Redmond & Redmond

[2007] FamCA 219

FAMILY COURT OF AUSTRALIA

REDMOND AND REDMOND [2007] FamCA 219

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – COSTS – Discretionary judgment – Notice of discontinuance filed by the husband – Husband to pay wife’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth)

Collins and Collins (1985) FLC 91-603
G & G [2002] FamCA 339
Harris and Harris (1991) FLC 92-254

H & P [1998] FamCA 399 (unreported 17 April 1998)

Marriage of I and I (No 2) (1995) 92-625
Robbinson and Higginbotham (1991) FLC 92-209

APPELLANT:  REDMOND

RESPONDENT:  REDMOND

FILE NUMBER:  BRM 6627 of 2005

APPEAL NUMBER:  NA 31 of 2006

DATE DELIVERED:  14 March 2007

PLACE DELIVERED:  Brisbane

JUDGMENT OF:  May J

HEARING DATE:  By way of written submissions

LOWER COURT JURISDICTION:  Family Court of Australia    

LOWER COURT JUDGMENT DATE:             3 April 2006

SOLICITOR FOR THE APPELLANT: Pippa Coleman & Associates

SOLICITORS FOR THE RESPONDENT: SJP Law

ORDERS

1. That the appellant husband pay the respondent wife’s costs of and incidental to the appeal within three (3) months of today such sum to be agreed between the parties within (28) days and failing agreement to be assessed.

1. That the wife comply with the provisions of order (2) of the orders made in the Federal Magistrates Court of Australia on 3 April 2006 upon the payment to her by the husband of the costs of the appeal.

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

FAMILY COURT OF AUSTRALIA  AT BRISBANE

APPEAL NUMBER:         NA 31 of 2006

FILE NUMBER:                BRM 6627 OF 2005

REDMOND
Appellant Husband

And

REDMOND
Respondent Wife

REASONS FOR JUDGMENT

Introduction

1. An appeal was filed by the husband on 2 May 2006. A direction had been given pursuant to section 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that the matter be heard by a single Judge. The appeal was from orders (1) and 3(iii) of the decision of the Federal Magistrate made on 3 April 2006 in relation to property settlement, namely:

   “(1)That on 3 June 2006 (“the payment date”) the husband pay to the wife $141,412.60; and

   (3)In the event that the husband fails to pay the sum by the payment date, the real properties shall both be sold and the husband and wife shall forthwith thereafter do all acts and things and sign all necessary documents to effect a sale of the real properties and in order to effect such a sale the following provisions shall apply:

   (e) (iii) the balance to be divided and distributed between the husband and the wife in accordance with the following  formulae…”

2. The parties applied for orders under section 79 of the Act. The factual issues for determination involved mainly the value of the husband’s business and some outstanding debts. The Federal Magistrate concluded that the appropriate division was in favour of the wife on a 60/40 per cent basis. Some adjustment was made by reason of the husband’s lack of full disclosure at the hearing with respect to financial ventures as well as his expected future earning capacity. Ultimately, over the course of a long marriage, that being approximately 25 years, it was found that there was no real disparity in initial contributions or disparity in financial contributions.

3. Upon filing a Notice of Discontinuance on 8 August 2006, the appeal, filed on 2 May 2006, was dismissed. Pursuant to orders made by me on 21 August 2006, the parties were granted liberty to file written submissions in relation to costs of the appeal. No appearances were required at the making of those orders.

4. Written submissions were received from the solicitor for the appellant husband on 11 September 2006. The solicitors for the respondent wife filed submissions on 2 October 2006 and submissions in reply were filed on 9 October 2006.

5. An application for costs of the trial has been made to the Federal Magistrate. I am not informed as to whether a decision has been given in relation to that issue.

Submissions in Relation to Costs

1. In written submissions filed 11 September 2006 on behalf of the appellant (the respondent to the costs application), his solicitor referred to the relatively modest size of the asset pool, and suggested that the husband’s motivation was to see neither the wife’s nor the husband’s share of the pool substantially diminished. It was also submitted on behalf of the husband that only a modest amount of legal work was completed in the appeal.

2. In support of his resisting an order for costs it is noted that the husband complied with procedural directions prescribed by the court in a timely manner and that he chose “not to avail himself of the leave granted by the court to file an amended Notice of Appeal or to file an application in relation to further evidence on the appeal”. Importantly, the appeal was discontinued prior to the respondent having to comply with the necessary requirements prescribed by the court. It is accepted that the issues relating to non disclosure during the trial should not be taken into account in relation to costs of the discontinued appeal rather would be matters relevant to the costs of the trial before the Federal Magistrate.

