Paredes & Paredes
[2024] FedCFamC1A 220
•26 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Paredes & Paredes [2024] FedCFamC1A 220
Appeal from: Paredes & Paredes and Ors [2024] FCWA 155 Appeal number: NAA 222 of 2024 File number: 4173 of 2022 Judgment of: AUSTIN, O'BRIEN & JARRETT JJ Date of judgment: 26 November 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL –Where the applicant seeks leave to appeal from interlocutory spousal maintenance orders – Where the applicant contends he was denied procedural fairness where the primary judge relied on documents from a previous hearing between the parties – Where the documents were only used for purpose of enlivening s 83 of the Family Law Act 1975 (Cth) – Where the use of the documents did not amount to procedural unfairness – Where the applicant could not establish any errors of fact made by the primary judge – Where the applicant complains the primary judge did not provide adequate reasons for a costs order being made against him – Where this complaint is rejected – Where the costs order was well within the primary judge’s discretion – Leave to appeal refused – Appeal dismissed – Costs ordered. Legislation: Family Law Act 1975 (Cth) ss 83, 117 Cases cited: De Winter v De Winter (1979) 23 ALR 211
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Grefeld & Grefeld and Anor (Costs) [2016] FamCAFC 30
Harris & Harris (1991) FLC 92-254; [1991] FamCA 124
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Number of paragraphs: 60 Date of hearing: 26 November 2024 Place: Perth Counsel for the applicant: Mr Ashdown Solicitors for the applicant: Loukas Law Counsel for the respondent: Mr Moser Solicitors for the respondent: Leach Legal ORDERS
NAA222 of 2024
4173 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PAREDES
Applicant
AND: MS PAREDES
Respondent
ORDER MADE BY:
AUSTIN, O'BRIEN & JARRETT JJ
DATE OF ORDER:
26 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.The Amended Notice of Appeal filed 22 October 2024 is dismissed.
3.The applicant pay the respondent’s costs fixed in the sum of $12,742.12
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paredes & Paredes has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JARRETT J:
Subject to a grant of leave to do so, by his Further Amended Notice of Appeal filed on 22 October 2024, Mr Paredes (to whom I shall refer as “the applicant” for convenience) proposes to appeal orders for interim periodic maintenance and costs made by a judge of the Family Court of Western Australia on 30 July 2024. The respondent to the present application, Ms Paredes, is the beneficiary of those orders.
The second and third respondents are strangers to the marriage relationship between the applicant and the respondent to the appeal and were not concerned with the relief which is the subject of the proposed appeal. They did not appear on the application which led to the making of those orders. They have not participated in this application for leave to appeal.
Leave to appeal may be granted where the decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration and, if leave were refused, a “substantial injustice” would ensue: Medlow & Medlow (2016) FLC 93-692. The respondent opposes leave to appeal.
My consideration of the applicant’s proposed grounds of appeal does not reveal that the primary judge’s decision is attended by any doubt sufficient to warrant its reconsideration. Consequently, I would dismiss the application for leave to appeal.
BACKGROUND
The applicant and the respondent are engaged in property adjustment and spousal maintenance proceedings arising from the breakdown of their marriage relationship. The respondent commenced those proceedings in May 2022. The applicant is the respondent to those proceedings.
Amongst a range of orders concerning various issues then before the court, on 31 January 2023 the primary judge pronounced orders whereby the applicant, until further order, was required to pay to the respondent $5,310 per week by way of periodic maintenance. In addition, his Honour ordered, until further order, that the respondent have the sole use of a certain motor vehicle which was then subject to lease finance in respect of which a balloon payment was soon to fall due. The applicant was ordered to make the balloon payment when it fell due and thereafter, the weekly amount of periodic maintenance payable under the order was to reduce to $5,000 per week. It is common ground that the applicant made the balloon payment and his liability to the respondent for periodic maintenance reduced to $5,000 per week.
