Loomis & ML Lawyer
[2016] FamCAFC 168
•17 August 2016
FAMILY COURT OF AUSTRALIA
| LOOMIS & ML LAWYER | [2016] FamCAFC 168 |
| FAMILY LAW – APPEAL – SINGLE JUDGE APPEAL – COSTS – appeal against dismissal of application for stay – leave to appeal refused – where the mother’s solicitors were awarded costs against the father – where the father appeals those orders – procedural fairness – financial circumstances of the parties – where no error established – appeal dismissed – written submissions on costs of the appeal to be filed. |
| Family Law Act 1975 (Cth) s 94AAA, s 117 and s 118 Federal Circuit Court Rules 2001 (Cth), r 11.02 and r 21.02 |
| Allesch v Maunz (2000) 203 CLR 172 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
| APPELLANT: | Mr Loomis |
| RESPONDENT: | ML Lawyer |
| FILE NUMBER: | BRC | 1010 | of | 2012 |
| FIRST APPEAL NUMBER: | NA | 64 | of | 2015 |
| SECOND APPEAL NUMBER: | NA | 7 | of | 2016 |
| DATE DELIVERED: | 17 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 16 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 August 2015 13 November 2015 |
| LOWER COURT MNC: | [2015] FCCA 2353 [2015] FCCA 3582 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Baston |
| SOLICITOR FOR THE RESPONDENT: | Mr ML (representing the firm) |
Orders
IT IS ORDERED BY CONSENT
The orders made by Judge Howard on 13 November 2015, as amended on 1 December 2015 be varied by:
(a) Adding the following order:
28A. The application by the husband filed 9 October 2015 for stay of Order 2 of the orders made on 28 August 2015 pending appeal be dismissed.
28B. The oral application by the husband to adjourn the said application for stay be dismissed.
(b) Deleting Order 29 thereof and adding:
29.(a) Order (2) of the orders made on 28 August 2015 be varied so as to provide that the applicant husband pay the costs of ML Lawyer of and incidental to the applications filed by the applicant on 18 June 2015, 30 June 2015 and 8 July 2015 fixed in the sum of $5,591 and to be paid on or before 29 January 2016;
(b) The applicant husband pay the costs of ML Lawyer of and incidental to the application for stay pending appeal filed on 9 October 2015 and his oral application for adjournment thereof, fixed in the sum of $2,500 and to be paid on or before 29 January 2016.
IT IS FURTHER ORDERED
The Application in an Appeal filed 24 May 2016 seeking an order that the court provide a copy of the transcript of proceedings of 13 November 2015 be dismissed.
The time prescribed for the filing of the Notice of Appeal filed 22 September 2015 and the Amended Notice of Appeal filed 21 March 2016 be extended so as to permit same to be heard and determined before Murphy J on 16 August 2016.
The Notice of Appeal filed 22 September 2015, NA 64 of 2015, is dismissed.
Consequent upon the making of Orders 1(a) and (b) herein, the Amended Notice of Appeal filed 21 March 2016 be further amended so as to provide:
(a)At paragraph 8 that Orders 28A; 28B and Order 29 as amended by these orders are the subject of appeal;
(b)That the Amended Grounds of Appeal which are numbered 1 to 12 and struck through be revived so as to form the grounds of appeal against Order 29(a) as amended by these orders; and
(c)That the second set of Amended Grounds of Appeal numbered 1 through 11 appearing immediately thereafter, together with the additional grounds numbered 12 to 14 contained within the written summary of argument filed by the appellant husband on 29 July 2016 form the grounds of appeal against Order 29(b) as amended by these orders.
Leave to appeal Orders 28A and 28B as amended by these orders be refused.
The Amended Notice of Appeal in Appeal NA 7 of 2016, as further amended by these orders, be dismissed.
Each of the parties file and serve within 14 days of the delivery of settled reasons in this appeal such submissions as each seek to make in respect of the costs of the appeal including but not limited to submissions as to the amount of any fixed costs and the basis for same and any written offers to settle made by either party in respect to the appeals.
Each of the parties file and serve within 14 days of the delivery of the costs submissions contemplated by order 8, any submissions in reply to those of the other party.
Each of the documents contemplated by orders 8 and 9 shall be filed by email to the appeals assistant in the Northern Appeals Registry, [email address] and contemporaneously backcopied to the other party and service shall be effected by the sending of the said backcopy.
