Lewberger & Lewberger
[2008] FamCAFC 117
•6 August 2008
FAMILY COURT OF AUSTRALIA
| LEWBERGER & LEWBERGER | [2008] FamCAFC 117 |
| FAMILY LAW - APPLICATION FOR EXTENSION OF TIME TO APPEAL ORDER OF FEDERAL MAGISTRATE – Where costs orders made by Federal Magistrate following consent order for summary dismissal of husband’s application under s 79A, dismissal of spousal maintenance claim and departure application – Where some explanation for delay – Where uncertain whether Applicant husband could pay costs if the appeal was unsuccessful – Where proposed appeal lacks merit – Where strict application of the rules will not work an injustice on the Applicant husband – Application dismissed. FAMILY LAW - COSTS – Where Applicant husband was wholly unsuccessful in the application – Where circumstances do not warrant indemnity costs – Applicant husband ordered to pay the Respondent wife’s costs as agreed or assessed of application for extension of time. |
| Family Law Act 1975 (Cth) – s 79A, s 94AAA, s 117, s 117(2A) Federal Magistrates Rules 2001 – r 16.06(2)(e), r 21.02, r 21.05 |
| Carr v Finance Company of Australia Ltd (No 1) (1981) 147 CLR 246 Tormsen & Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Lewberger |
| RESPONDENT: | Ms Lewberger |
| FILE NUMBER: | SYC | 1372 | of | 2007 |
| APPEAL NUMBER: | EA | 55 | of | 2008 |
DATE DELIVERED: | 6 August 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 28 July 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 12 September 2007 |
| LOWER COURT MNC: | [2007] FMCAfam1217 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Mr Lewberger in Person |
| SOLICITOR FOR THE RESPONDENT: | Mr Dimock of Dimocks Family Lawyers |
Orders
The Application in a Case filed 22 May 2008 is dismissed.
That the husband pay the wife’s costs of and incidental to the application as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
IT IS NOTED that publication of this judgment under the pseudonym Lewberger & Lewberger is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 55 of 2008
File Number: SYC 1372 of 2007
| Mr Lewberger |
Applicant
And
| Ms Lewberger |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in Case filed 22 May 2008 Mr Lewberger (“the husband”) seeks orders that he be granted an extension of time in which to file an appeal against costs orders made by Federal Magistrate Housego on 12 September 2007 in proceedings between himself and Ms Lewberger (“the wife”).
On 24 July 2008 the wife filed a Response in which she seeks that the husband’s application be dismissed and that he pay her costs of and incidental to the application on an indemnity basis.
At the hearing before me, the husband was self-represented and the wife was represented by her solicitor. At the commencement of the hearing I provided the husband with a copy of the judgment in Gallo v Dawson (1990) 93 ALR 479 and stood the matter down for him to have an opportunity to read that judgment.
The husband relied on his affidavit filed 22 May 2008 and the wife relied on her affidavit filed 24 July 2008. I will return later in these reasons to discuss the evidence in each party’s affidavit.
The orders in respect of which the husband seeks an extension of time are Orders 1-5 of orders made by Federal Magistrate Housego on 17 September 2007. Her Honour’s reasons for judgment were available to me and marked by me as an exhibit in these proceedings. Her Honour’s orders as amended under the slip rule on 4 October 2007 provide as follows:
1. The application filed 27 February 2007 be dismissed.
2. An order for costs be made as agreed or assessed.
3.The costs order made pursuant to Order 2 herein to include the costs of the appearance before me by the husband on 10 September 2007 when the husband sought to have the hearing dates vacated.
4.Costs be paid up to and including the date of transfer in accordance with the Family Law Court scale.
5.The costs subsequent to the transfer from the Family Court to this Court be paid in accordance with the Family Law scale.
At the time of the making of the orders both parties were represented by counsel.
