NESLAND & HARRELL
[2015] FamCAFC 208
•3 November 2015
FAMILY COURT OF AUSTRALIA
| NESLAND & HARRELL | [2015] FamCAFC 208 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application seeking to adjourn the hearing of an appeal relating to costs until after the hearing of the substantive appeal in the same matter – Application to amend the appeal books to remove certain named documents in relation to the costs appeal – Application to amend the appeal books to remove certain affidavits and material objected to during the trial – Application allowed in part – Costs appeal adjourned – Appeal index to be amended by deleting certain named documents – Application to remove certain affidavits adjourned to Full Court hearing – Parties to file agreed list of objected material to be considered at Full Court hearing of the substantive appeal. |
| APPLICANT: | Mr Nesland |
| RESPONDENT: | Ms Harrell |
| FILE NUMBER: | BRC | 6489 | of | 2012 |
| APPEAL NUMBER: | NA NA | 30 37 | of of | 2015 2015 |
| DATE DELIVERED: | 3 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 3 November 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 April 2015 15 May 2015 |
| LOWER COURT MNC: | [2015] FCCA 732 [2015] FCCA 1238 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Hirst & Co |
| SOLICITOR FOR THE RESPONDENT: | Matthew Love Family Lawyers |
Orders
The Application in Appeals NA 37 of 2015 and NA 30 of 2015 filed 22 October 2015 be allowed in part.
The hearing on 25 November 2015 of the Appeal and Cross-Appeal in NA 37 of 2015 be adjourned and not be heard until the determination of the substantive appeal NA 30 of 2015.
The index to the appeal books (of Appeal NA 30 of 2015) be amended by deleting all those documents referred to in paragraph 1 of the Application filed 22 October 2015, with the page numbering to remain unchanged in the appeal books. The Appeals Registrar to amend the court copies by removing those pages, and the parties to be responsible for their own copies.
At a time directed by the Appeals Registrar, the appellant in NA 37 of 2015 prepare a new appeal index containing those documents relevant to such appeal and bear the costs of preparing the appeal books.
In relation to paragraph 2 of the Application, being the redacting from the appeal books the affidavits of the wife filed 19 July 2012 and 11 January 2013, be adjourned to the Full Court hearing of NA 30 of 2015.
In relation to paragraph 3 of the Application, the solicitor for the respondent to Appeal NA 30 of 2015 prepare a list of objections allowed before the primary judge during the hearing on 10 and 11 March 2015 and serve this list upon the appellant no later than 4.00 pm on 9 November 2015.
The solicitors for the appellant in Appeal NA 30 of 2015 will cause an agreed list, or two disputed lists of such objections, to be filed in the Court no later than 4.00 pm on 13 November 2015, for determination by the Full Court at the hearing of NA 30 of 2015.
The costs of paragraph 2 and 3 of the Application be reserved to the hearing of NA 30 of 2015 and the costs of the remaining paragraphs of the Application to the hearing of NA 37 of 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nesland & Harrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 30 & NA 37 of 2015
File Number: BRC 6489 of 2012
| Mr Nesland |
Applicant
And
| Ms Harrell |
Respondent
REASONS FOR JUDGMENT
Appeals have been filed in property proceedings between Mr Nesland and Ms Harrell. An Amended Notice of Appeal NA 30 of 2015 was filed by Ms Harrell on 4 September 2015 against property orders made by Judge Vasta on 1 April 2015 (the “substantive appeal”). A Notice of Appeal NA 37 of 2015 was filed by the Mr Nesland on 26 May 2015 against cost orders of Judge Vasta on 15 May 2015. In addition, on 12 June 2015 Ms Harrell filed a Notice of Cross-Appeal in that matter (the “costs appeal”).
Although the parties were not married, it is convenient for the purposes of these reasons to refer to them as the “husband” and “wife” respectively.
On 22 October 2015, the husband filed an Application in an Appeal, seeking orders that:
a)The hearing of the appeal in relation to costs (NA 37 of 2015) be vacated and not be heard until the determination of the substantive appeal (NA 30 of 2015) by the Full Court and the appeal books be altered to remove certain named documents in relation to the costs appeal;
b)That in respect of a number of affidavits where the trial judge allowed objection to their contents a line be put through those parts of the evidence in the appeal books; and
c)That certain other affidavits be removed from the appeal books.
The appeals have been listed for hearing on 25 November 2015.
Background
Appeal NA 30 of 2015 is against the substantive judgment, the orders being made on 1 April 2015. The wife has filed an amended Notice of Appeal in which there are 48 grounds of appeal. The application filed by the wife was for property settlement and spousal maintenance. The spousal maintenance application was dismissed.
In previous proceedings, another judge of the Federal Circuit Court of Australia found that the parties had lived in a de facto relationship, which ceased in about June 2011 and commenced in October 1997.
The primary judge found the value of the parties’ assets was $3,449,681 (at [34]). After referring to the somewhat “unusual” nature of the relationship, the primary judge found that the assets should be divided as to 25 per cent to the wife and the balance to the husband (at [53]). Having concluded that the wife would receive assets to the value of $626,670, together with other items of property (the total value being $700,000), the judge determined there was no need for any further adjustment.
