HYAMS & DELLER

[2019] FamCAFC 18

FAMILY COURT OF AUSTRALIA

HYAMS & DELLER [2019] FamCAFC 18

FAMILY LAW – APPEAL – Where there is no error by the trial judge – Where the complaints relate to conduct by previous solicitors – Where the appeal should never have been brought – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks costs on an indemnity basis – Where the application for indemnity costs is opposed given the financial circumstances of the appellant – Where the appellant does not oppose an order for costs calculated on a party/party basis – Where there are circumstances justifying an order for indemnity costs – Indemnity costs ordered.

Family Law Act 1975 (Cth)

D & D (Costs) (No 2) (2010) FLC 93-435

APPELLANT: Ms Hyams

RESPONDENT: Mr Deller

FILE NUMBER: DGC 2005 of 2017

APPEAL NUMBER: SOA 75 of 2018

DATE DELIVERED: 7 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE: 7 February 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 2 October 2018

LOWER COURT MNC: [2018] FCCA 3123

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Ms Storey
SOLICITOR FOR THE APPELLANT:	Knight Family Lawyers
COUNSEL FOR THE RESPONDENT:	Mr E Hall
SOLICITOR FOR THE RESPONDENT:	Duffy & Simon Lawyers

Orders

1. The Notice of Appeal filed on 26 October 2018 be dismissed.

2. The mother pay the father’s costs of and incidental to the appeal fixed in the sum of TWO THOUSAND DOLLARS [$2,000].

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 Hyams & Deller 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 MELBOURNE

Appeal Number: SOA 75 of 2018
File Number: DGC 2005 of 2017

Ms Hyams

Appellant

And

Mr Deller

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before the court today is a Notice of Appeal filed by Ms Hyams (“the mother”) on 26 October 2018 against parenting orders made by Judge Burchardt on 2 October 2018.

2. The mother says that her lawyer at the time acted without instructions in agreeing to the orders that his Honour made, and that flows over to, as I understand it, the two orders which were not made by consent.

3. Today I raised with counsel for the mother on what basis the appeal could proceed, and specifically, where was the error by the trial judge. Ultimately it was conceded by counsel for the mother that there was no error by the trial judge, and what that means, as conceded appropriately by counsel, is that the appeal must be dismissed, and that is what I propose to do.

4. That does not say anything though about the facts of the matter, and whether the lawyer concerned did or did not act on the instructions of the mother; there is no finding being made one way or the other about that in this exercise. It is purely and simply that there is no error by the trial judge which would allow for appellate interference. I note of course that the mother has other avenues to pursue if so advised.

5. In those circumstances, to repeat, I propose to dismiss the appeal.

6. Given that, counsel for the father makes an application for costs calculated on an indemnity basis, and the amount sought is $2,500 which is the marked fee on brief of counsel. The basis for the submission that indemnity costs apply is that the appeal was doomed to fail and should not have been instituted.

7. I enquired of counsel what party/party costs might be just to establish some parameters, and I am told, and I accept, that on a party/party basis the costs would be just over $1,000.

8. The application for indemnity costs is opposed, but as I understand it, the application for costs itself is not opposed, and the mother would not oppose an order calculated on a party/party basis. The issue then is whether indemnity costs should be ordered.

9. The basis of the opposition to an application for indemnity costs is the financial circumstances of the mother. I am told she receives a benefit of $350 per week being a maternity allowance of some sort, and she has a house property which has an equity of $100,000, but no other major assets.

10. In terms of the father’s financial position, I am told from the bar table that he also has equity of about $100,000 in a house property, and he earns an income of $1,000 per week.

11. There clearly must be an order for costs in this case; the appeal is being dismissed. The question though as to indemnity costs raises a separate issue, and as the authorities require, exceptional circumstances must be shown. There are examples that the authorities provide as to those exceptional circumstances, and it is a well-recognised circumstance that the proceedings, and in this case the appeal, were doomed to fail and should never have been brought. Thus, I am satisfied that indemnity costs are warranted in this instance.

12. The mother’s financial circumstances are of course relevant, but it has long been the case that impecuniosity is not a bar to a costs order being made when it is otherwise justified (D & D (Costs) (No 2) (2010) FLC 93-435). That is the situation here.

13. As to the amount of costs to be awarded I obviously have a discretion to fix an amount, and the amount that I propose is $2,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 7 February 2019.

Associate: 

Date:  13 February 2019