As I detected that the orders did not accurately reflect paragraphs 1 and 2 of her Honour's reasons for judgment, or pages 57 and 58 of the transcript of 12 September, 2008 I arranged for a further chambers mention of the matter with the husband and the wife's solicitor appearing by telephone. As a result of that mention on 30 July 2008 the following agreements were noted:
IT IS NOTED AS AGREED BETWEEN THE PARTIES:
1.THAT the orders made by Federal Magistrate Housego on 12 September 2007 as amended on 4 October 2008 require further amendment under Rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001 as:
(a) the date of the application shown as dismissed in Order 1 of the orders of 12 September 2007 (amended on 4 October 2008) is incorrect and the order should be an order BY CONSENT summarily dismissing the husband’s application for final orders filed 31 July 2006 (as subsequently amended);
(b) the orders should contain the notation agreed between the parties’ legal representatives (in relation to no issue estoppel arising by reason of the making of Order 1) recorded by her Honour at pages 58 & 59 of the transcript of 12 September 2007; and
(c)the balance of the orders (Orders 2 to 5 inclusive) were orders of the Court, and not made by consent.
2.THAT the solicitor for the wife will, after first providing a copy to the husband, draft a letter to her Honour’s associate requesting an amended order issue as soon as conveniently possible.
3.THAT for the purposes of the husband’s application for an extension of time to appeal Federal Magistrate Housego’s orders of 12 September 2007 filed 22 May 2008 I may take into account the above agreed matters.
Accordingly I have proceeded to determine this application on the basis that the order will be further amended pursuant to the Rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001.
Although the husband has annexed proposed draft grounds of appeal to his affidavit no grounds are set out in the Notice, but rather he seeks to rely on the affidavit itself. As best I can discern the proposed ground of appeal is the statement set out in paragraph 11 of the husband’s affidavit. It is in the following terms:
I believe the learned Federal Magistrate Housego erred in awarding costs for the whole proceedings to the date of the Costs Order (12 October 2007) because the [sic] there was no estoppel and I was free to lodge a fresh application using the same evidence. The Order for Costs I believe should have been for the two days in September 2007 at the Federal Court Rate as the matter was heard in the Federal Court.
In his affidavit the husband deposes to being self-represented and says, at paragraph 3 of his affidavit, he “did not realise the process”. He deposes to having taken action since September 2007 to have “the Order for Costs reviewed”.
At paragraph 4 of his affidavit the husband deposes:
On 13 September 2008 [sic] I made Application for Final Orders in my Response to an Application in a Case dated 6 December 2007 which included as Order 2. that the Orders by Federal Magistrate Housego be vacated and each party be ordered to pay their own costs (refer attached B)
Annexed to the husband’s affidavit is the Response to an Application in a Case. I am unable to discern from the application the filing date but the next court date is marked 23 January 2008.
In paragraphs 1 and 2 of the application the husband seeks:
1.Order that the Application in a Case by Wife dated 31 October 2007 be dismissed;
2.Order that the Costs Order by Federal Magistrate Housego in September 2007 for the sum of $36,000 be vacated and each party be ordered to pay their own costs. [original emphasis]
The husband deposes that the matter was listed before Ryan J on 10 April 2008, when, no doubt as a result of procedural advice from her Honour, he became aware the correct procedure was for him to make this application. The husband further deposes to filing an application on 7 May 2008, it appears at first instance, in this Court seeking an extension of time in which to appeal and for a stay of her Honour’s orders. Having received correspondence from the Court the husband then filed this application on 22 May 2008.
The only other evidence sought to be relied on by the husband is a portion of the transcript of the proceedings before Federal Magistrate Housego on 12 September 2007.
In her affidavit the wife sets out a brief history relevant to the parties. It is convenient to repeat relevant parts of that history. Before me the wife’s solicitor tendered a document described as a Case Outline filed on behalf of the wife. The husband agreed with the facts set out therein save and except the use of the words “summary dismissal” in respect of orders made 12 September 2007. The Case Outline document became Exhibit “B” in this application.
Background
The wife’s documents disclose:
(a)The husband and wife commenced cohabitation in early January 1981. They were married in late January 1984 and separated in April 1998. There are three children of the marriage, the elder children now being over the age of 18 years and the youngest child is currently aged 14 years.
(b)On 22 April 1998 the parties entered a Child Support Agreement.
