Lietzau & Lietzau (No 2)
[2020] FamCAFC 217
•3 September 2020
FAMILY COURT OF AUSTRALIA
| LIETZAU & LIETZAU (NO. 2) | [2020] FamCAFC 217 |
| FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – ADJOURNMENT – Where the respondent opposes any order for costs being made and challenges the amounts sought – Where the respondent seeks that the application be adjourned to enable him to pursue an application which had been refused for filing – Where the order sought in that application was not able to be made and the respondent did not address the issues that needed to be addressed in such an application in any of the material sought to be filed by him – Where the respondent may if so advised start again and file the correct application supported by an affidavit addressing the issues which need to be addressed – Where there are circumstances which justify an order for costs being made – Where the respondent has been wholly unsuccessful in the proceedings – Where the applicant is in a far better financial position than the respondent whose position can be described as parlous – Where there is ample Full Court authority that impecuniosity is not a bar to an order for costs being made where there are circumstances that otherwise justify an order – Costs ordered in favour of the applicant to be as taxed or assessed in default of agreement. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 22.40 |
| D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64 |
| APPLICANT: | Ms Lietzau |
| RESPONDENT: | Mr Lietzau |
| FILE NUMBER: | PTW | 1898 | of | 2017 |
| APPEAL NUMBER: | WEA | 7L | of | 2019 |
| DATE DELIVERED: | 3 September 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 27 August 2020 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| PREVIOUS APPEAL JUDGMENT DATE: | 24 August 2018 |
| PREVIOUS APPEAL JUDGMENT MNC: | [2018] FamCAFC 167 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Johnson |
| SOLICITOR FOR THE APPLICANT: | Kim Wilson & Co |
| THE RESPONDENT: | In Person |
Order
The respondent husband pay the applicant wife’s costs of and incidental to the Application in a Case filed on 12 September 2019 and the Application in an Appeal filed on 19 December 2019, with such costs to be as taxed or assessed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lietzau & Lietzau (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: WEA 7L of 2018
File Number: PTW 1898 of 2017
| Ms Lietzau |
Applicant
And
| Mr Lietzau |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the court is an Application in an Appeal filed by Ms Lietzau (“the wife”) on 20 July 2020, seeking orders for costs.
That application is supported by an affidavit also filed on 20 July 2020, and to which is annexed schedules of the costs sought.
The orders sought in the application are as follows:
1.The Respondent do pay the Applicant’s costs in respect to the Application in an Appeal filed on 12 September 2019, as amended on 19 December 2019, fixed in the amount of $7,900 or such other amount determined by the Court.
2.The Respondent’s Costs payable in respect to the matter determined by Thackray J on 24 August 2018 be fixed in the amount of $12,500 or such other amount determined by the Court.
3.The Respondent do pay the Applicant’s costs associated with this Application, fixed in the amount of $5,000 or such other amount determined by the Court.
However, after the wife’s counsel was challenged as to the basis on which this Court could make order 2, she indicated that that order was no longer sought.
Further, given the inevitable opposition by Mr Lietzau (“the husband”) to the orders sought, and my concern over first, some of the items in the schedule of costs supporting order 1, and secondly, my bewilderment as to how an amount of $5,000 could be the costs of the application itself, the wife’s counsel indicated that instead of seeking the fixed amounts of costs in orders 1 and 3, if an order for costs was made, then the question of what the costs should be, should be referred to taxation, in the absence of any agreement as to the same.
Although the husband failed to file any material in response to the application for costs, he indicated that he opposed any order being made, and challenged the amounts sought.
However, the husband had filed a Response on 25 August 2020, supported by an affidavit, in which he sought an adjournment of the wife’s application “sine die pending determination by the Full Court of [his] application in an appeal dated 20 July 2020 the subject of [his] application in a case dated 20 August 2020.”
That application was opposed, and I refused the adjournment.
The primary reason for that refusal, is that the applications referred to have not been received for filing, and thus they are not before the court.
A further reason for refusing the adjournment is that, in my view, the applications that the husband sought to file were appropriately rejected for filing, but as I will explain shortly, the husband theoretically could start again by filing an appropriate application. As the husband indicated though, he needed approximately 28 days to obtain the transcript of the hearing before this Court on 29 January 2020, and to then make a decision whether to file a fresh application or not.
In the Application in an Appeal dated 20 July 2020, which the husband had unsuccessfully attempted to file, he sought the following order:
1.The hearing of the Applicant’s application for leave to appeal determined by Thackray J on 24 August 2018, and the Applicant’s application in the appeal determined by Strickland J on 22 June 2020, be reopened and reheard by a Full Court of the Family Court constituted by at least two Judges.
