NETIS & KIPLING
[2020] FCCA 2852
•20 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NETIS & KIPLING | [2020] FCCA 2852 |
| Catchwords: FAMILY LAW – Costs – indemnity costs. |
| Legislation: Family Law Act 1975, s.117 |
| Cases cited: Ebner & Pappas and Anor [2015] FamCAFC 39 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 |
| Applicant: | MS NETIS |
| Respondent: | MR KIPLING |
| File Number: | TVC 809 of 2015 |
| Judgment of: | Judge Andrew |
| Hearing date: | 20 July 2020 |
| Date of Last Submission: | 20 July 2020 |
| Delivered at: | Townsville |
| Delivered on: | 20 July 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Roberts Nehmer McKee |
| The Respondent: | Self-represented |
ORDERS
That the Applicant Husband pay the Respondent Wife’s costs of and incidental to the Contravention Application filed 16 August 2019 on an indemnity basis in the sum of Ten Thousand, Six Hundred and Eighty Six Dollars and Twenty Four Cents ($10,686.24), with payment of same to be made within two (2) months of the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Netis & Kipling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 809 of 2015
| MS NETIS |
Applicant
And
| MR KIPLING |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a matter as between Mr Kipling and Ms Netis . They are the husband and wife in this matter, respectively. The wife makes application for the husband to pay her costs of a Contravention application that was filed on 16 August 2019, on an indemnity basis in the amount of $10,686.84, with payment to be made within 14 days, or alternatively that the husband pay the wife’s costs of the Contravention application filed 16 August 2019 on a party/party basis in the amount of $3,543 with such payment to be made within 14 days.
There is a chronology that I will set out shortly and it is helpfully found in Mr FF’s costs submission document that was filed on 20 July 2020. The relevant events are these:
a)23 September 2015 there were interim property orders made by Judge Coker;
b)On 5 July 2019 there was a final property order made by Tree J, following an eight-day final hearing that is said to be over the course of 2018 and 2019;
c)On 16 August 2019, the husband filed a Contravention application in relation to an alleged breach of the 23 September 2015 orders;
d)On 14 October 2019 a Contravention application was set down for 10 March 2020;
e)On 2 March 2020, a letter was written by the wife’s solicitors to the husband’s then-solicitor, what was said to be confirming the wife’s position that the husband was estopped from making the Contravention application and informing or warning that an application for indemnity costs would be sought;
f)On 10 March 2020, the husband’s Contravention application was dismissed and there were orders made at the husband’s request for written submissions to be filed by 4:00pm on 25 March 2020, responding to the wife’s application for a costs order, obviously, the wife having made submissions with respect to a costs order on 10 March 2020;
g)On 25 March 2020, what is described as the husband unilaterally requesting - whatever that means, I observe - an administrative adjournment of the direction to file his written submissions on the basis that he may wish to appeal the order that I made. Then, if the husband’s application to reinstate his appeal against the 5 June 2019 orders made by Tree J is successful, and an order was then made to extend the filing deadline for the husband’s written submissions to 8 May 2020. So, in essence, Mr Kipling was given until 8 May 2020 to file his written submissions with respect to costs;
h)It is then said that 7 April 2020 was what is described as the last date for the husband to file an appeal in relation to the orders made on 10 March 2020, and it is asserted that no appeal is filed;
i)On 3 June 2020, the matter was brought on for mention as a result of Mr Kipling failing – well, that is not filing his written submissions by 8 May 2020 – he did not appeal;
j)The matter was adjourned to 18 June 2020 for further costs submissions to be made by the wife;
k)And then it is then said that on 16 June 2020, the husband, again, expressed and unilaterally seeks – that - an administrative adjournment of the 18 June 2020 hearing, which was refused as the wife did not consent;
l)On 18 June 2020, the matter was listed for hearing of costs and the husband sought an adjournment for medical reasons. It is noted that no medical certificate was provided and the husband did not appear at that mention; and
m)The matter was adjourned to today.
Some of those matters might not be terribly relevant with respect to the question of costs but they give a background history with respect to the matter.
The letter that was alluded to on 2 March 2020 was exhibit 1, albeit that it was not referred to that in the costs submissions - of the appearance on 10 March 2020. It is a letter from the wife’s solicitors to the husband’s then-solicitors, EE Law Firm, and the salient parts of that letter are to this effect:
The purpose of this letter is to invite your client to discontinue his Contravention application.
Your client’s application is devoid of merit and will fail. The reasons are as follows…”
And then they go on to the primary reason with respect to the application of the anshun estoppel.
Over on the second page, after indicating the consequences, that - this is the penultimate paragraph on the second page:
We will also seek indemnity costs following the well-established principle in Huntsman Chemical [Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242] that your client has been given timely warning that his application is obviously hopeless and doomed to fail, and has pressed on, regardless.