On 26 February 2024 the applicant applied to discharge the January 2023 maintenance order. As explained by his senior counsel to the primary judge during the hearing of that application, in its stead he sought an order, the effect of which was to reduce the weekly sum payable to the respondent to $1,772.00, or perhaps $2,053.00 or perhaps $2,451.43 before any deductions for school fees. By her response to that application, the respondent sought the dismissal of the applicant’s application and the making of a child support departure order, the effect of which was to reduce her assessed child support liability to the applicant in respect of the parties’ children to nil for the relevant child support period.
The application was heard by the primary judge on 23 July 2024. Reasons for decision and the orders the subject of the proposed appeal were delivered on 30 July 2024. His Honour also made a costs order in favour of the respondent and gave ex tempore reasons for that order.
Whilst I have referred more extensively to the primary judge’s reasons below in the context of the proposed grounds of appeal, a brief summary of the primary judge’s reasons is useful to provide some context at this stage.
In his reasons, the primary judge identified that to secure the orders he sought, the applicant needed to satisfy either s 83(2)(a)(i) or s 83(2)(a)(ii) of the Family Law Act 1975 (Cth) to enliven the power to vary the previous maintenance order. The primary judge considered and made findings about changes in the financial positions of both parties since the January 2023 maintenance orders. He found that there were sufficient changes in their respective financial positions to engage the power to vary pursuant to s 83(1)(f) of the Act. The primary judge considered that the parties’ income and expenses warranted a variation to the previous maintenance order.
The primary judge then considered the respondent’s child support departure order and determined to make the orders reducing both parties’ liability for child support to nil.
In a brief hearing following delivery of the primary judge’s reasons and the pronouncement of orders on the applications, the respondent sought her costs of those applications. The primary judge determined that the applicant should make a contribution of $2,000 to the respondent’s costs and made an order accordingly.
The proposed appeal is directed only to the spousal maintenance orders (proposed Grounds 1, 2 and 3) and the costs order (Ground 4). The proposed appeal does not seek to disturb the child support departure orders.
THE PROPOSED GROUNDS OF APPEAL
I will deal with each proposed ground of appeal in turn.
GROUND 1
Ground 1 provides:
1.Having determined that the necessary requirements of section 83(1) had been met and therefore the determination of the maintenance application was de novo the learned first instance Judge erroneously fetter [sic] his discretion in then relying upon findings made in the previous hearing, and previous documents filed by the parties, and denied the parties procedural fairness in doing so.
(Emphasis in the original)
This ground is, with respect, poorly formulated. It is pregnant with two distinct but related contentions, namely, that having determined that the power to vary the January 2023 maintenance order was engaged, when determining whether that order should be varied, the primary judge denied the parties procedural fairness by:
(a)relying on documents not read before him by either party; and
(b)impermissibly relying upon findings made when determining the January 2023 maintenance application.
It is common ground that the primary judge referred to the parties’ affidavits and financial statements filed for the January 2023 maintenance application for the purpose of comparing their income and expenses with their evidence about those matters at the time of the variation application. The applicant makes no complaint about the primary judge doing so for that purpose. Nor could he. Undertaking that comparative exercise was hardly surprising. Indeed, in the course of her submissions concerning the respondent’s expenses, senior counsel for the applicant referred to the respondent’s earlier financial statement and told the primary judge that “the [respondent]’s expenses from her first financial statement to her second have increased significantly” (Transcript 23 July 2024, p.17 lines 33–34). Later, she again urged the primary judge to undertake the same exercise (Transcript 23 July 2024, p.19 lines 4–11).
The primary judge’s reasons make it clear however, that his use of the parties’ earlier material was confined to the purpose of assessing a change in their financial circumstances. He did not use that earlier material for the purposes of determining the parties’ current income and expenses. So much is clear from paragraphs [20] and [32] of his Honour’s reasons for judgment.
Nor do the primary judge’s reasons refer to, let alone demonstrate reliance upon, any findings made for the purposes of the January 2023 maintenance order. No relevant findings were identified by counsel for the applicant before us.
This proposed ground of appeal has no merit. The applicant cannot establish that the primary judge used the parties’ earlier materials in the way he now submits, nor that any particular finding made by the primary judge for the purposes of the January 2023 maintenance orders was relied upon to make the orders now sought to be impugned.
