MEDLON & MEDLON - [2014] FamCAFC 163

FAMILY COURT OF AUSTRALIA

MEDLON & MEDLON

[2014] FamCAFC 163

FAMILY LAW – APPEALS – Costs – Circumstances justifying an order – Appeal against a Costs Order – Where an application in an appeal was before a judge but it could not proceed because of an allegation of conflict of interest – Where the party was self-represented but was a practising solicitor – Where the application was withdrawn and then reinstated – Where the appellant sought to issue subpoenas – Where a costs order was awarded against the party who raised the conflict of interest – Appeal dismissed.

FAMILY LAW – APPEALS – Apprehended bias – Whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide – Identification of the matters said to give rise to the apprehended bias – Consideration of a logical connection between the matters identified and the possibility of a deviation from the course of deciding the case on its merits – Where the test is objective – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent made application for costs, including the cost of preparing appeal books – Where the appellant was wholly unsuccessful – Where the conduct of the appellant is a relevant factor – Where the appeal was doomed to fail – Where the grounds of appeal raised irrelevant issues – Where the summary of argument did not address the grounds of appeal in the costs appeal – Where the summary of argument included irrelevant, insulting and scandalous comments – Application allowed – The appellant to pay the costs of the respondent in a sum fixed by the court.

Family Law Act 1975 (Cth)
Family Law Rules 2004

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041
Re JRL; Ex parte CJL (1986) 161 CLR 342

APPELLANT:

Ms Medlon

RESPONDENT:

Mr Medlon

FILE NUMBER:

ADC

491

2010

FIRST APPEAL NUMBER:	SOA	50	of	2013
SECOND APPEAL NUMBER:	SOA	60	of	2013

DATE DELIVERED:

1 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

May, Ainslie-Wallace & Aldridge JJ

HEARING DATE:

1 July 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 July 2013 & 9 September 2013

LOWER COURT MNC:

[2013] FamCAFC 115 & [2013] FamCAFC 137

REPRESENTATION:

THE APPELLANT:

Ms Medlon (in person by video link)

COUNSEL FOR THE RESPONDENT:

Mr Grant

SOLICITOR FOR THE RESPONDENT:

Boylan Lawyers

Orders

Appeal SOA 50 of 2013 being the appeal against the order of Strickland J of

31 July 2013 be dismissed.
Appeal SOA 60 of 2013 being the appeal against the order of Strickland J of

9 September 2013 be dismissed.
The wife pay within 28 days the husband’s costs of and incidental to preparing the appeal books, to be fixed in the sum of $1,247.
The wife pay the husband’s costs of and incidental to the appeals, fixed in the sum of $5,000.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Medlon & Medlon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Numbers: SOA 50 of 2013

SOA 60 of 2013

File Number: ADC 491 of 2010

Ms Medlon

Appellant

and

Mr Medlon

Respondent

REASONS FOR JUDGMENT

The wife brings two appeals against decisions of Strickland J. The first, Appeal SOA 50 of 2013, relates to his Honour’s refusal to disqualify himself from further hearing the matter. The second, SOA 60 of 2013, relates to a costs order made against the wife. The husband resists the appeal and seeks to maintain his Honour’s orders. The wife lives outside of Perth. The husband lives in Adelaide.
The wife is a solicitor and appeared for herself before his Honour and on the appeal. She appeared before the judge both by telephone and video link. She participated in the appeal by video link.
The history of this matter is a little complex and it is necessary to set out some of it to give context and understanding to the issues agitated on appeal.

Background

In November 2011 the wife and husband entered into consent property settlement orders. In June 2012 the wife brought an interim application in the Federal Circuit Court pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) seeking to set aside the consent orders. Pursuant to orders made on

11 July 2012 she filed an Initiating Application seeking that relief. That application was dismissed on 30 October 2012.
The wife appealed from the decision by notice of appeal filed on 27 November 2012 (EA 88 of 2012). The usual procedural orders were made for the preparation of the appeal including an order that the wife file a draft index for the appeal books by 28 February 2013. The wife prepared a draft index and sent it to the Melbourne Registry of the court. However, the document was not received in the registry until 8.43 pm EDT, it having been sent from Western Australia at 5.40 pm. That being the case, by reason of the rules the document was regarded as having been filed on 1 March and out of time. The appeal was taken to have been abandoned. The wife was thus obliged to file an application for an order that the appeal be reinstated.
On 25 March 2013 the wife filed an application for reinstatement of the appeal and it was set down for hearing on 8 May 2013 before Strickland J. This relatively simple matter is yet to be heard by reason of the course taken by the wife which we will discuss as relevant to the appeals heard before us.

