IB and LB

[2006] FamCA 740

FULL COURT OF THE FAMILY COURT OF AUSTRALIA

IB & LB   [2006] FamCA 740

APPLICATION – SECURITY FOR COSTS – Sum of $5,000 sought – Consideration of relevant matters under s 117(2A) – Consideration of criteria referred to in Luadaka and Luadaka (1998) FLC 92-830 – Sum sought by way of security disproportionate to ultimate amount in issue, namely $15,000 – Order for security for costs made in sum of $1,000.

Family Law Act 1975 (Cth), s 117

Adult Guardian and Mother’s Parents and B and Child’s Representative (2002) FLC 93-116

Jones and Jones (2001) FLC 93-080

Luadaka v Luadaka (1998) FLC 92-830

Penfold v Penfold (1980) 144 CLR 311

APPLICANT:  IB

RESPONDENT:  LB

FILE NUMBER:  NCF 3742 of 1997

APPEAL NUMBER:  EA 41 of 2006

DATE DELIVERED:  27 June 2006 

PLACE DELIVERED:  Sydney

JUDGMENT OF:  Coleman, Warnick and Boland JJ

HEARING DATE:  27 June 2006

COURT AT FIRST INSTANCE:  Family Court of Australia

DATE OF FIRST INSTANCE JUDGMENT:    4 April 2006

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Rod Powe Lawyers

RESPONDENT: In person

ORDERS

1. That unless within two months of the date of this order, the mother provides security in the sum of $1,000 for the father’s costs in the appeal against the orders of the Honourable Justice Cohen of 4 April 2006, by paying that amount into Court, then the appeal shall stand dismissed.

2. That the hearing of the appeal against the orders of the Honourable Justice Cohen of 4 April 2006 be consolidated and heard at the same time as the appeal against the orders of 19 August 2005.

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EA 41 of 2006

FILE NUMBER: NCF 3742 of 1997

IB

Applicant

And

LB

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION

BOLAND J:

1. The application before us is an application filed on 26 May 2006 by IB, whom for convenience I will refer to as the father, in which he seeks an order that LB, whom again for convenience I will refer to as the mother, provide security for costs in the sum of $10,000.00 in respect of an appeal against costs orders made by Cohen J on 4 April 2006.  That application was amended orally this morning by the husband’s solicitor to one in which the husband seeks $5,000.00 by way of security for the costs appeal. 

2. The leave to amend was sought and obtained on the basis that the appeals against the orders of Cohen J in appeal number EA 105 of 2005, which I will refer to as the substantive appeal, be consolidated with the costs appeal.  The costs orders, the subject of the appeal, require the mother to pay the father’s costs of contested parenting proceedings in the sum of $15,000.00.  The costs are to be paid within one month of the trial judge’s orders.  There is no evidence before us that Cohen J’s orders have been stayed.

3. The mother, in a Response filed on 21 June 2006 seeks orders inter alia that the father’s application for security be dismissed.

4. The mother filed an amended Notice of Appeal on 20 January 2006 against the substantive orders made in the parenting proceedings by Cohen J, and the father sought security for costs in the sum of $15,000.00 in respect of that appeal.  The Full Court (Finn, May and Boland JJ) on 3 April 2006 ordered that the mother pay security in the sum of $5,000.00.  The mother has complied with the order made on 3 April 2006 and paid the sum of $5,000.00 into Court.

5. Procedural orders are yet to be made in respect of the costs appeal. However, the mother has filed her Pre Argument Summary and a draft appeal index in accordance with the Family Law Rules 2004 (‘the Rules’). In her Response the mother seeks an order that the costs appeal be consolidated with and heard at the same time as the substantive appeal.

BACKGROUND

1. Relevant details of the parties’ background is set out in the judgment of the Full Court of 3 April 2006 in paragraphs 4 - 6.  As a matter of convenience, we reproduce those paragraphs:

   ‘4. The parties were married [in] December 1985 and separated [in] November 1996.  There are two children of the marriage, [GB], who was aged 19 at the time of the trial before Cohen J in July - August 2005, and [JB] who was born [in] August 1992 and who was aged 13 years at the time of the trial.

