JACOBS & SITCH
[2015] FamCAFC 62
•27 April 2015
FAMILY COURT OF AUSTRALIA
| JACOBS & SITCH | [2015] FamCAFC 62 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the appellant seeks to appeal an order for costs – Where the respondent did not appear at the hearing of the appeal but there can be no doubt she was aware of the hearing – Where the trial judge failed to take submissions made by the appellant into account – Where there is merit in the grounds of appeal – Where the appeal must be allowed – Where it is appropriate that the court re-exercise the discretion – Costs order made be set aside and there be no order as to costs. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Jacobs |
| RESPONDENT: | Ms Sitch |
|
| DATE DELIVERED: | 27 April 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 26 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1537 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person - no appearance |
Orders made 26 February 2015
The appeal be allowed.
The order made on 21 July 2014 be set aside and in lieu thereof there be an order that there be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacobs & Sitch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 56 of 2014
File Number: MLC 10230 of 2009
| Mr Jacobs |
Appellant
And
| Ms Sitch |
Respondent
REASONS FOR JUDGMENT
Introduction
On 26 February 2015 I heard this matter and made the following orders:
(1) The appeal be allowed.
(2)The order made on 21 July 2014 be set aside and in lieu thereof there be an order that there be no order as to costs.
At that time I indicated that I would deliver my reasons for judgment at a later date; those reasons are as follows.
Upon Notice of Appeal filed on 22 September 2014 Mr Jacobs (“the father”) sought leave to appeal, and if leave is granted, to appeal against an order for costs made by Judge Lucev of the Federal Circuit Court of Australia on 21 July 2014.
Although the father sought leave to appeal, in my view that is not necessary because the order made by the trial judge is a final order and the father can appeal as of right. However, if I am wrong about that, then I am satisfied that in the circumstances leave should be granted. As will shortly become apparent in these reasons, there has been an error of principle committed by his Honour, and/or the decision has caused the father a substantial injustice.
Ms Sitch (“the mother”) did not appear at the hearing of the appeal, or indeed at the earlier directions hearing, but there is no doubt that she was aware of both hearings. Her absence, and her failure to file a summary of argument, cannot of course be taken as any form of consent to the appeal, and the onus remains on the father to demonstrate appellate error by the trial judge.
Procedural background
On 7 March 2014 the trial judge delivered his reasons for judgment and made final orders in relation to the parenting dispute between the parties (Sitch & Jacobs [2014] FCCA 1419).
Order (14) made on that date provided as follows:
If either party seeks costs, then written submissions should be filed within 14 days, and any written reply to those submissions within a further 7 days, and the issue of costs will be determined by the Court on the papers.
On 25 March 2014 the mother filed written submissions seeking orders for costs. As can be seen those submissions were out of time by some four days.
The trial judge listed the matter on 8 May 2014 when he determined to receive the mother’s written submissions despite their lateness, and he ordered that the father file his responding submissions by 22 May 2014.
The father complied with this order and filed his written submissions on 21 May 2014.
As referred to above, his Honour subsequently delivered his reasons for judgment on 21 July 2014 and ordered that the father pay the mother’s costs thrown away on 29 August 2013 in the sum of $1,384 by 21 October 2014 (Sitch & Jacobs(No. 2) [2014] FCCA 1537).
The grounds of appeal
Although the father set out three grounds of appeal in his Notice of Appeal, he indicated at the hearing that he did not in fact intend to include Ground 3. Thus, the grounds of appeal pursued by the father were as follows:
1.Despite Judge Lucev admitting in open court on 8 may that cost submissions by the other party were late his honor still saw fit to allow them then only give myself leave to file a response to the other parties submissions on 8 May 2014, I was given until the 22 May to do so. I filed my response in accordance with orders on 21 May 2014. The response filed details many circumstances that show the Mother ought not be awarded costs. The response submission however were not included in submissions or reasons for judgement. It is noted that on reasons for judgement the date of last submission is listed as 8 May 2014 this does not include my submissions filed 21 May 2014, his honour has not considered all the material in the matter. By failing to include my submissions in the matter makes it impossible for a fair and balanced judgement to be delivered.
2.Paragraph 23 in reasons for judgment, Judge Lucev cites that the matter was set for a two day hearing in July 2013, and was subsequently adjourned on 30 July to a hearing on 28 and 29 August 2013. Judge Lucev fails to mention that the mother sought this adjournment causing the Fathers costs of $5500 to be thrown away, yet again something that will make the Mother look bad is swept under the carpet. Judge Lucev has thrown away regard for applying the law fairly and correctly instead relying only on his unwaivering bias toward the Mother in these proceedings.