Hearing of 8 May 2013

The conflict of interest issue

In the proceedings before Strickland J seeking reinstatement of appeal EA 88 of 2012, the wife appeared by telephone from Western Australia, the husband and his counsel appeared in person in Adelaide. At the commencement of the hearing, Ms Nelson, senior counsel for the husband raised a preliminary issue with his Honour. She said that her instructing solicitor had received two emails from the wife; the first on 19 April and the second on 24 April 2013 in which the wife contended that counsel briefed for the husband had a conflict of interest and should withdraw from representing him. The basis of the conflict was the wife’s assertion that she had spoken to counsel in early 2011 enquiring whether counsel would take a brief to appear for her in the matter and, in the course of that conversation, the wife said that she conveyed to counsel confidential matters about the property dispute with the husband.
It seems that the wife’s claim was prompted by a file note which she had recently found on her own matrimonial files and which, she said, reminded her that she had had a discussion with counsel about the case.
Counsel said to the judge that she was anxious to ventilate the issue at the outset lest she had a conflict. She said that she had appeared for the husband on several previous occasions in the proceedings with the wife, including in the s 79A application and observed that this issue had not been raised before. Counsel said that although, on receiving the wife’s emails, her instructing solicitor sought a copy of the file note, it had not been produced by the wife.
Ms Nelson explained that she was trying to establish the date of the telephone conversation and made submissions to the judge about the approximate time in which such a conversation could have taken place. She submitted that, in order to clarify the issue, the wife needed to specify the date of the asserted conversation.
His Honour observed that an amended application that the wife had attempted to file had been brought to his attention because of usual registry practice and he had seen that one order sought by the wife was that counsel and her instructing solicitor be restrained from further appearance in the matter. He indicated that he did not permit the application to be filed and thus it was not formally before him on that day.
After enquiring of the wife whether she was pursuing her contention that counsel had a conflict of interest his Honour said:
HIS HONOUR: … Now, Miss Nelson has, as you’ve heard, quite properly raised this issue herself, indeed before I raised it, and it’s a matter that has to be determined before your application can proceed because Miss Nelson is here today, of course, and is briefed to appear for the other party. So Miss Nelson has raised, as you will recall, some correspondence has been passing between you and her instructing solicitors to try and identify the detail or the basis of this application and it’s suggested that you have some document or file note, described as a file note, which might bring some clarity to this issue.
Although the wife did not have the file note with her, in answer to his Honour’s question about what was in it, she said:
[THE WIFE]: It says that I have contacted Miss Nelson’s chambers to have Miss Nelson represent me [as] my barrister and, as I – and it’s from the note there was a – there was a discussion on what was happening at the time, repeating my financial circumstances, meaning that the arrangement was to be paid at settlement and not upfront or on a monthly basis, and that there was a conflict with the date, with the court date. She had another argument on some other date and I…
The wife then clarified that she could not in fact recall whether she spoke directly to counsel or to her personal assistant. She further said that her recollection was that she said to counsel (or her personal assistant) that it was a “very nasty property settlement” which was “highly contentious”. She said she later received a telephone call or perhaps an email in which it was said that counsel was unavailable to accept a brief.
His Honour observed that, based on what the wife indicated, nothing said to counsel by the wife could be described as “confidential information”.
Counsel argued that as she understood the time frame indicated by the wife, on or around the dates on which this contact was said to have occurred, she was not in chambers but was overseas. His Honour informed the wife that she needed to be more specific not only about what was said in the conversation but the date on which the asserted conversation took place. He said that if she wished to pursue the issue it would require a formal application. The wife said that she would need to contact her former employers to seek phone records in order to prove the date. His Honour informed the wife that if the application was to be pressed and the wife wished to put further evidence before the court, she would need to do it formally and that may require an adjournment of that day’s application which may lead to an application for costs.
The wife said:
[THE WIFE]: My position, your Honour, is that based on the information that I have that there was – and also that I did not exchange any documents per se with Miss Nelson’s chambers, I will not proceed with the conflict of interest order that I am seeking.
Counsel for the husband then sought an order for costs for the time spent preparing to argue the conflict of interest assertion and for time thrown away on that day in considering an application which had been withdrawn. Counsel estimated the costs thrown away to be $9,000.
The wife then withdrew her concession and indicated that she would press the application. She said:
[THE WIFE]: … I will proceed with the conflict of interest and I will seek the file note to be produced to this court and I will also seek the phone records from [the former employers]. That is outrageous. It’s an outrageous cost for a conflict of interest which I'm entitled to raise and I am highly prejudiced already by the conduct of this matter with the consent orders that I still am remaining not having received any property or very little property.
His Honour said:
HIS HONOUR: … All right. Now, so you wish to proceed with what I’ve been referring to as your oral application to restrain Miss Nelson. As I indicated to you, if you wish to pursue it, you will need to file further documentation.
[THE WIFE]: Yes
HIS HONOUR: So you seek an adjournment, do you, of this hearing to enable you to pursue this oral application?
The wife said she needed time in which to obtain the evidence necessary for the application. His Honour took submissions on the question of the costs thrown away by the raising of the issue. The wife sought that any costs ordered be reserved.
His Honour said [to the wife]:
HIS HONOUR: … just to recap, then, I consider your request, call it that, to reserve the question of costs a reasonable one, but only in relation to the issue of conflict of interest. Miss Nelson has rightly raised with me that this has all been done at the very last minute and I made the comment earlier that in my view it could have been done well before now. As a result of the lateness of your application, the application which was listed today, which is your application, needs to be adjourned and, indeed, that’s your request.
His Honour ordered that the wife’s application for reinstatement of the appeal be adjourned to 31 July 2013. He further ordered that in relation to the application for injunction restraining the husband’s counsel and solicitor, the wife file an application supported by an affidavit by 5 July 2013. His Honour reserved the question of the husband’s costs on the application for the injunction but ordered the wife to pay the husband’s costs thrown away by reason of the adjournment in the sum of $3,700. The costs were ordered to be paid by 30 July 2013.
After his Honour had made the costs order he asked the wife whether she wished to make any submission on the time in which she was to pay the costs and the wife said:
[THE WIFE]: No. The other thing that I wanted to say, your Honour, is that this application to restrain Miss Nelson was apparently not supposed to be heard today in any event.
HIS HONOUR: No. It doesn’t matter. You’ve sought to bring it before the court and ---
[THE WIFE]: And the court did not---
HIS HONOUR: Just let me respond. You sought to bring this before the court by way of an amended application. That wasn’t received, but you were told quite clearly, as you have in the past, that you are perfectly at liberty to raise the issue and the application at the hearing. In any event, it is such a significant and important matter in the overall running of this case that nothing else can occur until and unless this issue is resolved and Miss Nelson, as I have said, quite properly raised this issue herself before I had the chance to raise it as I was intending to. …
His Honour delivered ex tempore reasons. As to the issue of the costs he said:
15. Here, the relevant factors that arise under s 117(2A) are the financial circumstances of each of the parties, and the conduct of the parties in relation to the proceedings, and whether the latter is captured under paragraphs (c) or (g) does not matter. None of the other factors set out in s 117(2A) would seem to have any relevance to the issue at hand, and they were not referred to or relied upon by Ms Nelson QC or the wife.
Turning to the issue of conduct of the proceedings, his Honour noted that counsel had appeared for the husband since September 2012 and her retainer had not before been challenged by the wife. He also observed that it was only of recent date that the issue had been raised and was considered by the court that morning.
He continued:
18. For the wife to raise this matter at the last minute, and her failure to provide any detailed evidence in support of what is now an oral application, and in particular complete details of the conversation that occurred and also the timing of the conversation, has clearly necessitated the adjournment of these proceedings. In my view, and I expressed this during the hearing, the wife had ample time to raise this issue well before now, and if it had been raised it could also have been dealt with well before now, and not impacted upon the application in an appeal which is listed before me today, and which is the wife’s own application.
His Honour found that the wife’s conduct justified an order for costs thrown away by reason of the adjournment of that day’s proceedings.
Turning then to whether such an order ought be made, his Honour noted that he had no financial evidence before him but had received submissions from each party on his and her respective financial circumstances. His Honour then set out the bases on which the wife argued her financial circumstances were such that a costs order should not be made, including her contention that she had not received all of the property to which she was entitled under the earlier property orders at [21] and [22]. He concluded that nothing put to him altered his view that the circumstances justified a costs order.
He then turned to a consideration of the wife’s argument that she had no capacity to pay any costs order but, adverting to well accepted authority that impecuniosity is not a bar to an order for costs, said:
24. … In this instance, to repeat, the circumstances of this costs order are as a result of a last minute application which is hotly contested, these proceedings have had to be adjourned. It is entirely unfair and prejudicial to the husband that he should have to bear the costs of his solicitor and senior counsel of that adjournment. The adjournment has been caused solely by the conduct of the wife and she has to wear the responsibility for it. She has chosen to pursue the application in the way that she has, she is self represented, but she being a solicitor would well understand the effect of bringing that application, and the effect that the adjournment has wrought on the husband namely, a significant impost in legal fees thrown away as a result of the conduct of the wife in pursuing at the last minute, without proper and complete evidence, an application that
Ms Nelson QC be restrained.

