Karbines & Karbines (No 2) - [2011] FamCAFC 198

FAMILY COURT OF AUSTRALIA

KARBINES & KARBINES (NO. 2)

[2011] FamCAFC 198

FAMILY LAW - APPLICATION IN AN APPEAL – SECURITY FOR COSTS – COSTS - where the Notice of Appeal was incomplete – where consent orders were made for an amended Notice of Appeal to be filed – where the application was adjourned to await receipt of the amended Notice of Appeal – where the Notice of Appeal was discontinued – where there are circumstances which justify an order for costs – costs order.

Family Law Act 1975 (Cth) s 117(1), (2), (2A)

APPLICANT:

Ms Karbines

RESPONDENT:

Mr Karbines

FILE NUMBER:

MLF

2479

2005

APPEAL NUMBER:

2010

DATE DELIVERED:

26 September 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

26 September 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 November 2010

LOWER COURT MNC:

[2010] FamCA 1020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tredrea

SOLICITORS FOR THE APPLICANT:

CE Legal Pty Ltd

COUNSEL FOR THE RESPONDENT:

In person

SOLICITORS FOR THE RESPONDENT:

Patrick Cash & Associates

Orders

The husband pay the wife’s costs of the appeal filed on 3 December 2010 on a party/party basis from that date to 16 September 2011 such costs to be taxed in default of agreement.
The husband pay the wife’s costs of and incidental to the Application in an Appeal filed on 28 June 2011 on a party/party basis such costs to be taxed in default of agreement.
The Application in an Appeal filed on 28 June 2011 be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Karbines & Karbines is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 92 of 2010
File Number: MLF 2479 of 2005

Ms Karbines

Applicant

And

Mr Karbines

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This matter came before me initially on 19 August 2011 on an Application in an Appeal filed by the wife on 28 June 2011 seeking a number of orders. Ultimately on that day only two of the orders sought were pursued. They were firstly, an order that the appellant file an amended Notice of Appeal and secondly, an order that the appellant give security for the respondent’s costs of and incidental to the appeal.

In relation to the first order that was pursued the position was that the husband had filed a Notice of Appeal on 3 December 2010 seeking to appeal against orders made by Justice Dawe on 5 November 2010. The orders made by her Honour were to dismiss the husband’s Application in a Case filed on
29 October 2010, to ratify a contract and to make an order that the Registrar on behalf of the husband and/or his trustee in bankruptcy execute a memorandum of transfer.

The application in a case that was before her Honour on that day sought that “Justice Dawe be removed from the family law case”. It also sought that “Judge Strickland is not to replace her” and “to have a fair and honest trial”. As I understand it, and I have had the opportunity to read the ex-tempore reasons delivered by Justice Dawe on 5 November 2010, in effect the husband was seeking that Justice Dawe disqualify herself but her Honour refused to do so.

It was from those orders that the husband sought to appeal and as I say he filed a Notice of Appeal on 3 December 2010. The problem though with his Notice of Appeal, which I have also had the opportunity to peruse, was that there were a number of deficiencies in that Notice of Appeal not the least of which was that there were no grounds of appeal specified. A secondary but equally important issue was that the orders sought in the appeal were not orders that could in fact be made on an appeal.

In any event, the husband filed that Notice of Appeal and for all intents and purposes he gave every indication that he was pursuing it. As a result the wife filed her Application in an Appeal on 28 June 2011, to which I have already referred, making what I suggest is an obvious application, namely, seeking security for costs. As I have also said that application came before me on
19 August 2011 and on that day there was agreement reached between the wife’s counsel and Mr Karbines that he would file an amended Notice of Appeal. However, in relation to the application for security for costs Mr Karbines opposed that.

