Plantier & Plantier
[2023] FedCFamC1A 228
•18 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Plantier & Plantier [2023] FedCFamC1A 228
Appeal from: Plantier & Plantier (No 3) [2023] FedCFamC2F 1127 Appeal number(s): NAA 273 of 2023 File number(s): DGC 1773 of 2019 Judgment of: TREE J Date of judgment: 18 December 2023 Catchwords: FAMILY LAW – APPEAL – Appeal from a costs order – Where costs orders will rarely be interfered with on appeal unless the result is plainly unjust or arrived at on wrong principles – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered against wife. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act2021 (Cth) s 36(5)
Cases cited: Harris and Harris (1991) FLC 92-254; [1991] FamCA 124
House v The King (1936) 55 CLR 499; [1936] HCA 40
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Ressam & Benida [2022] FedCFamC1A 203
Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Plantier & Plantier [2022] FedCFamC2F 840
Number of paragraphs: 37 Date of hearing: 14 December 2023 Place: Cairns via Microsoft Teams The Appellant: Litigant in person Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Davison Family Lawyers ORDERS
DGC 1773 of 2019
NAA 273 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PLANTIER
Appellant
AND: MR PLANTIER
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 27 November 2023 is dismissed.
2.The appellant is to pay the respondent’s costs in the sum of $7,500 within 56 days.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Plantier & Plantier has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 31 August 2023 a judge of the Federal Circuit and Family Court of Australia (Division 2) ordered that Ms Plantier (“the wife”) pay the costs of Mr Plantier (“the husband”) in the sum of $7,560 within 28 days.
By Amended Notice of Appeal filed 27 November 2023, the wife appeals from that order. The husband resists the appeal. For the reasons which follow, the appeal fails and will be dismissed.
BACKGROUND
The wife is presently 59 years of age, the husband 70. They formed a relationship in 2009, separating some 10 years later in May 2019.
Shortly after their relationship commenced, the wife commenced working for the husband who practises as a professional, albeit she ceased that employment in June 2017.
Property settlement and spouse maintenance proceedings were commenced by the wife in June 2019. Those proceedings concluded in August 2020.
Thereafter the wife commenced Fair Work Act proceedings against the husband in the Federal Court of Australia, alleging that entitlements are owed to her from the time of her employment with the husband. It appears those proceedings remain on foot.
On 8 February 2022, the wife sought unsuccessfully to file an Application–Contempt in the Federal Circuit and Family Court of Australia (Division 2). Although she emailed an unsealed version to the husband on that day, it was thereafter rejected for filing.
Then on 9 February 2022, the wife filed an Application in a Proceeding which sought the following relief:
1. That the matter be listed before [the primary judge].
2.That the [wife] be released from the Harman Undertaking and be permitted to provide all documents in this proceeding to the Federal Court […].
3.That the [wife] be released from the Harman Undertaking and be permitted to give all documents in this proceeding to the [D Authority].
4.That if a charge is found proven, a custodial sentence be imposed on the [husband].
5.That if a charge is found proven, that the [husband] be referred to the [D Authority] for investigation.
6.Such Orders as this Honourable Court determines.
Proposed Orders 4 and 5 clearly related to the rejected 8 February 2022 Application–Contempt. The wife thereafter on 15 February 2022 filed a further Application in a Proceeding seeking similar relief to that claimed in her 9 February 2022 application, and in due course the husband also sought release from the implied undertaking on 20 May 2022. The remaining applications were resolved by the primary judge on 30 June 2022 (Plantier & Plantier [2022] FedCFamC2F 840), including ordering that the wife’s 9 February 2022 Application in a Proceeding was dismissed.
The dismissal of the wife’s 9 February 2022 application precipitated a costs application by the husband. However in the 30 June 2022 reasons, the primary judge noted that the husband’s costs submissions made during the 20 May 2022 hearing did not address certain issues, and her Honour therefore made directions as to the filing of further material as to costs, at the conclusion of which the question of costs would be determined on the papers (Order 9 of orders made 30 June 2022).
It appears that although the last material under that timetable was received on 10 August 2022, it then took over a year for the application to be determined, with her Honour inexplicably only producing her 58-paragraph judgment on 31 August 2023. That said, no ground of appeal contended any error arising from that delay.
In her reasons the primary judge addressed the relevant considerations under s 117 of the Family Law Act 1975 (Cth) (“the Act”) and determined that a costs order was appropriate (at [47]). Her Honour refused to make a costs order on an indemnity basis but rather ordered them on a party/party basis (at [52]–[53]) and fixed them in the sum of $7,560 and directed they be paid within 28 days (at [55]–[56]).
From those orders, the wife appeals.
THE APPEAL
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Further, it is well recognised that costs orders will rarely be interfered with on appeal (Harris and Harris (1991) FLC 92-254 at 78,711) unless the result is plainly unjust or arrived at on wrong principles (Robinson and Higginbotham (1991) FLC 92-209 at 78,417).