…
However, it was not open to the husband to seek to reopen the hearing before Thackray J, because that had been the subject of the Application in an Appeal heard and determined by me on 22 June 2020. It may be possible though for the husband to seek to reopen the hearing before me, but that would be an application heard by me, and not by a Full Court.
Further, nowhere in the material sought to be filed by the husband did he address the issues that needed to be addressed, namely whether the order of 22 June 2020 was a final order or an interlocutory order, and if it was an interlocutory order, on what basis could the hearing leading to that order be reopened. In his affidavit in support, all the husband did was to look to repeat the arguments that he made to me in relation to his application to reopen the hearing before Thackray J. Plainly that does not provide a basis for reopening. For example, at the very least, it needs to be demonstrated that there has been a material change of circumstances.
As to the Application in a Case dated 20 August 2020, wherein the husband sought a review of the order made by the Regional Appeal Registrar to refuse to file the above-named Application in an Appeal, that was not received for filing because it did not comply with the requirements of r 22.40 of the Family Law Rules 2004 (Cth), namely it was not an Application in an Appeal, and it was not filed within 14 days of the order sought to be reviewed.
It was in these circumstances that I indicated to the husband that he could not proceed on the Application in an Appeal sought to be filed on 20 July 2020, but I was prepared to allow him to start again, and, if so advised, file an Application in an Appeal which sought to reopen the hearing leading to the order made on 22 June 2020, supported by an affidavit addressing the issues that needed to be addressed as referred to above.
The application for costs
Such an application is governed by s 117 of the Family Law Act 1975 (Cth), which relevantly provides as follows:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, 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), (4A), (5) and (6) 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.
As can be seen, subsection (1) provides for each party to bear their own costs, but subsection (2) allows for an order for costs to be made if there are circumstances that justify that outcome.
To determine that question it is necessary to consider the relevant factors in s 117(2A).
Here, the wife primarily relies on paragraph (e), namely the husband has been wholly unsuccessful in the proceedings. She also sought to rely on the conduct of the husband in pursuing the application, in the face of the concession by the wife that she no longer opposed the husband being able to inspect the documents produced by her medical advisers, subject to her claim for legal professional privilege in relation to some of the documents produced. That is a relevant factor to be taken into account either under paragraph (c) or paragraph (g).
For the husband’s part, he opposes any order for costs being made on the basis that the wife failed to file a Response to the Application in an Appeal which proceeded to a hearing, and she also failed to file any written submissions. He says that as a result he was not certain that the wife would even turn up at the hearing, let alone him not knowing what her arguments would be.
Pursuant to paragraph (a), it is also necessary that I have regard to the financial circumstances of each of the parties in determining what, if any, order for costs should be made.
Here, the wife is in full-time employment as an in-house counsel for a mining company, and she earns $160,000 gross per year. She says that she has almost the entire financial responsibility for the children of the marriage, and the living expenses of herself and the children equates to her income. She has no substantial assets, but has debts totalling $75,000 being money borrowed from relatives and friends to meet her legal costs. She also has outstanding legal fees of $12,000. In addition, she has superannuation of approximately $200,000, but she is unable to access that.
The husband is an unemployed solicitor receiving the jobseeker benefit of $500 per week. He has debts of between $60,000 and $80,000, and he has no substantial assets. He too has superannuation, but like the wife, he is unable to access that.
I do not accept the submission of the husband that there should be no order for costs. The reasons that he puts forward are not reasons that would prevent an order being made if it is otherwise justified.
In that regard, I find that there is a circumstance here that justifies an order for costs being made, namely the husband has been wholly unsuccessful in the proceedings.
As for the issue of the husband’s conduct, that was dealt with in [5]-[8] of the reasons for judgment delivered on 22 June 2020 (see Lietzau & Lietzau [2020] FamCAFC 149), and although the husband was ultimately unsuccessful, it cannot be said that the concession of the wife should have caused the husband to abandon his application.
However, it is only necessary to establish one relevant factor in order to justify an order for costs (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123), and the lack of success of the application is sufficient.
Plainly, the wife is in a far better financial position than the husband, and the husband’s position can be described as parlous, but there is ample Full Court authority that impecuniosity is not a bar to an order for costs being made where there are circumstances that otherwise justify an order (e.g. see D & D (Costs) (No 2) (2010) FLC 93-435), and that is the case here.
Thus, I propose to make an order that the husband pay the wife’s costs of and incidental to the Application in a Case filed on 12 September 2019, and to the Application in an Appeal filed on 19 December 2019, with such costs to be as taxed or assessed in default of agreement.
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 3 September 2020.
Associate:
Date: 3 September 2020
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