Rayburn and Pritchard (Costs) - [2014] FamCAFC 66

FAMILY COURT OF AUSTRALIA

RAYBURN & PRITCHARD (COSTS)

[2014] FamCAFC 66

FAMILY LAW – APPEAL – COSTS OF THE APPEAL – Review of proposed Full Court orders relating to the costs of the appeal prior to the orders being engrossed – Where the appellant asserted that the Full Court had misunderstood the costs submissions made at the hearing of the appeal – Where, on review, the Full Court found that there had been an apparent misunderstanding of a particular exchange in relation to the costs of the appeal – Where the Full Court, however, exercised its discretion to make the orders as originally proposed.

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Act1975 (Cth)

APPELLANT:

Mr Rayburn

RESPONDENT:

Ms Pritchard

FILE NUMBER:

PTW

1897

2000

APPEAL NUMBER:

2012

DATE DELIVERED::

3 April 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Finn and Duncanson JJ

HEARING DATE:

3 April 2014

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

16 March 2012

LOWER COURT MNC:

[2012] FCWA 26

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ashdown

SOLICITOR FOR THE APPELLANT:

WA Costs Consultants Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Coulson

SOLICITOR FOR THE RESPONDENT:

Summers Legal

Orders made on 13 February 2014

Leave to appeal against the orders of the Honourable Justice Martin made on 16 March 2012 be granted.
The appeal be allowed.
The orders made on 16 March 2012 be set aside.
The wife’s application to file an itemised costs account out of time be dismissed.

Orders made on 3 April 2014

The parties bear their own costs of the appeal.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 respondent wife in respect of the costs incurred by her in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rayburn & Pritchard has been approved by the Chief Justice 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 8 L of 2012
File Number: PTW 1897 of 2000

Mr Rayburn

Appellant

And

Ms Pritchard

Respondent

EX TEMPORE REASONS FOR JUDGMENT

BRYANT CJ

On 13 February 2014 the court delivered its judgment in this matter, which was an appeal against the decision of the trial judge granting leave to extend time to file an itemised bill of costs after a delay of some seven years. The court allowed the appeal and dismissed the wife’s application. In the course of so doing, the court dealt with the issue of costs, submissions were made, and the court made no order for costs but granted certificates to each of the parties, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). As expressed in paragraph 86 of the judgment, this was because it was the view of the Full Court that neither party had sought an order for costs.
After delivery of the judgment but before the orders were entered, the solicitors for the appellant advised the appeals registrar that in fact they had sought an order for costs. A review of the transcript of the proceedings and in particular the exchange between the bench and counsel in relation to costs was available to the Full Court to review.
The members of the court were satisfied that there was an apparent misunderstanding of a particular exchange, from which the court believed there was agreement to cost certificates, but in fact counsel for the appellant was making an application for an order for costs, expressed as, “The usual costs order.” As the orders had not been entered when this came to the court’s attention, there was no need for any application of the slip rule and the court was able to re-list the matter to hear submissions from both counsel on the question of costs.
Before turning to the submissions, I should mention for the record that the assertion by the appellant’s solicitors in their letter to the registrar that, “both parties agreed costs should follow the event”, is not accurate. Counsel for the respondent actually said, and I quote:
I can’t think of any reason why they would take the usual course in the certificate if one was available on the reasons.
And counsel for the appellant said:
No reason why the usual cost order should not be made.
Those paragraphs indicate that the exchange between the bench and counsel was not, as asserted in the solicitor’s letter, that both agreed that costs should follow the event. In any event, if that was what counsel for the appellant meant by the comment “usual cost order,” it is important to point out that in this jurisdiction if there is what could be entitled a usual cost order, it could only be in terms of what the Family Law Act1975 (Cth) provides in s 117. Section 117 subsection (1) says:
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.
Subsection (2) provides that:
If, in proceedings under this Act, the court is of the 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.
Thus, the position is that the legislation makes an order for costs discretionary, but subsection (1) provides that subject to subsection (2) each party shall bear his or her own costs. If there is, therefore, any order which could be described as the usual order, it would be, in my view, an order that each party bear their own costs. However, as I have indicated, subsection (2) enables the court, if it is of the opinion that there are circumstances that justify it in so doing, to make an order for costs.
Counsel for the appellant submitted to us that there should be an order for costs in favour of the appellant for several reasons: first that the appellant was wholly successful; secondly that the extension of time was sought because it was necessitated by the respondent failing to comply with orders requiring filing of bills of costs and in relation to the delay, that was relevant conduct, which is appropriate to be taken into account, particularly in circumstances where the respondent had been warned.
Thirdly, that it is asserted payments had been made in relation to costs, although the amount was not clear and there were other cost orders in favour of the husband that had not been taxed. Fourthly it was submitted that the bill itself, which I note was on its face a substantial amount of over $1 million, was overinflated. And finally, the financial position of the respondent was sufficient for an order for costs to be made. Accordingly, the appellant sought that the respondent pay the appellant’s costs of the appeal, including reserved costs.
Counsel for the respondent repeated the primary submission made to us at the conclusion of the appeal, which was that there should be certificates granted under the Federal Proceedings (Costs) Act 1981 (Cth) and opposed any order for costs, submitting in particular that the respondent had a significant right to costs, which had been extinguished by virtue of the decision of this court.
As I have already indicated, the question of costs is governed by s 117 and is a discretionary matter. I have taken into account the submissions of the appellant in support of an order for costs but I have concluded in the circumstances that an order for costs would not be appropriate in this case and that the usual position, where each party bears their own costs, should apply.
In large part but not entirely, that is because, in my view, there is a significant extinguishment of a right to costs that the respondent has lost by virtue of the success of the appeal, and in the circumstances I would not accede to the submissions of the respondent, but would make orders as proposed by the Full Court in the reasons for judgment at paragraphs 5, 6 and 7 of the orders then proposed, which provide for certificates to the appellant and the respondent pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

FINN J

I agree with the reasons provided by the Chief Justice and the orders that she proposes. I have nothing to add.

DUNCANSON J

And I too agree and I have nothing to add.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Duncanson JJ delivered on 3 April 2014.

Associate:

Date: 23 April 2014