   5. The father, who was aged nearly 46 years at the date of the trial, was formerly a member of the NSW [Public Service].  He retired from this service in 1999 on medical grounds, and thereafter engaged in casual employment which involved training persons in safety procedures and rescue techniques.  At the date of the trial the father was living with his de facto spouse, [SG] and her son in a home owned by her parents [in the Hunter district of New South Wales].

   6. At the time of the trial the mother, who was then aged about 46 years, was in receipt of workers’ compensation payments, and lived with her parents, Mr and Mrs [R] (“the maternal grandparents”) in a home owned by them [in] a suburb of Newcastle.  The trial Judge recorded the maternal grandparents’ income was by way of pension entitlement, and that [GB] was also living with the mother. He was noted to be unemployed.’

2. The father deposed in his affidavit sworn on 26 May 2006 that his de facto partner’s father had died, and he pooled his finances with his de facto partner ‘for the mutual benefit of all members of our family including her mother’.

3. The Full Court judgment also summarised the lengthy history of litigation between the parties.   The Full Court noted:

   ‘7.  As the prior history of litigation between the parties was a matter relied on by counsel for the father in his submissions, we set out some of the events in the extensive litigation, which were summarised in the judgment of Cohen J.  The salient features of that history are:

   (i)At separation [GB] and [JB] remained living with the mother and the father exercised regular contact to the children.

   (ii)In August 1998, after disputes between the parties about contact, the father commenced proceedings seeking orders for contact in the Local Court [on the mid North coast of New South Wales].

   (iii)An interim hearing was held on 10 September 1998.  Orders were made for the father to have contact each Sunday for a period of eight hours with the maternal grandmother acting as supervisor.

   (iv)On 2 December 1998 orders (it appears these were interim orders) were made by consent that [GB] and [JB] live with the mother and that they have alternate weekend contact and half school holiday and telephone contact with the father.

   (v)On 19 July 1999 final orders were made by consent in the Family Court of Australia in broadly similar terms to the orders made on 2 December 1998.

   (vi)In January 2000 a dispute arose between the parties which had its genesis in the father’s physical treatment of [GB] who was suffering eczema. Proceedings seeking an apprehended violence order on behalf of the mother against the father and assault charges followed.  The application and assault charge were dismissed after contested proceedings. 

   (vii)On 17 April 2000 the mother commenced proceedings in the Federal Magistrates Court in which she sought to vary the contact orders.

   (viii)On 17 April 2000 the father filed contravention proceedings.

   (ix)On 15 May 2000 the mother sought orders that there be no contact between [JB] and the father. At about this time the mother filed a Notice of Child Abuse or Risk of Abuse alleging the father had hit [JB].

   (x)On 9 August 2000 the mother sought interim orders for the suspension of contact between [JB] and the father.  This application was unsuccessful.

   (xi)On 11 October 2000 consent orders were made in the Federal Magistrates Court which discharged the orders made in the Family Court of Australia on 19 July 1999.  The new orders provided for the father to exercise alternate weekend and half school holiday contact, and also provided for the father and the children to attend counselling “to assist in re-establishing the relationship” between the father and the children. The orders  additionally provided for the mother to attend therapeutic counselling “to assist the mother to continue to come to terms with the fact that the children are maintaining a relationship with the father, without admissions”.

   (xii)In March 2001 the father commenced proceedings in the Federal Magistrates Court at Newcastle seeking orders that [GB] and [JB] reside with him, and that the children have reasonable contact with the mother.  By the time of the hearing in the Federal Magistrates Court neither party sought any orders in respect of [GB] who remained living with the mother.

   (xiii)On 12 December 2001 defended proceedings were heard by Federal Magistrate Connolly.  Orders were made for [JB] to live with the father. 