Hearing of 28 June 2013

The issue of subpoenas

On 24 June 2013 the wife, by an application in an appeal, sought an order for the issue of various subpoenas to support her application for an injunction against both the counsel and solicitor for the husband. There were some complications to this issue because it seems that at least in the first instance the husband’s solicitor had no objection to that order being made. However, the position changed and the consent was withdrawn. The application to issue subpoenas was listed for hearing on 28 June 2013.
On 28 June 2013 counsel for the husband appeared. The wife appeared by telephone. Counsel opposed the wife’s application and argued that the wife was not entitled to issue subpoenas because there was no present application before the court, the wife having not then filed the application for injunction as directed by his Honour. Further, counsel argued that the subpoenas were too wide and were thus oppressive.
His Honour explained to the wife the basis of counsel’s objections to the application to issue subpoenas and said [to the wife]:
HIS HONOUR: … it is perfectly open to you to file an affidavit of your own where you set out the facts as you know them and annexe this diary note, if you have it. Once you’ve done that, there is then the application before the court, because you had filed that with it, and your affidavit. Then you would be in a position to issue subpoenas, if you are not able to obtain the evidence which you say you need to establish your case.
After some further conversation, the wife said:
[THE WIFE]: …your Honour, you’re telling me that there’s no application before the court because the court didn’t file or didn’t lodge the application that I sent to the court---
HIS HONOUR: It wasn’t prepared to receive it in the manner that you presented it. We explored that on the last occasion, I’m not going to revisit that. So unless there’s anything more you want to say, and I still haven’t heard any submission from you as to a basis for need to give you leave to issue subpoenas prior to you filing the application to which they would relate.
…
[THE WIFE]: Well, your Honour, as I’ve said you and to Ms Nelson, it was my understanding that the application went into the court initially; that we then had a hearing; that the matter that was raised with the conflict of interest; that you then said to me – my understanding was, is that you file an affidavit with supporting evidence and do those – that application for the orders. Now, I cannot get the evidence without the subpoenas. It is – these are subpoenas on third parties…

His Honour said:
HIS HONOUR: … you’re not being prevented from issuing subpoenas – the issue – prior to 31 July – you are being required to file the application to which those subpoenas can relate. That’s all. That’s all – that’s what this – that’s what this submission is---
[THE WIFE]: So why are we having – so your Honour, why did we have this listing urgently today then, if that’s the case? Why did the registry list this today?
HIS HONOUR: Because you filed an application---
[THE WIFE]: that’s right, I filed an application---
HIS HONOUR: ---seeking- look.
[THE WIFE]: ---in an appeal.
HIS HONOUR: Look, Ms [Medlon], I know it’s difficult when we’re all on the telephone to know that you’re about to speak or I’m about to speak or Ms Nelson is about to speak and I might be guilty of interrupting you unnecessarily as well, but can – perhaps we can please let us each other finish before each of jump in. So to answer your question – and I’m happy to – you filed an application. That application had to be listed. It was listed. You sought it to be listed urgently, the other side agreed to it being listed urgently. That’s the---
Further discussion ensued in which the wife contended that the reach of the subpoenas she wished to issue was not impermissibly wide.
At this point in the discussion it seems that the wife severed the telephone connection and attempts to reconnect were unsuccessful. In the result, his Honour said he would not proceed to make orders in relation to the wife’s application but would have further attempts made to see whether she continued to press her application for the issue of subpoenas.
His Honour stood over the wife’s application of 24 June 2013, seeking the issue of subpoenas, to 31 July 2013 and gave the wife liberty to relist that application at an earlier date. Costs were reserved.
On 5 July 2013 the wife filed an application seeking the injunctions against the husband’s counsel and instructing solicitor. She further sought an order that his Honour “be disqualified from the hearing of this family law matter due to an appearance of bias”.
So much of the application as related to his Honour’s recusal was listed for hearing on 31 July 2013.

