PENCIOUS & SEARLE
[2016] FamCAFC 27
•26 February 2016
FAMILY COURT OF AUSTRALIA
| PENCIOUS & SEARLE | [2016] FamCAFC 27 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFY – Where the husband sought an order disqualifying the Honourable Justice Strickland from further hearing these matters – Where the husband has not satisfied the test as it applies to apprehended bias – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the husband seeks an extension of time to appeal orders dismissing the joinder of the wife’s parents to the property settlement proceedings, and ordering that the husband pay the wife’s costs – Where there is no adequate explanation by the husband for the delay after May 2013 in bringing the application – Where the proposed appeal against the orders dismissing the joinder application is futile – Where there is no merit in either of the proposed appeals – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the husband seeks an extension of time to appeal against orders for costs made consequent upon the dismissal of his application to restrain the wife’s solicitor and his legal firm from acting for her – Where the husband asserts that information has come to light since the proceedings concluded which show that his application should not have been dismissed and he should not have had a costs order made against him – Where the husband has unsuccessfully raised these matters previously – Where the proceedings have concluded – Where it is not open to the husband to now pursue those claims via a challenge to the costs orders – Where there is no merit in the proposed appeal – Where no error appealable or otherwise by the trial judge is raised in the draft Notice of Appeal – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REVIEW DECISION OF APPEAL REGISTRAR – Where the Appeal Registrar refused to accept for filing an application by the husband insofar as it sought an extension of time to appeal orders dismissing the husband’s application that the wife’s solicitor and his legal firm be restrained from acting for her – Where an application by the husband to reinstate a Notice of Appeal against those orders had been previously dismissed – Where the husband asserted that the application was a different application because it sought an extension of time and not reinstatement – Where the nature of the applications are the same and the facts relied on do not raise anything new – Where there is no merit in the proposed appeal – Where the proposed appeal is futile – Where it would be an abuse of process to allow the application to be filed – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the wife seeks that the husband pay her costs of the application of the husband to reinstate the abandoned Notice of Appeal – Where the husband opposes the application and seeks an order for costs in his favour – Where there is no basis for making an order for costs in the husband’s favour – Where there are clearly circumstances which justify an order for costs being made in the wife’s favour – Where the husband asserts that his poor financial circumstances as compared with the wife’s financial circumstances should prevent an order for costs being made – Where impecuniosity is no bar to an order for costs – Husband’s application seeking costs dismissed – Costs ordered on a party/party basis in favour of the wife with such costs to be assessed in default of agreement. |
| Family Law Act 1975 (Cth) – ss 90AF(3), 117 (1), (2) and (2A) |
Family Law Rules 2004 (Cth) – r 19.08(3)
| D & D (Costs) (No. 2) (2010) FLC 93-435 |
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342
| APPLICANT: | Mr Pencious |
| FIRST RESPONDENT: | Ms Searle (formerly Pencious) |
| SECOND RESPONDENTS: | Mr and Mrs Searle |
| ||||||||||||||||
| SOA | 3 | of | 2015 | |||||||||||||
| SOA | 5 | of | 2015 | |||||||||||||
| DATE DELIVERED: | 26 February 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 6 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 20 July 2010 9 September 2010 28 February 2012 5 April 2012 |
| LOWER COURT MNC: | [2010] FamCA 605 N/A [2012] FamCA 74 [2012] FamCA 212 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Wood |
SOLICITOR FOR THE FIRST RESPONDENT: | Adrian Abrahams Family Law |
| COUNSEL FOR THE SECOND RESPONDENTS: | Mr Halperin |
| SOLICITOR FOR THE SECOND RESPONDENTS: | Halperin & Co Pty Ltd |
Orders
The application in an appeal filed by the husband on 8 January 2015 and amended on 4 May 2015 in appeal number SOA 3 of 2015 be dismissed.
The application in an appeal filed by the husband on 27 January 2015 in appeal number SOA 5 of 2015 be dismissed.
The application in an appeal filed by the husband on 16 February 2015 seeking to review the decision of the Appeal Registrar in appeal number SOA 24 of 2012 be dismissed.
The husband’s application for costs be dismissed.
