Phipson & Phipson (Costs)
[2010] FamCAFC 196
•8 October 2010
FAMILY COURT OF AUSTRALIA
| PHIPSON & PHIPSON (COSTS) | [2010] FamCAFC 196 |
| FAMILY LAW - EXTENSION OF TIME – Where reasonable explanation for delay – Application granted FAMILY LAW - COSTS – Where no determination of costs made in proceedings below – Full Court has power to determine only the costs of the appeal FAMILY LAW - COSTS – Offers of settlement – offers of settlement made before trial – even if able to be taken into account would not provide basis for an order for costs FAMILY LAW - COSTS CERTIFICATES – Where the appeal was allowed on a question of law – Costs certificate granted to appellant |
| Family Law Act 1975 (Cth), s 117 Federal Proceedings (Costs) Act 1981 (Cth), s 9 |
| APPELLANT: | Mr Phipson |
| RESPONDENT: | Ms Phipson |
| FILE NUMBER: | PTW | 3678 | of | 2007 |
| APPEAL NUMBER: | WA | 16 | of | 2008 |
| DATE DELIVERED: | 8 October 2010 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Finn, Thackray and Crisford JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 28 March 2008 |
| LOWER COURT MNC: | [2008] FCWA 38 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr M Supljeglav |
| SOLICITOR FOR THE APPELLANT: | DS Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr G Giudice |
| SOLICITOR FOR THE RESPONDENT: | George Giudice Law Chambers |
Orders
The time within which the respondent wife had to make an application for costs of the appeal be extended to 1 April 2009.
The application of the husband for costs filed on 18 March 2009 and the application of the wife for costs filed on 1 April 2009 be dismissed.
The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Phipson and Phipson (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 16 of 2008
File Number: PTW 3678 of 2007
| Mr Phipson |
Appellant
And
| Ms Phipson |
Respondent
REASONS FOR JUDGMENT
On 4 March 2009 this Court delivered reasons for judgment and made orders allowing an appeal by the husband against orders for property settlement made by Crooks J on 28 March 2008.
In our orders of 4 March 2009 we made directions that within 14 days the parties file and serve written submissions in the event either sought “costs in relation to the appeal”. Any response was to be made 14 days after service of such submissions.
In written submissions filed on his behalf on 18 March 2009, the husband sought that the wife should pay his “costs of and incidental to the [substantive property settlement] proceedings as from 1 May 2007 to 12 September 2008, pursuant to section 117(2A)(c) and (f) of the Family Law Act 1975 on an indemnity basis”. Alternatively, he sought his costs for the same period on a party and party basis. Further, the husband sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal.
In brief written submissions sent to the Court by facsimile transmission on 1 April 2009 the wife opposed the husband’s application that she pay his costs of the substantive property settlement proceedings and the appeal. In turn she sought an order that the husband pay her costs of both “the trial and the appeal”. In paragraph 10 of her written submissions the wife sought an extension of time in which to respond to the husband’s submissions.
On 3 April 2009 the Regional Appeal Registrar wrote to the wife’s solicitors drawing attention to the fact that whilst the wife’s submissions in reply to the husband’s submissions had been filed within time, the wife was out of time to make an application for her own costs. The relevant part of the letter from the Registrar read as follows:
I also note that in your client’s submissions in paragraph 10 you seek an extension of time to respond to the husband’s submissions. I note that the orders made on 4 March 2009 provided for each party, if they sought an order for costs, to file and serve written submissions by 18 March 2009. Your client did not file submissions by that date. The orders also provided that the respondent to any application for costs file and serve written submissions in response within 14 days of service. It would appear therefore that your client’s submissions in relation to opposing the husband’s costs has been filed in time but that what you effectively seek is an extension of time to file submissions in relation to your own client’s costs. According to your client’s submissions you were served on 30 March 2009. You would therefore have until 13 April 2009 to file detailed response submissions to the husband’s submissions for costs.
In any event an extension of time cannot be merely requested in submissions unless that extension of time is provided by consent. If not by consent, a Form 21 Application in an Appeal must be filed.
By an Application in an Appeal filed on 6 May 2009 the wife sought that “the time in which [she] may file her application for costs and submissions to be extended to 7 days after the making of this order”.
