Pavlic & Pavlic (No 2) - [2023] FedCFamC1A 97

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pavlic & Pavlic (No 2) [2023] FedCFamC1A 97

Appeal from: Pavlic & Pavlic (No 2) [2022] FedCFamC2F 1453

Appeal number: NAA 255 of 2022

File number: MLC 6470 of 2020

Judgment of: AUSTIN, WILLIAMS & HOWARD JJ

Date of judgment: 23 June 2023

Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appeal was allowed and the question of costs was reserved – Whether the respondent should be ordered to pay the appellant’s costs of the appeal – Where the respondent opposed any costs order – Where the respondent was wholly unsuccessful in resisting the appeal, but it was not unreasonable for her, as a self-represented litigant, to rely upon the validity of the appealed judgment – Where the appellant contends he made an offer of compromise to the respondent – Where the offer had no genuine aspect of compromise – Where the parties’ conduct in the proceedings at first-instance is immaterial to the costs incurred in the appeal – Where the appellant filed his costs application late – Where the appellant did not submit why leave should be granted to pursue costs – Where there is no reason to disturb the orthodox rule imported by s 117(1) of the Family Law Act 1975 (Cth) – Where the parties shall bear their own costs of and incidental to the appeal – Application for costs dismissed.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) (2006) 67 NSWLR 706; [2006] NSWCA 120

Fabre v Lui (No 2) [2015] NSWCA 312

Hancock v Arnold (No 2) [2009] NSWCA 19

Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Pavlic & Pavlic(No 3) [2022] FedCFamC2F 1550

Number of paragraphs: 20

Date of hearing: Heard by way of written submissions

Place: In Chambers

Counsel for the Appellant: Ms Renwick

Solicitor for the Appellant: Coote Family Lawyers

The Respondent: Litigant in person
ORDERS

NAA 255 of 2022
MLC 6470 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR PAVLIC

Appellant

AND:
MS PAVLIC

Respondent

order made by:

AUSTIN, WILLIAMS & HOWARD JJ

DATE OF ORDER:

23 June 2023

THE COURT ORDERS THAT:
1.The appellant’s application for costs of and incidental to the appeal is dismissed.

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 a pseudonym Pavlic & Pavlic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pavlic & Pavlic (No 2)

Details

AGLC: Pavlic & Pavlic (No 2) [2023] FedCFamC1A 97
Case: [2023] FedCFamC1A 97
Decision Date

CaseChat Overview and Summary

In Pavlic & Pavlic (No 2), the Federal Circuit and Family Court of Australia Appellate Division was called upon to adjudicate an appeal concerning the allocation of costs in family law proceedings. The appeal was brought by Mr Pavlic, the appellant, against Ms Pavlic, the respondent, who was self-represented. The appeal related to an earlier decision regarding property settlement orders made by the primary judge. The primary issues before the court were whether the respondent should be ordered to pay the appellant’s costs of the appeal and, if so, the quantum thereof.

The appellant argued that he was entitled to an order compelling the respondent to pay his costs on either an indemnity basis or at scale. He asserted that his entitlement to costs arose from three primary reasons: the appeal was successful and the respondent was wholly unsuccessful; he made an offer to the respondent which she unreasonably rejected; and the nature of the respondent’s conduct in the proceedings before the primary judge. The respondent opposed any costs order, regardless of the manner of assessment, and highlighted the appellant’s late filing of his costs schedule and her poor financial circumstances.

The court found that the appellant's reasons for seeking a costs order were not sufficient to justify a departure from the general rule that parties should bear their own costs. The third reason regarding the respondent's conduct was deemed irrelevant as it pertained to the proceedings before the primary judge, not the appeal. While the appeal was successful, the court held that it was not unreasonable for the respondent, as a self-represented litigant, to contest the appeal on the merits. The court also found that the letter sent to the respondent by the appellant’s lawyers did not constitute a genuine offer of compromise, thereby negating any relevance to the costs question. Additionally, the appellant did not provide any justification for his late filing of the costs schedule, and the respondent's financial circumstances, though relevant, did not override the general principle that each party should bear their own costs.

Ultimately, the court dismissed the appellant's application for costs, reaffirming the principle that parties bear their own costs of and incidental to the appeal unless justified under the Family Law Act 1975 (Cth).

Orders