   (xiv)On 20 December 2004, after a number of interim hearings, contested proceedings were heard by Mullane J who made interim orders that there be no contact between [JB] and the mother and the maternal grandparents.

   (xv)Defended proceedings were heard by Cohen J on 18, 19, 20, 21 and 22 July 2005 and a reserved judgment was delivered on 19 August 2005.

   (xvi)Cohen J noted in his reasons for judgment that the various proceedings between the parties had resulted in the preparation of seven family reports.’

4. In his affidavit sworn 26 May 2006 the father sets out his assertions concerning the procedural history of the matter from commencement of proceedings in the Family Court of Australia as follows:

   ‘6. The proceedings herein were commenced by Application filed by [LB] with the Family Court of Australia at Sydney in mid 2002.  Those proceedings were on 31 July 2002 transferred to the Family Court of Australia at Newcastle.  The following has then occurred:

   6.1On 15 August 2002 an Amended Application seeking both final and interim Orders was filed by [LB] with the Family Court of Australia.  There were also three Applications for Contravention filed;

   6.2On 18 September 2002 [LB] lodged an Application for a Review of the Decision of the Judicial Registrar of 16 September 2002;

   6.3On 7 February 2003 [LB] lodged a further Application for Contravention;

   6.4On 3 March 2003 [LB] filed a Notice of Child Abuse or Risk of Child Abuse;

   6.5On 10 March 2003 [LB] lodged a further Contravention;

   6.6On 18 March 2003 [LB] filed with the Family Court of Australia a further Application;

   6.7On 18 June 2003 [LB]  filed with the Family Court of Australia an Application seeking that her parents have residence of [JB];

   6.8On 20 June 2003 [LB] filed an Amended Application with the Family Court of Australia at Newcastle;

   6.9On 30 September 2003 [LB] filed a further Amended Application;

   6.10On 11 November 2004 [LB] filed with the Family Court of Australia at Newcastle an Application seeking interim parenting Orders;

   6.11On 17 December 2004 [LB] filed an Amended Application changing her Application from one of residence to contact;

   6.12On 20 January 2005 [LB] Filed a further Amended Application.

   7. Subsequent to separation the following proceedings were instituted:

   7.1On 15 July 1997 [LB] caused to be made an Application for an Apprehended Domestic Violence Order against me before the Local Court [on the mid North coast of New South Wales].  This was subsequently withdrawn on 18 August 1997;

   7.2On 17 May 1999 [LB] caused to be filed a further Application for Apprehended Violence Orders against me.  This was withdrawn on 17 May 1999;

   7.3Final Orders were made in relation to both our children before the Family Court of Australia at Newcastle on 19 July 1999 by consent.  These Orders contained defined contact Orders to the benefit of the children and myself;

   7.4On 22 January 2000 I was charged with assault before the Local Court [in the Hunter district of New South Wales].  The alleged victim was [LB].  This assault charge was dismissed by the Court on 7 April 2000;

   7.5On 27 January 2000 [LB] made Application for an Apprehended Domestic Violence Order against me before the Local Court [in the Hunter district of New South Wales].  This Application was ultimately dismissed by the Court on 29 June 2000;

   7.6An Application was filed by [LB] with the Federal Magistrate’s Court on 17 April 2000 seeking to suspend contact;

   7.7On 15 May 2000 [LB] made Application to the Federal Magistrates Court to suspend contact and residence;

   7.8On 19 May 2000 [LB] filed a Notice of Child Abuse or Risk of Abuse.  This was dismissed by the Court on 14 June 2000;

   7.9On 19 June 2000 [LB] filed with the Family Court of Australia an Application for Contravention;

   7.10On 11 October 2000 the Federal Magistrate’s Court made final Orders in relation to contact by me with both children;

   7.11On 5 March 2001 [LB] filed with the Federal Magistrate’s Court an Application for residence of [JB] and [GB];

   7.12On 14 December 2001 I was granted residency of [JB] following a defended hearing over 5 days before Federal Magistrate Connolly.