The hearing of 31 July 2013

The application for disqualification

At his Honour’s invitation, the wife confirmed that she relied on paragraphs

2 and 3 and 22 of her affidavit filed 10 July 2013. Paragraph 22 of the affidavit related to the costs ordered to be paid by her in relation to the hearing of 8 May 2013.
The wife challenged his Honour’s power to embark on hearing the application. She said:
[THE WIFE]: …There’s also the issue that the appeal has not yet been reinstated, and is taken to be abandoned.
HIS HONOUR: Yes, I know. That’s your application, which I’m trying to get to, but because you’ve made these applications, we can’t yet.
[THE WIFE]: Well, your Honour, it’s my position that until the appeal is reinstated, which should be the first issue, and should have actually been, perhaps, addressed on 8 May---
HIS HONOUR: That’s what I did.
[THE WIFE]: ---that we can hardly deal with any applications.
His Honour noted that the application for reinstatement of the appeal was listed for hearing on 8 May 2013 but could not proceed because the wife had raised the conflict of interest point. The wife contended that it was not she who had raised that issue but senior counsel.
The wife persisted in maintaining that his Honour had no power to entertain the application that she, herself had brought, namely that he disqualify himself, and his Honour said:
HIS HONOUR: … So to enable me to decide whether I can hear your application in an appeal seeking reinstatement, I have to decide whether I disqualify myself from hearing that application. So hopefully that puts it better in context and you can appreciate why we’re proceeding with the disqualification application today.
After hearing submissions from the wife and from counsel for the husband, his Honour refused the application that he disqualify himself and delivered his reasons.
It is from this decision that the wife’s first appeal, SOA 50 of 2013 arises.
The husband sought an order that the wife pay his costs of that application. That issue was adjourned to enable the wife to file financial information. His Honour also adjourned the remainder of the wife’s application of 5 July 2013, being the matters relating to subpoena and the alleged conflict of interest, which had not been determined. Both issues were set down for hearing on 12 August 2013.

Hearing of 12 August 2013

The consideration of the husband’s application for costs of 28 June and 31 July 2013 and the issue of subpoenas.

At the commencement of this hearing, his Honour identified the outstanding issues to be the husband’s costs applications in respect of the hearings of

28 June 2013 and 31 July 2013 and the wife’s application to issue subpoenas in pursuit of the conflict of interest injunction.
The husband’s application for costs of the hearing of 28 June and 31 July 2013 was heard but not concluded because the wife sought yet further time to file another affidavit as to her financial position. That time was granted and the wife given 14 days in which to file and serve any further affidavit. The matter was fixed for further hearing on 3 October 2013.
The wife did not file her affidavit in the time ordered. At his Honour’s request, the Appeals Registrar contacted the wife on 27 August 2013 bringing to her attention that his Honour’s order required the affidavit to be filed. The wife responded to the Registrar’s email and said that the affidavit was not yet completed and gave various reasons for that delay. However the wife gave no indication of when it might be ready. The registrar contacted the wife again on 27 August asking that the wife notify the registry when the affidavit would be filed and bringing to her attention the operation of rules 11.02 and 11.03 of the Family Law Rules which provide that where an order is made specifying a time limit for the filing of the document, if the document is filed outside that time limit, any subsequent filing is of no effect. The registrar also observed in her email that the wife had not sought any extension of time in which to file the affidavit.
In those circumstances, the costs application was listed at his Honour’s request for determination on 30 August 2013. The wife was notified of the listing date by the Registrar on 28 August 2013.

Hearing of 30 August 2013

The wife did not appear at this hearing. Counsel appeared for the husband.
His Honour observed that in an email to the Appeals Registrar dated 30 August 2013, the wife said that it was not convenient for her to attend court and further she asserted that the listing date was “an attempt to bring forward the listing of 3 October” a course which she strenuously opposed. His Honour noted that the Registrar’s letter to the wife made it entirely clear that the purpose of the listing was the wife’s failure to file the affidavit in the time ordered and that the hearing date of 3 October 2013 would remain.
His Honour said that he was anxious to conclude the costs issue before embarking on the next phase of the proceedings, namely consideration of the wife’s application to issue subpoenas and the application to restrain counsel and the solicitor from acting for the husband, which were listed for hearing on 3 October 2013.
The judge however indicated that he would not deliver his reasons or make orders until the transcript of that day’s proceeding had been taken out and sent to the wife.
On 9 September 2013, his Honour ordered, inter alia:
1. The application for costs made by the husband on 28 June 2013 be dismissed.
2. The wife pay the husband’s costs of and incidental to paragraph 1 of the application in an appeal filed by the wife on 5 July 2013 and the hearing on 31 July 2013, such costs to be as agreed, but in default of agreement as taxed on an indemnity basis.
His Honour granted leave to the wife to issue certain of the subpoenas she requested and dismissed her application to issue subpoenas to the chambers of senior counsel and the offices of the husband’s solicitor.
It is in respect of the costs order that the wife brings appeal SOA 60 of 2013.

Appeal SOA 50 of 2013

The application for disqualification

As we have indicated, by an application filed on 5 July 2013 the wife sought an order that the judge disqualify himself from further hearing the matter. The application was supported by an affidavit sworn by the wife. The asserted basis for the application was, according to the wife, his Honour’s conduct in the hearing of 8 May 2013 and on 28 June 2013.
The affidavit filed on 5 July 2013 in support of the application asserted that his Honour was biased. In particular the wife asserted:
1. I am the Appellant and applicant in these proceedings in this Honourable Court.
2.I say on the issue of bias by the presiding judicial officer that Strickland J has to date (including but not limited to) regularly interrupted my verbal responses over the telephone, has expressed disdain and sarcasm to my responses, was flippant as to my weekly income (“is a little over $1,000 per week $10,000? and on the husband’s assets received “Oh what would you know”) and ignored my lack of capacity for payment of any costs, did not peruse any financial statement by me and nor requested one be provided by the husband, has ignored the obvious disparity between alleged income of the husband being $57,000 gross per annum or around $31,000 net per annum whilst appearing to afford nevertheless to pay $250,000 or more in legal costs to his lawyers, has ignored the negative health impact on myself from past trauma due to family violence, and has effectively sought to give support to a party who intentionally did not disclose all assets [as is clear from many subpoenaed documents now inspected including by the husband’s own lawyers], has ignored their interference in the administration of justice and fairness in a property settlement, and has ignored the misrepresented facts in these family law proceedings all of which the applicant is the innocent party yet still being undermined and still without the intended share of 53% of the assets in my name. I had previously offered in 2011 to settle on 51% but the husband rejected this, so theoretically I would have been entitled to costs on later obtaining 53%.
3. I further say that the presiding judicial officer must disqualify and remove himself from the hearing of any further proceedings in this matter as a result of this appearance of bias and continued ignoring of any fairness or justice or assistance to achieving same being accorded to me, a self represented party, throughout these entire proceedings.
…
22.I say on the issue of Costs that the sum of $3,700 to be paid to the husband as ordered by this Court is not available by me to pay and this was stated by me but ignored on that particular date. I have lodged past financial statements for reference to determine any capacity to pay, however, the husband has not lodged one financial statement to date and I query why this is overlooked. It is highly irregular in financial proceedings and particularly where the proceedings were commenced via an initiating application. I have no capacity to pay that sum and especially given the debts including tax debts the husband is attempting to lump me with which clearly are his debts to incur under the Orders of November 2011, as well as disputing his accountants fees, his SA Water bills, and a home still in joint names.
It is of assistance first to set out the principles applicable to these applications.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held at

