Kite & Kite (Costs)

[2011] FamCAFC 144

FAMILY COURT OF AUSTRALIA

KITE & KITE (COSTS) [2011] FamCAFC 144

FAMILY LAW - COSTS – where the husband was wholly unsuccessful in his appeal – where the wife made an offer – where there is no evidence of any counter offer having been made – husband to pay wife’s costs of and incidental to the appeal – costs to be as agreed or assessed on a party and party basis.

Family Law Act 1975 (Cth) s 117

Allesch v Maunz (2000) 203 CLR 172
House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513

APPELLANT: Mr Kite by his case guardian Mr R J Kite

RESPONDENT: Ms Kite

FILE NUMBER: PAF 1073 of 2006

APPEAL NUMBER: EA 98 of 2009

DATE DELIVERED: 7 July 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: By written submissions

JUDGMENT OF: Faulks DCJ, Coleman & Strickland JJ

HEARING DATE: By written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 31 July 2009

LOWER COURT MNC: [2009] FamCA 896

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Judge

SOLICITOR FOR THE APPELLANT: Champion Legal

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. That the appellant husband pay the respondent wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 98 of 2009
File Number: PAF 1073 of 2006

Mr Kite

Appellant

And

Ms Kite

Respondent

REASONS FOR JUDGMENT

COSTS

Introduction

1. On 4 February 2011, for reasons which the Court then published, the husband’s appeal against the judgment of Stevenson J of 31 July 2009 was dismissed.  As a result, and in accordance with the agreement of counsel for the parties, the Court made directions for the filing of submissions with respect to costs.

2. Pursuant to those directions, on 4 March 2011 submissions were filed on behalf of the wife in support of her application for an order for her costs of the appeal. No submissions have been received by or on behalf of the husband, notwithstanding that the time within which to file any such submissions expired more than three months ago. The wife seeks to have her application for costs determined. It is appropriate that we now do so.

Discussion

1. As is not in doubt, s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to the provisions of s 117(2), each party to proceedings under the Act “shall bear his or own costs”.

2. The High Court said in Penfold v Penfold (1980) 144 CLR 311 at 315:

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117 (2) in "a clear case".

3. Section 117(2) of the Act provides that the Court may award costs if it is “of opinion that there are circumstances that justify it in doing so”. The Court informs itself in relation to forming the requisite “opinion” by reference to the provisions of s 117(2A) of the Act.

4. The Court does not consider that the wife’s application for costs is enhanced, or impeded, by virtue of any fact or circumstance within the ambit of s 117(2A) (a), (b), (c) or (d).

5. Section 117(2A) (e) of the Act is relevant however, and provides:

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   …

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

6. Here the husband was wholly unsuccessful in his appeal to this Court. To the extent that it might be thought simplistic in the context of an appeal to place significant reliance upon a party having been wholly unsuccessful, given that an appeal either succeeds or fails, in which case it has been “wholly unsuccessful”, we prefer to rely upon the well known principles which govern appeals against discretionary judgments, and the long recognised obstacles to the success of such appeals. It is unnecessary in this context to do more than allude to the authorities, which were undoubtedly well known to those advising the husband in the appeal. They include House v The King (1936) 55 CLR 499, Allesch v Maunz (2000) 203 CLR 172, per Kirby J at 230-1 and Norbis v Norbis (1986) 161 CLR 513, per Brennan at 539-40.

7. Another matter which the Court considers relevant and supportive of forming the requisite opinion arises from a letter written by the wife’s solicitors to the husband’s solicitors on 16 September 2009, a copy of which is attached to the submissions filed on behalf of the wife of 4 March 2011.

8. By that letter, the wife made an offer which was expressed to be “without prejudice save as to costs” that, if the husband withdrew the Notice of Appeal filed against Stevenson J’s decision of 31 July 2009, the wife would withdraw a costs application by her in relation to other proceedings, with no order being made for costs in relation to that application or the husband’s withdrawn Notice of Appeal. The wife’s offer was not accepted, and there is no evidence before this Court of any counter offer having been made.

9. Whilst we are conscious that the concluding paragraph of the letter of

   
   

   16 September 2009 expressed the offer of settlement conveyed by it to “remain open for acceptance until such time as our client commences to incur legal costs in respect of the Notice of Appeal” filed on behalf of the husband, and we are conscious of there being differing views as to the effect of such time limits on an offer as was thereby conveyed, we consider it reasonable to have regard to the wife’s willingness to resolve matters on the basis indicated by her solicitor’s letter.

10. Having regard to the nature of the husband’s appeal, and the fact that he was wholly unsuccessful, we are of the opinion that the circumstances justify an order for costs and we shall so order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Coleman & Strickland JJ) delivered on 7 July 2011.

Associate:  

Date:   7 July 2011