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 Loomis & ML Lawyer 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Numbers: NA 64 of 2015; NA 7 of 2016
File Number: BRC 1010 of 2012
| Mr Loomis |
Appellant
And
| ML Lawyer |
Respondent
EX TEMPORE
[1]Pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) the Chief Justice has directed that she considers it appropriate that this appeal be heard and determined by a single judge. As was indicated would occur when these reasons were delivered orally, footnotes, citations and quotations have been added to these settled reasons.
Subsequent to the conclusion of parenting proceedings in the Federal Circuit Court in May 2015, the father applied to reopen those proceedings. He was unsuccessful. In the application commencing those proceedings, the father sought orders that two named solicitors’ firms and a barrister who had represented the mother be “added as a party to the proceedings in respect of costs”. An order for costs was made on 28 August 2015 against the father in favour of one of those firms of solicitors.
Subsequently, the father applied for a stay of that costs order pending an appeal of it. A stay was refused. A further costs order was made against the father in favour of the same solicitors’ firm on 13 November 2015 as a consequence of the refusal of the stay.
The father appeals each of those orders for costs, each of which was made by Judge Howard.
Unfortunately, the form of the two orders, and omissions from those orders of matters plainly intended to be included in them, has resulted in the self-represented father’s intended appeals against each being significantly more complicated than they needed to be. Those complications and the sensible means by which both parties to the appeal agreed they be dealt with, will also be outlined below.
Ultimately, the applicant father’s challenge embraces 26 grounds of appeal in total. However, three issues dominate those challenges. First, the father contends centrally (and as he himself said during the hearing “repeatedly”) that an order for costs should not have been made because neither he, nor any entities which are controlled by him, have the capacity to meet any such costs order. Secondly, the father asserts a lack of procedural fairness. Thirdly, it is asserted that his Honour misapplied the law in respect of the entitlement of a self-represented solicitor to costs.
For the reasons which follow, the father’s appeal should be dismissed.
Omissions From The Orders And Their Consent Variation
Before dealing with the substance of the appeal, it is necessary to outline the difficulties for the appellant father and indeed for the respondent solicitors arising from the form of orders made by Judge Howard and the omissions from them, and the steps agreed to by the parties to cure those defects so as to permit the father’s intended appeal to be put on a proper footing.
The 28 August 2015 order was made consequent upon dismissing three applications filed by the father. The order provided that the father pay “the costs of [ML Lawyer] of and incidental to” those applications. The named solicitors’ firm represented the mother.
No amount of costs was fixed by his Honour despite written submissions made to his Honour that he should do so. Those submissions specified an amount and annexed the relevant scales.[2] His Honour’s reasons for judgment indicated that his Honour would order that the cost were “to be assessed on the scale applicable to matters in the Federal Circuit Court of Australia” and that the father should pay those costs “within 30 days of the assessment”.[3]
[2]See Federal Circuit Court Rules 2001 (Cth), r 21.02; Scale as per Schedule 1 to the Rules. Respondent Solicitors’ written submissions filed 8 July 2015 which are Exhibit “A” in these appeal proceedings.
[3] Reasons, 28 August 2015, at [48].
The orders provided neither for assessment nor for the time for payment referred to in the reasons.
On 13 November 2015 Judge Howard made another order for costs (amended on 1 December 2015) against the father in favour of the same solicitors. That order pertained to an application for stay pending appeal of the previous order made against by the father. The order provided:
Costs
29. That within sixty (60) days of the date of this Order the Father pay the costs of [ML Lawyer] fixed in the amount of $7,991.
Neither that order, nor any other order made that day, makes any reference to the order made by his Honour on 28 August 2015. Yet, as the reasons delivered on 13 November 2015 purport to make clear, the 13 November 2015 order is, in effect, a “consolidation” of the 28 August 2015 order and the separate and additional costs order made on 13 November 2015.
Despite the 28 August 2015 reasons (but not the orders), speaking of the amount of costs to be derived through an assessment process, the 13 November 2015 reasons refer to an amount of $5,491 which a reading of those reasons reveals as a fixed amount of the 28 August costs:
13.… In the present case refusal to grant a stay here would see a situation arise whereby the father will have to pay to [ML Lawyer] $5,491 within a certain period of time...[4]
[4]Reasons, 13 November 2015, at [13] where the figure of $5491 is mentioned for the first time and without explanation of its derivation.