It is fair to say that that letter - that is, the letter of 2 March 2020 - was the timely warning as described in the decision of Huntsman Chemical and that the husband’s failure to compromise might be described, as it is in other authorities, as an imprudent refusal.
It has already been noted that I dismissed the husband’s Contravention application, clearly for the reasons that were mentioned on that occasion.
I am then told by both parties – that is, both the husband and wife - about s.117(1) of the Family Law Act1975 (‘the Act’) - and I should say, quite rightly so I am told about that, and I will just read it into the record so that I can remind myself of the provisions which says:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
So that is, effectively, the start point or the ordinary position.
Subsection (2), however, says this:
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6)…
in this case, subsection (2A)
… make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
I am then referred to s.117(2A) in those circumstances.
I am then, on the wife’s behalf, reminded that there should be a due and timely warning; that is exhibit 1.
Then I am then told that the wife will be seeking costs on an indemnity basis.
And then in paragraph 26 of the submissions filed by the wife on 10 March 2020, this submission is made and I simply quote it:
On any view, the Applicant has been uncooperative and obstructionist during the proceedings. In relation to the instant application, it is ill‑conceived and devoid of merit, and, where this was known, pursued regardless.
I am not sure that there is proof with respect to some of the assertions that are made in that particular paragraph but, clearly, he was unsuccessful and he was warned with respect to the likelihood of his being unsuccessful and the reason for that, and that was the very reason which I dismissed his application.
Then it is said boldly “The Court should exercise its discretion, and should make an order for indemnity costs.” That is found in a submission filed 10 March 2020.
In a decision of the full court of the Family Court of Australia, Ebner & Pappas and Anor [2015] FamCAFC 39 May, Ainslie-Wallace and Aldridge JJ said this at paragraphs 27 and 28:
27. In Carpenter & Carpenter [2014] FamCAFC 100 May, Thackray and Strickland JJ said at [132]:
The relevant authorities tell us that the usual approach of calculating costs on a party/party basis should only be departed from where there are exceptional circumstances (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, at 256; Kohan & Kohan (1993) FLC 92-340, at 79,614; Yunghanns v Yunghanns (2000) FLC 93-029, and D & D (Costs) (No 2) at [25]-[29]). There have been attempts to provide examples of circumstances that would warrant the awarding of indemnity costs (e.g. Colgate-Palmolive Co v Cussons Pty Ltd; Munday v Bowman (1997) FLC 92-784) but it is accepted that the categories of such circumstances are not closed (Yunghanns, at [31]).
28. In Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Sheppard J said at 257:
… it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud …; evidence of particular misconduct that causes loss of time to the court and to other parties…; the fact that the proceedings were commenced or continued for some ulterior motive… or in wilful disregard of known facts or clearly established law…; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…; an imprudent refusal of an offer to compromise…; and an award of costs on an indemnity basis against a contemnor… The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
(Citations omitted)
As I say, I have set out the chronology of this matter.
Again, in the wife’s submissions, perhaps unhelpfully, I am told, again, of the provisions within s.117(1) and s.117(2A) of the Act. I am then taken to what is described as the relevant factors from s.117(2A) by the wife. I will just check those; it seems I have to. Although at paragraph 5 of the wife’s costs submissions filed 20 July 2020, paragraph 5(a) does not seem to really refer to s. 117(2A). That is the financial circumstances of each of the parties.
Mr Kipling does refer me to that. He talks about himself not being employed since June 2013 due to a work injury. He has no work income and no savings or other liquid assets. He says that he has become able to access Centrelink benefits from July 2020, says the only money available to him is $80,000 held in a solicitor’s trust account which is the subject of the property appeal and to which he does not have access, and says that he has outstanding debts in the sum of $60,000.
The wife does not provide any submission with respect to that, although she refers to s. 117(2A)(a) of the Act but, then, talks about conduct.
Section 117(2A)(b) of the Act is about whether either of the parties are in receipt of Legal Aid. The wife’s paragraph 5(b) of the submissions filed 20 July 2020 refers to the applicant being wholly unsuccessful, so that cannot be with respect to s. 117(2A)(b). There is no, as I understand it, receipt of Legal Aid by either of the parties.
Section 117(2A)(c) of the Act is the conduct of the parties and I will set out the entirety of this section because it may be relevant:
(2A)(c) The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters.
Even though it is at what is paragraph 5(a) but referring to s.117(2A) as (a), it must be (c) from the wife’s submissions filed 20 July 2020. I apprehend that that is a difficult thing to comprehend. The assertion is made “The conduct of the Applicant in seeking time to file written submissions and then failing to do so, then failing to attend at the mention on 3 June 2020.” Well that would be in relation to those matters post the actual hearing of the application but certainly relevant in terms of the quantum.
