Rand and Rand (Costs)
[2010] FamCAFC 231
•17 November 2010
FAMILY COURT OF AUSTRALIA
| RAND & RAND (COSTS) | [2010] FamCAFC 231 |
| FAMILY LAW – COSTS - Application for costs of successful appeal – Not established that success of husband on appeal referrable to any fact or circumstance enlivening discretion to make costs order against wife – Appellant succeeded on appeal on issue not raised at trial – Appellant’s conduct of case at trial materially contributed to his need to appeal – Court not disposed to award successful appellant certificate pursuant to Federal Proceedings (Costs) Act 1981. |
| Family Law Act 1975 (Cth) s 117 Federal Proceedings (Costs) Act 1981 (Cth) |
| Limousin & Limousin (Costs) [2007] FamCA 1178 |
| APPELLANT: | Mr Rand |
| RESPONDENT: | Mrs Rand |
| FILE NUMBER: | SYF | 2153 | of | 2001 |
| APPEAL NUMBER: | EA | 38 | of | 2008 |
| EA | 76 | of | 2008 |
| DATE DELIVERED: | 17 November 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Coleman & Boland JJ |
| HEARING DATE: | 20 April 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 June 2007 28 March 2008 |
| LOWER COURT MNC: | [2007] FamCA 1674 [2008] FamCA 281 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Grieve QC Mr Milanovic |
| SOLICITOR FOR THE APPELLANT: | Cadmus Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC Mr Beaumont |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
That there be no order as to the costs of the appeal.
That the wife’s application in an appeal filed on 1 November 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rand & Rand 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 SYDNEY |
Appeal Number: EA 38 of 2008
EA 76 of 2008
File Number: SYF 2153 of 2001
| MR RAND |
Appellant
And
| MRS RAND |
Respondent
REASONS FOR JUDGMENT
costs
INTRODUCTION
On 3 September 2010 we allowed the husband’s appeal against orders made by the Honourable Justice Collier on 25 June 2007 and 28 March 2008, and made orders for the parties to provide written submissions on costs. On 1 October 2010 the husband filed written submissions. No written submissions were filed by or on behalf of the wife in accordance with our orders.
By application filed on 1 November 2010, the solicitors for the wife sought an extension of time within which to file submissions in opposition to the submissions filed on behalf of the husband. On 12 November 2010, the submissions sought to be relied upon on behalf of the wife were received. It was there submitted that “there should be no order as to the costs of the appeal” (paragraph 5). In “Conclusion”, it was submitted that “there should be no order as to costs of the appeal, or the trial” (paragraph 19). For the reasons which follow, we do not propose extending time to permit the submissions of counsel for the wife of 12 November 2010 to be filed and relied upon. As will be seen, so doing cannot visit any injustice upon the wife.
In his written submissions filed on 1 October 2010 the husband sought orders:
2a. That the Respondent pay the Appellant’s costs of the appeal and the proceedings below on an indemnity basis;
b. That Orders 1- 4 inclusive made by Collier J on 28 March 2008 (a copy of which is attached) for the payment of the Respondent’s costs of and incidental to the proceedings in the Court below by the Appellant be set aside;
c.That the Respondent pay the Appellant’s costs of and incidental to the proceedings in the Court below on an indemnity basis;
d.Alternatively, that the Respondent pay the Appellant’s costs of the appeal and the proceedings below on a party/party basis;
e.Alternatively, that the Appellant could be granted a costs certificate pursuant to the capital [sic] Proceedings (Costs) Act 1981;
f.That the Court certify for both senior and junior counsel in respect of both the appeal and the proceedings below;
g.Alternatively that each party bear his or her own costs of the proceedings.
We observe at the outset that we do not have power to make orders in relation to the proceedings before Collier J. Even if we do have power, we would not exercise it. It remains therefore to consider whether any of the relief sought with respect to the costs of the proceedings in this court should be granted.
In support of the husband’s costs application, senior counsel acknowledged:
5.In making this application for costs, the Appellant is mindful of the comment in [152] of the judgement [sic] of the Court as to the relevance of the fact that the he [sic] succeeded in the appeal on bases which were not raised before the trial Judge. It is respectfully submitted, however, that that matter is one that ultimately has little or no weight or significance in the circumstances of this case and cannot be determinative of the outcome of this application to costs...