The husband pay the wife’s costs of and incidental to the husband’s application in an appeal filed on 21 March 2014 in appeal number SOA 24 of 2012 seeking reinstatement of his Notice of Appeal filed on 27 March 2012 but subsequently deemed abandoned, such costs to be assessed on a party/party basis in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle 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 MELBOURNE |
Appeal Numbers: SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015
File Number: MLC 11069 of 2008
| Mr Pencious |
Applicant
And
| Ms Searle (formerly Pencious) |
First Respondent
And
| Mr and Mrs Searle |
Second Respondents
REASONS FOR JUDGMENT
Introduction
On 6 May 2015 the following applications in an appeal were before this court:
a)An application filed by Mr Pencious (“the husband”) on 8 January 2015 and amended on 4 May 2015 in appeal number SOA 3 of 2015, seeking an extension of time to file a Notice of Appeal against orders made by Cronin J on 20 July 2010 and 9 September 2010.
b)An application filed by the husband on 27 January 2015 in appeal number SOA 5 of 2015 seeking an extension of time to file a Notice of Appeal against orders made by Cronin J on 5 April 2012.
c)An application filed by Ms Searle (“formerly Pencious”) (“the wife”) on 5 February 2015 seeking an order for costs against the husband in appeal number SOA 24 of 2012.
d)An application filed by the husband on 16 February 2015 seeking to review the decision by the Appeal Registrar to refuse to file an application in an appeal presented for filing by the husband in appeal number SOA 24 of 2012.
e)Applications filed by the husband on 27 April 2015 in appeal numbers SOA 3 of 2015, SOA 5 of 2015 and SOA 24 of 2012 seeking that I be disqualified from further hearing these matters.
In relation to the applications that I be disqualified, I dismissed the same on 6 May 2015, and indicated that I would deliver my reasons for judgment at a later date. Those reasons are set out hereunder.
As for the other applications, after dismissing an oral application by the husband seeking that they all be adjourned and dismissing an oral application by the husband seeking to restrain Mr Wood, counsel for the wife, from further acting for her, I heard those applications and reserved my judgment in relation to each of them. I also set out hereunder my reasons for judgment in relation to those applications.
The applications filed on 27 January 2015 seeking that I be disqualified
The reasons put by the husband for those applications were the same in each matter, and can be found in the affidavits filed on 27 January 2015 in support of the applications.
In summary, on 13 January 2015 I dismissed the husband’s application to reinstate a Notice of Appeal against orders made by Cronin J on 28 February 2012. That Notice of Appeal was deemed abandoned when the husband failed to file appeal books within the time allowed in the procedural orders made by the Appeal Registrar. On 9 February 2015 the husband filed an application for special leave to appeal my order to the High Court of Australia, and that application was pending as at 6 May 2015. In those circumstances the husband submitted first, that given his application to the High Court, “there is a perception that his Honour may not bring an objective mind to proceedings involving the husband on 6 May 2015”. Secondly, the husband complained that in my reasons for judgment of 13 January 2015 I had made “comments which were unfairly prejudicial to [him] and which show that [my] conduct constituted ostensibly [sic] bias”.
The principles concerning disqualification on account of apprehended bias are well settled. In the decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
…
(Footnotes omitted)
The effect of that decision and the principles emanating from it are confirmatory of what was determined in an earlier decision of the High Court in Johnson v Johnson (2000) 201 CLR 488. The principle that sprang from Johnson, and which was confirmed in Ebner, is that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. I note also that in Johnson, the High Court said this at 493:
12The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(Emphasis added)
Finally, I refer to the High Court decision in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, where Mason J said at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.
(Emphasis added)
Applying these principles to the submissions of the husband, it is readily apparent that the test has not been satisfied.
There is no basis for the husband to claim that because there is an appeal pending against a previous judgment of mine, a fair-minded lay observer might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the question that I am required to decide. The husband cannot point to anything that I have said or done that would create the “perception” alleged. The mere fact that there is an appeal pending in one set of proceedings cannot result in the disqualification of the judge in another set of proceedings, otherwise the wheels of justice would grind to a halt.
