Marvis & Marvis (No 2)
[2023] FedCFamC1A 48
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Marvis & Marvis (No 2) [2023] FedCFamC1A 48
Appeal from: Marvis & Marvis [2022] FedCFamC2F 1416 Appeal number: NAA 250 of 2022 File number: MLC 5187 of 2021 Judgment of: AUSTIN J Date of judgment: 21 April 2023 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appeal was allowed and the question of costs was reserved –
Where the appellant made offers of compromise to the respondent in advance of the appeal hearing – Where the respondent did not accept the offers – Where the respondent resists the costs application and submits that her former lawyers should bear liability for any costs order made in the appellant’s favour – Where the appellant sought the order against the respondent only – Ordered the respondent pay the appellant’s costs of and incidental to the appeal in a fixed sum.Legislation: Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29
Marvis & Marvis [2023] FedCFamC1A 34
Number of paragraphs: 20 Date of hearing: Heard by way of written submissions Place: In Chambers Counsel for the Appellant: Ms Tulloch Solicitor for the Appellant: Kennedy Guy The Respondent: Self-represented ORDERS
NAA 250 of 2022
MLC 5187 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MARVIS
Appellant
AND: MS MARVIS
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
21 April 2023
THE COURT ORDERS THAT:
1.The respondent shall pay the appellant’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 in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marvis & Marvis (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
On 21 March 2023, this appeal was allowed and orders were made to facilitate the adjudication of the appellant’s claim for costs of the appeal against the respondent.
The only reason the question of costs was not resolved at the hearing of the appeal and was instead reserved for determination on the papers in chambers was recorded in the reasons for judgment (Marvis & Marvis [2023] FedCFamC1A 34) as follows:
49.The appellant contended that offers of compromise exchanged between the parties in advance of the appeal hearing would bear upon the question of costs, so they agreed to file evidence and written submissions to enable the question to be determined on the papers in chambers. Procedural orders are made to that effect.
The appellant was obliged to file and serve any evidence and written submissions in support of his costs application by Friday, 31 March 2023, and did so. He relies upon the affidavit of his solicitor, Ms A, and written submissions filed on 31 March 2023.
The costs application was resisted by the respondent. She relied upon her affidavit and written submissions filed on 14 April 2023.
The principles which attend the application of s 117 of the Family Law Act 1975 (Cth) (“the Act”) are not in doubt. Costs in relation to proceedings under the Act are ordinarily borne by the parties (s 117(1)), but costs orders may be made if warranted (s 117(2)), which discretionary determination is governed by certain prescribed factors (s 117(2A)).
Only one discretionary factor is materially relevant here. The appellant made offers of compromise to the respondent in advance of the appeal hearing which, if accepted, would have left her in a better financial position and avoided the appellant having to incur the cost of being vindicated in the appeal (s 117(2A)(f)).
On 10 November 2022, the appellant offered to pay the respondent $14,281 within three months in satisfaction of the original costs order, from which he foreshadowed an appeal. The offer was not accepted.
On 30 January 2023, the appellant offered to pay the respondent $10,000 in satisfaction of the appealed costs order and to bear his own costs of the appeal. The offer was not accepted.
The appeal was allowed on 21 March 2023, and so the impeached costs orders made by the primary judge were set aside.
The respondent would have been substantially better off if she had accepted either of the appellant’s offers of settlement. The constructive refusal of the offers of compromise put the appellant to unnecessary cost in having to prosecute the appeal. The appellant submits that factor alone justifies a costs order in his favour in the appeal, which submission is accepted.
The respondent alleges the offers were not drawn to her attention by her former lawyers, either at all or in a timely way, moving her to terminate their retainer and report them to the Legal Services Commissioner. That may well be so, but communication problems between the respondent and her former lawyers do not deprive the appellant of proper grounds for the reimbursement of his costs.
The parties’ respective financial circumstances neither militate in favour of or against the costs order, for the reasons set out in the appeal judgment (at [37]).
The parties respectively made submissions criticising one another’s conduct of the appeal proceedings and, in particular, as it related to the manner in which the offers of settlement were exchanged and considered over the Christmas period. The submissions are not influential in the determination of entitlement to costs of the appeal, at least as a form of misconduct (s 117(2A)(c)). The making and non-acceptance of the offers only has relevance in the manner already explained (s 117(2A)(f)).
Having determined the appellant is entitled to costs, attention must turn to the quantum of such costs. At the appeal, the appellant claimed $18,857.20, but he now claims either $20,847.14 or $13,834.86, depending upon the manner in which the costs are assessed.
Pursuant to s 117(2) of the Act, the appellant should have his party/party scale costs of and incidental to the appeal. That is the ordinary basis upon which costs are awarded (r 12.17(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)) and the appellant did not submit why that principle ought not apply.
However, neither sum now alternately claimed by the appellant fits that description. The appellant submitted this:
7c.It is submitted that a calculation of the appellant’s costs on scale does not adequately compensate him for the actual costs of the appeal.
That may be so, but an award of costs is usually only a partial indemnity of the cost of litigation (Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at [22], [33] and [60]).
According to the evidence of the appellant’s lawyer, his scale solicitor/client costs of the appeal were $4,607.20 (for solicitor) and $7,560.19 (for counsel), totalling $12,167.39. However, his scale party/party costs must have been somewhat less. Pursuant to the power invested by r 12.17(1)(a) of the Rules, the appellant’s party/party costs are fixed at $10,000.
The costs application is made by the appellant against the respondent and she should bear liability. The respondent submitted that her former lawyers should bear liability for any costs order made in the appellant’s favour, but the proposition is rejected. It would be procedurally unfair to fix her former solicitors with liability without them having been heard. It is a matter for the respondent as to whether she seeks indemnity against the costs from her former lawyers, the prospect of which may hinge on the success of her complaint or any subsequent tortious suit brought by her against them.
Since there is an order for costs, no question of an alternate grant of costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) arises.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 21 April 2023
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