No explanation is offered for the derivation of the sum there mentioned.
Later, at [16], his Honour mentions the figure again, saying that “it is my intention to allow … 60 days to pay the [respondent solicitors’] costs in the sum of $5,491”. Again, no explanation is offered for the derivation of that sum, nor is the derivation of it mentioned anywhere else in the reasons.
The dismissal of the father’s stay application on 13 November 2015 resulted in his Honour ordering the father to pay ML Lawyer’s costs fixed in the sum of $2,500.[5] The $7,991 figure referred to in the order made on 13 November is a “consolidated” figure comprising that amount and the $5,491 referable, apparently, to the 28 August orders:
37. In the circumstances of this case, I am not going to make an order for interest. The father has been given 60 days to pay, first of all, the costs amount from 28 August 2015, being $5,491. He has been given 60 days to make the payment of $2,500 in respect of the dismissal of the application for a stay. He will have to pay those amounts within that time…
[5] Reasons, 13 November 2015, at [31].
Prior to the making of the 13 November 2015 orders, the father had, on 22 September 2015, filed a Notice of Appeal (appeal number NA 64 of 2015) against the orders of 28 August 2015. No order made by his Honour had discharged or varied those orders. As a consequence, those orders remained in place despite his Honour’s “consolidated” order of 13 November 2015.
On 29 December 2015, the father filed a Notice of Appeal challenging the 13 November order. (appeal number NA7 of 2016).
The latter Notice of Appeal repeated as grounds those which challenged the 28 August orders contained in the first Notice of Appeal. However, understandably enough, those grounds challenged the 13 November order. On 21 March 2016, the father filed an Amended Notice of Appeal. That document, in terms, challenged only the 13 November orders. It deleted the existing grounds and replaced them with new grounds. The father’s written Summary of argument filed in support of that appeal sought to add three further grounds.
The net result was an appeal (number NA 64 of 2015) challenging the order made on 28 August 2015 which, although still operative, was intended to have been consolidated with, and, in effect, subsumed by, the 13 November order. Contained within that order was a separate order which the father also sought to challenge and which was the subject of the grounds in the Amended Notice of Appeal (appeal number NA7 of 2016).
To add to the confusion and, more importantly, the difficulties created for the self-represented father (and, indeed, the respondent) the father sought by his Amended Notice of Appeal in appeal number NA 7 of 2016, to separately challenge Judge Howard’s finding that his application for stay of the 28 August order should be dismissed. The difficulty confronted by the father here is that his Honour made no such order disposing of the substantive proceedings for stay on 13 November 2015. The reasons make it abundantly plain that his Honour intended to dismiss that application for reasons which he gave, but appeals are from orders not reasons. The omission meant there was no order in that respect which the father could appeal.
The matters just described were discussed at length at the hearing of this appeal. Fortunately, both the self-represented father and counsel for the respondent solicitors addressed in a sensible and practical way each of the issues just described so as to allow the intended appeals to be heard on their merits. As can be seen from the orders made by consent, his Honour’s orders were varied so as to avail the father of the challenges intended by his Notices of Appeal.
First, variation of the costs order made on 13 November makes explicit the two separate costs orders combined within the order made that day. Secondly, further amendment to the Amended Notice of Appeal permitted by consent makes clear that grounds challenge the orders made on 28 August separate from those which challenge the 13 November costs order, albeit that many contain similarities. Thirdly, the orders made on 13 November were varied by consent so as to include an order dismissing the father’s application for stay and his oral application for adjournment of that application. (Grounds within the Amended Notice of Appeal challenge that order, albeit that no such order had been made when the Amended Notice of Appeal was filed.)
So that the record is clear, the grounds will be recited below in their entirety. Also, the various amendments just referred to necessarily result in appeal number NA 64 of 2015 now being dismissed and an order will also be made to that effect.
Procedural Considerations
Leave to Appeal
Leave to appeal is sought by the appellant father who, I repeat, represents himself. He also prepared his own material in support of the appeal.