As explained in my reasons for judgment delivered on 19 August 2011, at that time Mr Karbines was legally represented, and indeed he remains legally represented; there is no Notice of Ceasing to Act that has been filed in relation to this matter. Unfortunately though Mr Karbines had been anticipating that his solicitor would be appearing for him on the hearing of this application but, as I have noted in my reasons for judgment there were last minute difficulties with that and in particular the primary solicitor who had the conduct of the matter on his behalf was in hospital and there was no-one else from his firm who could appear for Mr Karbines. Thus Mr Karbines appeared in person on that day.

Over the objections of Mr Tredrea, counsel for the wife, I determined to adjourn the application, and I set out my reasons for doing that in my ex-tempore reasons delivered on 19 August 2011.

I adjourned the matter to today specifically to enable the husband to file and serve an amended Notice of Appeal in effect remedying the deficiencies of his original Notice of Appeal, and I reserved the question of costs.

What has happened in the adjourned period is that Mr Karbines on
16 September 2011 filed a Notice of Discontinuance. That Notice was then duly received by the wife’s solicitors, and an application for costs has been made today both in relation to the Notice of Appeal and also in relation to the Application in an Appeal. The amount sought by the wife is a total of $4,651.06 and I have been provided today with a schedule which sets out the discrete detail of those costs item by item. I am told and I accept this from Mr Tredrea that those costs have been calculated on the family law scale on a party/party basis.

However, the difficulty that I have in relation to that schedule is that it has not been provided to Mr Karbines. Mr Karbines is appearing by way of telephone, and he is not in any position to make any submissions about the appropriateness or reasonableness of the schedule in terms of the individual items.

Mr Tredrea in response has submitted to me that I can still make an order using that schedule as a basis given my knowledge of the matter and the general understanding of the costs that would have been incurred both in relation to the Notice of Appeal and the Application in an Appeal. The alternative which Mr Tredrea readily concedes is that if I do not consider that I am in a position to do that, given that Mr Karbines has not seen this schedule, an order can be made that costs be awarded on a party/party basis and that they be taxed in default of agreement.

Mr Karbines opposes any order for costs. He has in his submissions referred to what he says were discussions he has had with the wife’s solicitor over a period of time, noting that not this matter particularly, but litigation involving these parties, has been ongoing since 2005. However, as I understand it Mr Karbines’ primary submission in support of his opposition to an order for costs is that he is bankrupt.