As to the husband’s second claim, he does not identify the alleged offending comments as is required under the first step specified by the High Court of Australia in Ebner, and plainly he does not articulate “the logical connection” required by the second step specified in Ebner. Further, and in any event, having closely read my reasons for judgment delivered on 13 January 2015, I reject the claim that there is anything “unfairly prejudicial” or which demonstrates “bias” in those reasons. It is not a basis for disqualification that a litigant is unhappy with the result, and here that is as high as it can be put.
The application in an appeal filed by the husband on 8 January 2015 and amended on 4 May 2015 in appeal number SOA 3 of 2015
The husband here seeks an extension of time to file a Notice of Appeal against orders made by Cronin J on 20 July 2010 and 9 September 2010.
In summary, the orders of 20 July 2010 dismissed the husband’s application to join the wife’s parents (the second respondents) to the property settlement proceedings between the husband and the wife, and seeking an injunction against the parents requiring them to pay money into trust to which the husband would then have access to meet his legal costs. His Honour dismissed that application and dismissed the responses of the wife and the parents save as to costs. In relation to the wife’s costs, that is where the order of 9 September 2010 comes in; by paragraph 8 of that order, by consent, the husband was to pay the wife’s costs fixed in the sum of $9,000. As for the parents, I understand that their costs were paid by the husband, but by private arrangement, and without an order being made.
It is plain that the husband did not file a Notice of Appeal against those orders within the time allowed under the Family Law Rules (2004) (Cth) (“the Rules”), and thus to pursue appeals it was necessary for him to bring an application seeking an extension of time.
The principles in relation to such applications are well settled. For example, in the High Court decision of Gallo v Dawson (1990) 93 ALR 479 McHugh J said this at [480]:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
Thus, the fundamental issue is whether an extension of time is necessary to do justice between the parties, and in looking at that there are a number of factors that may be relevant to take into account. Here, those factors are whether there are adequate reasons for the failure to file a Notice of Appeal in time and for the delay in bringing the application, and whether the proposed appeals have merit.
As to the husband’s explanation for failing to file a Notice of Appeal within time, and for the delay in bringing the application, he says that on 13 May 2013, during the hearing of the property settlement application, the wife’s mother gave evidence and contradicted what she deposed to in her affidavit that was before his Honour on 20 July 2010. The husband says that it then took him until November 2013 to obtain a copy of the transcript, that he also “had to find all the relevant documents”, that he was unable to work because of injuries suffered in a motor vehicle accident, and he “was forced to represent himself” which was “daunting”, and he lacked the necessary funds to bring the proceedings.
Plainly there is an adequate explanation for the failure to file a Notice of Appeal in time, and for there being no application seeking an extension of time prior to 13 May 2013, however, I am not persuaded that the delay thereafter is satisfactorily explained. The husband did not have to wait to obtain the transcript, and the fact that he has now filed the application makes it obvious that he would have been able to do that earlier. Further, having regard to the submissions of the wife in response, I am not satisfied that the husband did not have the funds required to institute the proceedings.
As to the merits of the proposed appeal, and bearing in mind that leave to appeal was required against the orders of 20 July 2010, it is plain that an appeal would be futile. The proceedings in which those orders were made were concluded by the final orders of Benjamin J on 28 May 2013, and the issue the subject of the orders made by his Honour, namely as to the joinder of the parents, became irrelevant as a result of those final orders.
To put that into context, I need to briefly refer to the facts in issue. There was a dispute between the parties as to how much cash was in their safe at the time of separation. The husband said there was $165,000 and that the wife removed all of that money. The wife said that there was $330,000 and that she removed $165,000, leaving the same amount. The wife then says that she gave $150,000 of the money that she removed from the safe to her parents to repay an alleged loan. The purpose of the joinder application by the husband was to then obtain an order by way of injunction that the parents pay the $150,000 into trust for the husband to access to meet his legal costs.
In the end result, Benjamin J accepted the evidence of the wife and proceeded on the basis that each party received $165,000 from the money in the safe. As to the payment to the parents, Benjamin J found that there was no loan, and thus he did not take into account any liability for repayment of a loan. All of the $165,000 that the wife removed from the safe was treated as being money that she retained.
Thus, as can be seen, it would be pointless to revisit Cronin J’s order of 20 July 2010.