In my opinion, the “decree” in respect of costs in its consent amended form is not an “interlocutory decree” within the meaning of regulation 15A of the Family Law Regulations 1984 (Cth); the orders finally determine the parties’ respective rights in respect of the costs of the relevant proceedings.[6] As a consequence, the costs order is in my view not a “prescribed decree” within the meaning of s 94AA(1) of the Act and leave to appeal is not required. Counsel for the respondent does not argue to the contrary.
[6]See for example: Licul v Corney (1976) 180 CLR 213 per Gibbs J; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246, 248 per Gibbs CJ; and Child Support Registrar & Higgins and Anor (2016) FLC 98-069.
No arguments were advanced by counsel for the respondents as to whether an order dismissing an application for stay pending appeal is an interlocutory decree in respect of which leave is required. In the absence of argument, I incline to the view that such an order is interlocutory because a further application might theoretically be possible even if it might meet with limited prospects of success.[7] As will be seen, the application for leave to appeal an order for stay has become otiose by reason of the appeal being heard by me. Leave to appeal will be refused.
[7] See, for example, Licul, (above).
Extension of Time
Each of the Notices of Appeal, including, pertinently, the Amended Notice of Appeal filed on 21 March, is filed out of time.
In their written outline of argument, the respondent firm objects to an extension of time so as to permit the hearing of these appeals. Understandably in light of the confusion created by omissions from the orders as earlier discussed, counsel for the respondent does not press that objection. (Counsel does not contend for any prejudice.)
I consider it appropriate for time to be extended in the circumstances of this case so as to permit the father’s appeal to be heard and determined today. A formal order will be made accordingly.
Dismissal of Appeal as Vexatious
An order for dismissal of the appeal pursuant to s 118 of the Act is contended for in the respondent firm’s written outline of argument. That application is abandoned by their counsel.
The Grounds of Appeal
Consequent upon the discussion and amendments earlier referred to, the grounds of appeal relied upon are as follows. The first 12 grounds relate to the order now embraced at 29(a) and pertain to the proceedings occurring on 1 July 2015 which are the subject of reasons and orders on 28 August 2015.
The first 12 grounds[8] are as follows:
[8]In subsequent discussion, these grounds will be referred to as “the first ground [number]” so as to distinguish them from the 14 grounds which follow which are also numbered consecutively from 1 in the Amended Notice of Appeal.
1. That the Court Erred in listing the Application to Re-Open contemporaneously with the Application to Join parties in respect of costs.
2. The Trial Judge Erred in not taking into account the disentitlement to costs of the previous actions of [ML Lawyer] in these proceedings.
3. The Trial Judge erred in disregarding a relevant authority in Atlas vs ATLAS v KALYK [2001] NSWCA 10 CA 40449/00
4. The Trial Judge Erred into not taking into account the financial circumstances of the Appellant Father, which were filed with the court and canvassed on the first day of the Parenting Trial.
5. The trial Judge Erred in not considering a relevant fact that the Father was granted Legal Aid in respect of the costs of the Independent Children’s Lawyer
6. The Trial Judge erred in ignoring a relevant fact that [ML Lawyer] were obligated under their duties as a solicitor not take advantage of the obvious error of a self-represented litigant
7. The Trial Judge Erred in determining costs to be paid in 28 Days from taxation which would stifle the substantive property defended hearing when the respondent requested payment following the outcome of the substantive property matters.
8. The Trial Judge erred in declaring the proceedings vexatious when they had a realistic prospect of success.
9. The Trial Judge erred in ignoring a Relevant Fact in that [ML Lawyer] had full knowledge of the Mother’s flagrant contempt of his own property orders, the proceeds of which had subsequently been paid to [ML Lawyer]
10. The trial Judge erred in not considering a relevant fact that [ML Lawyer] failed to file any documents on the Appellant Father prior to the hearing.
11. The Trial Judge erred in law that these proceedings were not on “on all fours” with Guss and Veenhuizen ( No 2) (2013) QSC 253 and London Scottish Benefit Society and Chorley.
12. The Appellant was denied procedural fairness by submissions being limited to two pages.
(Errors in original)
The second 14 grounds[9] pertain to the proceedings on 13 November 2015 and include the three grounds initially appearing in the father’s written outline of argument. The second 14 grounds are as follows:
[9] The second 14 grounds will be referred to as “second ground [number]. See preceding footnote.