Before passing from this proposed ground however, I observe that the applicant’s Summary of Argument purports to extend this proposed ground by contending:
(a)at paragraph 13 of the Summary, that the primary judge gave “inadequate consideration” to:
(i)the nature and quantum of the increased expenses of the respondent; and
(ii)the nature and quantum of the decreased income of the applicant through the Paredes Group of entities;
(b)at paragraph 14 of the Summary, that the primary judge used an impermissible approach to assess the reasonableness of the respondent’s claimed expenses by comparing her claimed expenses with those of the applicant;
(c)at paragraph 15 of the Summary, the primary judge did not consider arguments made for the applicant about aspects of the respondent’s claimed reasonable weekly expenses;
(d)at paragraph 17 of the Summary, the primary judge “did not mention the respondent’s financial resources, her habitual use of those resources to “top up” her spousal maintenance… or in a meaningful way, the increase in relation to her income from the interest earned”; and
(e)at paragraph 19 of the Summary, that the primary judge “overlooked or did not take into account the actual evidence as to the income of the parties, their respective resources and their proper and reasonable expenses”.
There was no application for leave to amend the Further Amended Notice of Appeal to add these grounds or to expand proposed Ground 1 to accommodate them. They fall well outside proposed Ground 1 as framed. Notwithstanding this, I will address each contention briefly.
I reject the contention that the primary judge gave inadequate consideration to the matters set out in the applicant’s Summary of Argument at paragraph 13. The argument advanced in that paragraph is based upon a false premise. The primary judge did not rely upon any findings made in the earlier application for the purposes of determining the current level of the respondent’s income or expenses. At [32] the primary judge recorded the respondent’s income as periodic maintenance of $5000 per week and interest income of $949 per week. In the same paragraph, the primary judge recorded the respondent’s expenses as sworn to for the purposes of the application then before his Honour. There were challenges to the reasonableness of some of these expenses and the primary judge dealt with those challenges at [42] and [43] of his reasons. The challenges were made by way of submission. No leave to cross-examine the respondent about those expenses was sought at the hearing. At [42] the primary judge accepted some of the applicant’s contentions and rejected the rest.
The primary judge also considered the applicant’s income. On his case, his income was tied to the income of a group of companies controlled by him and referred to as the Paredes Group. However, obtaining a clear picture of the applicant’s income was difficult. According to the applicant’s affidavit evidence, the projected income for the Paredes Group for 2024 was $1,356,000 (after the payment of management fees). His financial statement provided that the Paredes Group earned $1,026,975 by way of taxable income in the 2023 financial year and his evidence was that the income for the Paredes Group would increase for the following year. This was income that was available to the applicant and over which he ultimately had control. He could direct its disbursement as he saw fit. The applicant challenges these findings in ground 2 of the proposed appeal, but for the reasons I give later, these challenges fail.
The primary judge recorded at [40] that the financial evidence presented by the applicant lacked clarity and that the applicant enjoyed substantial advantages by controlling the Paredes Group “which are not adequately reflected in the levels of each party’s taxable income”. Significantly, senior counsel for the applicant did not submit to the primary judge that he should find that the net income of the Paredes Group was a particular sum, although at one point it was suggested that the net income was $424,915 per annum (before amounts were deducted for the payment of the parties’ children’s school fees).
Perhaps the most significant aspect of the applicant’s case before the primary judge was that the income of the Paredes Group was likely to reduce because of interest rate increases on commercial facilities used by the companies in the group and an increase in property management fees. Whilst the primary judge acknowledged that the rise in interest rates for the commercial facilities was likely to increase that category of expenses for the Paredes Group, the primary judge did not think that the evidence enabled him “to conclude an overall fall in available net income for the [Paredes] Group” (at [24]).
As to the applicant’s expenses, the primary judge had found that those expenses were $6,127. It matters not that this was a finding that was made initially for the purposes of determining whether s 83(2)(a)(ii) of the Act was satisfied. It was a finding of fact based upon the evidence relied upon by the applicant for the purposes of the variation application. It was either correct or not correct. No challenge to that finding is advanced by the applicant.
