Joyce & Fante - [2013] FamCAFC 141

FAMILY COURT OF AUSTRALIA

JOYCE & FANTE

[2013] FamCAFC 141

FAMILY LAW – APPEAL – appeal discontinued – application for costs by respondent mother.

Family Law Act 1975 (Cth) s 117

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
House v The King (1936) 55 CLR 499
Lenova & Lenova (Costs) [2011] FamCAFC 141

APPELLANT:

Mr Joyce

RESPONDENT:

Ms Fante

FILE NUMBER:

BRC

13170

2007

APPEAL NUMBER:

2012

DATE DELIVERED:

29 April 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Strickland & Ainslie-Wallace JJ

HEARING DATE:

29 April 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 September 2012

LOWER COURT MNC:

[2012] FMCAfam 952

REPRESENTATION

FOR THE APPELLANT:

Mr Cooper (as solicitor advocate)

SOLICITOR FOR THE APPELLANT:

Charles Cooper Lawyers

FOR THE RESPONDENT:

Mr Phillips (as solicitor advocate)

SOLICITOR FOR THE RESPONDENT:

Murdoch Lawyers

Orders

That the respondent father pay the applicant mother’s costs on a party/party basis from the date of filing of the Notice of Appeal to the date of filing of the Notice of Discontinuance, to be assessed if not agreed.
That the application for the costs of the hearing on 29 April 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Joyce & Fante has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 84 of 2012
File Number: BRC 13170 of 2007

Mr Joyce

Appellant

And

Ms Fante

Respondent

REASONS FOR JUDGMENT

BRYANT CJ

The application before us is made by the respondent mother to an appeal that has been discontinued. By her application, the mother now seeks costs as incurred between the filing of the notice of appeal and the filing of the notice of discontinuance. The application by the mother is for payment of her costs on an indemnity basis. Paradoxically, the appeal by the appellant father was against an order requiring him to pay the costs of a hearing that took place in the Federal Magistrates Court in which orders essentially as sought by the mother were made. He now opposes an order for costs incurred in relation to the discontinued appeal.
I note that since the hearing and the orders then made, the Federal Magistrates Court has been renamed the Federal Circuit Court, that legislation having taken effect from 12 April 2013. The judicial officers previously called federal magistrates are now judges. These orders were made by Federal Magistrate Coker as he then was, and I will refer to him in that capacity as it was the correct nomenclature at the relevant time.
The matter requires only a relatively short reference to the previous litigation between the parties, which has been going on for a considerable period of time.
The initial proceedings concerned parenting orders for the one child of these parties, and culminated originally in some orders being made in September 2008. Since that time litigation has continued, and in October 2010 the mother filed an application to vary orders made on 7 November 2008. Her application was dismissed at that time. The father then filed an application seeking to amend the orders of 2008, and the mother filed some further applications. An order was made by Federal Magistrate Turner dismissing the application by the mother on the basis that there had not been any change of circumstance. That order was made on 24 January 2011, and despite the fact that other proceedings post-dated that order, an appeal was lodged by the mother against Federal Magistrate Turner’s decision.
That appeal came on before the Full Court on 28 February 2012 and the father virtually conceded the mother’s appeal. The decision of Federal Magistrate Turner was set aside and the matter was remitted to the Federal Magistrates Court for a rehearing. That rehearing, with some important updating evidence, took place between 9 and 11 July 2012 before Federal Magistrate Coker. On 11 July 2012, he made orders essentially in accordance with the mother’s amended application. On 11 September 2012, he gave reasons for judgment and made orders that the father pay the mother’s costs of and incidental to the proceedings fixed in the sum of $20,000. It was that decision which the father appealed by notice of appeal filed on 8 October 2012.
In his reasons for judgment, which, in my view, on their face, appear to be comprehensive reasons, Federal Magistrate Coker set out all the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”) in relation to costs, and then, in coming to his decision, went through all of the arguments advanced by each of the parties.
It is trite law that an order for costs is the ultimate in an exercise of discretion, and the question of an exercise of discretion has been dealt with in House v The King (1936) 55 CLR 499 and in subsequent cases. The relevant principles are well-known.
The father’s notice of appeal filed 8 October 2012 asserted that there had been a failure to take into account relevant sections of the Act, and otherwise agitated matters of weight going to the exercise of discretion. In my view, it is abundantly clear, on the face of the judgment, that the federal magistrate did take account of all appropriate matters including those agitated by the father.
Indeed, the father, who is the respondent to this application but the appellant in the appeal itself, does not seek to justify the filing of the notice, but rather opposes the order for costs on the basis of capacity to pay.
The applicant mother first seeks an order for indemnity costs on the basis, as far as I can discern it, of a paragraph in the affidavit filed by the father that asserts that he lodged the appeal because he was not happy with the substantive decision made by Federal Magistrate Coker. In effect, the mother argued that the father’s appeal against the costs order really was made for a collateral purpose. I do not accept that that is the case. Clearly the father was unhappy with the substantive decision and the order for costs, and so he lodged the notice of appeal. That is hardly a surprising thing in this jurisdiction.
The principles in relation to an order for indemnity costs are well-known and are set out in the oft-referred-to Federal Court decision of Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, where Sheppard J provided examples of where indemnity costs would be warranted. In short, it is beyond doubt that in order to justify an award of indemnity costs, it must be demonstrated there are exceptional circumstances such that the usual order of party-party costs should be departed from.
Nothing else was put by the applicant in this case other than reference to the father’s affidavit. It is clear that there was no important principle arising in this matter, and in my view there is nothing else that would suggest that an order for indemnity costs would be appropriate. Hence, the application for indemnity costs should fail.
However, equally, there is prima facie, a strong case for an order for costs in favour of the mother. As I have indicated, the judgment of Federal Magistrate Coker is a comprehensive one, and the matters which are complained of go either to asserted errors that were not established, or to questions of weight.
No matter of principle arising from the judgment was challenged by the notice of appeal and there is no other important point of law that arises.