1. That the Appelant was denied procedural fairness with the serving of a response and supporting Affidavits by [ML Lawyer] with little or no notice.
2. The at the Appelant was denied procedural fairness by the fact that he was not allowed to ake submissions to the Taxing Officer in line with the original order for costs being order number 2 made on the 28th August 2015
3. That the Court Erred in the Summary Dismissal of the Appelants application without regard to the authorities for Summary Dismissal.
4. The Trial Judge Erred into not fully investigating the into account the financial circumstances of the Appellant Father, and [ML Lawyer].
5. The Trial Judge erred in not giving sufficient weight to the Appelant’s submissions that given the amount under appeal that the matter should be dealt with in chambers on the Papers in order to limit costs.
6. The Trial Judge Erred in not giving sufficient weight to the fact that the Appeal may be rendered nugatory when considering the disentitling conduct listed in the Appeal of the Orders made on the 28th August 2015 may lead to the striking from the roll of [Mr ML] of [ML Lawyer] and on the face of it would lead to the dissolution of that business.
7. The trial Judge Erred in not giving sufficient weight to the Appelants’s “bona fides” in joining [ML Lawyer] to the proceedings in respect of costs.
8. The Trial Judge erred in considering an affidavit from Ms [Thurston] who was not a party to the proceedings bwtween the Appelant and [ML Lawyer].
9. The Trial Judge erred in considering a relevant fact of his own orders of the 25th June 2012 restricting [L] Ltd from increasing its capital debt.
10. The trial Judge Erred in restricting the refereneces to the Appelants psychological condition to the Family Law proceedings when the psychologist refers to “multiple fronts” including the Mother’s obsession with bringing Domestic Violence Applications and Police complaints which have proven unfounded.
11. The Trial Judge Erred in failing to consider the Appelants case would obfuscated by his own advocacy which led to appelable error in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148; (1994) 68 ALJR 509 (1 June 1994)
12. The Trial Judge erred into taking account the Financial Circumstances of [L] Ltd where the Appellant is a Director but has not been a shareholder since the year 2000.
13. The trial Judge erred into taking into account the value of property held by [L] Ltd but not considering its liabilities.
14. The Trial Judge erred in taking into account the finances of [L] Ltd as a separate legal entity without affording them or their shareholders [VG Company] the opportunity to be heard.
(Errors in original)
Overview of the Trial Judge’s Approach
With all respect, many of the father’s grounds of appeal cannot properly be described as such. They allege no sustainable legal, factual or discretionary error.
Many involve factual assertions that are not substantiated by reference to the evidence or his Honour’s findings, or refer to matters which were not before his Honour. Others involve premises not substantiated by reference to his Honour’s reasons or which do not pertain to any issue relevant to the findings which underpin each set of orders as made by his Honour.
Reference to each of his Honour’s sets of reasons reveals the lack of success in the father’s application as a predominant consideration in his Honour’s orders for costs. In the case of the 28 August orders, his Honour placed primary importance on the fact that the father sought orders against three third-parties, all legal practitioners who are strangers to the matrimonial litigation, only to amend so as to purportedly not pursue those applications on the day before they were to be heard.
His Honour’s reasons reveal a consideration of s 117 of the Act. His Honour applied s 117(1) and thereafter determined that the particular circumstances of each of the applications justified an order for costs. In reaching that conclusion in the case of the 28 August orders, his Honour placed primary importance on the father’s conduct in and about the bringing of the applications and his apparent desire to withdraw them on the day prior to the hearing. That conduct informed in part the order for costs consequent upon dismissal of the father’s application for stay in the 13 November orders. His Honour also accorded considerable importance to the father’s lack of success in both of those applications.
His Honour considered s 117(2A) of the Act as he was obliged to do and gave such importance to the non-exclusive matters there enumerated as his Honour, in the exercise of his discretion, considered appropriate.
In light of at least some of the arguments advanced by the father and in view of his self-representation it is, I think, appropriate to quote what was said by the High Court in respect of s 117 of the Act as it then stood:[10]
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs. (at p315)
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". (at p315)
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 WN (NSW) 503, at p 505 ]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[10] Penfold v Penfold (1980) 144 CLR 311, 315 – 316, per Stephen, Mason, Aichen & Wilson JJ.