The argument advanced in paragraph 14 of the applicant’s Summary of Argument has no merit. It was open to the primary judge to make an assessment of the reasonableness of the respondent’s expenses by comparing them to like expenses incurred by the applicant. Indeed the approach adopted by the primary judge to these matters is consistent with the submissions made to him by the applicant’s senior counsel in argument (Transcript 23 July 2024, p.20 line 47 to p.21 line 2).
The argument advanced in paragraph 15 of the applicant’s Summary of Argument pays no attention to the primary judge’s reasons for judgment. At [42] the primary judge recorded that the applicant took issue with some of the respondent’s expenses. He recorded that he accepted some of the criticisms made by the applicant and rejected the rest. In the context of the present case, nothing more was required. No complaint is made about the adequacy of the primary judge’s reasons on this point.
The argument advanced in paragraph 17 of the applicant’s Summary of Argument has no merit. The applicant’s case before the primary judge was that his liability for periodic maintenance should reduce in value, not be entirely discharged. No argument was advanced before the primary judge that because the respondent had a significant capital sum available to her, the amount of periodic maintenance should be reduced. That is not surprising given the approach taken by the primary judge when making the January 2023 maintenance orders.
Nor does the argument set out at paragraph 19 of the applicant’s Summary of Argument have any merit. The submission that the primary judge overlooked or did not take into account the actual evidence as to the income of the parties, their respective resources and their proper and reasonable expenses pays no regard to the primary judge’s reasons for decision, specifically at [20], [22], [23], [32], [34] and [42].
Proposed Ground of Appeal 1, either in the form stated in the Further Amended Notice of Appeal or in its expanded form as set out in the applicant’s Summary of Argument does not demonstrate that the primary judge’s decision was attended by any doubt sufficient to warrant its reconsideration.
GROUND 2
This ground is in the following terms:
2.The learned first instance Judge erred in fact by finding:
a.That the funds available in the account of the [Paredes] Group of entities is available to [the applicant] as its controller;
b.The [applicant] enjoys substantial advantages by controlling the [Paredes] Group of entities which are not adequately reflected in the levels of each parties taxable income;
c.The adult child [Mr B] is “receiving an income” from the [Paredes] Group of entities;
d.Having found that the rise in interest rates is likely to increase that category for expenses for the [Paredes] Group of entities, he erred in not finding that this would effect the available net income of the [Paredes] Group of entities;
e.That the [applicant’s] overall expenses including those for the children had increased by $1293 per week since his evidence sworn for the hearing on 31 January 2023.
and in reliance of those facts fell into error.
(As per the original)
Counsel for the applicant abandoned Ground 2c, 2d and 2e during oral argument on the appeal. I will deal with the remaining contentions in turn, but first it is appropriate to reiterate that an appellate court should only interfere with findings of fact where the findings were not reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296) and where they are material to the ultimate decision (De Winter v De Winter (1979) 23 ALR 211 at 217).
The finding referenced by the applicant at 2a was made by the primary judge in the context of his consideration of the child support departure order. The applicant does not propose an appeal against those orders. At best for 2a and in the context of the maintenance application, the primary judge recorded at [22] that the applicant “controls the income of the [Paredes] Group entities and distributes the income in a tax effective manner”. This is a different finding to that which is the subject of complaint by the applicant. I think ground 2a is misconceived.
Nonetheless, the finding made by the primary judge was plainly open to him. I reject the submission that what the primary judge was conveying was that the company funds were the applicant’s own personal funds. It is clear on the evidence and the applicant’s Summary of Argument on this appeal, that the applicant controlled those funds. In particular he had the ability to deploy them in a “tax effective” way. Perhaps the best example of this is the way in which the applicant chose to meet his personal obligation for spousal maintenance. It is uncontroversial that he does so by making income distributions from the Paredes Group to the respondent. That is to say, he directs the use of the companies’ assets in a particular way to meet his own ends. There was no error in the approach of the primary judge as alleged in proposed ground 2a.
The finding the subject of Ground 2b is recorded by the primary judge at [40] of his reasons. Arguably, this is just comment by the primary judge rather than a finding of fact. But even if it is properly considered as a finding, it is a finding which was plainly open to the primary judge. The evidence demonstrated that the applicant controlled the Paredes Group which generated significant income that he distributed in the most tax-effective manner: see, e.g. the applicant’s evidence at paragraphs 51–52 of his affidavit filed on 26 February 2024. On his own evidence he was able to use the companies’ funds to pay the children’s school fees before payment of his taxable income.