In any event, there is no adequate basis for leave to appeal to be granted, and there is no appealable error by the trial judge asserted in the draft Notice of Appeal. The complaint by the husband is that the court was “misled by the false evidence of the wife and the parents” that the wife provided $150,000 of the money she removed from the safe to her parents. Further, the husband says that he was prejudiced and suffered economic loss as a result because he would not have brought or continued the application if he had known that the parents did not receive the $150,000. However, none of these matters go to whether leave to appeal should be granted, or whether there is an appealable error by the trial judge.
I also observe that it is not correct for the husband to assert that there had been “false evidence”. Certainly there was doubt created as a result of the oral evidence of the wife’s mother before Benjamin J on 13 May 2013, but that evidence was clearly equivocal, and it was apparent that the wife’s mother did not have a sufficient command of the English language in order to properly explain her position. Further, despite the doubt created by that evidence, Benjamin J in fact proceeded on the basis that the $150,000 had been paid (see Searle (formerly Pencious) & Pencious [2013] FamCA 375 at [276]).
Finally, it is relevant to note that Cronin J’s decision was not based on whether or not the money had been paid to the parents; indeed, that was irrelevant to his decision. His Honour found that the husband had not pleaded sufficient facts to establish a cause of action against the parents, and in any event, there was no basis for an order to be made for the parents to repay the money, or for an injunction to be made pursuant to s 90AF(3) of the Family Law Act 1975 (Cth) (“the Act”). Plainly, the application was misconceived and doomed to fail regardless of whether the wife had paid the money to her parents or not.
That analysis also demonstrates that there is no basis to challenge the order for costs made on 9 September 2010. In other words, the husband has failed to demonstrate any appealable error by the trial judge, and there is no merit in that proposed appeal. The husband brought the application for joinder, and it was dismissed by his Honour for reasons that had nothing to do with whether the $150,000 was paid or not. Further, and in any event, as I have explained, it is not accurate to submit that there was “false evidence” which misled the husband and the court. Thus there was a clear basis for an order for costs to be made, and of course the order was by consent, and no reasons for judgment were provided by his Honour.
In conclusion then, given that there is no adequate explanation for the delay after 13 May 2013 in bringing the application, but more significantly, given the proposed appeal against the orders of 20 July 2010 is futile, and there is no merit in either of the proposed appeals, it is not in the interests of justice to grant the application, and it must be dismissed.
Before leaving this discussion, I note that on 4 May 2015 the husband filed an amended application in an appeal still seeking an extension of time, but in addition seeking an order that his affidavit filed on 8 January 2015 in support of the original application, and his draft Notice of Appeal be received as further evidence. However, there is no need for such an order given that those documents were in fact before the court and I have had regard to them in determining whether an extension of time should be granted.
The application in an appeal filed by the husband on 27 January 2015 in appeal number SOA 5 of 2015
This is another application to extend the time to file a Notice of Appeal.
The orders sought to be appealed are the orders for costs made by Cronin J on 5 April 2012 against the husband, in favour of the wife and the Independent Children’s Lawyer. Those orders were made as a consequence of his Honour dismissing on 28 February 2012 the application by the husband to restrain the wife’s solicitor and his legal firm from further acting for the wife.
To put that into context with the other applications before the court today, the husband filed a Notice of Appeal against the orders of 28 February 2012, but as a result of the husband failing to file the appeal books, the Notice of Appeal was deemed abandoned. Subsequently the husband sought reinstatement of that Notice of Appeal, but I dismissed that application on 13 January 2015. As referred to above, the husband applied to the High Court of Australia for special leave to appeal that order, but that application was dismissed on 13 May 2015.
It is readily apparent from the husband’s affidavit in support of the application, and the draft Notice of Appeal, that the complaint he makes is not directed per se to the costs orders, and the reasons for judgment relating to those orders, but to the dismissal of his application to restrain the wife’s solicitor from acting for her. He claims that information came to light subsequently that he says “raise[d] serious issues in relation to the conduct of the trial, the evidence given by the Wife’s legal representatives during the course of the trial and the Court’s process to ensure that justice was afforded to [him]”. Specifically the husband in his draft Notice of Appeal says that “[t]he Legal Practitioners for the wife gave misleading evidence at trial … resulting in his Honour exercising his discretion wrongfully on the facts and the evidence and which resulted in Judgement [sic] which has caused a miscarriage of Justice to the Husband”.