The law

An application for costs is governed by s 117 of the Family Law Act 1975 (Cth), of which the relevant subsections are as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC 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.
…
Thus the first issue I need to address is whether there are circumstances here which justify an order for costs being made. In my view there are such circumstances. The Notice of Appeal as I identified in my reasons for judgment delivered on 19 August 2011 was clearly deficient and as I have reiterated earlier in these reasons the primary deficiency was that there were no grounds of appeal specified and there was no order sought that could be made on an appeal. As is obvious that was the purpose of the application seeking Mr Karbines file an amended Notice of Appeal and clearly Mr Karbines recognised that given his consent to that order being made.
We therefore have a situation where the husband filed a Notice of Appeal on
3 December 2010 which had no grounds of appeal specified and thus no prospects of success, yet that Notice of Appeal still had to be addressed by the wife and she necessarily engaged her solicitors for that purpose and instructions were taken and correspondence entered into with the husband’s solicitors. I note and emphasise that the husband has been represented throughout the time that he has had this Notice of Appeal on foot. Although the Notice of Appeal appears to have been prepared by Mr Karbines himself, there is no issue that he has had a firm of solicitors namely, Patrick Cash and Associates, acting for him along the way.
I also observe that as required there was an appeal directions hearing held on
14 February 2011, and in the usual way there was an order made for a draft appeal index to be filed. That was done and instructions had to be taken on that as well.
Therefore the wife has been put to expense in instructing her solicitors and counsel to address the Notice of Appeal which was pursued by the husband right up until he filed his Notice of Discontinuance on 16 September 2011.
Thus, to repeat, in my view there are clear circumstances justifying an order for costs of and incidental to the Notice of Appeal between the period from the date of first filing namely, 3 December 2010 and the Notice of Discontinuance being filed on 16 September 2011.
Turning then to the Application in an Appeal and again addressing the issue of whether there are circumstances which justify an order for costs in relation to that application, I consider that there are.
That was an application which was justified in the circumstances of Mr Karbines pursuing an unmeritorious appeal. Again, in making that application the wife has necessarily incurred costs in instructing her solicitors and counsel to make that application. Mr Karbines at all times has had the ability to either discontinue his Notice of Appeal or file an amended Notice of Appeal remedying the deficiencies in the original Notice of Appeal. If the husband had discontinued the Notice of Appeal earlier than 16 September 2011, that would have obviously avoided the wife needing to incur ongoing costs. If the husband had filed an amended Notice of Appeal to remedy the deficiencies then, subject to what was included in that amended Notice of Appeal, it may be that the wife would not have had to take out an Application in an Appeal.
It is the conduct of the husband which is relevant here (s 117(2A)(c) & (g). In summary his conduct in firstly, filing a Notice of Appeal which was unmeritorious and secondly, failing to either recognise that and discontinue that Notice of Appeal or file an amended Notice of Appeal.
As with the Notice of Appeal I find there are circumstances which justify an order for costs in relation to the Application in an Appeal. That application was opposed by the husband and had to be adjourned for the reasons that I have already explained.
As to what order for costs that I might make, if any, I need to address the relevant sub-paragraphs of s 117(2A). I have already referred to paragraphs (c) and (g) as being highly relevant both to whether there are circumstances justifying an order for costs and I also add highly relevant to whether I in fact make an order for costs and what that order for costs might be.
The other highly relevant paragraph is paragraph (a) namely, the financial circumstances of each of the parties to the proceedings. Mr Karbines relies very much on this in his opposition to the application for costs. He says, and I accept as there has been no dispute about this, that he is bankrupt.
I am told in relation to the wife’s financial circumstances that she is not working, she lives overseas with her partner, she has what has been described as the fruits of the judgment, and Mr Tredrea has indicated that she has the former matrimonial home and another property both subject to mortgage. Mr Karbines disputes that summary and says that the wife has other assets, presumably though, all coming out of the litigation that has been ongoing between these parties since 2005.
The particular issue that I need to concentrate on here is the husband’s bankruptcy. First, it is not an answer to an application for costs that a person is impecunious. Secondly, in this case all I know about it is that Mr Karbines is bankrupt, but that does not necessarily indicate that he is not in a position to meet an order for costs. Indeed, he has had, as I have said, solicitors acting for him both in relation to this matter and other matters in the continuing litigation between the parties. He also had legal representation in civil proceedings which commenced in the Supreme Court of Victoria and were transferred to the District Court of South Australia. Mr Karbines tells me those proceedings have concluded. Mr Tredrea thought that they were still on foot but I accept Mr Karbines’ greater knowledge of that. Whether they are concluded or not though the point is that Mr Karbines has apparently had the wherewithal to continue to have the assistance of lawyers both in relation to those proceedings and also these proceedings.
For those reasons I propose to make an order for costs.
As to the amount of costs, as I have said Mr Tredrea has first urged me to make an order by way of a lump sum amount in accordance with the schedule he has handed up. I am not prepared to do that for the sole reason that Mr Karbines has not had an opportunity to consider that schedule.
The next submission that Mr Tredrea has put to me is that I should still make an order for a lump sum amount and not send this matter to taxation. My practice generally is to do that where I can and avoid the parties having to end up in a taxation hearing. However, my difficulty is that although I have some passing knowledge of the history of this matter I do not have the intimate knowledge of the costs incurred by the wife in relation to the Notice of Appeal or the Application in an Appeal. Reluctantly I do not consider I am in a position to make an order by way of a lump sum. It would be very much a guess and that would not be fair on either party in the circumstances.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 26 September 2011.

Associate:

Date: 30 September 2011