Rich & Shorland (No 2)

[2019] FamCAFC 163

FAMILY COURT OF AUSTRALIA

RICH & SHORLAND (NO. 2) [2019] FamCAFC 163

FAMILY LAW – APPEAL – COSTS – Where the appeal was successful – Where the appellant sought that the respondent pay the appellants costs – Where in the alternative the appellant sought a costs certificate – Costs certificates also sought by the respondent – Where appeal succeeded on an error of law – Costs certificates granted to both parties for the appeal and the rehearing of the application.  

Family Law Act 1975 (Cth) s 117(2A)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

APPELLANT: Ms Rich

RESPONDENT: Mr Shorland

FILE NUMBER: SYC 4800 of 2016

APPEAL NUMBER: EA 120 of 2018

DATE DELIVERED: 25 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: Heard in chambers on written submissions

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 8 August 2018

LOWER COURT MNC: [2018] FCCA 1928

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ian Coleman SC

SOLICITOR FOR THE APPELLANT: Andrew Cohen Solicitor

COUNSEL FOR THE RESPONDENT: Stephen O'Ryan QC

SOLICITOR FOR THE RESPONDENT: Michael Conley Lawyers

Orders

1. There be no order as to costs.

2. The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by her in relation to the appeal.

3. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by him in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rich & Shorland (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 120 of 2018
File Number: SYC 4800 of 2016

Ms Rich

Appellant

and

Mr Shorland

Respondent

REASONS FOR JUDGMENT

1. On 8 August 2018 a judge of the Federal Circuit Court made orders granting leave to Mr Shorland (the “respondent”) to bring proceedings for property settlement orders notwithstanding that the time for commencing those proceedings had expired.

2. Ms Rich (“the appellant”) successfully appealed his Honour’s orders with the result that the primary judge’s orders were set aside and the matter remitted to be heard by another judge.  The parties were ordered to file submissions as to costs.

3. The appellant now seeks an order that the respondent pay her costs of and incidental to the appeal or if there is no order as to costs, that there be ordered a costs certificate in respect of the appeal.

4. The basis on which the appellant seeks the respondent to pay her costs is because, it was said, notwithstanding being legally represented by senior counsel, the respondent opposed the appeal in circumstances where he ought to have recognised the strength of the errors being argued on the appeal.

5. The respondent argues that as the appeal succeeded on an error of law, each party should receive a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) both in respect of the appeal and in relation to any rehearing of the respondent’s application. While not specifically addressed in the respondent’s written submissions, it is implicit that he contends there should be no order as to costs.

6. Orders for costs in family law cases are governed by the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”) which sets out the general principle that each party should pay his or her own costs save where in the Court’s opinion the circumstances justify making a costs order. Section 117(2A) of the Act sets out the matters to which the Court must have regard in determining whether to make a costs order.

7. Thus the first matter for determination is whether there are circumstances in this case which justify a departure from the general principle. In this case the appellant relies on s 117(2A)(e) of the Act, although not specifically referred to, that is the respondent’s opposition to the appeal was wholly unsuccessful. It must be clearly understood that the appeal succeeded by reason of errors of law by the primary judge. Other than referring to the respondent’s failure to acknowledge the strength of the appellant’s case on appeal, the appellant points to no conduct by the respondent which would require consideration of a costs order against him. That of course does not stand in the way of such an order being made.

8. It is tolerably clear from the reasons of the primary judge that the respondent’s financial position was significantly inferior to that of the appellant, that again is not necessarily a bar to an order for costs if one otherwise ought be made.

9. However, what does stand in the way of a costs order being made is the failure of the appellant’s solicitor to give any indication as to what the costs claimed might be but the submissions appear to assume that the Court would in some way work that out. 

10. However, given the circumstances of this case, I do not propose to make a costs order as between the parties, but will order each party to have a costs certificate in respect of the appeal.  I do not propose to order a certificate for either party in respect of a rehearing of the application for leave.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 25 September 2019.

Associate: 

Date:  25 September 2019