Section 117(1) of the Act provides that each party shall bear their own costs. But that section is subject to sub-s (2), which provides that if the court is of the opinion that there are circumstances that justify it doing so, the court may, subject to sub-s (2A) and other sections, as well as the applicable Rules of Court, make such an order as to costs as it considers just.
In my view, this is an appropriate case for costs, having regard to the fact that the applicant mother has been put to the expense of obtaining advice and representation in relation to an appeal which then did not proceed. Prima facie, she should be compensated.
However, there are other matters in s 117(2A) to which the court should have regard. The father, as I have indicated, did not really argue that an order for costs might not otherwise be made. He instead submitted that his financial circumstances are such that he is impecunious and would be unable to meet an order for costs, so therefore no order for costs should be imposed.
Again, it is trite law that, particularly in an unsuccessful appeal, impecuniosity of itself will not necessarily mean that an order for costs should not be made. As the Full Court in Lenova & Lenova (Costs) [2011] FamCAFC 141 said at [10]:
… a litigant, or prospective litigant, cannot rely upon a costs order following upon success in the action as a means of dissuading the other party from pursuing unmeritorious litigation or as a means of seeking to persuade the other party from pursuing litigation.
Conversely of course, the failure to make an order for costs when appropriate would be an encouragement for parties to make unmeritorious applications.
While s 117(2A) provides a number of matters that have to be taken into account, it is only necessary for the court to find one of those matters made out, before an award for costs can be made. In my view, at least two of them have been established. First, it can be said that the applicant has been wholly unsuccessful by virtue of withdrawal of the appeal.
Secondly, s 117(2A)(g) enables the court to take into account other matters that are relevant. The fact that the appeal was against an order for costs made following final proceedings, would have alerted the father to the fact that, in pursuing unmeritorious appellate litigation, a further costs order might still be made against him in respect of the appeal, even if his financial circumstances may not have enabled him to meet the order, or if he was substantially poorer than the other party. In those circumstances, in my view, to proceed with this appeal, which he subsequently withdrew, was foolhardy, and he would have been well aware from the original costs judgment that he was at risk of a further order for costs if unsuccessful.
In my view, it would be inappropriate to leave the mother having to pay the costs incurred in responding to the father’s notice of appeal and subsequent withdrawal. As a result I am satisfied that this is a case in which the respondent father should pay the costs of the applicant mother as incurred from the filing of the notice of the appeal to the filing of the notice of discontinuance, to be assessed – if not agreed – on a party-party basis.

STRICKLAND J

Yes, I agree with the reasons of the Chief Justice. I just want to add one comment. Although in my view it is arguable that his Honour may have been in error in how he addressed the question of the mother being assisted financially by her family, that is no longer an issue. The fact is the appeal has been discontinued and thus there are circumstances justifying an order for costs.

AINSLIE-WALLACE J

I agree with the reasons given by the learned Chief Justice and Strickland J, and with the orders proposed by the Chief Justice, and I have nothing further to add.

ORDERS DELIVERED

BRYANT CJ

The applicant mother also seeks an order for costs of the proceedings before us today. We have been referred in material handed up this morning to correspondence between the parties relating to the question of costs on the discontinuance of the appeal. Suffice it to say that there were offers to resolve the matter which did not involve indemnity costs, and that the application by the mother for indemnity costs has been unsuccessful.

ORDERS DELIVERED

STRICKLAND J

I agree with the further orders proposed by the Chief Justice and the reasons for those orders.

AINSLIE-WALLACE J

I too agree with the orders proposed by the Chief Justice and the reasons for them.

ORDERS DELIVERED

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland & Ainslie-Wallace JJ) delivered on 29 April 2013.

Associate:

Date: 29 April 2013