3. In written submissions filed by the solicitor for the respondent to the appeal on 2 October 2006, the wife asks for an order requiring the husband to meet the wife’s costs of and incidental to the appeal to be assessed on an indemnity basis. It was further submitted that, in the event that agreement is not reached as to the quantum of costs, then such costs ought to be taxed.

4. The submission on behalf of the wife asked that the husband’s entitlement to property settlement pursuant to the orders of Federal Magistrate Jarrett be altered to ensure payment of the costs incurred by the wife. Apart from providing security for the payment of the costs it is not possible in the absence of an appeal to make orders altering the substance of the orders.

10. In support of her application for costs, the wife relied on paragraphs (c) and (e) of section 117(2A) of the Family Law Act 1975. It was noted that in the husband’s case before the Federal Magistrate he was found to have failed to make full and frank disclosure to the court; it was submitted by the wife that his conduct of the trial and his futile attempt to pursue the appeal, brings the husband within the provision of section 117(2A)(c) of the Act. Further, it was asserted that the husband had been wholly unsuccessful in relation to the appeal.

11. It seems unfortunately that despite the fact that the husband finally discontinued the appeal, the amount expended by the wife, particularly in engaging counsel, was not insignificant.

Principles in Relation to Costs

12. An order for costs in this jurisdiction is discretionary. In Collins and Collins (1985) FLC 91-603 it was said that:

“[I]n deciding whether the circumstances justify an order for costs, there is a broad discretion to be exercised, having regard to the factors set out in subsec. [sic] (2A) so far as relevant.  Those factors … are not to be read in a restrictive way, however, the discretion remaining a broad one: Penfold v Penfold (1980) FLC 90-800 at pp. 75,053-75,054; quoted in Mallet v Mallet (1984) FLC 91-507 at pp. 79,123-79, 124 (by Wilson J)”.

13. The legislation provides that, subject to justifying circumstances, each party to a proceeding shall bear his or her own costs. Section 117(2A) of the Family Law Act 1975 confers discretion upon the court to make an order in relation to costs including costs of an appeal. The particular factors to be considered in this case are:

“s 117(2A)

(a) the financial circumstances of each of the parties to the proceedings;

(c) 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 facts, production of documents and similar matters;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings.”

14. It is appropriate to mention in this case, although not raised by the solicitors for the parties that the Act specifically provides for instances where appellate jurisdiction can be exercised by a single judge pursuant to the provisions of section 94AAA(3). As this was an appeal from a Federal Magistrate, and a direction had been received that this matter be dealt with by a single Judge then a costs application can be heard and orders made by a single Judge. Should there be any doubt section 94AAA(8) provides:

Section 94AAA(8) [Powers of a single Judge or Full Court]

A single Judge or a Full Court may:

(b)make an order by consent disposing of an appeal under subsection (1) or (1A) (including an order for costs)

15. In G & G [2002] FamCA 339 Finn, Holden and Warnick JJ discussed whether a single judge exercising the appellate jurisdiction of the court would have jurisdiction to make an order for the costs of the appeal. In that case their Honours took the view of Ellis J in H & P [1998] FamCA 399 (unreported 17 April 1998) that “if those costs are to be quantified, they can only be quantified by an order of a Full Court, not by a single judge, or by taxation.” That was an appeal from a judge of the Family Court of Australia, not a Federal Magistrate.

Conclusions

16. While the submissions provided by the wife are clear in seeking costs of and incidental to the appeal, the submissions made by the husband do not clearly resist an order for costs. The husband does assert that efforts were made to minimise costs in discontinuing the appeal in a timely way and through complying with requirements prescribed by the court the costs incurred to both parties were reduced, however the amount expended by both parties was considerable.

17. Although costs do not follow the event, the husband should, having withdrawn his appeal, incur the wife’s costs of the appeal. With respect to the factors considered under the Act and outlined above, the husband has been wholly unsuccessful in the appeal. However, it could not be said that the filing of the notice of appeal was vexatious or that there was no basis for the appeal. In those circumstances and in the absence of any other extraordinary features an order for indemnity costs should not be made.

18. The parties through their solicitors may agree about the quantum of costs, alternatively that they are to be assessed on the scale.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  14 March 2007