Ground 1
This ground provides as follows:
Her Honour is a Judge of a Court exercising Federal jurisdiction under Chapter 3 of the Commonwealth of Australia Constitution Act, which creates an obligation to give reasons such that an appellate court is able discern the processes Her Honour undertook in making her decision to dismiss the appellants application for contempt.
Her Honour did not give any reasons, thus giving rise to an error.
(As per the original)
As expanded upon in the wife’s Summary of Argument, this ground challenges an order made on 20 May 2022; however the Amended Notice of Appeal filed 27 November 2023 (and indeed its predecessor filed 28 September 2023) only challenges the orders made on 31 August 2023. Plainly any appeal from the 20 May 2022 orders is well out of time, and no application to extend time to appeal was filed.
The wife orally contended that s 36(5) of the Federal Circuit and Family Court of Australia Act2021 (Cth) overcame that impediment. That section provides:
36(5)An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Federal Circuit and Family Court of Australia (Division 1), upon hearing an appeal, from giving such decision upon the appeal as is just.
Whatever that section may mean – a question which may await another day – it cannot avail the wife here, as that provision does “not give … open slather to challenge earlier interim … orders from which an appeal could have been brought” (Ressam & Benida [2022] FedCFamC1A 203 at [26]).
Although the wife contended that even if s 36(5) did not permit her to challenge the 20 May 2022 orders, she could nonetheless do so, her argument was little more than a statement of that proposition.
Ground 1 fails.
Ground 2
This ground provides:
Her Honour erred in not properly ascertaining if the [husband] was represented or acting on his own behalf in the determination of the costs order.
(As per the original)
This ground may be dealt with swiftly. It appears to challenge that the husband had actually engaged lawyers in relation to the Application–Contempt, or at least that application insofar as it remained live by virtue of paragraphs 4 and 5 of the relief sought in the wife’s 9 February 2022 Application in a Proceeding.
The primary judge detailed the four components of the costs totalling $7,560 at [55] as follows:
55.The party and party costs to be paid by the Wife are in the sum of $7,560.00, which have been calculated in accordance with: the 2021 Rules, Schedule 1, Scale of Costs in Family Law and Child Support Matters, applicable at the time; and paragraphs [19.2] and [22.2] of the Husband’s Costs Submissions. The party and party costs calculated are set out in the following table.
Item Schedule amount Work performed (with reference to Sch 1) Amount 15(a) $677 per hour Drawing Contempt Application – Senior Counsel
(4 hours)$2,708.00 15(b) $361 per hour Drawing Contempt Application– Junior Counsel (5 hours) $1,805.00 3(a) $1,964 Opposing an application for interlocutory orders – Solicitors $1,964.00 15(b) $361 per hour Drawing Husband’s Costs Submissions – Junior Counsel (3 hours) $1,083.00 TOTAL $7,560.00
The wife did not seriously challenge that the three items referrable to counsel were in respect of work undertaken by them, comprising the work there described.
The scale item (referrable to en globo solicitor’s costs of $1,964) clearly relates to the wife’s 9 February 2022 application itself. There can be no doubt the husband had solicitors acting for him in relation to that, and hence any challenge to that aspect of his costs is misconceived and fails.
To the extent that this ground contends that the husband was partially self-representing, such cannot preclude the husband claiming legal costs nonetheless incurred.
This ground fails.
Ground 3
This ground provides:
Her Honour erred in stating she did not have the jurisdiction to hear, or procedurally manage a contempt application, and was misled by counsel who failed to correct Her Honours misstatement of jurisdiction due to their lack of experience in the jurisdiction. Counsel and the respondent’s solicitors relied on instructions and did not properly consider the implications of providing incorrect and misleading information in support of their client’s position, which further influenced Her Honours decisions making process.
(As per the original)
This ground – whatever it means – plainly is not relevant to the costs order made 31 August 2023, and I need not consider it further. It fails.
OUTCOME
No ground of appeal has succeeded, and hence the appeal will be dismissed.
COSTS
In the event that the wife’s appeal failed, the husband sought his costs, ultimately in the sum of $7,500.
The appeal was wholly without merit and should never have been brought. More, an application to restrain counsel from appearing for the husband was abandoned by the wife at the hearing of the appeal.
The husband’s costs of defending the appeal were always likely to exceed the amount of the initial costs order, although in this case his party/party costs fell some $60.00 short.
The wife did not put on any evidence as to her financial circumstances, although claimed she was destitute, but impecuniosity is not a bar to a costs order (Northern Territory v Sangare (2019) 265 CLR 164).
Weighing those matters satisfies me that there should be a costs order, and that it should be in the claimed sum of $7,500, which is reasonable.
The wife should pay those costs within 56 days.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 18 December 2023
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