On 13 May 2009 the Regional Appeal Registrar again corresponded with the wife’s solicitors to ascertain whether the wife’s application of 6 May 2009 was designed to permit further submissions to be made to us or was simply seeking permission to rely on the submissions of 1 April 2009. No reply has been received to that correspondence.
As the Regional Appeal Registrar has previously pointed out, the wife did not need permission to rely upon the submissions filed on 1 April 2009 insofar as they responded to the husband’s application for costs made on 18 March 2009. She did need leave to make her own application for costs since the orders we made on 4 March 2009 required any application to be filed and served within 14 days of the making of those orders.
We have determined to extend the time in which the wife had to file her application for costs until 1 April 2009. We do so on the basis that the husband has not put in issue the following matters arising from the wife’s submissions:
•On 25 September 2008 in the context of attempts to settle the appeal the husband’s solicitor was advised of the wife’s intention to seek costs.
•The orders of 4 March 2009 were only received by the wife’s solicitors on 30 March 2009.
•The submissions for costs filed on behalf of the husband were only received by the wife’s solicitors on 30 March 2009.
•The wife’s solicitors responded by submissions dated 31 March 2009 and which were sent to the Court the following day.
The costs of the substantive proceedings
We do not propose to deal with the applications made by each party for costs of the substantive proceedings. The authority of the Full Court of the Family Court of Australia is limited to determination of an appeal from the decree of the primary Judge, in this case a Judge of the Family Court of Western Australia. The appeal in this matter was limited to the property settlement order. Any issues associated with costs of the proceedings below must first be dealt with by the trial Judge. In the event that a party is aggrieved by his decision then an appeal would lie from that decree.
We infer from the submissions that issues associated with costs of the proceedings below have not previously been agitated. If that is so then the appropriate remedy is for an application to be made for an extension of time within which to seek an order for costs. Such an application would no doubt be dealt with in light of the re-exercise of the trial Judge’s discretion and in light of the time it has taken us to deliver these reasons.
The costs of the appeal
The husband has not sought an order for the wife to pay the costs of the appeal, instead seeking a certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). The wife, on the other hand, has sought that the husband pay her costs of the appeal and has not sought a costs certificate.
The husband’s appeal succeeded on the basis that the decision of the trial Judge was outside the reasonable range of discretion. We found it appropriate to re-exercise his Honour’s discretion and determined that the wife should receive 55% of the assets rather than 62% as had been ordered. This was an error on a question of law. The power to award a costs certificate is therefore enlivened, subject to s 9(1)(b) of the legislation, which provides that a costs certificate may be granted to a successful appellant only where “in accordance with section 117 of the Family Law Act 1975, each party to the appeal bears his or her own costs”.
Accordingly, before we consider the husband’s request for a cost certificate it is first necessary we consider the wife’s application for the husband to pay her costs of the appeal.
The basis upon which the wife seeks the husband pay her costs relates to offers of settlement made in the substantive proceedings. She claimed to have made an offer prior to trial to accept 57% of the assets, which she noted was only two per cent more than the 55% she received as a result of the re-exercise of the trial Judge’s discretion. She submitted that the husband had been unreasonable in rejecting the offer and had it been accepted there would have been no trial and no appeal.
We express no view on the proposition that offers of settlement made in the course of the substantive proceedings can properly be taken into account in determining the costs of the appeal. Assuming they could be, we are not satisfied that the offer relied upon by the wife would form a basis for ordering the husband to pay the wife’s costs of the appeal. The offer was for a settlement more favourable to the wife than she ultimately received. The offer was not repeated during the course of the appeal. Indeed, the wife rejected offers of settlement whereby she would have received 57.5% or 57% of the assets – i.e. more than what she received pursuant to our orders.
The wife’s application for costs has no merit and will be dismissed. The husband does not seek costs of the appeal against the wife. His counsel and solicitors very generously acted for him on a pro bono basis and a costs certificate is sought only in order to recover necessary disbursements, totalling $1,737. We consider it appropriate that a costs certificate be issued in order to permit the husband to seek to recover that amount.
The wife has not sought a costs certificate. It remains open to her to do so.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 8 October 2010.
Associate:
Date: 8 October 2010
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