   …

   13. In relation to the substantive proceedings the position of [LB] was:

   13.1On filing of the initial Application with the Court at Sydney on 31 July 2002 [LB] formally sought residence of [JB] and no contact between [JB] and myself;

   13.2It was not until 17 December 2004 and upon the filing of an Amended Application that [LB] changed her position to seeking defined contact;

   13.3In mid September 2004 I received a copy of a letter from [LB]’s then solicitors, [BC], to [JB]’s representative Mr [S] dated 16 September 2004.  That letter suggested [LB] was not seeking a residence Order.  A copy of that letter is annexed hereto and marked with the letter “C”.;

   13.4I note that well prior to this date there had been a series of Court Expert Reports all recommending residence of [JB] to me;

   13.5I subsequently received from my solicitor a copy of a letter from [LB] to the effect that [BC] were no longer her solicitors.  A copy of that letter is annexed hereto and marked with the letter “D”;

   13.6I subsequently instructed my solicitor to make a proposal to settle the matter through Mr [S], the representative for [JB], a copy of an office copy of that letter dated 30 September is annexed hereto and marked with the letter “E”;

   13.7I was instructed at Court on 18 October 2004 [LB] informed the Court, appearing without representation, she was seeking residence.  My solicitor wrote to her confirming such.  Annexed hereto and marked with the letter “F” is a copy of an office copy of the letter dated 19 October 2004;

   13.8As I was somewhat uncertain as to exactly what the position was for [LB] I instructed my solicitor to write to [LB] seeking specific details of what her Application was before the Court.  Annexed hereto and marked with the letter “G” is a copy of an office copy letter to [LB] of 22 October 2004;

   13.9Subsequently I was informed that [WM] Lawyers of Sydney had been engaged to act on behalf of [LB].  I caused my solicitor to write to the solicitor for [LB] seeking clarification of her position.  Annexed hereto and marked with the letter “H” is a copy of an office copy letter dated 22 November 2004;

   13.10The matter was before a Deputy Registrar of the Court on 24 November 2004.  [LB] was represented.  On this occasion [LB] made it clear through her solicitor that she was seeking residence.  Further, the contact was to be in accordance with the wishes of [JB];

   13.11On 10 December 2004 I am advised by my solicitor he received by way of facsimile transmission an unsworn Amended Application for final Orders wherein [LB] sought contact only.  I subsequently received on or about 23 December 2004 a sealed copy of that Application;

   13.12I also received towards the end of January 2005 a document entitled “Further Amended Application for Final Orders”.  In this latter document [LB] maintained that residence would remain with me;

   13.13In early February 2005 I instructed my solicitor to prepare a Response to the Further Amended Application.  To the best of my knowledge and belief this document was duly filed and served on the parties;

   13.14On 31 January 2005 Judge Mullane Ordered [LB] to make contribution to my costs in the sum of $2,000.00 being costs related to interim proceedings which had been brought at the behest of [LB];

   13.15On 31 January, 2005 [LB] made submissions to Judge Mullane in effect that she was impecunious at that time.  That is, she informed the Court through her solicitor that she had paid $30,000 in legal costs to WM and had already paid $25,000 in legal costs to her previous solicitors [BC].  I caused my solicitor to write to the solicitor for [LB] in relation to such submissions.  A copy of an office copy of my solicitor’s letter is annexed hereto and marked with the letter “I”.

   13.16Upon receiving the final report of Ms [S] in late May 2005 I instructed my solicitor to write to the solicitor for [LB] offering to settle the matter on the basis of the recommendations of the Court Expert.  Annexed hereto and marked with the letter “J” is a copy of an office copy letter dated 2 June 2005;

   13.17Under cover of letter dated 7 June 2005 the solicitor for [LB] rejected my offer of settlement.  Annexed hereto and marked with the letter “K” is a copy of the letter from the solicitor for [LB].’