(c)On 15 May 1998 orders were made in this Court finalising the parties’ property entitlements and further providing that the husband pay to the wife the sum of $500.00 per week by way of spousal maintenance until the youngest of the children attained the age of 18 years or such other period as agreed between the parties. The spousal maintenance was to be adjusted in accordance with variations in the Consumer Price Index.
(d)On 31 July 2006 the husband filed an application for final and interim orders in which he sought:
·a departure order in respect of the Child Support Agreement; and
·discharge of the spousal maintenance orders.
(e)On 25 October 2006 the husband filed amended applications seeking orders in respect of the parties’ youngest child, in addition to the orders previously sought.
(f)On 19 December 2006 the wife filed a response to the application for final and interim orders.
(g)On 21 December 2006 the husband’s amended application for interim orders was listed before the Court. The matter was adjourned to 5 February 2007.
(h)The matter was thereafter, by consent, transferred to the Federal Magistrates Court.
(i)On 20 March 2007 the husband’s solicitor filed a Notice of Ceasing to Act.
(j)On 27 August 2007 (or 30 August 2007, Transcript, 12 September 2007, p 23) the husband filed a further amended application seeking that the final hearing which was scheduled for 11 and 12 September 2007 be adjourned.
(k)On 12 September 2007 the husband was represented by counsel. The husband’s applications were, by consent, summarily dismissed, and the wife’s counsel sought and obtained the costs order the subject of the now proposed appeal.
(l)An application for assessment of an itemised costs account was served by the wife’s solicitors on the husband by letter dated 1 May 2008. The quantum claimed in the itemised costs account is $36,188.52.
(m)The husband filed further proceedings in this Court and the proceedings were transferred to the Federal Magistrates Court. The husband’s current application is listed for mention before that Court on 22 August 2008.
Relevant statute law and rules
Section 94AAA of the Family Law Act provides for appeals to this Court from decrees of the Federal Magistrates Court. It provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; or
(b) a decree or decision of a Federal Magistrate exercising original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
…
(2) Subsections (1) and (1A) have effect subject to section 94AA.
(3) The jurisdiction of the Family Court in relation to an appeal under subsection (1) or (1A) is to be exercised by a Full Court unless the Chief Judge considers that it is appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single Judge.
(4) Subsection (3) has effect subject to subsections (8) and (10).
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court.
(6) On an appeal under subsection (1) or (1A), the Family Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re‑hearing on such terms and conditions, if any, as it considers appropriate.
(7) If, in dismissing an appeal under subsection (1) or (1A), the Family Court is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form.
…
(10) Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
(13) The single Judge referred to in subsection (3), (8) or (10) need not be a member of the Appeal Division.
Rule 1.14 of the Family Law Rules 2004 (“the rules”) provides as follows:
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
Relevant legal principles – application for extension of time to appeal
The relevant principles to be applied in deciding whether to extend time for lodging an appeal, or an application for leave to appeal, are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the nature of the litigation, the proposed grounds of appeal and the consequences for the parties for the grant or refusal of the leave.
The principles have been referred to in a number of cases in this Court including McMahon & McMahon reported in (1976) FLC 90-038 at 75,144, Tormsen & Tormsen (1993) FLC 92-392 at page 80,017 and in the High Court in Gallo v Dawson (supra) at 480 to 481 where McHugh J said:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5 ; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:
The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion
Discussion
I propose to consider the husband’s application having regard to the criteria set out in Gallo v Dawson.
(a) History of the proceedings
I have already, in setting out the background material contained in the wife’s affidavit and Case Outline document, recorded the relevant history of the litigation between the parties.
(b) The conduct of the parties
The transcript of the proceedings before the Federal Magistrate discloses a number of matters relevant to the conduct of the litigation.