Appeal NA 37 filed by the husband is from the orders made by the primary judge on 15 May 2015. The first ground of appeal is from the decision of his Honour to amend the substantive orders to have the effect of offsetting the costs orders made in the husband’s favour. Secondly, it is contended that the order was an error of principle and a miscarriage of discretion. Part of the argument in relation to the exercise of discretion involves reference to offers of settlement made by the husband.
At the outset, it is important to note that the submissions of the wife in this Application raised the question as to whether this is in the nature of a Review from the Appeal Registrar’s orders. Neither party raised with the Appeal Registrar the questions arising from this Application and in any event, both parties indicated they had the opportunity to make adequate submissions.
Application
The affidavit of the husband filed 22 October 2015 explains the advice provided to him by Senior Counsel as to possible difficulties which may arise at the appeal hearing.
The appeal books were received by his solicitors on 4 August 2015. After counsel’s advice was received, his solicitors wrote to the solicitors for the wife on 12 October 2015. As no response was received a further letter was sent on 19 October 2015. A response, not agreeing with the proposal, was sent by the solicitors for the wife the next day.
In relation to the parts of the evidence where there was successful objection at the trial, the concern is expressed that members of the Appeal Division will read this material not appreciating that it was excluded.
In written submissions filed on 26 October 2015 it is conceded that the appeal books have been prepared in accordance with the Appeal Registrar’s directions. Further, that at the time the directions were made on 29 June 2015, the issue of the appeal book’s making reference to and setting out the offers of settlement was not considered.
It is also submitted that the outcome of the substantive appeal will affect the costs appeal. It is thus asked that the costs appeal be heard separately, after the determination of the substantive appeal.
The other issue is the inclusion of material in the appeal books upon which there was not reliance at trial or which was excluded.
Response
In response, the wife sought that the Application be dismissed, and should the Application be allowed the following orders be made:
2. …
(a)That the husband pay the wife’s costs thrown away in respect of the Appeal Books prepared by her pursuant to the Orders of Registrar Kane dated 29 June 2015 fixed in the amount of $5,329.76;
(b)That the Husband be responsible for the preparation of new Appeal Books in Appeals NA30/2015 and NA37/2015 and he file and serve the new Appeal Books no later than 4.00pm on 11 November 2015;
(c)That all documents in the Appeal Book Index settled by Registrar Kane on 29 June 2015 be included in the new Appeal Books, save that the items annotated NA37/2015 be moved out of the Appeal Books for NA 30/2015.
(d)That the parties amend their submissions with respect to numbering of Appeal Books pages only no later than 4.00 pm on 13 November 2015.
3. That the husband pay the wife’s costs of and incidental to this Application.
(original emphasis)
The solicitor for the husband filed an affidavit detailing the events in relation to the preparation of the appeal books. The solicitors wrote on 20 October 2015 advising that they would not oppose redaction of the offers of settlement provided the husband met the costs of amendment.
The affidavit asserts that the wife has no capacity financially to prepare the appeal books further.
Discussion
Adjournment of Costs Appeal NA 37 of 2015
During the hearing of this Application, and noting the wife’s objection to this course, it was ultimately conceded that the most suitable course would be to adjourn the hearing of the costs appeal until the determination of the substantive appeal.
It is likely that the parties would be concerned about a Full Court hearing the substantive appeal and also the issue of costs where offers of settlement are made available to them. In addition, it is likely to be inefficient when there is the potential for an order for re-hearing should the appeal succeed which would ultimately require a further hearing regarding the issue of costs. These complications can be avoided by simply adjourning the hearing of NA 37 until the determination of NA 30.
Amendment of appeal books
In view of the concerns expressed about the costs of amending the appeal books, and the proximity to the appeal hearing, a better course of action is to amend the index for the appeal books, removing those references referred to in the husband’s application at [1](a)-(m). The pagination for the appeal books would remain unchanged. The Appeal Registrar will cause the relevant documents to be removed from the court copies of the appeal books. The parties will be responsible for amending their own copies.
As conceded by his solicitor, the husband will be responsible for causing a new appeal book to be created for the costs appeal to include those documents at [1] (a)-(m) of his Application. The solicitor for the husband sensibly also conceded that he should bear the costs of the preparation of the new appeal books to be used in the hearing of NA 37 of 2015.
The issue of the affidavits in the appeal books, filed by the wife on 19 July 2012 and 11 January 2013, should be adjourned to the hearing of NA 30 of 2015 by the Full Court. This is a relatively simple argument, it is submitted these documents were not relied upon by the wife at the final hearing. This is an issue that should be determined by the Full Court in conjunction with hearing the substantive appeal.
It was also put to the parties that instead of requiring elaborate amendments to the record regarding objections to evidence, now contained in the appeal books, a better course of action would be for the husband to cause a completed list of objected material – allowed by the primary judge – to be served upon the solicitors for the wife no later than 4.00 pm on 9 November 2015. The wife, if in agreement with the list in its proposed form, can either file with the Court a joint list or prepare a separate list with disputed items by no later than 4.00 pm on 13 November 2013. The Full Court will have regard to this list in considering the substantive appeal NA 30 of 2015. Solicitors for both parties were in agreement with this proposal.
Costs
The costs of this Application will be reserved to the respective hearing of the appeals.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 3 November 2015.
Associate:
Date: 3 November 2015
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