5. The mother in her affidavit sworn 19 June 2006 admits a substantial part of the history as set out by the father, but as the father was only served, according to his solicitor, with the mother’s affidavit material today, in the circumstances we have limited the material to be relied on by the mother to that contained in paragraphs 68 – 73 of her affidavit sworn on 19 June 2006. 

THE COSTS APPEAL

1. The mother filed her Notice of Appeal on 27 April 2006. Her grounds of appeal are as follows:

   ‘1.     That the Husband had no legal costs for the five (5) day trial proceedings.  The Husband was self-represented during the trial proceedings.

   2.That His Honour did not give sufficient consideration that both parties had made previous applications to the Family Court.

   3.That His Honour erred in his judgment of the Husbands conduct when contact was to occur between the child [JB] and the Wife and the history of the Husband not complying with previous orders.

   4.That His Honour did not give sufficient weight and consideration in the evidence provided to the court in the Husbands financial status.

   5.That His Honour did not give sufficient consideration or weight that largely all Family Court orders were by consent, that the Husband had agreed.

   6.That His Honour erred that applications made by the Wife to the non-Family Courts were largely unsuccessful.

   7.That the Husband was not wholly successful in the proceedings.’

2. In the event the mother’s appeal is successful, she seeks the costs order made
   4 April 2006 be dismissed.

3. No procedural hearing has been conducted in the costs appeal although the mother has filed her Pre Argument Summary and draft appeal index, and at the conclusion of this hearing for reasons which I explain below I propose to delegate to the Appeals Registrar the task of conducting the procedural hearing and settling the index to the appeal books, and timetable for filing those books, outline of argument and lists of authorities.

RELEVANT LAW SECURITY FOR COSTS

1. The principles applicable to an application for security for costs in respect of an appeal are well established.  I note that the Full Court who dealt with the security application in respect of the substantive hearing set out the relevant statutory provisions and principles espoused in the relevant case law (see Luadaka v Luadaka (1998) FLC 92-830; Jones and Jones (2001) FLC 93-080; Adult Guardian and Mother’s Parents and B and Child’s Representative (2002) FLC 93-116). For the benefit of the parties, particularly the mother, who is self represented I set out the seminal passages from Jones and Jones (supra) in respect of security for costs in relation to appeals:

‘21. It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 Ch. D. 34 at 38, J. & M. O’Brien Enterprises Pty Ltd v The Shell Co. of Australia Ltd (No. 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Limited (unreported, Federal Court of Australia, 1 July 1993).

22.The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.

23.If an appeal appears to have little merit, a court may be more disposed to make an order for security for costs.’   

EVIDENCE IN SUPPORT OF THE APPLICATION

1. As I have already noted, the father relied on his affidavit sworn 26 May 2006 in which affidavit he sets out a very detailed history of the proceedings as asserted by him.  The father deposed to receiving bills for total legal costs of $40,545.25 during the period from 2 May 2003 to 15 March 2006.  Costs payable to the father pursuant to an order made by Mullane J in the sum of $2,000.00 were paid directly to the father’s solicitors in reduction of their account.  The father deposed to having outstanding fees due to his solicitors of $8,991.15. He deposed to a requirement to pay interest on the outstanding fees under the costs agreement entered into between himself and his solicitors.  The father also referred to payment by him of costs for an expert report of $1,500.00 and costs associated with attendance of the expert at Court of $247.50.

2. The father deposed that his gross income for 2004/05 financial year was $22,614.00 and that his income for 2005/06 to the date of his affidavit was $17,192.00.  Additionally, the father is in receipt of an annual pension of $38,530.00 from the NSW Public Service. The father deposed his weekly income was $1,252.00 (including $5.00 per week paid by the mother by way of child support).  His partner is asserted to have an income of approximately $1,000.00.  The father said he has superannuation benefits of $21,647.90 with State Super and $16,509.34 with Westpac.