When the matter came before her Honour on 12 September 2007 both parties were represented by counsel. Counsel for the wife sought that the husband’s applications be summarily dismissed (Transcript, 12 September 2007, p 23). In support of the application for summary dismissal, the wife’s counsel took her Honour extensively through the nature of the orders sought as framed in the husband’s applications and, after indicating objections which would be taken to the affidavit material on which the husband relied, submitted that the applications should be summarily dismissed. At that time, the wife’s counsel submitted that on the husband’s case:
·there was no evidence to support a claim under s 79A of the Act;
·there was no evidence to support a finding of special circumstances which would permit variation of the child support agreement under the provisions of the Child Support (Assessment) Act 1989 then in force; and
·the application for discharge of the spousal maintenance orders as drafted was defective to extinguish arrears as it did not seek retrospective operation (s 83(6) of the Act) but that the effect of s 83(8) would be to leave the husband liable for arrears.
Her Honour was referred to relevant authorities, including Lindon v The Commonwealth(No 2) (1996) 136 ALR 251.
Counsel acting for the husband submitted initially that the husband had a reasonable case but he conceded “that if I am forced into evidence, at this stage I concede I could not succeed”. Counsel indicated that he would get instructions from the husband as to whether the applications should be summarily dismissed and noted “then there will be an argument as to costs” (Transcript, 12 September 2007 p 55).
The following dialogue then occurred between counsel for the husband and the Federal Magistrate:
MR LOXTON: The other point I wish to make, submission I have, is where is the utility of dismissing the case now? As I have said, my client has shown sufficient evidence in his affidavit material to show that there is an arguable case, and quite obviously his pressing of the matter showed that he intends to proceed.
If it is summarily dismissed at this stage and there is no estoppel, my client will seek to bring the proceedings back to this Court again, hopefully dealing with all the issues which my friend has just raised today. So whether we bring it back as this matter, properly prepared, and the orders sought to be in proper form, it is just the same as bringing a new fresh proceedings.
FEDERAL MAGISTRATE: Well in practical terms or layman’s terms there is some strength to that submission. And ordinarily the approach that I adopt in trying to manage matters in my docket, I would be sympathetic to that type of approach. And we could have discussed that on that basis yesterday. But Mr Foster having made his application, I don’t think that we can then lapse from the formal application having been made into some submission that meets it whether – but really, it is all the same thing anyway, isn’t it? I mean, in practical terms your prediction is probably correct. If there is no issue estoppel if I grant Mr Foster’s application there is – the application is dismissed. There is probably going to be an application in relation to costs. That may very well be an order that also would be made, and then these proceedings end and then at a point in time your client brings a fresh application, and then all these matters are presumably ventilated and if they are not ventilated properly on that occasion, that may be when a more forceful argument is run in relation to some threshold tests before further applications can be brought.
But the significant problem with your practical approach or argument, if I can call it that, is this. In the docket in this Court the aim is to have matters heard and determined within six months. Now, this matter – that is not achievable where there is pressure on the dockets and certainly hasn’t been achieved in this case for a number of reasons. But the submissions you made yesterday foreshadowed that your client could be 18 months in sorting out his financial position. And it is not really a matter where I would be minded to say this matter should hang around in some form of limbo in relation to that.
The next practical matter we have got is that the matter having in effect started – although evidence hasn’t been commenced. There is a second issue which is the issue of whether I am now part heard or not in the matter. And that of itself mightn’t cause any problem. I mightn’t ever want to speak to Mr Foster or yourself outside this Court, I don’t mean from that point of view. The practical reality is I am leaving this registry at the end of the year and I’ve only got about four, five sitting weeks in this registry left, and that then puts an obligation, if the matter is part heard, the matter to be transferred to where I am. And so that becomes a practical problem. So for all your practical arguments there are some others on the other side.