Proposed Ground 2 does not demonstrate that the primary judge’s decision was attended by any doubt sufficient to warrant its reconsideration.
GROUND 3
This proposed ground is in these terms:
3.The learned first instance judge erred in fact and in law by finding that the [applicant’s] Senior Counsel submitted that the effect of the orders sought was to reduce the level of the [respondent’s] periodic maintenance to $1772 per week, and in doing so, failed to take into account the private school fees and expenses met exclusively by the [applicant].
(As per the original)
However, there was no error by the primary judge in recording that senior counsel for the applicant had submitted that the effect of the orders sought was to reduce the level of the respondent’s periodic maintenance to $1,772 per week. The form of order proposed by the applicant to the primary judge was problematical. It required that the amount to be paid to the respondent be “30% of the net income of the [Paredes] Group per week”. The primary judge’s description of the proposed order, at [41], as “vague and uncertain in its terms, and…impracticable to enforce” was entirely accurate. The form of the order prompted the primary judge to seek some certainty about the order proposed by the applicant. In response, the applicant’s senior counsel submitted that the effect of the order sought was to reduce the respondent’s level of periodic maintenance to $1,772 per week (Transcript 23 July 2024, p.6 lines 5–30). Senior counsel subsequently informed the primary judge that “with the more up-to-date and more precise figures” 30 per cent of the net income would equate to $106,000 per annum and “that’s a figure allowing for the payment of school fees” (Transcript 23 July 2024, p.15 lines 33–46). It was uncontroversial that the applicant paid the parties’ children’s school fees. Senior counsel for the applicant explained that the figure of $106,000 was 30 per cent of the applicant’s estimate of the net income of the Paredes Group after the school fees had been deducted from the Group’s total net income (Transcript 23 July 2024, p.16 line 40 to p.17 lines 7–8). But why, given the terms of the order that the applicant was proposing, the school fees should be deducted before the respondent received 30 per cent of the net income was not explained. School fees could not be seen as an expense of the Paredes Group.
His Honour’s recitation of the submission by senior counsel for the applicant was accurate although his Honour did not record the later submission about the revised figure. Even if that was an error, the applicant’s submissions do not demonstrate how that error was material to the outcome of the application. It was inevitable that the primary judge would reject the order sought by the applicant given it was vague, uncertain and impracticable to enforce.
Further in support of this proposed ground, the applicant’s senior counsel submits:
33. The purpose of those submissions on behalf of the [applicant] was to quantify for the learned first instance Judge the actual effect of the order that was being sought by the [applicant], noting the rise in expenses of the [Paredes] Group and the subsequent drop in net income that would be available to meet the spousal maintenance order, and the need to continue to meet private school fees for 2 minor children.
34. Further, the submissions served to illustrate that the [applicant] was solely responsible for and was meeting the private school fees and additional school expenses of 2 minor children from the net income of the [Paredes] Group. To approach matters in the way that the learned first instance Judge did meant that he did not take into account the [applicant] was meeting that expense from his portion of the net income from the [Paredes] Group in any meaningful way.
The primary judge’s reasons make clear that he was aware the applicant was meeting the children’s school fees. The school fees appear in the applicant’s Financial Statement filed 28 March 2024 at p.10 and were recorded by the primary judge as expenses met by the applicant at [20] of his reasons. There was no suggestion that the school fees were met by anyone other than the applicant.
In those circumstances, if there was some confusion on the part of the primary judge about the effect of the orders sought by the applicant, that confusion did not come about because the primary judge was not aware that the applicant was paying the children’s school fees, it came about because of the confusing and confused way the applicant chose to present his case.
Proposed Ground 3 does not demonstrate that the primary judge’s decision was attended by any doubt sufficient to warrant its reconsideration.
GROUND 4
The proposed ground relates to the costs order made by the primary judge. It is in the following terms:
4.The learned first instance Judge either made a decision without adequate reasons or miscarried in the exercise of his discretion so far outside of reasonable bounds as to constitute legal error by making an order that the Respondent pay the Applicant’s costs fixed in the sum of $2,000.