344-349:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7.The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
The principle to be applied
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22. The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24.In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.
(footnotes omitted)
In the earlier decision of Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492-493:
10.The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.
11.… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(footnotes omitted) (emphasis added)

As can be seen, in Johnson the plurality considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” The plurality in Ebner articulated a two-step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
In applying this two-step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342. Given the importance of the proposition, we propose to set out what Mason J said at 352:
It seems that the acceptance by this court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established” (Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson Re Lusink; Ex parte Shaw Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
(Citations omitted)
We feel the need to set out these principles at some length because it seemed to us that the wife, both before his Honour and on the appeal, misapprehended the test to be applied. In her oral submissions on the appeal the wife said that she found his Honour’s interruptions of her and his tone of voice “surprising” and “very upsetting” and said that a fair minded observer would have felt the same. The wife attempted to rely on an affidavit sworn by her friend who acted as a support person during one of the hearings and who purported to give her impression of the conduct of the proceedings by his Honour. As we explained to the wife, even if she was permitted to rely on the affidavit, it would be of no assistance in determining the issue. It is implicit in the authorities to which we have adverted that it is for the court, standing in the shoes of this hypothetical lay observer, to consider the impugned conduct.
The test is objective. Although the wife said that she was attempting to address the objective test, her submissions make it clear that she had not. A reading of his Honour’s reasons and the transcript of the wife’s submissions of the 31 July 2013 demonstrate that although his Honour tried to draw her attention to the objective nature of the test, she was unable to make submissions on it.
The appeal does not challenge his Honour’s articulation of the law nor does it assert that his Honour made errors of fact, rather, the appeal asserts that the judge erred in the exercise of his discretion in not disqualifying himself. Thus it is unnecessary to traverse his Honour’s findings at any length. It is however relevant to extract some parts of his reasons:
5. There have been many submissions made by the wife today. I do not propose to address all of them because I do not consider many of them to be relevant to the application that is before me, but at this stage I need to address certainly one submission in respect of which I made a ruling earlier today. The wife has submitted that there is no power in this court to hear this application, and indeed ever since March 2013, it has not been open to this court to hear and determine any applications that have been filed in these proceedings. It seems her reason for putting that submission is that she says that until and unless her appeal is reinstated, there is no power in this court to hear any application in these proceedings. As I indicated to the wife quite early in her submissions, and I repeat now, that is simply misconceived.
…
7.As is obvious, and as even the wife agreed at a previous hearing, it is absolutely necessary to determine those applications before the application in an appeal seeking reinstatement can be heard, because I am the judge who is to hear that application for reinstatement and Ms Nelson is the senior counsel briefed to appear for the husband on that application. If I am disqualified, then that application for reinstatement will need to be referred to another judge of the Appeal Division. However, until and unless I am disqualified, I am seized of that application, it is a current application, and it is misconceived to suggest as the wife does, that because that application has not been determined there is no power to hear, for example, the application before me today.
8. I observe that the wife failed to accept that ruling and over my objections continued to make the same submission throughout the hearing.
…
10. The wife today has adopted the approach of taking the court to the transcripts of the hearings on 8 May 2013 and 28 June 2013. She has spent a significant amount of time in reading out various parts, indeed the majority of those transcripts, and at various points making comments in relation to what appears in the transcript. As the transcript of the hearing today will record, at various stages, I interrupted the wife in an attempt to ascertain the point of referring to all the transcript in the way that she was, given that the hearing was about an application for disqualification. The wife assured me that the necessity for that would become apparent as the hearing progressed. I indicated to her at the various points that I raised that issue, that up to then there had been nothing demonstrated to me which provided a basis for me to disqualify myself, and that remained the position at the conclusion of her submissions. I did so intending to prompt the wife to get to the point. However, the wife insisted on continuing to read out the transcripts unnecessarily, and make various comments along the way, taking a significant amount of time.
(citations omitted)
His Honour noted that during the hearing, the wife failed to quote accurately from the transcript or only read out part of it. He observed that she made disrespectful comments about counsel for the husband and, although his Honour felt constrained to indicate that the comments were inappropriate, the wife continued to make such comments.
After setting out extracts of the relevant authorities, his Honour said:
20. I agree entirely with the submission of Ms Nelson that the mistake that the wife has made in this case is that she has failed to appreciate the fact that the test is objective, and instead she has sought to apply a subjective test. For example, what I heard from the wife was that she did not consider that I acted appropriately, she did not consider that I had been impartial, and she considered that I had acted in a prejudicial way towards her. Unfortunately, that misconception is one which was apparent throughout the entirety of the wife’s submissions.
21. I also observe that the wife attempted in her submissions to suggest that I was actually biased as opposed to there just being an apprehension of bias. However, this submission was inappropriate given that in her application and her supporting affidavit she only alleged the latter and there was no suggestion of the former. Again though, although I directed the wife to not raise this in her submissions, she ignored that direction.
(emphasis in original)
Turning to the wife’s particular complaints, his Honour addressed them in turn. The wife asserted that the judge interrupted her during the hearing. His Honour said:
24. I do not shy away from the fact that I did in fact interrupt her. It is quite apparent that I did so from the transcripts. But two points about that. One is that on both of those occasions the hearing was being conducted by telephone link with the wife. It is difficult to conduct hearings by way of telephone link because of course they are not face-to-face, and it is necessary at times to interrupt as a result of the hearing being conducted via that medium. That is a practical circumstance, but the second point I make is that it was necessary throughout those hearings to interrupt the wife in order to bring her back to the point, to the case at hand. Each and every one of those interruptions was absolutely necessary to achieve the purpose of an expeditious hearing and not allow the point of the hearing to be lost. …
He concluded that the fact of his interrupting the wife could not give rise to an appearance of bias. Further his Honour noted that the wife made no attempt to articulate any connection between the asserted conduct and the “… feared deviation from the course of deciding the case on its merits” (at [26]).
The wife further argued that his Honour was disdainful and sarcastic to her and was flippant. In particular the wife pointed to an exchange with his Honour when the judge was taking submissions from her on her financial circumstances in considering an application for costs against her. He set out the exchange which commenced with his Honour enquiring of the wife as to her weekly income, to which she replied “it’s over 1000 per week net” his Honour said [to the wife]:
HIS HONOUR: … how does it help me for you to say, “over a thousand”.
[THE WIFE]: Just over 1000 per week net after tax.
HIS HONOUR: But what’s the figure? Does “over” means it’s 1001 or $10,000? Do you see my point?
[THE WIFE]: It wouldn’t be 10,000 if I’m on 80,000 gross a year.