Mr Loxton, I think it is important that you have the chance to consider the 79A application, particularly, but also these matters and maybe have a chance to talk to your client about the implications of them. I have a matter listed at 2 o’clock where there is an application for dismissal of the proceedings. (Transcript, 12 September 2007, pp 55-56)
After the luncheon adjournment, counsel for the husband conceded that the husband’s applications should be dismissed. He said:
MR LOXTON: And it probably would be, on the balance of convenience, best if the matter was dismissed today on my friend’s arguments. And then I have to deal with this costs issue. (Transcript, 12 September 2007, p 57)
Her Honour then enquired whether she would be dismissing the application by consent and counsel for the husband replied:
MR LOXTON: It would be – we have got to make certain we are doing it so we are not estopped. (Transcript, 12 September 2007, p 58)
Shortly thereafter, her Honour indicated she would make an order for summary dismissal of the application. It was agreed by counsel, and accepted by her, that an issue estoppel had not arisen. That determination is consistent with authority, namely that an order for summary dismissal of proceedings which disclose no proper cause of action is an interlocutory order which does not finally dispose of the rights of the parties (see Carr v Finance Company of Australia Ltd (No 1) (1981) 147 CLR 246 and Re Luck (2003) 203 ALR 1).
After the luncheon adjournment her Honour then dealt with the question of costs and heard submissions from each counsel. At the commencement of his submissions counsel for the husband noted only one issue, namely the husband’s capacity to pay (Transcript, 12 September 2007 p 60). Her Honour then delivered ex tempore reasons for judgment and counsel for the wife sought to clarify the basis on which costs would be assessed under the rules, namely in accordance with the lump sum provisions in the Federal Magistrates Court Rules 2001 or a party/party basis relying on the scale in the rules. Counsel for the wife drew her Honour’s attention to r 21.02 of the Federal Magistrates Court Rules saying as follows:
MR FOSTER: Your Honour, in 21.02 your Honour will see the heading:
Order for costs.
In making an order for costs in a proceeding a Court may set the amount - - -
FEDERAL MAGISTRATE: Yes.
MR FOSTER: And then it says your Honour:
- can refer the cost for taxation under the family law rules.
FEDERAL MAGISTRATE: I think that it is appropriate as the proceedings were commenced in that Court. (Transcript, 12 September 2007, p 63)
Counsel for the husband then sought to be heard on this issue and said:
MR LOXTON: Your Honour, I take the point it certainly commenced in the Family Court and moved down here. And one of the reasons for the move, as I understand it, was to avoid some costs and also to have perhaps the benefit of different procedures down here than may apply upstairs, again in the way of saving costs. So to come down here and discover that there is no cost or charges [sic] at all, we should have left it upstairs.
FEDERAL MAGISTRATE: Who said it was voluntary? Was it your application to have it transferred? Your client commenced the proceedings in the Family Court. (Transcript, 12 September 2007, p 63)
The Federal Magistrate, having referred to the file, noted that there had been at least five appearances in the Family Court. Counsel for the husband then indicated he was concerned about the basis as to how costs of the last two (or three) days would be calculated. The following exchange then occurred:
FEDERAL MAGISTRATE: Well you wouldn’t cavil with the fact that the costs up until the matter was transferred be dealt with on the family law scale?
MR LOXTON: No, I wouldn’t – I wouldn’t cavil with that issue there. I would take issue with the costs that have been incurred the last three days before you.
FEDERAL MAGISTRATE: All right, well I will come to that. But I will make the order insofar as the costs up to the date of transfer. (Transcript, 12 September 2007, p 64)
Thereafter, her Honour received submissions from counsel for the wife in relation to costs incurred in the proceedings in the Federal Magistrates Court. Counsel submitted that the wife would not be adequately compensated if her Honour arbitrarily awarded a fixed lump sum as she could under the Federal Magistrates Court Rules 2001.
My reading of the transcript discloses that at the time of the hearing before the Federal Magistrate, the husband’s counsel made a number of concessions, including a concession that the husband’s applications for final and interlocutory orders should be summarily dismissed, and that it was appropriate the husband pay costs. No qualification was sought to be made in respect of the period which should be covered by the costs order, rather the husband’s counsel made initial submissions that costs incurred in the Family Court prior to transfer to the Federal Magistrates Court should be calculated at the rate payable under the Federal Magistrate Court Rules 2001, rather than under the rules, but later conceded the rules provided an appropriate basis for the costs incurred in the Family Court.
I will revisit this aspect of the husband’s application when considering the merits of the proposed appeal.
