Pike and Pike (Costs)

[2007] FamCA 790

FAMILY COURT OF AUSTRALIA

PIKE & PIKE (COSTS) [2007] FamCA 790

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – COSTS – awarded as appeal wholly unsuccessful.

Penfold v Penfold (1980) 144 CLR 311

APPELLANT: MR PIKE

RESPONDENT: MS PIKE

FILE NUMBER: NCM 2041 of 2004

APPEAL NUMBER: EA 93 of 2006

DATE DELIVERED: 6 August 2007

PLACE DELIVERED: PARRAMATTA

JUDGMENT OF: COLEMAN J.

HEARING DATE: 12 February 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 9 March 2007

LOWER COURT MNC:

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Kevin Byrnes,
Byrnes Lawyers

COUNSEL FOR THE RESPONDENT: Mr. Tregilgis

SOLICITOR FOR THE RESPONDENT: Crane Butcher McKinnon

Orders

1. That the father pays the mother’s costs relative to the father’s appeal filed 30 August 2006 as agreed or assessed or taxed provided that such sum not exceed $4000.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the costs judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Pike & Pike.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 93/2006
File Number: NCM 2041 of 2004

MR PIKE

Appellant

And

MS PIKE

Respondent

COSTS JUDGMENT

1. On 12 March 2007 the Court delivered its judgment in this appeal. For reasons then given, the husband’s appeal was dismissed. Costs were reserved and written submissions invited in relation to costs.

2. The Court has received submissions on behalf of the wife in support of an application for costs, such submissions being dated 27 March 2007 and submissions on behalf of the husband in opposition to any order for costs dated 12 June 2007. Brief submissions in reply were filed on behalf of the wife on 22 June 2007.

3. Counsel for the wife relied upon the reality that the husband’s appeal had been wholly unsuccessful in support of the application for costs. Reliance was also placed upon the nature of the determination at first instance. 

4. In resisting the wife’s application for costs, in the submissions on behalf of the husband it was, correctly, submitted that a successful party was not thereby “automatically entitled” to an order for costs and that there must be “reasons which justify the making of such an order”.

5. Although not precisely so expressed, the latter proposition substantially accords with the legislation. The Court must form the opinion that the circumstances justify the making of an order for costs before it can do so. As the High Court has made clear (see Penfold v Penfold (1980) 144 CLR 311), albeit within the legislative framework of section 117 of the Act, the formation or otherwise of the requisite opinion involves the exercise of a broad discretion.

6. Reliance was placed upon matters which pre-dated the trial at first instance.  Whatever relevance those matters assumed at first instance, they did not assume significance in the appeal, nor could they. The appeal involved various challenges to the conclusions reached by a learned Federal Magistrate. As the Reasons for Judgment of 12 March 2007 make clear, though thoroughly and skilfully agitated, none of those challenges found favour with this Court. There may be cases where the conduct of a party prior to the determination of the appeal by this Court impacts upon the exercise of discretion in relation to costs.  This is not such a case.

7. Reliance was placed upon the husband’s bone fides in pursuing his appeal to this Court. It has, fairly, not been suggested that the husband’s bone fides impact upon the wife’s costs application. The Court records its acceptance of the assertion that the husband was at all times bone fide in pursuing his entitlement as a citizen to challenge the decision of the learned Federal Magistrate in this Court.

8. No part of the Court’s exercise of discretion involves any adverse finding, or inferences based thereon, with respect to the husband’s bone fides. The fact remains however that the husband’s unsuccessful pursuit of an appeal against a discretionary judgment was found to be without merit. The wife, as her Counsel submits, had no alternative than to resist the husband’s appeal and thereby incur costs.

9. It was submitted on behalf of the husband that the Court “should be reluctant to make costs orders against a party whose sole motivation is what they genuinely believe to be the best interests of the child/children”. With respect to Counsel for the husband, the Court perceives no statutory foundation for that proposition. The principles which govern the exercise of discretion at first instance, and the conduct of an appeal to this Court, are not in doubt. As the authorities make clear, substantial obstacles confront appeals against the exercise of discretion in the absence of material errors in the fact finding exercise of a trial court.

10. As noted above, no part of the Court’s determination of the wife’s costs claim involves the drawing of any adverse inferences with respect to the husband’s bone fides.  That, with respect to the husband’s Counsel, is as much as the husband can derive from issues relating to his motivation.

11. It was submitted that it “cannot be said that the appeal was hopeless”. The legislation speaks in terms of lack of success rather than lack of hope. Few things in life could be considered to be without hope. None of the matters referred to in the context of hope (see paragraph 8) alters the reality that the appeal was unsuccessful and that, unless the Court makes some order for costs in favour of the wife, she will be out of pocket with respect to an exercise in which she has been wholly successful.

12. Subject to consideration of the respective financial positions of the parties, the Court is of the opinion that the appellant husband should pay the wife’s costs of the appeal on the basis sought by Counsel for the wife in his primary submissions. 

13. The Court accepts that neither party is in affluent circumstances, and accepts that the transcript cost for the husband was substantial. With respect to the submission on behalf of the husband that there “needs to be some circumstance other than simply the unsuccessful nature” of the husband’s appeal in order to found a costs order that, with respect, is not a proposition which can be supported having regard to the legislative provisions governing costs applications. It may in a given case be the reality that the absence of success alone is not a sufficient basis for forming the requisite opinion, but, other things being equal; the Court cannot accept that more than a complete absence of success is required. 

14. It remains to consider the order which is appropriate to be made. The Court has no ability to anticipate what sum the husband would be ordered to pay towards the mother’s costs of the appeal on an agreed or taxed basis. The factors relied upon in support of the husband’s resistance to a costs order, namely the amount of material involved in preparing and presenting the appeal can also be relied upon by the mother in relation to the quantum of costs appropriately payable by her. 

15. In the circumstances, the Court proposes that the order sought by Counsel for the wife be made subject to the proviso that, whether agreed or taxed, no more than $4000 be payable by the husband by way of contribution to the wife’s costs. This conclusion is significantly influenced by the cost of transcript to the husband and the comparative financial positions of the parties.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  6 August 2007