Marcin and Marcin (No. 2)

[2020] FamCAFC 142

FAMILY COURT OF AUSTRALIA

MARCIN & MARCIN (NO. 2) [2020] FamCAFC 142

FAMILY LAW – APPEAL – PROPERTY – REMITTER OR RE-EXERCISE OF DISCRETION – Appeal allowed on a narrow and discrete point – Where the parties’ oral submissions are heard as to whether the appeal should be finalised by remitter of proceedings for re-hearing or the re-exercise of discretion – Where the appellant seeks remitter to adduce evidence as to his current circumstances – Where the respondent conceded, in those circumstances, there was no alternative but to remit – Where the primary judge is not disqualified from re-hearing the proceedings because the single appealable error was entirely factual, only proven by further evidence adduced in the appeal – Where the proceedings between the parties under Part VIII of the Family Law Act 1975 (Cth) are remitted to the Family Court of Western Australia.

FAMILY LAW – APPEAL – COSTS – Appeal successful – Where both parties sought costs – Where the appellant’s application for costs was made in breach of an earlier procedural order and abandoned – Where the relevant factors considered under s 117(2A) of the Family Law Act 1975 (Cth) warrant a costs order in the respondent’s favour – Costs ordered in favour of the respondent in a fixed sum.

Family Law Act 1975 (Cth) Pt VIII, ss 117(2A)

Family Law Rules 2004 (Cth) r 19.18(1)

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85

APPELLANT: Mr Marcin

RESPONDENT: Ms Marcin

FILE NUMBER: PTW 4365 of 2013

APPEAL NUMBER: WEA 32 of 2019

DATE DELIVERED: 10 June 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Perth (via telephone link)

JUDGMENT OF: Strickland, Kent & Austin JJ

HEARING DATE: 29 May 2020

LOWER COURT JURISDICTION: Family Court of Western Australia

LOWER COURT JUDGMENT DATE: 2 August 2019

LOWER COURT MNC: [2019] FCWA 171

REPRESENTATION

THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Rynne (direct brief)

Orders

1. The orders made by the primary judge on 2 August 2019 are set aside.

2. The proceedings between the parties under Part VIII of the Family Law Act 1975 (Cth) are remitted to any judge of the Family Court of Western Australia for re-hearing.

3. The appellant pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $10,000.

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 Marcin & Marcin (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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WEA 32 of 2019
File Number: PTW 4365 of 2013

Mr Marcin

Appellant

And

Ms Marcin

Respondent

REASONS FOR JUDGMENT

1. On 21 April 2020, having allowed the appeal on a narrow and discrete point, we made orders in the following terms:

   …

   (4)The appeal will be re-listed on a date to be fixed to receive the parties’ oral submissions about whether the appeal is to be finalised by the re-exercise of discretion or the remitter of the proceedings for re-hearing.

   (5)      Costs are reserved.

2. The appeal proceedings were re-listed on Friday 29 May 2020 to hear the parties’ submissions about both the manner in which the appeal should be finalised and their costs.

Remitter

1. We recorded in our reasons for judgment published on 21 April 2020 that, in the event of either party desiring to adduce contested evidence about current circumstances or material changes since the appealed orders were made, it would be necessary to remit the proceedings for re-hearing before a judge of the Family Court of Western Australia (Marcin & Marcin (2020) FLC 93-956 at [161], [163], [170]).

2. The appellant announced he does want to adduce such evidence and sought remitter of the proceedings for re-hearing. The respondent had entertained hope that the appeal could be finalised in the way we foreshadowed as a possibility in our first reasons for judgment (at [165]–[169]) but, having heard the appellant’s position, the respondent’s counsel conceded there was no alternative but to remit. Despite references to decisions of intermediate courts of appeal in a variety of jurisdictions in some short written submissions, the respondent’s counsel conceded he could not and did not cavil with the binding authority of the High Court of Australia in Allesch v Maunz (2000) 203 CLR 172 concerning the manner of disposition of appeals from orders made in the exercise of statutory discretion, as the appealed orders were.

3. The proceedings between the parties under Part VIII of the Family Law Act 1975 (Cth) are therefore remitted to the Family Court of Western Australia for re-hearing.

4. The primary judge is not disqualified from re-hearing the proceedings because the single appealable error was entirely factual, only proven by further evidence adduced in the appeal. In our view, given the long history of this litigation, we would encourage that the proceedings be re-heard by the judge first able to entertain them.

Costs

1. The appellant initially sought an order for the respondent to pay his costs, given that the appeal succeeded, but the application was eventually not pursued. The appellant was without legal representation in the appeal, but he asserted having incurred legal costs soliciting advice to assist him prepare and prosecute the appeal. He could not articulate any clear figure quantifying his costs which related exclusively to the appeal and, although asserting his receipt of numerous tax invoices, had not served any upon the respondent for her consideration.

2. The appellant’s application for costs was made in breach of an earlier procedural order requiring him to file and serve a schedule of his costs and, when alerted to that breach and the need for him to now seek leave to even press his costs application, he understandably abandoned it.

3. Notwithstanding the ultimate success of the appeal, the respondent sought an order that the appellant pay a proportion of her costs. Counting the many sub-grounds to the appellant’s appeal, he contended the appealed orders were infected by some 50 errors. All but one sub-ground of appeal failed. As can be seen, the respondent was impelled to meet a vast and intricate case, the overwhelming majority of which was unmeritorious. While the appeal was not wholly unsuccessful (s 117(2A)(e)), the appellant’s conduct of the entire appeal was both obdurate and devoid of insight (s 117(2A)(c)), and for that reason the respondent sought reimbursement of some of her costs. The appellant did not contend that his financial circumstances precluded such an order being made against him (s 117(2A)(a)), which is understandable given he alleged spending over $30,000 in the appeal on only advice, let alone representation. We are satisfied those circumstances warrant a costs order in the respondent’s favour.

4. The respondent sought costs in the fixed sum of $10,000 referable only to the fees charged by her counsel and in a discounted amount, less than that actually charged to her. The appellant did not expressly concede an award of costs in that sum was appropriate, but he did concede the respondent’s entitlement to 75 per cent of her costs in the appeal.

5. We are satisfied that the sum of $10,000 represents a very modest claim for costs in the appeal, particularly when compared to the appellant’s outlay for merely advice, and will make an order accordingly. Rule 19.18(1)(a) of the Family Law Rules 2004 (Cth) enables us to fix costs to avoid the further delay, expense and inconvenience which would inevitably attend a contested costs assessment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Austin JJ) delivered on 10 June 2020.

Associate:

Date: 10 June 2020