(c) The nature of the litigation
The orders sought to be challenged are costs orders arising from the husband’s applications to vary a child support agreement under the relevant provisions of the Child Support (Assessment) Act 1989, to set aside property orders under s 79A of the Family Law Act 1975 (Cth) (“the Act”), and to discharge a spousal maintenance order also made under the Act.
The husband is not precluded by reason of the summary dismissal from bringing further proceedings which he has in fact done, albeit that does not impede the wife seeking to have some or any of the husband’s application dealt with on a “threshold” issue if appropriate to do so (see Lancer & Lancer [2008] FamCAFC 112). The husband still has the right to challenge particular items in the wife’s costs account to the costs assessor, but absent an extension of time, he is precluded from challenging the period covered by the costs account.
(d) Consequence for the parties of the grant or refusal of the application for extension of time
I have already discussed above the consequences from the husband’s point of view if an extension of time is not granted, and the prejudice which will flow to him. From the wife’s perspective, if the extension of time is granted, she will be involved in additional litigation (I have already noted that the husband has commenced further proceedings now in the Federal Magistrates Court). The wife will have to bear her legal costs incurred from the earlier proceedings until the hearing and determination of an appeal.
I accept that there will be some prejudice to the wife if an extension of time is granted, and subject to my discussion of the merits of the appeal, potential prejudice to the husband.
(e) The prospects of success of the application for leave to appeal
It appears to me that in the circumstances of this case the likely prospects of success of the appeal require careful consideration. As best I can discern, the husband does not dispute that the wife should be entitled to costs thrown away by reason of his inability to proceed with the hearing. However, the husband disputes that he should be liable for any more than the two days the matter was listed for final hearing in the Federal Magistrates Court.
It is clear from the transcript and her Honour’s reasons that she made the costs orders in accordance with Pt 21 of the Federal Magistrates Court Rules, in particular, in reliance on r 21.02.
The two rules relevant to my consideration of the proposed appeal are r 21.02 and r 21.05. Those rules provide as follows:-
r 21.02
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
r 21.05
(1) This rule applies if a proceeding is transferred to the Court from the Family Court or the Federal Court.
(2) If the court from which the proceeding is transferred has not made an order for costs, the Court may make an order for costs including costs before the transfer.
(3) Unless the court from which the proceeding is transferred otherwise orders, costs before the transfer must be in accordance with this Part.
So far as I am aware, no order was made in the Family Court of Australia under r 21.05(3). Her Honour was, however, entitled to make an order under Pt 21 and in particular pursuant to r 21.02(2)(a) for sums in excess of the lump sum scale under the Federal Magistrates Court Rules 2001.
An examination of her Honour’s reasons discloses that she considered the relevant provision of the Act (s 117). In paragraph 4 of her reasons her Honour considered the financial circumstances of the parties and made a finding that the husband had “some capacity to meet orders, and certainly it is my assessment he will have capacity to meet the likely quantum of an order for costs in these proceedings”. The husband raises no challenge to this finding of her Honour in this application or his proposed grounds of appeal.
Her Honour noted that neither party was in receipt of legal aid, and then considered the manner in which the parties had conducted the proceedings. She explained that both parties had incurred expense in compliance with directions made by the Court, but determined “[n]onetheless, I must take into account the fact that the husband’s documents have been deficient to the extent that the summary dismissal application was acceded to by him after hearing submissions”.
Her Honour then further explained that there had been no lack of compliance with directions by either party. The Federal Magistrate then recorded that the husband had been “wholly unsuccessful” in the proceedings before the Court.
In conclusion, her Honour found that the husband should pay the wife’s costs on a party/party basis as agreed at the scale provided in the rules.
The wide discretion available to her Honour to make an order for costs is not in doubt (see Penfold & Penfold (1980) 144 CLR 311; (1980) FLC 90-800; (1980) 5 Fam LR 579).
Before her Honour, counsel then appearing for the husband did not ultimately seek to adjourn the husband’s applications before her Honour. An examination of the transcript reveals there were obvious deficiencies in the applications, as framed, before the Court, and a lack of admissible evidence to support the relief sought. It was not argued on behalf of the husband that costs should be limited to the two days before the Federal Magistrate fixed for the hearing of the matter. To the contrary, argument was advanced on behalf of the husband as to whether the costs incurred in the Family Court of Australia should be incurred at scale under the Family Law Rules 2004 or, as he submitted, at the reduced rate provided under the Federal Magistrates Court Rules 2001.
