Oliver and Oliver - [2010] FamCAFC 92

FAMILY COURT OF AUSTRALIA

OLIVER & OLIVER

[2010] FamCAFC 92

FAMILY LAW - APPEAL – Application for extension of time to file appeal – Proposed appeal against a costs order – Some delay between making of the orders and delivery of the reasons – Arguable grounds raised in notice of appeal – Application granted – Applicant to pay the respondent’s costs.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Oliver

RESPONDENT:

Mr Oliver

FILE NUMBER:

BRC

7484

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

14 May 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

14 May 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 February 2010

LOWER COURT MNC:

[2010] FMCAfam 220

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Rosen

Rosen Lawyers

COUNSEL FOR THE RESPONDENT:

Mr E.J. Williams

SOLICITOR FOR THE RESPONDENT:

Romans & Romans Lawyers

Orders

The time within which the wife may file a notice of appeal against the orders of Federal Magistrate Wilson made on 26 February 2010 be extended to on or before 4:00pm on 21 May 2010.
The appellant pay the respondent’s costs of an incidental to this application.
Certify for counsel.

IT IS NOTED that publication of this judgment under the pseudonym Oliver & Oliver is approved 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 50 of 2010
File Number: BRC 7484 of 2007

Ms Oliver

Appellant

And

Mr Oliver

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

In an application filed 19 April 2010 the wife seeks leave to file a notice of appeal against orders made by Federal Magistrate Wilson on 26 February 2010.
On 28 August 2009 the Federal Magistrate made property orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The husband subsequently applied for an order that the wife pay his costs of and incidental to the property proceedings. On 26 February 2010 the Federal Magistrate ordered the wife pay the husband’s costs, including the costs associated with his costs application, on a party and party basis. His reasons were delivered by Federal Magistrate Slack on 10 March 2010.
The wife now wishes to appeal against that costs order. She is out of time by approximately three weeks.
The affidavit in support of the wife’s application, sworn by her solicitor Mr Rosen, explains that on 17 March 2010, one day after he received a copy of the reasons, he sought advice from the solicitors for the husband as to what quantum of costs they were in fact seeking. On 19 March 2010, Mr Rosen states he received a response from the husband’s solicitors indicating they were not in a position to advise as to the quantum of costs. Apparently, that position continues.
Mr Rosen received a draft notice of appeal from counsel on 7 April 2010. He explains that this document was then sent to the Registry but, obviously enough, it was not filed because it was out of time.
Mr Rosen also explains that the late receipt of the reasons for judgment and the lack of advice from the husband’s solicitors as to the quantum of costs are his explanation for the delay.
It must said that as soon as the order was made by the Federal Magistrate, a notice of appeal could have been filed, although it may have been somewhat difficult at that time to draft the grounds of appeal.
As was correctly observed by Mr Williams, counsel appearing for the respondent husband, the notice of appeal could have been filed within time after the reasons were delivered. It seems, at least to me, that it is more than unfortunate that an order was made by a Federal Magistrate and there was then a delay between that time and reasons being given by another Federal Magistrate.
I also accept that Mr Rosen no doubt wanted to explain to his client her prospects of success and as part of that, would have liked to have known the quantum of the costs.
In any event, apart from the question of delay, I must consider two other matters. First, the merits of the appeal and secondly, the prejudice to the husband.
I have a copy of the proposed notice of appeal and I have also read the Federal Magistrate’s reasons. His reasons for ordering the wife to pay the husband’s costs appear at paragraph 19 where he said:
…The husband made three offers the effect of which was to gradually increase the amount offered to the wife. Each offer fell short of what the wife ultimately achieved, but it must be borne in mind that if the wife had accepted any of the husband’s three offers she would undoubtedly have been better off financially than contesting the proceedings to final hearing. The difference between the amount proposed by the husband in his Initiation Application and what the wife received following the final hearing has undoubtedly been consumed by legal fees. If any of the offers made by the husband, and to which reference has been made, had been accepted by the wife she would have been better off financially. In my view, by not accepting the offers, the wife’s conduct in relation to the proceedings, being the consideration under s.117(2A)(c) of the Act is such as to warrant an adverse order for costs against her. The fact that the wife was unwilling to accept any of the husband’s three offers is also a factor that warrants an adverse order for costs against her under s.117(2A)(f) of the Act.
In written submissions provided today, Mr Rosen submits that in addition to the grounds contained in the draft notice of appeal there are a number of matters that he would wish to agitate should leave be granted. The first is that reference was made to the offers of settlement by the husband but not offers of settlement made by the wife. Secondly, that the Federal Magistrate regarded the wife as being responsible for all of the costs of the husband from the commencement of the proceedings to the end of the proceedings, rather than from the date upon which his offers of settlement were made. Third, that the Federal Magistrate did not appear to take into account that in relation to the re-opening of proceedings arising from the delay between trial and judgment, the husband was wholly unsuccessful in respect of the issues raised by him upon the reopening. Fourth, the solicitors for the husband have been unable to indicate to date the quantum of costs, which I have already mentioned. Finally, a matter which is most unfortunate, said to be common knowledge, that the total costs incurred by the husband in this matter exceeded $200,000.
Whilst it is certainly correct, as Mr Williams has submitted, that there are some real difficulties in appealing from such discretionary orders, it seems to me that the grounds of appeal and the submissions of Mr Rosen to which I have referred reveal that there are some arguable grounds.
As to the prejudice to the husband, it is appreciated that he is prima facie entitled to the fruits of his litigation, being the payment of the costs. I have taken into account the considerable difficulty in succeeding in an appeal against an order for costs. However, as I also mentioned, the grounds of appeal appear, at least as they have been explained, to raise some arguable grounds.
For these reasons I will allow the wife’s application and make an order extending the time for the notice of appeal to be filed.
I have also determined that the wife should pay the husband’s costs of and incidental to this application. Usually, such costs are reserved to the Full Court. However, in my view, in this case the outcome of the appeal would not determine on its own whether or not the costs of today should be met by either party. As correctly observed by Mr Williams, although there is some explanation for the delay, the notice of appeal could have been filed in time but was not. It is an indulgence to allow the wife to file the notice now; there is no reason why the respondent should have to meet any of the costs associated with it.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May

Associate:

Date: 21 May 2010