KING & HOOKE

[2015] FamCAFC 151

FAMILY COURT OF AUSTRALIA

KING & HOOKE [2015] FamCAFC 151

FAMILY LAW – APPEAL – COSTS – Where the respondent concedes that the appeal should be allowed – Appeal allowed – Where the appellant seeks that the respondent pay her costs of the appeal – Where circumstances do not justify an order for costs – Application for costs dismissed.

Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT: Ms King

RESPONDENT: Mr Hooke

FILE NUMBER: NCC 2461 of 2013

APPEAL NUMBER: EA 78 of 2015

DATE DELIVERED: 22 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 22 July 2015

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 7 May 2015

LOWER COURT MNC: [2015] FCCA 1579

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Ms Rands of Bridge Street Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Furner of Baker Love Lawyers

Consent Orders

1. The appeal be allowed.

2. Set aside Orders 2 to 16 inclusive of the orders dated 7 May 2015.

Orders

1. The application by the appellant that the respondent pay the costs of her appeal be dismissed.

2. The application for certificates pursuant to the Federal Proceedings (Costs) Act1981 (Cth) be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & Hooke 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 SYDNEY

Appeal Number: EA 78 of 2015
File Number:      NCC 2461 of 2013

Ms King

Appellant

And

Mr Hooke

Respondent

REASONS FOR JUDGMENT

1. These reasons are delivered orally.

2. Before the court today is an appeal initiated by Ms King (“the appellant”) in relation to a series of interlocutory orders made by Judge Myers on 7 May 2015.  The orders were made in the absence of the appellant.  The respondent to the appeal, Mr Hooke (“the respondent”), has conceded the appeal and satisfied the court that it is appropriate that the appeal be allowed and Orders 2 to 16 of his Honour’s orders be set aside. 

3. The appellant has applied for an order that the respondent pays her costs of the appeal.  Her costs are in the vicinity of $4,000.  The gravamen of the application for costs is that the appeal was presented on such strong grounds that it should have been conceded by the respondent at the earliest opportunity.  And as a consequence of the respondent’s failure to do so, the appellant has incurred costs unreasonably.  Allied to this is the submission that the appeal having been allowed, the respondent has been entirely unsuccessful.  There is considerable force in the submissions made on behalf the appellant. 

4. In response, the solicitor for the respondent submits that an order for costs should not be made.  The respondent points to correspondence which indicates that as soon as the respondent was served with the Notice of Appeal he proposed that the appeal be allowed on the basis that each party would bear their own costs.  That position was communicated twice:  first, on a without prejudice basis and then as an open offer.  Self-evidently, the appellant did not agree that the appeal could be disposed of in the manner proposed by the respondent. 

5. The fact that the appellant has been entirely successful provides justifying circumstances for an order for costs.  However, weighing heavily against an order for costs are two matters:

   ·firstly, that the respondent moved quickly to propose that the appeal be allowed; and

   ·secondly, that the difficulties which arose on 7 May 2015 about which the appellant complains on appeal were contributed to in no small way by her failure to attend on 7 May 2015. 

6. It is common ground that the appellant did not provide her solicitor with sufficient instructions to enable an appearance on 7 May 2015 and she herself took no steps to personally attend.  There is little reason to doubt that had the appellant been in attendance on 7 May 2015 the difficulties which arose and which she sought to address by way of an appeal probably would not have arisen.  These factors outweigh the matters that would otherwise see the appellant succeed on her application for costs, and the application for costs will be dismissed.

7. This appeal was to be heard by me but had not yet been listed for hearing, nor were directions been made for its preparation.   It follows that one of the preconditions for a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) has not been met and thus the respondent’s application for a certificate will be dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 22 July 2015.

Associate:

Date: 30 July 2015