The husband’s submissions before me were to the effect that the wife could, if he was ultimately unsuccessful in proceedings he has now commenced, seek costs from the commencement of the proceedings instituted by him in 2006 but now dismissed, and thus would not suffer prejudice if an extension of time is granted. I do not accept that submission.
In summary, the Federal Magistrate was asked, by consent, to dismiss all of the husband’s applications before the Court it being acknowledged by the husband’s counsel that those applications as framed and the affidavits filed in support were doomed to failure if the matter proceeded. The wife had incurred costs including as noted by her Honour, the costs of five appearances in the Family Court. Those proceedings were dismissed, and as her Honour noted, further proceedings may not have been instituted for many months. The wife was entitled to all her costs thrown away in defending incompetent proceedings, and is now entitled to the fruits of the judgment. It cannot be assumed another judicial officer would be prepared to (or perhaps competent to) make costs orders in addition to orders the husband now concedes are appropriate. It is of significance that the husband's counsel conceded costs should include the costs incurred in the Family Court before transfer (Transcript 13 September 2007, p 64).
I am satisfied that the proposed grounds of appeal disclose no appealable error by her Honour. This is the dominant factor I take into account in the exercise of my discretion.
(f) Can hardship or injustice to the respondent be compensated by an order for costs
There is scant material before me as to the parties’ present financial circumstances. I am simply unable, on the material before me, to conclude the husband could pay costs if an appeal was unsuccessful.
(g) Delay by the husband and explanation for the delay
The husband seeks to explain his delay in filing a Notice of Appeal to his lack of understanding of the procedure to be followed.
It is apparent from annexure B to his affidavit being a Response filed in the Federal Magistrates Court (the filing date is obliterated, but showing a return date of 23 January 2008) at that time he ineffectively sought to challenge the costs order. He deposes that on 10 April 2008, when he was before Ryan J, he became aware of the necessity to file this application but he took no steps to do so until 7 May 2008. He provides no explanation of this delay.
The wife’s solicitor’s submissions on this aspect of the application were to the effect the husband lacked bona fides, and that it was not coincidental that the husband’s application was only filed a week after he received a letter from the wife’s solicitors enclosing the cost assessment account. On the material before me I could not draw the inference suggested by the wife’s solicitor particularly in view of the earlier ineffective attempts by the husband to challenge the costs order. However the husband’s explanation for delay of a month after he became aware of the correct procedure is unsatisfactory.
Conclusions
I accept that the husband has since December 2007 at least put the wife on notice that he wished to challenge the costs order. Whilst I accept he provides an explanation for the delay from September to April 2007 it appears he took no steps to ascertain the correct procedure, and when he was informed of the necessity to make this application he delayed for a further month before filing the application. Although I am satisfied that if an extension of time in which to appeal was granted the prejudice to the wife would not be substantial, I have determined, in the exercise of my discretion, that having regard to the concessions made before the Federal Magistrate by the husband’s counsel, and her Honour’s careful consideration of relevant matters under s 117(2A) in awarding costs, that the proposed appeal lacks merit, and in these circumstances a strict application of the rules will not work an injustice on the husband. Accordingly I find the application should be dismissed.
Costs of these proceedings
The wife sought, in the event that the husband’s application was dismissed, that he should pay her costs of and incidental to this application on an indemnity basis. As noted earlier in these reasons, s 117 governs the question of costs in proceedings under the Act. Neither party has put up to date information before me about their financial circumstances. Neither party is in receipt of legal aid. I am not satisfied that there are circumstances which warrant an award of indemnity costs.
I find the only relevant matter under s 117(2A) is that the husband has been wholly unsuccessful in this application. I am therefore satisfied that he should pay the wife’s costs as agreed and failing agreement as assessed under Chapter 19 of the rules.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 6 August 2008
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