HIS HONOUR: Look, I know. I said that as a facetious response by me, but it’s relevant.
[THE WIFE]: It’s about 1000 – I think it’s about 1100.
HIS HONOUR: Okay. That’s better. Thank you. That helps me.
His Honour rejected the wife’s contention that the exchange would give rise to an apprehension of bias and further noted that she had not said how that could be the case ( at [29]).
He continued:
30. One other comment is warranted about paragraph 2 of the wife’s affidavit. There the wife deposed that I said to her “Oh, what would you know” when discussing the assets received by the husband. However, the wife was unable to take the court to where those words appeared in the transcript, and neither I nor Ms Nelson have been able to find them. It is concerning that the wife, a legal practitioner, has been prepared to swear in an affidavit that I used these words when the transcript does not support that. It adds to my concern about her preparedness to inaccurately repeat parts of the transcripts when reading those transcripts out during the hearing.
As to the wife’s assertion that his Honour by his “tone, manner and behaviour” was such that he should disqualify himself, his Honour found that she did nothing but “speak in generalities in support of those claims. The wife has not taken me to any specific part of the transcripts and identified any behaviour or manner which would give rise to an apprehension of bias.” Further, his Honour said that where she complains about his “tone” she made no attempt to specify precisely what is complained of (at [32]).
The judge rejected the assertion that he had evinced a bias in favour of the husband’s counsel, remarking that:
33. … However, how I have dealt with Ms Nelson as compared with the wife is a direct result of the wife not being able to confine herself to the relevant, the appropriate, and the necessary.
The grounds of appeal, apart from asserting that his Honour erred in the exercise of his discretion in not acceding to the wife’s application and disqualifying himself, merely repeat the wife’s complaints about his Honour’s conduct.
The extensive written argument contains irrelevant and discursive comment. It does not aid in understanding the grounds of appeal.
We will however deal with the matters of which the wife complains by way of consideration of the appeal.
As his Honour accurately observed, he did interrupt the wife from time to time and, as the extracted transcripts makes plain, much difficulty was encountered by the manner in which the wife participated in the hearings, namely by telephone link. However, we agree entirely with his Honour’s findings that the interruptions were necessary to keep some focus on the application.
The transcripts of 8 May and of 28 June 2013 bring into sharp focus the wife’s discursive and argumentative conduct and her failure to accept and abide by his Honour’s rulings to which his Honour referred in his reasons.
In any event, despite the filing of an extensive written argument on the appeal nothing was put by the wife to support why the interruptions would give rise to an apprehension of bias. Paragraph 7 of the revised written submission states:
7. His Honour Judge Strickland regularly interrupted me in my submissions preventing on many occasions even a sentence of reply from being submitted. (Transcript 8 May 2013)
That bald submission is both inaccurate and unhelpful as a reading of the transcript of that hearing demonstrates.
As both the transcripts of 8 May and 28 June 2013 clearly show, the wife was intent on raising matters irrelevant to the issue being argued; in ignoring his Honour’s rulings and in persisting in contending that it was not she but the husband’s counsel who made the application in relation to the conflict of interest despite his Honour on several occasions explaining to the wife that as she raised the matter it had to be considered before the other applications could be heard. Indeed, in the written argument on the appeal she said:
4. The hearing of 8 May 2013 before His Honour Judge Strickland was waylaid by an oral application of the Husband’s barrister,
Ms Nelson, who made the application based on an application in an appeal forwarded on 7 May 2013 by me, advising of a conflict of interest due to an approach made by me and confidential information conveyed on family violence in or around early 2011 whilst I was employed at [a law firm] …
Such arrant misstatement of the circumstances in which the wife persists even to the point of appeal, does nothing more that underscore the difficulties experienced by the judge in attempting to contain the arguments to relevant issues.
We entirely agree with his Honour’s analysis of the wife’s complaint that he was “sarcastic, flippant and disdainful” of the wife in reference to the extracted exchange about the wife’s income. Nothing in that exchange supports the gloss that the wife would wish to put on it. Further, even if it did support her contentions, she makes no connection between his Honour’s words or tone to her and the giving rise to an apprehension of bias.
The wife complains about his Honour’s “tone” and “manner” to her during the two hearings on which the application was based. First, it must be observed that the wife made no attempt to point to any part of the transcript or any particular exchange which might have given rise to this complaint. Her complaint is both unspecified and un-particularised.
Obviously enough a reading of the transcript may not convey all that there is to know about tone and manner. To that end we have listened to the audio recordings of those hearings. His Honour’s tone and manner were, in our view, entirely appropriate notwithstanding the constant challenges to the authority of the court by the wife through her failure to accept his rulings. We also point out that it was in the hearing of the 28 June 2013, on the wife’s application to issue subpoenas, that she deliberately hung up on his Honour.
Finally, and in our view significantly, his Honour observed that while the wife asserted in her affidavit filed in support of the application that his Honour disqualify himself from further hearing the matter, that he said to her “Oh, what would you know” when discussing the husband’s assets, she was not then able to point to the part in the transcript where it was said. Indeed, the following exchange occurred on 31 July 2013:
HIS HONOUR: You have put it as part of your affidavit. It’s an appropriate time for me to query it and for you to take me to the transcript. You’ve been definitive in quoting what you say I said. You know the transcript back to front it seems, because you’ve taken the---
[THE WIFE]: No, I don’t know the transcript back to front at all.
HIS HONOUR: Therefore I want you to point me to the - that part of the transcript where you say I said those words.
[THE WIFE]: I would rather keep moving, your Honour and have my support person look for it, because otherwise we’re going to take up too much time. But it’s – it’s here, we just need to find it.
It later transpired that the wife received a copy of the relevant transcript, 8 May 2013, on the day before the hearing of 31 July 2013 and obviously well after she swore the affidavit attesting to the words said by his Honour and on which her application was in part based.
His Honour said:
HIS HONOUR: …And you are saying to me from – albeit from the bar table, reminding me that you are a legal practitioner, that you have not---
[THE WIFE]: But I’m also self-represented.
HIS HONOUR: ---that you have not received the transcript of 8 May before yesterday.
[THE WIFE]: No, that’s correct. But I know what I’ve heard on 8 May.
HIS HONOUR: I see. All right. That’s on the transcript then?
[THE WIFE]: Are you saying that I didn’t hear anything that I heard on
8 May? I think again, your Honour, that you’re showing that you’re being very pedantic, trying to be overly precise with a self-represented party and yet your Honour himself makes mistakes as does Ms Nelson throughout the proceedings which I have tried to highlight today to show that, yes, there is bias and partiality thorough these hearings by the way you are conducting yourself and addressing yourself and questioning myself as to what the expectations are for me, let alone for anyone else. The bar is raised very highly and you are highly critical and sarcastic of me your Honour, and that is sufficient to disqualify yourself.
HIS HONOUR: Yes, thank you. Right. You continue to look in the transcript [the wife] for this.
No transcript reference for this asserted comment was provided to his Honour.
The same complaint was not pressed on appeal. However when asked in the appeal hearing whether she had subsequently found the transcript reference for the impugned comment, the wife said that it was not in the transcript nor in the copy of the audio file of the hearing sent to her. She then commented that she had not received the original of the audio file, only a copy. Whether that was intended as veiled suggestion that the copy sent to her had been altered or not, we cannot say. However, for her to persist in her submission before his Honour, then attack him when he pressed her to find it cannot pass without comment. This conduct from a self-represented litigant would be worthy of deprecation, from a practising solicitor it is deplorable.