After reviewing the course of the trial Judge’s reasons, senior counsel for the husband reiterated that:
12.The Court’s [sic] has observed that the basis of the Appellant’s successful appeal was not even hinted at before the trial Judge and that if it had been, the proceedings may well have had quite a different outcome; [129]. It is accepted that the uncertainty challenge, on which the appeal ultimately succeeded, was not directly raised or argued before the trial Judge. That is not to concede, however, that the ingredients of an uncertainty challenge were not before the trial Judge in the form of the competing contentions as to the meaning of the term “accounting” and the width of the obligation required for compliance with Order 3.
It was then submitted that:
13.Whilst the Court has accepted that there was uncertainty as to the meaning of “accounting” and as to what the Appellant was required to do to comply with Order 3, the reasons for judgement [sic] of Collier J make it abundantly clear that he was satisfied of the correctness of the construction contended for by the Respondent to a degree sufficient to support a criminal conviction. Such an approach was inherently incompatible with the alternative finding that the requirements of Order 3 it [sic] were susceptible to different interpretations or were uncertain in their ambit.
It was thus ultimately submitted:
14.In summary, although Ground 1 (a) of the Appellant’s Notice of Appeal was not a specific ground of opposition raised below, the finding of Collier J was inherently incompatible with its acceptance of it by him had the matter had been specifically raised. The construction favoured by his Honour was strenuously argued by the Respondent both before him and again later in the appeal in opposition to the uncertainty argument which had then crystallised. The threshold question raised both before the trial Judge and in the Court has always been the construction of Order 3. It is respectfully submitted that it is highly unlikely if not improbable that if the uncertainty argument had been specifically raised before the trial Judge, the result would have been different. It is for this reason that the Appellant submits that the fact that the uncertainty argument was not raised before the trial Judge would carry little weight on the issue of costs.
As our reasons for judgment in the appeal make clear, we are not persuaded that, had the husband raised the uncertainty challenges successfully agitated on his behalf by senior counsel in the appeal to this Court before the trial Judge, the proceedings before his Honour would necessarily have produced the same outcome.
In his case before the trial Judge the husband not only failed to raise any uncertainty challenge, but, by the concessions made on his behalf, at a time when he was legally represented, materially contributed to the trial Judge’s error. The husband was thus to a large extent, the author of his misfortune. It would be quite incorrect in our view to suggest that the trial Judge’s error was caused or contributed to by the wife.
The necessity for the husband to appeal was significantly referrable to his failure to raise any uncertainty challenge, and the concessions which he made before the trial Judge. This, in our view, is the fact or circumstance of greatest significance for the purposes of section 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), and it militates against both making an order for costs against the wife, or granting the husband a costs certificate.
So far as the other section 117 factors relied upon by senior counsel for the husband in support of his costs application were concerned, it was submitted:
17.Pursuant to s 117(2A)(c) of the Act, the Court is required to have regard to 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 fact, production of documents and similar matters on the question of costs. The conduct of the Respondent in commencing and pursuing the contempt proceedings, notwithstanding the ambiguity of Order 3 and the refusal of her legal representatives provide any assistance to the Appellant to enable him to understand what was required are significant considerations on the question of costs.
As we have earlier recorded, nothing to which we have been referred in the context of the appeal, and it is in that context that the wife’s conduct is potentially relevant, could advance the husband’s costs application. We are unaware of any obligation on the wife or her legal representatives of the kind urged in the final sentence of the submission recorded above.
It was also submitted by senior counsel for the husband that:
20.As noted by the Court, the Respondent had other avenues of redress in seeking to “civilly” enforce Order 3, which did not involve the serious step of contempt proceedings. The Respondent did not seek to obtain orders more clearly defining the Appellant’s obligations pursuant to Order 3, a course which was open to her: [124] The ambiguous nature of Order 3 and the Appellant’s signalled distress in understanding precisely what was required of him at a practical level (no doubt a consequence of the ambiguous or uncertain nature of the Order) should, in the interests of fairness between the parties have precluded the Respondent from commencing and pursuing the proceedings.
