Keehan & Keehan (Costs)
[2015] FamCAFC 231
•9 December 2015
FAMILY COURT OF AUSTRALIA
| KEEHAN & KEEHAN (COSTS) | [2015] FamCAFC 231 |
| FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful and dismissed – Where the respondent husband sought indemnity costs against the appellant wife – Where the appellant wife did not respond to a Calderbank offer – Where the Court was persuaded that the circumstances justified an order for costs – Where the Court was not persuaded that the circumstances were sufficiently special or exceptional to warrant indemnity costs – Where the appellant ordered to pay the respondent’s costs fixed in the sum of $7,500. |
| Family Law Act 1975 (Cth) s 117 |
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Janos & Karel [2015] FamCAFC 85
Lenova & Lenova (Costs) [2011] FamCAFC 141
Limousin & Limousin (Costs) (2008) 38 Fam LR 478
Nada & Nettle (Costs) (2014) FLC 93-612
Trask & Westlake (Costs) [2015] FamCAFC 214
| APPELLANT: | Ms Keehan |
| RESPONDENT: | Mr Keehan |
| FILE NUMBER: | BRC | 3094 | of | 2013 |
| APPEAL NUMBER: | NA | 39 | of | 2014 |
| DATE DELIVERED: | 9 December 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Tree JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1398 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Parker Family Law |
Orders
That the appellant wife pay the respondent husband’s costs of and incidental to the appeal, fixed in the sum of $7,500 to be paid within 28 days of the date of this order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keehan & Keehan (Costs) 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 39 of 2014
File Number: BRC 3094 of 2013
| Ms Keehan |
Appellant
and
| Mr Keehan |
Respondent
REASONS FOR JUDGMENT
On 25 June 2015 we dismissed an appeal by the appellant wife against parenting and property orders made by Judge Turner on 4 July 2014. At the hearing of the appeal, counsel for the respondent husband sought to make written submissions on costs in the event that the appeal was dismissed. Our orders of 25 June 2015 contained directions for each party to file any written submissions as to costs. Each party did so.
The respondent seeks an order that the appellant pay his costs, on an indemnity basis, fixed in the sum of $15,794.00.[1] In the alternative, the husband seeks an order that the wife pay an amount of costs fixed by this Court as a proportion of that sum. The alternative application seeks to avoid the not insignificant expense and inconvenience inherent in undertaking an assessment of costs.[2] The wife seeks an order that the husband’s application be dismissed.
[1] The respondent’s written submissions acknowledge that although expressed as an application for “indemnity costs”, an assessing Registrar must nevertheless exercise an independent judgment as to an appropriate amount. (Family Law Rules 2004 r 19.18(1)(b); 18.34(2)).
[2] See, for example, Janos & Karel [2015] FamCAFC 85, at [60], [61] per Thackray J.
Central to the husband’s application is the “Calderbank offer”, sent to the wife on 7 November 2014 with a copy of the husband’s written submissions in the appeal. The husband offered to not seek an order for costs if the appeal was discontinued by 17 November 2014. The wife did not respond.
In Lenova & Lenova (Costs)[3] this Court held:
11.A timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation. Conversely, where, consequent upon success in an action, a litigant can point to the making of a genuine and timely offer having been made, that offer might be seen as an important (albeit not the only) matter in the exercise of the discretion as to the ordering of costs.
12. That consideration must, of course, be balanced against a litigant having a limited capacity to meet a costs order, as well as any other relevant considerations. But, a limited financial capacity to meet an order cannot be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a costs order in circumstances where pursuit of the litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs.
[3] [2011] FamCAFC 141.
We consider that the husband’s “offer in writing to the other party”[4] is a highly important circumstance in this case in ascertaining if there are “circumstances which justify” a departure from s 117(1) of the Family Law Act 1975 (Cth).[5]
[4] Family Law Act 1975 (Cth) (“FLA”), s 117(2A)(f).
[5] FLA, s 117(2).
The husband also relies upon the wife’s conduct in and about the conduct of the appeal as an important circumstance in arriving at that conclusion,[6] submitting that her conduct “left [the husband] uncertain about the specific grounds” of challenge to the trial judge’s judgment. There were four iterations of the grounds of appeal and at the hearing of the appeal itself, “…Mr Page SC had considerable difficulty in articulating the precise ground relied upon in respect of the challenge to her Honour’s orders in so far as any such challenge related to the order made by consent for equal shared parental responsibility”.[7]
[6] FLA, s 117(2A)(c).
[7] Reasons (25 June 2015), at [94].
The wife was wholly unsuccessful. As this Court stated in Trask & Westlake(Costs):[8]
4.While costs do not ‘follow the event’ any more on an appeal than they do in any other proceedings (s 117(1)), it is often said that a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the “fruits of their judgment”, can be of great significance.
[8] Trask & Westlake (Costs) [2015] FamCAFC 214. See also Limousin & Limousin (Costs) (2008) 38 FamLR 478 at [60].
We have also considered “the financial circumstances of each of the parties”,[9] including the disparity in income in favour of the husband as found by the trial judge and respective entitlements of the parties pursuant to her Honour’s orders left undisturbed by our orders.
[9] FLA, s 117(2A)(a).
We consider that the circumstances of this appeal justify the making of an order for costs. We are not persuaded that those circumstances are sufficiently “special or unusual” or “exceptional”,[10] so as to warrant an order for indemnity costs.
[10] The former expression used in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, at 233; the latter in Nada & Nettle (Costs) (2014) FLC 93-612, at [25].
We consider there is considerable merit in avoiding further “litigation” for the parties by effectively forcing upon them the further expense and inconvenience of having costs assessed. Taking a broad brush approach, we consider that the amount of costs payable to the husband should be fixed in the sum of $7,500. We will order that the amount be paid within 28 days.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy & Tree JJ) delivered on 9 December 2015.
Associate:
Date: 9 December 2015
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