Nothing put in the appeal or in the written submissions demonstrates any error by his Honour.
The appeal will fail.

Appeal SOA 60 of 2013

The reasons for determination as to costs

His Honour noted that the husband’s applications for costs arose both out of the hearing regarding the wife’s application for certain subpoenas on 28 June 2013 and in relation to the wife’s application that he disqualify himself, heard and dismissed on 31 July 2013 (at [2]).
In considering whether a costs order ought be made, his Honour turned to

s 117(2A) of the act and said:
14. The submissions made by Ms Nelson QC as to the hearing of
28 June 2013 are first, that it was an application that could not succeed, and the wife would have known that, and secondly, the hearing was not able to be completed because the wife simply hung up part way through (the hearing was being conducted by telephone link).
The judge said:
16. …in the course of attempting to explain the position to her and respond to her queries about the progress of the matter, she hung up. That prevented the court from completing the hearing and finalising the application, and no order was able to be made apart from the reservation of the question of costs.
17.I also observe that it was not apparent until a subsequent affidavit was filed by the wife that she had deliberately hung up the telephone; I had allowed for the possibility of some technical issue being the cause, and indeed I made a number of unsuccessful attempts to reinstate the telephone link.
His Honour noted that at first the solicitor for the husband consented to the wife making an application to issue subpoenas despite there being no application then filed to which the subpoenas could relate. Thus the wife made the application of 24 June 2013. He further observed that it only became apparent that the husband’s consent to that course had been withdrawn at the commencement of the hearing. Thus his Honour declined to make a costs order in favour of the husband in relation to that application.
However, he continued:
22. There is of course still no excuse for the wife hanging up during the hearing, but that per se cannot found a claim for costs given the background that I have just adverted to.
His Honour then turned to a consideration of the costs of the hearing of 31 July 2013.
Referring to the submission that the wife should pay the husband’s costs of