The primary judge’s order was a discretionary order. The well-known principles relating to appeals against such orders set out in cases such as House v The King (1936) 55 CLR 499 at 504–505 and Norbis v Norbis (1986) 161 CLR 513, at 539 apply.
Further, when considering this ground, the following statement by the Full Court in Harris & Harris (1991) FLC 92-254 at 78,711 (applied in Grefeld & Grefeld and Anor (Costs) [2016] FamCAFC 30) should be borne in mind:
…Orders for costs are peculiarly a matter which are within the discretion of the trial judge and it is only in the rarest of cases that the Full Court should interfere with a costs order.
After the delivery of reasons and pronouncement of orders on the application, the respondent sought her costs of that application in the sum of $5,000. Her principal reason for doing so was that at about 2.30 pm on the day prior to the hearing, she made a written offer to compromise the application by consenting to orders reducing the weekly amount payable to her by $1,800 and orders in the terms of her response in respect of the child support departure order. The offer was expressed to remain open for acceptance until 9.00 am the following morning. Needless to say, the offer was not accepted.
The applicant resisted the application on the basis that the orders made by the primary judge for child support went further than those to which the respondent said she would consent. The orders made by the primary judge affected the child support liability of both parties, not just the respondent. Next senior counsel for the applicant submitted that the applicant had not been given sufficient time to consider and respond to the offer. Finally, senior counsel pointed to the capital available to the respondent from which she could fund her own legal costs to say that an order was inappropriate.
The primary judge provided ex tempore reasons for the costs order. After acknowledging the position established by s 117(1) of the Act, the primary judge recorded the terms of s 117(2) of the Act. Addressing the arguments of the parties, the primary judge considered that the written offer made by the respondent to the applicant offered to compromise the application on more favourable terms to the applicant than he achieved by the judgment. The primary judge did not think the short time in which the applicant had to consider the offer told against an order for costs given the nature of the application. His Honour found that there were circumstances justifying an order for costs and thus, the power to make such order as to costs as the court considered just was engaged.
The applicant complains that the primary judge made the decision without adequate reasons. I disagree. His Honour’s reasons do all that was required of them in the circumstances. In any event, as to this aspect of this ground, speaking in respect of s 117(2) of the Act, the following remarks of the plurality in Penfold v Penfold (1980) 144 CLR 311 at 315–316 are apposite:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent (1970) 92 WN (NSW) 503, at p 505). Accordingly, in the absence of some positive legislative indication I should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
The primary judge did not accede to the respondent’s costs application in its entirety, but only to the extent of $2,000. Although his Honour did not give reasons for that reduction, in the circumstances of the case, including those identified by the senior counsel for the applicant in argument before his Honour, I consider the primary judge’s order does not fall outside of the generous ambit of the discretion reposed in him by s 117(2) of the Act.
Proposed Ground 4 does not demonstrate that the primary judge’s costs order was attended by any doubt sufficient to warrant its reconsideration.
DISPOSTION
In my view, the Further Amended Notice of Appeal filed on 22 October 2024 and the application for leave to appeal contained must be dismissed.
Counsel for the applicant accepted that in the event that the application for leave to appeal failed, an order for costs of the application in the respondent’s favour should follow. Counsel also accepted that the amount of costs calculated at the scale rate particularised by the respondent at $12,742.12 was proper.
I would order the applicant to pay the respondent’s costs of and incidental to the application for leave to appeal fixed in the sum of $12,742.12
O’BRIEN J:
I agree with the reasons of his Honour Justice Jarrett and with the orders with which he proposes and I have nothing to add.
AUSTIN J:
I agree with the orders proposed and the reasons given by Justice Jarrett.
Accordingly, the orders of the Full Court will be as follows:
(1)Leave to appeal is refused.
(2)The Amended Notice of Appeal filed on 22 October 2024 is dismissed.
(3)The applicant shall pay the respondent’s costs fixed in the sum of $12,742.12.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Austin, O'Brien & Jarrett. Associate:
Dated: 2 December 2024
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