The husband’s argument is that if that is the case, then his application should not have been dismissed, and there would not have been any costs orders made against him.
However, the insurmountable difficulty for the husband in pursuing the application before the court now, is that his attempts to raise these issues previously have been unsuccessful, and the substantive proceedings have concluded. For example, the claims of the husband were very much the subject of his application to reinstate his Notice of Appeal against the dismissal of his application to restrain the wife’s solicitor from acting further, and they were found wanting. In those circumstances it is not open to the husband to pursue those claims via a challenge to the costs orders, even if he was able to persuade the court to grant an extension of time. As to that, there is no basis for an extension of time to be granted. The husband explained that his failure to file a Notice of Appeal in the time allowed was because he did not have the information that he now relies upon. However, even on his own case, the husband clearly had that information by March 2014, when he sought to reinstate the Notice of Appeal in appeal number SOA 24 of 2012, but it was not until 27 January 2015 when he brought the application, and there is no explanation for that delay. Further, there is no merit in the proposed appeal. There is no error, appealable or otherwise, by the trial judge, raised by the husband in his draft Notice of Appeal. To repeat, his complaints are directed to the order dismissing the application to restrain the wife’s solicitor and not to the costs orders. Thus, the interests of justice require that the application for an extension of time be dismissed.
The application in an appeal filed by the husband on 16 February 2015 seeking to review the decision of the Appeal Registrar in appeal number SOA 24 of 2012
On 27 January 2015 the husband sought to file an application in an appeal seeking an extension of time to file a Notice of Appeal. The husband also sought to file an affidavit and draft Notices of Appeal in support of that application. It was apparent that the husband was seeking an extension of time to file Notices of Appeal against the orders made by Cronin J on 28 February 2012 and 5 April 2012. To repeat, those orders respectively dismissed the husband’s application to restrain the wife’s solicitor and his legal firm from continuing to act for the wife, and provided for costs.
The Appeal Registrar refused to accept the application insofar as it sought an extension of time to appeal against the orders of 28 February 2012, on the basis that the husband had filed a Notice of Appeal against those orders on 27 March 2012, but that Notice was deemed abandoned when the husband failed to file appeal books, and his application to reinstate the Notice of Appeal was dismissed on 13 January 2015.
The husband seeks to review that exercise of power by the Appeal Registrar, and as is well settled, that review is to proceed by way of a hearing de novo. Thus, it falls to this court to determine afresh whether the application should be accepted for filing.
The husband submits that the application should be accepted, despite the dismissal of his application to reinstate his abandoned Notice of Appeal, because it is a different application, namely an application seeking an extension of time. That is strictly correct, but the nature of the applications is the same, and the principles that apply are the same. In both applications it is necessary to address whether there is merit in the appeal (or the proposed appeal). Here, there is nothing new in the grounds of appeal to be relied on if an extension of time is granted, when compared with the ground of appeal in the abandoned Notice of Appeal, or with the complaints of the husband that I allowed to be argued orally when I heard and determined the application for reinstatement. Further, I found that the previous appeal was futile regardless of any merit in the appeal, and that remains the position with the proposed appeal. For completeness, I repeat what I said as to this in my reasons for judgment of 13 January 2015, namely:
28.Before leaving the merits of the appeal it is necessary for me to say something about the futility of the appeal. The interlocutory order the subject of the appeal was made in the context of parenting proceedings which were completed by consent orders made on 22 May 2011, noting as well that at the time of the hearing of this application the children of the marriage were respectively aged 20 years and 17 years.
29.There had been property settlement proceedings, but they were concluded by orders made on 23 May 2013. There was an appeal by the husband against those orders, but that appeal has been dismissed. Accordingly, as I understand it, the only issue still to be determined finally is that of costs. Thus, it is readily apparent that this appeal is futile, and that is regardless of any merit in the appeal; it can go nowhere as presently constituted.