(In accordance with the original)
Orders sought
The orders sought by the father in the appeal are as follows:
1. I seek that the costs order made 21/07/2014 be set aside.
2. That a new order be made where neither party is to pay costs.
3. Any such order that this Honeable Court sees fit.
(In accordance with the original)
discussion
Ground 1
The complaint here is that the trial judge failed to consider at all the written submissions filed by the father on 21 May 2014. It is said that that failure is demonstrated by two circumstances. First, on page one of the cover sheet and orders pages of his Honour’s reasons for judgment, the date of the last submission is specified as “8 May 2014”. That of course may just be an oversight by the trial judge, but the second circumstance cannot be as readily dismissed, namely, in his Honour’s reasons for judgment there is no reference whatsoever to the father’s submissions per se, or to any specific submission made by the father in those submissions. Prima facie then, there is merit in this ground of appeal, but the question can still be asked as to whether there was any submission made by the father which his Honour should have taken into account in reaching his decision. Conveniently that leads into Ground 2.
Ground 2
It is apparent from his Honour’s reasons for judgment that the factor justifying the order for costs that his Honour made was the “conduct” of the father in the proceedings (s 117(2A)(c) of the Family Law Act 1975 (Cth)). In this regard his Honour said this:
Section 117(2A)(c) of the FL Act – the conduct of the parties to the proceedings
22.In considering the conduct of the parties to “the proceedings” the Court is limited to their conduct in these proceedings.
23.The hearing was listed in December 2012 by order of Judge Burchardt for a two day hearing in July 2013, and was subsequently adjourned on 30 July 2013 to a hearing on 28 and 29 August 2013 by further order of Judge Burchardt.
24.On the second day of the proceedings on 29 August 2013, and without any apparent pre-warning to the Mother, the Independent Children’s Lawyer or the Court, the Father advised that he had terminated the services of his Counsel and his solicitor on the basis that he could not afford to fund them for the listed second day of the hearing, and sought an adjournment to seek further funding for legal representation or to enable the Father to properly prepare himself to conduct the hearing as a self-represented litigant. The Court granted the Father’s application for adjournment, and made an order for the parties’ costs thrown away to be reserved.
25.The adjournment having been granted, the Father represented himself when the proceedings re-commenced on 26 September 2013 and continued on 27 and 30 September 2013.
26.The Mother submits that the Father could have competently continued with the proceedings on the listed hearing date of 29 August 2013 had he a mind to do so. The Mother submits that her costs of $1384 were thrown away on that date.
…
32.Both parties knew that the matter was listed for a two day hearing on 28 and 29 August 2013, and the Mother has incurred legal costs in anticipation of the second day of that hearing. There is no doubt that the Mother is prejudiced by having to bear costs thrown away by reason of the adjournment of the second day of the listed hearing on 29 August 2013. There will therefore be an order that the Father pay the Mother’s costs thrown away of 29 August 2013 in the sum of $1384.
However, what his Honour plainly failed to address in making this decision, was what occurred on 11 July 2013, and which was relied on by the father in his written submissions in opposition to any costs order in favour of the mother. As his Honour identified at [23] of his reasons, the substantive hearing was listed in December 2012 for a two day hearing in July 2013, but his Honour failed to acknowledge that on the first of those two days, namely 11 July 2013, the mother made a successful application to adjourn the hearing because she no longer had legal representation. The father though was represented by his solicitor and counsel, and as a result of the adjournment his costs thrown away were $5,500 (incorrectly specified as $6,000 in Ground 3). Indeed, in addition to adjourning the hearing, the judge (Judge Burchardt) ordered that the father’s costs of that day be reserved.
It is readily apparent that not only was it incumbent on the trial judge to take this submission into account, but given the fact that the question of the father’s costs thrown away in July 2013 had not yet been dealt with, it would have been appropriate for his Honour to do so, at least in the context of the mother’s application for costs. I observe though that the father does not raise that latter aspect as an error by the trial judge.
Nevertheless, in the circumstances there is merit in this ground of appeal, and that also provides a basis for finding merit in relation to Ground 1.
Conclusion
Given that there is merit in both grounds of appeal, the appeal must be allowed. It is then a question of what should be done. Clearly it would be inappropriate to remit the matter for rehearing, and the father does not seek that. What he does seek is in effect for this court to re-exercise the discretion, and I consider that to be the appropriate course.
There can be no issue that putting aside the circumstances of the adjournment of the hearing on 11 July 2013, the circumstances of the adjournment of the hearing on 29 August 2013 provided a basis for ordering that the mother’s costs thrown away as a result be met by the father. However, taking into account the circumstances of the adjournment of the hearing on 11 July 2013, it is beyond doubt that those circumstances more than offset the circumstances surrounding the adjournment of the hearing on 29 August 2013. Thus, I find that the father should not be required to pay to the mother the costs of $1,384 thrown away on 29 August 2013. In other words, his Honour’s order to that effect should be set aside and there should be no order for costs made.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 27 April 2015.
Associate:
Date: 27 April 2015
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