3. The father estimated his weekly expenditure at $1,000.00 including some unparticularised payment of legal fees.

4. The father said his assets comprised:

   (a)   vacant land in the Hunter District of New South Wales valued at $160,000.00 to $180,000.00 (“ the Hunter property”);

   (b)  a motor vehicle (owned jointly with his partner) having a value of $15,000.00; and

   (c)  savings of $100.00

   and that his liabilities (‘either jointly together or between [SG] [his partner] and her mother’) total $386,000.00.  These liabilities are secured against the Hunter property, and his partner’s parents’ home.  Included in the liabilities was the sum of $120,000.00 borrowed for the father’s legal fees and legal fees of his partner who it was asserted had also been in protracted litigation with her former partner.

5. The mother conceded she is impecunious and that her ‘elderly parents have taken a mortgage on their home to pay for the $5,000.00 security of costs for the Trial Appeal.’  She deposed to also borrowing from her parents, and using a credit card facility towards the costs of the preparation of the appeal books and for the substantive appeal.  The mother deposed to her income being derived from a Centrelink New Start allowance of $410.00 per fortnight.  She said she had no assets, and used her parents or her elder son’s vehicle or public transport.  The mother deposed to selling the parties’ former home on the mid North coast of New South Wales in 2003 to pay for legal costs totalling $76,199.08 incurred between November 2003 and April 2005. The mother deposed to having no assets, and very modest superannuation entitlements ($3,141.35 and $1,507.69).

6. There is no dispute that the father was not legally represented before the trial judge at the substantive hearing, although the father was legally represented before the trial judge on the hearing of his costs application. 

DISCUSSION

1. I propose to determine this application in a similar manner to the father’s application for security in respect of the substantive appeal. I will first consider relevant matters under s 117(2A) of the Family Law Act 1975 (Cth) (‘the Act’) and thereafter consider briefly, in the circumstances of this case, the criteria referred to in Luadaka v Luadaka (supra) as applicable to security applications. 

2. Section 117 of the Act provides as follows:

   ‘(1)Subject to subsection (2) and sections 117AA 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.’

3. In her Response the mother described her usual occupation as that of ‘mental health worker’.  I accept the mother’s evidence concerning her lack of assets, her liabilities, current part time studies and lack of employment.  I am satisfied that the mother’s evidence supports her claim that she is impecunious. 

4. The father’s income position is superior to that of the mother and I take that into account. 

5. I now examine matters relevant to this application as set out in Luadaka v Luadaka (supra).  The first matter I consider relevant is whether the mother’s evidence discloses that, if the appeal is unsuccessful, she has the capacity to meet an order for costs.  I am satisfied the mother’s evidence demonstrates absolutely no capacity to satisfy any order for costs but I take into account that the mother has complied with the earlier order for security and has paid the sum of $5,000.00 into Court. 

6. I turn then to consider the merits of the mother’s grounds of appeal.  In so doing I have regard to the fact that it is not in dispute that a trial judge has a wide discretion to order costs (see Penfold v Penfold (1980) 144 CLR 311).

7. Without exhaustively considering the mother’s grounds of appeal I note that her first ground is directed to the fact the father was not legally represented before the trial judge.  In paragraph 31 of his reasons for judgment the trial judge referred to the costs incurred by the father to his lawyers and said ‘I have little doubt that if the balance were to be taxed, the husband’s costs would be taxed on a party/party basis at more that [sic] $15,000.00 despite his non-representation by a lawyer at the final hearing’.   It is clear that his Honour made his order for costs having regard to the fact that the father was self represented at the hearing.  Accordingly, prima facie, I see little merit in ground one. 

8. The balance of the mother’s grounds all relate to matters of discretion, save and except for ground seven.  The principles in relation to the limitations on appellate interference with discretionary judgments, particularly judgments relating to costs, are apposite in this case.

9. I am satisfied that this appeal, although related to the substantive appeal, does not raise questions of public importance. 