Factual Context for the Findings as to the Father’s Conduct
As has been seen, the father, as part of an application filed by him, sought to add two firms of solicitors and a barrister as parties to the action between him and his wife, so as to seek a costs order against each of them. Axiomatically, each of those proposed parties was a stranger to the matrimonial litigation. The father determined not to proceed with those applications. No Notice of Discontinuance was filed by him.
Instead, on the day before the hearing, an amended application was sent to those parties under cover of an email from the father which said “[p]lease find enclosed an amended application in a case in the above matter”. In the Amended Application in a Case there referred to the father had crossed out the three paragraphs by which orders were sought that each of the firms of solicitors and the barrister respectively be joined as a party so as to seek costs against them. On the same day, that is the day before the hearing, the instant respondent firm filed two affidavits dealing with the father’s application as originally filed.
Written and oral submissions made by the father are to the effect that the document sent by him the day prior to the hearing evidences “a mistake” by him. He says that, as a result, the solicitors’ conduct in seeking costs against him amounted to them taking unfair advantage of him (which he says is contrary to the relevant rules of conduct, both generally in relation to solicitors and specifically in relation to solicitors practicing within this jurisdiction).
Those submissions ignore, in my view, the apparent fact that while the amended application was filed and served in the manner just described and crossed out those parts of it relating to the relevant orders, the application continued to contain an assertion that it was “supported by an affidavit made by [the father] dated 16 June 2016 and filed 16 June 2016 in support of an application [in] a case to reopen proceedings … in order to adduce further evidence and add parties to the proceedings in respect of costs”.[11] The relevant legal practitioner parties remained named in the document. The Federal Circuit Court Rules 2001 (Cth) provide that a person may be included as a party to proceedings by being named in, relevantly, the application.[12] Also, the Amended Application in a Case continued to contain the following words underlined in red “AMENDED orders sought by the applicant father in BRC1010/2012 in respect of the application to reopen and add parties to the proceedings in respect of costs”.
[11] Amended Application in a Case filed by the Father on 30 June 2016.
[12] Rule 11.02, Federal Circuit Court Rules 2001 (Cth).
The respondent solicitors contend, and in the hearing before me the father did not dispute, that when in the precincts of the court on 1 July 2015, prior to the appearance before his Honour, the father handed to those solicitors and Mr BP a written outline of argument which continued to assert that they be added as parties and cost orders be made against them. They contend, and so much appears to be clear from the transcript, that it was only when the hearing was underway before his Honour on 1 July 2015 that the father made clear that he was no longer pursuing the application against the solicitors.
At the hearing before his Honour Counsel for the wife, Mr BP (who was one of the named prospective parties in the father’s application), told his Honour that the father did not tell him, or the instant respondent solicitors, at any time prior to the parties appearing before his Honour that he was not continuing with the applications. That statement was made to the court by counsel without demur from the husband. It was only after that discussion that his Honour sought to clarify with the father whether he intended to pursue those applications and the father indicated he did not.[13] That statement by Mr BP was in response to his Honour suggesting that the father’s application listing the legal practitioners as parties “must be an error”.[14]
[13] Transcript of proceedings, 1 July 2015, p 5.
[14] Ibid.
Procedural Unfairness?
A number of both the first and second sets of grounds of appeal can be seen to be instances of an assertion by the father that he was not accorded procedural fairness. Examples include the first grounds 1, 6, 10 and 11 and the second ground 2 (and possibly the second ground 3). In light of the father’s self-representation, and what I respectfully perceive from his grounds and arguments as misconceptions about that concept, I think it important to quote from authority.
In Allesch v Maunz[15] the High Court said:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
(Footnotes omitted)
[15] (2000) 203 CLR 172.
Later in Minister for Immigration and Citizenship v SZGUR,[16] French CJ and Kiefel J said:
9.…Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
[16] (2011) 241 CLR 594.
The New South Wales Court of Appeal has held:
Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that “Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the Act [under consideration in that case], in McKee at [8], Allsop P said that “procedural fairness would require any and all necessary steps to ensure a fair hearing”.[17]
[17]Frost v Kourouche (2014) 86 NSWLR 214, per Leeming JA; Beazley P and Basten JA agreeing (NSW Court of Appeal), at [41].