Mr Kipling says in relation to that – I cannot understand what he has said under that heading of conduct of parties. It is, clearly, in his document which I understand was, I presume, filed today. If it was not, it should be. That is a document that runs to - it is unnumbered; I will just have to count the pages. Six pages and some 35 paragraphs and there are a number of annexures, or however they are described. This is at paragraph 27 of that document. The husband talks about some illness but, of course, there was no material filed with respect to that but that does not seem to be a matter of great moment.
Section 117(2A)(d) of the Act, there is no submissions by the wife. The husband says this:
-the Contravention proceedings were directly related to a failure to comply with a previous order by the Respondent Wife which she acknowledged and plead guilty to having breached. -Respondent wife had ignored numerous prior requests to make the payment.
That, to my mind, would seem to ignore what has occurred in this matter.
Section 117(2A)(e) of the Act, whether either party has been wholly unsuccessful. At paragraph 5(b) of her submissions filed 20 July 2020, the wife says that the applicant has been wholly unsuccessful. That must be a reference to s. 117(2A)(e), unhelpfully.
The husband says – well he really continues those matters that he just asserted at s.117(2A)(d) which to my mind effectively ignores the reality of the situation.
Section 117(2A)(f) of the Act is about an offer in writing and that is exhibit 1 and that is found at paragraph 5(c) of the wife’s submissions and it is said this, at that stage:
the Respondent made the Applicant an offer in writing which provided the Applicant with the opportunity to withdraw his application without a costs order being sought and declined to do so…
That seems to be a matter of fact:
…The Applicant was put on notice in that [this] offer that if the Respondent proceeded with his application and the Respondent was…
that must be if the applicant proceeded with his application:
…successful in having the application dismissed, an indemnity costs order would be sought.
Well, with those alterations to the outline, that would seem to be a correct proposition.
I have read what is said at paragraph 30 of the husband’s, what is described as costs submissions. They do not account with the facts of the matter in terms of what has actually occurred. What is submitted by the wife, with the necessary, unfortunately, alterations is correct.
Section 117(2A)(g) of the Act says “such other matters as the Court considers relevant.” The wife, unsurprisingly, does not say anything about that; the husband does, remembering that this was a document that was provided, I believe, today, at some stage.
Point 1 seems to not grasp the reality of the situation and the rest of the points seem to, clearly, not grasp what has happened in relation to this matter but simply wish to, in essence, rewrite history.
Paragraph 32 is not to the point.
Paragraph 33 is not to the point.
I will come to paragraph 35 in due course.
The wife, then, refers me to Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 and, perhaps, the quote that I have already provided by Sheppard J in that case, and some of the examples that might warrant the exercise of the discretion for indemnity costs, including, relevantly, at paragraph 6(a) of the submissions filed 20 July 2020 these - and I do find them relevant “Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that there was no chance of success”. I find that, in fact, to be the case.
Paragraph 6(b) “Where there is evidence of particular misconduct causing loss of time to the court and to other parties”. Well, there has been no submission made to me with respect to that except for those matters in relation to, as I understand it, the filing of costs submissions, so to that extent
Paragraph 6(c) “Where there is an imprudent refusal of an offer to compromise.” That is, certainly, the case I find in terms of exhibit 1.
And it is quite correct to say, on the authority of D & D (Costs) (No. 2) (2010) FLC 93-435, that even where a party may appear to be impecunious, that that is no bar to a costs order being made, particularly in circumstances where the justice of the case warrants an order for costs.
In all of those circumstances and by combination, I find that it would be an appropriate order to order the indemnity costs of the wife in the sum of $10,686.24. I accept the breakdown of those costs as set out on page 3 of the wife’s submissions filed 20 July 2020 under paragraph 1, although that is, probably, the third paragraph 1 within the document.
The only thing that I really need to determine now is in terms of when those orders should be paid by. The husband says to me that - this is at paragraph 35 of his costs submission document, which I hope has been filed, that he will need significant time. He intends to appeal the order in relation to the Contravention. I note the time period with respect to that. In all the circumstances, he would seek a minimum of six months, enabling finalisation of appeal and so forth, and that he would not be able to comply.
To my mind, this matter, having been determined back on 10 March 2020, some - let us calculate that - four months ago, that in those circumstances, the husband must have well and truly appreciated the possibility of a costs order against him, given the way that his matter unfolded, particularly, his argument. In those circumstances, I will allow him two months to pay the costs order.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Andrew.
Associate:
Date: 19 October 2020
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