31 July 2013 because her application had been wholly unsuccessful and because of her conduct during the hearing, his Honour said:
25. There can be no doubt that these are circumstances that justify an order for costs. The wife’s application was dismissed and in my reasons for judgment I set out serious concerns that I had with the conduct of the wife during the hearing and in bringing the application. …
26. There was no merit in the application, it was without any evidentiary basis, and although the hearing took almost the entire day, most of that time was unproductive and frankly unnecessary. It must also not be forgotten that the wife is a legal practitioner, yet she failed to accept the discipline of the court, she failed to accept my rulings, and she failed to comply with my directions.
The judge referred to the wife’s submissions opposing the making of such an order and in particular he referred to her submissions about her capacity to pay any order, and again, his Honour set out the wife’s financial circumstances. He said:
34. I also note that, … the conclusion of the property settlement proceedings between the parties has left each party with real estate and other assets, although the wife says that she has not yet received all of her entitlements and the husband has received more by way of assets than she has.
35. It is readily apparent from that analysis of the parties’ financial circumstances that there is nothing there that would persuade the court not to exercise its discretion to make an order for costs against the wife. It is of course her financial circumstances which are the primary focus, and although her expenses exceed her income, her assets exceed her liabilities. In any event, even if she was in difficult financial circumstances that would not necessarily prevent an order for costs being made…
His Honour concluded at [36] that the wife’s lack of success and her conduct took priority over any other factor, including the wife’s financial circumstances.
Further, he found that the circumstances warranted the award of costs to be made on an indemnity basis, being that the wife, as a legal practitioner, “…pursued an application where “a party properly advised should have known [she] had no chance of success” and his Honour further found that the wife had made groundless allegations which ought never to have been made or caused the undue prolongation of the case(at [41]).
The grounds of appeal do not engage with the order appealed from and are difficult to understand. We propose to set them out in full.
1. The Judicial Officer erred in law and fact, including in the exercise of his discretion, by relisting a matter due for hearing on 3 October 2013, same of which there was no application in an appeal nor any liberty to relist early in the previous Orders;
2. The Judicial Officer erred in law and fact by not permitting the Applicant to be heard or given proper notice including as to the reasons for the early listing, such notice being only given within two days, and the day after an appeal was lodged on the disqualification hearing of 30 July 2013, giving an appearance of ongoing extreme bias and prejudice;
3. The Judicial Officer erred in law and fact by ignoring or not considering genuine reasons for any delay in lodging an affidavit due in mid August including reasons of emergency and or delay by third parties such as may be reasonably expected, and such that was given notice to the Registry of an anticipated delay on at least two occasions by the Applicant, with any such delay not causing prejudice to the Respondent given the length of time remaining until the October hearing date;
4. The Judicial Officer erred by not fully considering the purpose of the Family Law Act and its principles of required disclosure, fairness and justice, and by not determining the financial facts of the parties so as to determine in the October hearing date, the aspects fully on costs, if any;
5. The Judicial Officer erred by conducing the proceeding with further injustice and prejudice to the Applicant.
We immediately point out that the appeal is brought in relation to his Honour’s order that the wife pay the husband’s costs of 31 July 2013 and that the costs be paid on an indemnity basis. Even if the assertions contained in the grounds of appeal were factually based none has any apparent relevance to the order for costs.
No assistance in understanding the thrust of the grounds is gleaned from the “Revised Summary of Argument” filed out of time on 27 June 2014 by the wife in support of the appeal. It is discursive and relates in large part to the wife’s appeal against the order of Federal Magistrate Kelly (as her Honour was then) dismissing the s 79A application. It further contains inappropriate and scandalous comment.
Indeed, no part of this document addresses the appeal against the orders of

9 September 2013 that the wife pay the costs of the 31 July 2103 hearing.
His Honour’s determination as to costs was one well open to him on his findings and no error has been demonstrated. This appeal will fail.

Costs

We took submissions from the parties as to the costs of the appeal to save the time, trouble and expense of those submissions being made after the decision was delivered. The husband sought an order that the wife pay his costs of and incidental to the appeal if the appeal was unsuccessful and that any order should be in a fixed amount. Those costs were quantified as solicitor’s fees of $6,226 (inclusive of GST), which included the costs of preparing the appeal books in the sum of $1,247. In addition, counsel’s fees of $4,400 in relation to the appeal were sought.
While the preparation of appeal books is the obligation of the appellant, the books prepared and forwarded to the court by the wife were wholly deficient and failed to comply with the relevant rules. At the request of the appeals registrar, the husband’s solicitor agreed to prepare a set of appeal books for the court.
In submissions in response, the wife accepted that the husband was entitled to be reimbursed for the costs of preparing the appeal books.
As to the issue of costs generally, the wife argued that she was impecunious, her salary as a solicitor being insufficient to meet her weekly expenses. She contended that she had not received all of the money and property to which she was entitled as a result of the property orders and that caused her to be in dire financial straits.
However, the wife conceded that she owned a property in South Australia which was presently occupied by her son who paid no rent on the property. She had purchased a second property in Western Australia where she lives with her daughter.
The starting point for a consideration of costs is s 117(1) of the Act which governs any application for costs and provides:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 17AC and 118, each party to proceedings under this Act shall bear his or her own costs.
If a court is of the opinion that circumstances justify it making a costs order, section (2A) provides a list of circumstances to which the court shall have regard in determining what costs order, if any, to make.
The financial circumstances of the parties is one such factor (s 117(2A)(a)). As we have indicated, the wife contends that her financial circumstances are such that it would not be appropriate for the court to order her to pay costs and further that she is unable to meet a costs order. Impecuniosity, perhaps even indigence while clearly an important factor for a court to consider, is not of itself a bar to making a costs order if it is otherwise appropriate to do so. The wife has assets, not the least of which is a property in South Australia, and she is a working as a solicitor earning more than $80,000 per annum.
Of particular importance in determining this issue are ss 117(2A)(c) and (e). Subsection (c) concerns the conduct of the parties to the proceedings and (e) whether a party has been wholly unsuccessful in the proceedings.
Obviously, the wife has been wholly unsuccessful. However, her conduct in the proceedings is a significant factor. This was an appeal which was foredoomed to failure, the grounds of appeal raised irrelevant and unrelated issues. The summary of argument did not address the grounds of appeal in the disqualification appeal but rather repeated the submissions made to the judge on the application. The summary of argument was filed after the time prescribed. Further, it failed to address the issue of the costs appeal at all. The document included, as we have indicated, irrelevant, insulting and scandalous comment. The oral argument of the appellant was redolent of her submissions before the judge. It was discursive and failed to engage with the appeal.
It should not be overlooked that the wife is a solicitor conducting practice in Western Australia. She must have appreciated that her conduct of the appeal was not in any way orthodox or in accordance with the rules or proper practice.
For these reasons it is appropriate to order that the wife pay the husband’s costs of preparation of the appeal books and the husband’s costs of and incidental to the appeal. To avoid further expense we will fix the costs (separate from the preparation of the appeal books) in the sum of $5,000. In view of the wife's circumstances and that these proceedings are not yet finally determined the wife asked that the payment of that sum should be postponed until the determination of SOA 88 of 2012, being her appeal from the order made

30 October 2012 refusing her application to set aside final orders for property settlement made by consent.
We do not see that an order postponing the payment can be justified.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace and Aldridge JJ) delivered on 1 September 2014.

Associate:

Date: 1 September 2014