That is not a matter of relevance for present purposes. Before this Court, the wife had the benefit of a decision in her favour. There is a presumption that such decision was correct. As we recorded in our judgment in the appeal, and have briefly reiterated above, it was the husband’s conduct before the trial Judge which gave rise to the need to appeal to this Court. The wife cannot properly be criticised for seeking to retain the benefit of the decision she obtained at trial, particularly given the way in which that decision came about at trial.
It was further submitted by senior counsel for the husband that:
21.In this regard, the evidence established that the Appellant had sought on a number of occasions to obtain cooperation and explanation from the Respondent’s legal representatives as to what his obligations were under the Order: [AB:26, par 32]. Relevant correspondence between the parties on the matter is included in the Appeal Book at [AB 442 & 443]. This indicates clearly that the Respondent’s legal representatives had no inclination to provide any assistance to the Appellant to understand his obligations, perhaps not surprisingly, since as found by the Court, the obligations as framed in Order 3 were ambiguous and uncertain.
Those matters cannot assume significance in relation to the costs of the appeal.
It was further submitted:
22.The seriousness of the allegations brought against the Appellant and the potentially dire consequences faced by him (as demonstrated by the orders for imprisonment made by his Honour) necessitated the defence by the Appellant in the court below as the prosecution of the appeal in the Full Court. They also justified the Appellant in incurring the additional cost of both senior and junior counsel at both levels. The Respondent’s uncompromising approach and lack of cooperation in coming to some understanding as to what Order 3 actually required the Appellant to do resulted in the commencement, prosecution and prolongation of the contempt proceedings to their unsuccessful conclusion. As a result, the proceedings were made unduly expensive and oppressive to the Appellant and warrant a costs order in his favour: In the Marriage of Jensen [1982] 8 Fam LR 594 at 595. The fact that the Respondent had failed, neglected and refused to indicate to the Appellant what she required him to provide, in light of her dissatisfaction with the documentation provided to her, and notwithstanding, elected to commence and conduct the proceedings thereby forcing the Appellant to substantial expense, was unjustifiable in all the circumstances and entitles the Appellant to be awarded the costs incurred by him: In the Marriage of Fisher [1990] 13 Fam LR 806.
This submission conveniently overlooks the reality that, as the transcript of the proceedings before the trial Judge makes clear, the husband at no time until his appeal to this Court caused the wife to have to defend the certainty of Order 3 made by Rowlands J. Indeed, the husband’s case before the trial Judge entitled both the wife and his Honour to believe that there was no challenge to the certainty of Order 3.
The husband’s reliance upon the wife having been wholly unsuccessful in the proceedings is a factor of relevance, albeit it is in our view completely overshadowed by the fundamental reality identified by us in our judgment in the appeal, and reiterated in these reasons, that the necessity for an appeal may well have been obviated had the husband raised at trial the uncertainty challenge successfully agitated on his behalf by senior counsel before us.
The submission on behalf of the husband in relation to the financial circumstances of the parties is somewhat disingenuous having regard to the absence of any reliable evidence of the husband’s financial circumstances before us and the undisturbed, comprehensive and robust adverse findings by Rowlands J with respect to the extent and veracity of the husband’s financial disclosures.
Whilst the submission (paragraph 26) relates more to the trial of the proceedings than to the appeal to this court, we do not accept that the proceedings before the trial Judge had “no prospect of success”.
Although it is perhaps unnecessary to do so given that we are not of the opinion that the circumstances justify an order for costs, we record that, even if we were so minded, nothing to which we have been referred establishes “exceptional circumstances” (see Limousin & Limousin (Costs) [2007] FamCA 1178, Colgate - Palmolive Co. v Cussons Pty Ltd (1993) 118 ALR 248 etc) which would enliven the discretion to award indemnity costs.
There will be no order for costs in favour of the husband. Nor would we grant the husband a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Coleman & Boland JJ) delivered on 17 November 2010.
Associate:
Date: 17 November 2010
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