Reference should also be made to the decision of the High Court in Stead v State Government Insurance Commission:[18]
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board [1957] 2 QB 55 at p 67 in these terms:—
“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge.... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the [84420] requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact (Supreme Court Rules O.58 rr.6 and 14). However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
[18] (1986) 161 CLR 141, 145 – 146.
In my view, no procedural unfairness is established by the father.
Financial Circumstances
The father contends centrally that an order for costs should not have been made because he does not have the capacity to pay. That contention is expressed in a number of different ways. An example is the first ground 4. The premise for the challenge that his Honour did not “take into account” the father’s financial circumstances is not true. His Honour clearly did so. As the father conceded the true gravamen of the ground is that his Honour should have found that he could not afford to meet a costs order. In his oral argument the father made the same argument in asserting that an order should not be made that is “futile”. The first ground 5, as explained orally by the father, seeks to make a similar point as do the second grounds 9, 12, 13 and 14.
Submissions on behalf of the respondent solicitors suggest that the father was “engaged in property proceedings in the Family Court from which he expects to receive, on his case, property/funds”. It needs to be appreciated that the court file in respect of the issues in dispute between the husband and the wife, which currently apparently pertain to financial issues, extends over some eleven boxes of files and many hundreds of documents. As the father himself said before me, the litigation has been ongoing for about five years. Many issues in the financial proceedings apparently remain to be determined.
In the father’s written outline of argument among a plethora of allegations made against the respondent solicitors irrelevant to the instant issues, the father asserts in respect of financial circumstances that the protracted length of the proceedings, his lack of income, a grant of Legal Aid in respect of the Independent Children’s Lawyer, and his present application for Legal Aid on his own behalf, in addition to history of the matter, goes against the conduct of the solicitors in this application. Reference to the Independent Children’s Lawyer can be seen reflected in the first ground 5.
As explained by the father orally, the Independent Children’s Lawyer was appointed and during the course of that the Legal Aid office asked the father about his financial circumstances. It is not suggested by the father that he himself has been granted legal aid. In the 13 November reasons, his Honour records that the father told the court that he had applied for Legal Aid approximately 10 days prior to that hearing.[19] The timeframe given for payment of the costs order by his Honour (which, as has been seen, he envisages applying to both orders for costs) was seen by his Honour permitting the father to get “well past the property trial and it will do away with his concern that he will be met with a demand for payment during the course of the property trial”.[20]
[19] Reasons, 13 November 2015, at [5].
[20] Reasons, 13 November 2015, at [24].
Even if financial impecuniosity be assumed as the father asserts (noting that any such assertion is challenged strongly by the wife) it has been said by the Full Court on a number of occasions that financial impecuniosity is not determinative of an application for costs.[21]
[21] See Lenova & Lenova (Costs) [2011] FamCAFC 141.
It is plain that s 117(2A) does not prescribe that more than one factor must be present or that any one factor has any more or less weight than any other factor referred to within that section. The statutory factors are each and all matters which inform an overall discretion inherent within the section.[22]
[22]PBF as child representative for AF (Legal Aid Commission of Tasmania) & TRF and LKL (2005) 33 Fam LR 123.
Modest or even poor financial circumstances cannot be determinative in the exercise of the discretion in relation to costs. If it were otherwise the discretion inherent in the section would be curtailed and one of the enumerated factors would preclude appropriate consideration being given to all factors relevant to the discretion. Moreover, an impecunious litigant could litigate with impunity – and, indeed, immunity – irrespective of their conduct in the litigation or any other factor pertinent to the discretion in respect of costs. In the reasons for judgment on 13 November his Honour said at:
26. The Court does have before it an affidavit of Ms [Thurston], which has been filed in relation to this aspect of the matter, between Mr [Loomis] and [ML Lawyer], that sets out the various holdings by the father. That is, the fact that he is a director of a company called [L Ltd], which owns a commercial [sic] [the United Kingdom] and has rental income. The father is also a director of [C Pty Ltd]. The father has explained to the Court that there is negligible equity in the property owned by [L Ltd]; [C Pty Ltd] has not made a sale for quite some time.
27. The issues relating to his actual financial position are all matters that will have to be determined, it seems to me, at the – during the property proceedings. It is hard for the Court to determine whether the father does have an entitlement to any substantial assets. I guess what I can note is I think it is evenly balance. That is to say, on the one hand he is in receipt of Newstart, but I do not know exactly what Newstart have been told to secure that Centrelink payment. Are they, for instance, aware of the [L Ltd] holding and the [C Pty Ltd] holding?
