LL & PL & SDP

[2005] FamCA 1111

[2005] FamCA 1111

JFLLPLSD

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 78 of 2004
File No. SYF 3036 of 1996

IN THE MATTER OF:

LL

Applicant/Wife

- and -

PL

Respondent/Husband

- and -

SDP

Case Guardian

REASONS FOR COSTS JUDGMENT

BEFORE:  Finn, Coleman & Boland JJ
DATE OF HEARING:        By way of written submissions
DATE OF JUDGMENT:     22^nd day of November 2005

SUBMISSIONS RECEIVED FROM:      

H.A. Miedzinski Solicitors, (PO Box 375, Miranda NSW 2224) on behalf of the applicant wife.

P & A Lawyers (DX 11622 Sydney Downtown NSW) on behalf of the respondent husband.

Searle & Associates Solicitors (DX 135 Sydney NSW) on behalf of the case guardian.

Name of Appeal  LL & PL & SDP
Appeal Number  EA 78/2004
Date of Appeal hearing                   By way of written submissions
Date of Judgment  22^nd day of November 2005
Coram  Finn, Coleman, Boland JJ

Catchwords:   Application for costs of wife’s application for Leave to Appeal.

Wife’s application for Leave to Appeal wholly unsuccessful – wife to pay husband’s costs.

Costs applications against case guardian – case guardian acted in the perceived best interests of the husband – no costs order against case guardian.

Wife to pay husband’s costs

1. Pursuant to the orders made by the Court on 4 August 2005 when delivering judgment dismissing the wife's application for Leave to Appeal, the husband has sought an order that his costs of resisting the wife’s application be made against the wife or, in the alternative, that an order be personally made against the husband’s case guardian.  Further in the alternative the husband has sought an order restraining the case guardian from:

   … applying any monies, held by him on behalf of the Husband, towards the payment of any costs incurred either in supporting the Wife’s application on appeal or in satisfaction of any costs order the Wife may seek against the case guardian. (Husband’s Costs Submissions, page 2)

2. So far as the husband’s application for costs is concerned, the husband relied upon the wife’s absence of success on the application and the Court’s rejection of each of the three challenges which the wife agitated on appeal.  It was thus submitted that the wife had been wholly unsuccessful in the proceedings and, there being “nothing in the Wife’s behaviour which suggests the costs should be other than on a party-party basis”, that such costs should be ordered.

3. For her part, the wife seeks an order that the parties bear their own costs. The wife resists the application by the husband for her to pay his costs essentially on the grounds that the application for Leave to Appeal, while wholly unsuccessful, raised matters of public interest (being the interpretation of certain of the Family Law Rules 2004 as they related to expert evidence) and that the husband’s conduct in the proceedings was such that the husband was in a position to ensure that evidence presented at first instance complied with the requirements in the Rules, and that, as he had failed to do so, it was open to the wife to seek to challenge the admissibility of the evidence.

4. In the alternative, if the Court were minded to make a costs order against the wife in the husband’s favour, counsel for the wife submitted that such costs be fixed, rather than be “as agreed or assessed”.  Counsel for the wife further submitted that an assessment of $2,500 for the husband’s costs was appropriate.  Finally, counsel for the wife submitted that, if an order for costs is made in the husband’s favour, those costs ought be equally shared by the wife and the case guardian, the latter of whom had supported the wife’s appeal.  Implicit in that submission is the curious proposition that the successful husband should contribute to a costs order made in his favour against an unsuccessful wife, as he would undoubtedly effectively be doing, given that the case guardian funds himself out of the property of the husband.

5. The wife was unsuccessful with her application for Leave to Appeal.  As a reading of the Court’s judgment of 4 August 2004 would confirm, that lack of success was referrable to the Court’s conclusion that none of the complaints sought to be agitated by the wife had merit.  In our view that circumstance justifies the making of an order for costs against the wife in favour of the husband.  The wife’s assertions that her application for Leave to Appeal advanced questions of public interest for the Full Court’s consideration, and her assertions that the husband’s failure to ensure that the evidence complied with the Rules led her to apply for Leave to Appeal, have not dissuaded us from the view that she should pay the husband’s costs.

6. We are also not persuaded that it would be appropriate for us to fix the amount of costs payable by the wife in the absence of agreement by the husband.  It is true that the husband did not take the opportunity provided by Order 4 of our orders of 4 August 2005 to reply to the wife’s submissions.  The failure to do so is understandable given the late filing of the wife’s submissions.

7. As to the orders sought by the husband against the case guardian and also as to the wife’s application that the case guardian should contribute to any costs payable by the wife to the husband, we make the following observations.  Absent clear evidence to the contrary, and we are unaware of any such evidence, the Court is entitled to proceed on the basis that the case guardian has acted in what he perceives to be the best interests of the husband, whether or not when the husband’s application is determined on its merits, as Lawrie J’s orders envisaged would occur, it is decided that the husband continues to be in need of a case guardian. 

8. If, having heard and determined the husband’s application for the discharge of his case guardian on its merits, a Judge concludes that the husband should continue to have a case guardian, the stance of the case guardian before Lawrie J, and in supporting the wife’s application for Leave to Appeal, could be seen as having been vindicated.  The husband’s standing to agitate the matters he appears, from the submissions filed in the Court, to wish to agitate would in those circumstances be questionable.  Conversely, if having heard and determined the husband’s application on its merits, the Court concluded that the husband no longer needed a case guardian and that the order providing for one should be discharged, the husband would no doubt have the capacity to challenge in the appropriate forum the charges or other expenses sought to be recouped from his assets by his case guardian, and to challenge the quality of the stewardship of the case guardian generally.  Those however are not matters which in the circumstances this Court needs to or can properly further pursue.

9. We accordingly propose ordering that the wife pay the husband’s costs of the application for Leave to Appeal as agreed or assessed on a party and party basis.

ORDERS

10.  The Court accordingly orders:

1. That the wife pay the husband’s costs of and incidental to the application for Leave to Appeal as agreed or failing agreement as assessed under Division 19.6.2 of Chapter 19 of the Family Law Rules 2004 on a party/party basis in accordance with the relevant scale.

I certify that the preceding
10 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.


 Associate
Date: 22/11/05