10. In relation to the substantive appeal the Full Court said at paragraph 35:

    ‘35. There is no evidence which would suggest in the event that the appeal is unsuccessful the mother has the capacity to meet any costs order made against her.  The father has already incurred substantial legal costs in the extensive ongoing litigation between the parties.  We consider there is a real prospect if the appeal is dismissed that the father would be left without a remedy, and this is a significant factor to take into account in the exercise of our discretion.  We also have regard to the fact that the grounds of appeal appear to have limited merit.  We are satisfied that these factors, on balance, warrant the making of an order for security.’ 

11. Those comments appear to me relevant to this appeal. 

QUANTUM OF THE SECURITY SOUGHT

1. The father seeks security in the sum of $5,000.00. 

2. In his affidavit sworn 26 May 2006 the father relied on a letter from his solicitors dated 26 May 2006 as the basis for his application for security in the sum which was then sought of $10,000.00.  The basis of his solicitor, Mr P’s advice is:

   ·    on his estimate the appeal would take one day;

   ·    perusal of the appeal book - estimated 2 hours;

   ·    conference with counsel to prepare appeal – estimated 2 hours;

   ·    instructions to prepare and settle application for security for costs and affidavit in support – estimated 3 hours;

   ·    attendance to hearing of application for security for costs – 2 hours;

   ·    attendance at directions – 1 hour;

   ·    attendance to brief counsel – estimated one day inclusive of travel of 12 hours;

   ·    counsel’s likely fee to prepare for appeal and appear at appeal – estimated one and a half days.

3. Mr P concluded his advice as follows:

   ‘Allowing for an hourly rate in accordance with the costs agreement entered into between you and the firm and assuming a similar hourly rate of approximately $300.00 per hour for Counsel I would estimate that the total costs of responding to the Appeal, appearing at the Appeal, preparing and filing the Application for security for costs, and appearing at hearing of the Application for security of costs would be approximately thirty four hours which would be $10,200.00 exclusive of GST and any disbursements such as travel costs and accommodation costs’.  

4. My examination of the grounds of the costs appeal, which would be heard at the same time as the substantive appeal, do not suggest that the matter has the complexity suggested by Mr P.  I am not of the view it would require the time estimated by Mr P.  Further, it is likely that the costs appeal would be dealt with either shortly by oral submissions or by way of written submissions at the conclusion of the substantive appeal thus reducing likely costs. 

5. I also consider that the sum sought by way of security is disproportionate to the ultimate amount in issue, namely $15,000.00, and I note that Mr P calculates the father’s costs on an indemnity basis. 

6. Whilst I find substantial merit in the father’s application for security, I do not consider the quantum sought by the father to be realistic or appropriate in the circumstances. I note the father’s solicitor’s concessions today. First, he concedes the costs appeal should be consolidated with and heard at the same time as the substantive appeal. Second, that the costs appeal would take no more than 30 minutes to argue orally. Third, that additional costs would be limited by material to be read and that material would be limited by the provisions contained in Chapter 22 of the Rules and in particular that submissions or outline of argument must, according to the Rules, be limited to 10 pages.

7. Of more substantive influence is that a number of matters to be argued in the substantive appeal would be matters relevant to the costs appeal and that if the substantive appeal is not successful, the consequences which flow to the costs appeal. 

8. In so finding I also have regard to the fact that the mother has paid $5,000.00 by way of security for the substantive appeal.  In all of the circumstances, having regard to the fact that the father will incur additional costs because of the costs appeal and because the previous Full Court found it was appropriate to grant security, I am satisfied a sum of $1,000.00 would provide adequate security for the father in the event that the mother’s costs appeal is unsuccessful and I would propose an order for payment of that sum. 

COLEMAN J:

1. I agree with the order proposed by Boland J and I agree with the reasons advanced by her Honour in support of such order.  I have nothing to add.

WARNICK J:

1. I also agree and have nothing further to add.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 27 June 2006