reasons:

   The question of costs is to be determined on the basis of the parties’ written submissions as provided for in orders made on 17 March 2014.

3. Clearly recognising the respective submissions of each party, his Honour found at [16]:

   In the circumstances, it is justified that there be a departure from the general rule. The father was unsuccessful in his application, with the mother put to the expenses of resisting an application that was in the end dismissed.

4. Thus, we consider that his Honour’s reasons for making a costs order in favour of the mother are clear. There is no merit in this ground.

Ground 5

1. The difficulty with this complaint is that the father did not appeal the order dismissing the father’s application. Therefore, the father cannot now seek to challenge those findings in order to set aside a costs order made in reliance upon them. Moreover, his Honour did not find “that the material sought [to] be furnished to the report writer was prima facie inadmissible by reason of illegality”. What his Honour in fact said was “in the absence of the evidence being prima facie inadmissible by reason of illegality and the need for the court at hearing to determine admissibility, the application was untimely and inappropriate”.

2. This ground has no merit.

Ground 6

1. In this ground the father complains that his Honour was in error in finding that the father’s application was “untimely and inappropriate”. We have already dealt with this finding earlier in these reasons and need not repeat what we have said. Suffice to say that this finding was clearly open in circumstances where there were significant matters in issue arising under the application which could not properly be dealt with by his Honour on an interim basis.

Conclusion

1. As we have found no merit in any of the father’s grounds of appeal, this appeal must be dismissed.

Costs

1. No application was made by either party in relation to the costs of and incidental to this appeal at the time of the hearing of the appeal. However, under r 22.53 of the Family Law Rules 2004 (Cth) each party has 28 days from the making of our proposed order to make such an application. If that is done then we will deal with that application as appropriate.

Austin J

1. I agree with the orders proposed by Strickland and Murphy JJ, and I agree generally with the reasons given by their Honours for that result.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 5 September 2016.

Associate: 

Date:  5 September 2016