I note that one change for the better in the draft Notice of Appeal is that the husband seeks leave to appeal where he omitted to do so in the previous Notice of Appeal. However, the facts relied on to obtain leave again do not raise anything new, and are not such as would require leave to appeal be granted. In any event, even if leave to appeal was given, that does not remove the difficulties with the merits of the proposed appeal, or the futility of the proposed appeal.
Accordingly, I would not accept the application for filing, the issue having been comprehensively dealt with previously by this court. It would be an abuse of process to allow the application to be filed. Thus I propose to dismiss the application to review the decision of the Appeal Registrar.
The application of the wife filed on 5 February 2015 in SOA 24 of 2012
In this application the wife seeks that the husband pay her costs on an indemnity basis of the application of the husband to reinstate the Notice of Appeal filed on 27 March 2012, but which Notice was deemed abandoned when the husband failed to file the appeal books. However, at the hearing the wife’s counsel indicated that indemnity costs were no longer sought, but rather party/party costs fixed in the sum of $20,000
The husband opposes any application for costs, and further seeks an order for costs in his favour. As to that application, there is no basis demonstrated for there to be an order for costs in favour of the husband, and I propose to dismiss the same. Thus, it is only the wife’s application for costs that I need to address.
Any application for costs is governed by s 117 of the Act, and that section relevantly provides as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(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) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(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;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
As can be seen, there can be an order for costs made if there are circumstances that justify it.
The affidavit in support of the wife’s application is brief, but it is plain that the wife is relying on the order that I made on 13 January 2015, and my reasons for judgment, as revealing the justification for an order for costs to be made. Relevantly there is the conduct of the husband (ss 117(2A)(c) and (g)) and the fact that the husband was wholly unsuccessful (ss 117(2A)(e)). The latter provides a sufficient circumstance justifying an order for costs, and I need go no further, but it is appropriate to refer to the former. In that regard I said this in my reasons for judgment of 13 January 2015:
THE CONDUCT OF THE HUSBAND
30.I have touched on how in effect to pursue this application in the absence of an explanation for the failure to comply with the order of the Appeal Registrar, and for the delay in bringing the application, smacks of a lack of bona fides on the part of the husband. That is also brought into sharp focus by the futility of the appeal even if it was reinstated, as well as the failure to seek leave to appeal and the absence of any proper ground of appeal. I also note the contents of the affidavit of the solicitor, Adrian Abrahams filed on 2 May 2014, and in particular the number and fate of complaints by the husband to the Legal Services Commissioner and to the Ethics Committee of the Law Institute of Victoria (paragraph 31). It is also relevant that this court’s limited resources will be burdened by the reinstatement of this appeal, and that can scarcely be justified in the context of the husband’s conduct, and as described by senior counsel by the wife, his “cavalier” attitude to “the case management principles” that guide the work of this court.
Thus, there are clearly circumstances here that justify an order for costs in favour of the wife.
The husband in his affidavit in response suggests that there was “improper conduct by both the wife” and by the wife’s legal representatives, but there is no evidence of this, and frankly I do not know to what the husband is referring. Nothing that the husband put in his affidavit alters the fact that he was wholly unsuccessful in the proceedings.
The husband does though raise, and necessarily so, the respective financial circumstances of the parties (s 117(2A)(a)), and suggests that his poor financial position, as compared with the wife’s financial circumstances, should prevent an order for costs being made.
I have no way of determining what the true position is as to the financial circumstances of each party, but even accepting the husband’s description of his circumstances, there is ample authority that impecuniosity is no necessary bar to an order for costs being made when an order is otherwise justified, as is the case here (D & D (Costs) (No. 2) (2010) FLC 93-435). The wife has been put to the unnecessary expense of opposing an unmeritorious application, and she should not have to bear all of the costs incurred.
The husband sought that if I did not dismiss the wife’s application for costs I should adjourn it pending finalisation of his application for special leave to appeal to the High Court of Australia. However, there was no basis put in support of that application and I am not persuaded that that is a course I should adopt. In any event, I note that the husband’s application for special leave has been dismissed.
As can be seen the wife seeks a lump sum of $20,000 for costs, but I am in no position to assess the same. For example, I do not have an itemised bill of costs to work from. Thus I will provide for the costs to be assessed in default of agreement.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 26 February 2016.
Associate:
Date: 26 February 2016
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