Importantly, his Honour made the point that the father’s “actual financial position” will “have to be determined”. Doing the best that his Honour could on the evidence before him, in the context earlier described, his Honour was not persuaded that the financial circumstances of the father swayed the exercise of discretion against the awarding of costs in light of the conduct of the father and his lack of success: each of which were given predominant weight by his Honour.
I can see no error in the exercise of his Honour’s discretion.
Self-Represented Solicitors’ Claim for Costs
The right of a solicitor to recover costs when acting for themselves in litigation has been described by the High Court as a “limited and questionable exception” to the rule that a self-represented party is not entitled to costs. Yet, the High Court did not disturb the long-standing principle to that effect.[23]
[23] Cachia v Hanes (1994) 179 CLR 403, per Mason CJ, Brennan, Dean, Dawson and McHugh JJ.
The latter point is underscored in Atlas Corp Pty Ltd v Kalyk,[24] a decision referred to by the father. Contrary to that which appears to be asserted by the father, the weight of binding authority supports the right of a self-representing solicitor to claim costs in the instant circumstances. Again, contrary to the father’s contention, I am not persuaded that the decisions to which his Honour referred, which involve proceedings at a trial, materially affect the principle to be applied in respect of the applications before his Honour.
[24] [2001] NSWCA 10, in that respect declining to follow Dobree & Ors v Hoffman (1996) 18 WAR 36.
In Atlas, it was held: [25]
It is nevertheless clear that the majority [in Cachia v Hanes] did not overrule Guss v Veenhuizen [No 2] and their statements about the position in the case of solicitors acting for themselves in litigation were only dicta. It might be said, with respect, that although solicitors representing themselves in litigation have no need of any indemnity against professional costs paid or payable to another practitioner, there is still scope for the indemnity principle. Such solicitors will have spent time and trouble representing themselves and, to that extent, they will have lost the opportunity of using that time doing professional work for other clients and being remunerated accordingly. The indemnity in the case of solicitor litigants is, therefore, against the opportunity cost rather than the direct cost of their professional time spent on their own case.
[25] Ibid, at [9].
The father attaches significant importance to the reference in Atlas to be “loss of opportunity” and argues that in the absence of evidence from the respondent solicitors as to the cost of lost opportunity, no order for costs should have been made. In my view, that involves a misapplication of the relevant principles. It is not for the solicitors to prove any “loss of opportunity” costs. Rather, in my view, the authorities (notwithstanding the expressions of concern raised by the High Court in Cachia) are to the effect that whilst an award for costs is not indemnity against professional costs as it is for a lay person engaging a legal practitioner, nevertheless the indemnity (or more accurately, partial indemnity) provided by an award of party and party costs itself represents the loss of opportunity “of using that time doing professional work for other clients and being remunerated accordingly”.
In my view there is no merit to the contentions by the father based on his premise.
In my view there is no merit otherwise in the contentions made by the father that his Honour misapplied the legal principles.
For the sake of completeness I should record that the father abandons the second grounds 6 and 7.
I am also wholly unpersuaded by the father’s assertion that the trial judge erred in the application of Neil v Nott[26] in the manner asserted by the father.
[26] (1994) 121 ALR 148.
Dismissal of the Father’s Stay Application
The appeal against the order refusing a stay pending appeal is rendered otiose by the hearing of this appeal. In those circumstances leave to appeal, which in my view is required, should be refused and an order will be made accordingly.
In any event, with respect to matters said to support the appeal by the father that, with respect, his grounds do not articulate a clear basis upon which any error is asserted. Particularly in that respect I should mention that the father asserts that his Honour found that the father’s application “lacked bona fides”. That is plainly incorrect as a reading of his Honour’s reasons clearly illustrates – indeed his Honour found to the contrary of that which the father asserts.[27]
[27]Reasons of 13 November 2015, at [22] “The bona fides of the applicant for stay … I don’t question his bona fides in applying for the stay”.
The application for leave to appeal his Honour’s refusal of a stay should be refused.
For all those reasons I make the orders which I indicated at the outset of these reasons.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 17 August 2016.
Associate:
Date: 26 August 2016
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