SILVER & GREY
[2012] FamCAFC 59
•22 February 2012
FAMILY COURT OF AUSTRALIA
| SILVER & GREY | [2012] FamCAFC 59 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Application dismissed. FAMILY LAW – COSTS – Application entirely unsuccessful – Applicant to pay the respondent’s costs to be assessed on a party-party basis in default of an agreement. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| GallovDawson (1990) 93 ALR 479 Joshua v Joshua (1997) FLC 92-767 |
| APPELLANT: | Mr Silver |
| RESPONDENT: | Ms Grey |
| FILE NUMBER: | PTW | 1799 | of | 2006 |
| APPEAL NUMBER: | WA | 4L | of | 2012 |
| DATE DELIVERED: | 22 February 2012 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 22 February 2012 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 21 March 2011 |
| LOWER COURT MNC: | [2011] FCWA 23 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE APPELLANT: | Self-represented litigant |
| COUNSEL FOR THE RESPONDENT: | Mr Supljeglav |
| SOLICITOR FOR THE RESPONDENT: | DS Family Law |
Orders
The application for leave to appeal be dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be assessed, if not agreed, and fixed in accordance with the scale laid down in the Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Silver & Grey 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 4L of 2012
File Number: PTW 1799 of 2006
| Mr Silver |
Appellant
And
| Ms Grey |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Before the Court today is the application in an appeal by Mr Silver (“the applicant”) seeking an extension of time in which to appeal an order for costs made by Crooks J. The proposed challenge is not to the order for costs itself, but to the quantum of the costs ordered.
The Court is very stretched for time this morning with an important and lengthy matter about to commence. I will therefore give my reasons in a somewhat shorthand form.
Background
The parties in the proceedings below were given the opportunity to make written submissions in relation to the application of Ms Grey (“the respondent”) for the applicant to pay costs in a fixed amount. Extensions of time were granted to the applicant in order to provide those submissions.
When the applicant ultimately provided submissions he concentrated on whether or not costs should be awarded at all and, feeling confident that they would not be, failed to make submissions to the trial Judge in relation to what he now strongly claims are discrepancies in the information relied upon by the respondent in seeking the amount of costs that were awarded.
As it turned out, the trial Judge was persuaded that it was an appropriate case for costs to be awarded and paid little attention to the actual amount of the costs, given that there was no dispute before him in relation to that particular issue. A trial Judge in such matters is required to remain impartial and to rule only on issues presented for determination. It is not the obligation of a trial Judge to hunt through material looking for arguments on behalf of one or other party.
Further background is set out in the applicant’s affidavit and also in the affidavit of Ms Helen Mills (solicitor for the respondent). There is not a great deal of dispute and certainly no dispute of substance in relation to what has since occurred.
In summary, what has transpired is that the applicant, sensibly enough, endeavoured to resolve these matters informally. He was not speedy in doing some of what he did. He is a busy professional man and I understand he has many calls on his time. He did however, at an early enough stage, have advice about what was the appropriate course to follow, which was to appeal.
The applicant instead sought to have the matter dealt with under the slip rule, but even that request was not made for many, many months after the costs order was made, and certainly long after the time for appeal had expired. When the trial Judge firmly indicated via a letter from the Principal Registrar that this was not a slip rule question, there was then considerable further delay in filing this current application.
In the meantime there have been enforcement proceedings, and the applicant has appropriately met his obligations under the terms of the order.
The relevant law
The law is as set out in the respondent’s written submissions, and the principles to be applied have been referred to by counsel for the respondent.
GallovDawson (1990) 93 ALR 479 is one of the leading authorities regularly cited in this area. However, Lindenmayer J’s discussion in Joshua v Joshua (1997) FLC 92-767 (“Joshua”) at 84,440 contains a very clear analysis of what a court must do when considering an application for an extension of time within which to appeal.
The first question to be determined is whether or not the applicant has established that there is a substantial issue to be raised on appeal. At one level, the applicant has done this, because although I do not have explicit details, he says that examination of relevant documents would disclose clear anomalies in establishing the quantum of the costs ordered. I do not wish to be heard as saying I accept that proposition, but nor do I wish to be seen as rejecting it. There is a strong sense that the applicant is greatly aggrieved by what has occurred. He is an intelligent, professional man. There may well be some substance in what he says.
But when Lindenmayer J in Joshua talks about whether there is a “substantial issue” to be raised on an appeal, in my view the Full Court in hearing such an appeal would place great emphasis on the fact that the question of quantum was not put in issue by the applicant in his submissions to the trial Judge. Whilst he is an unrepresented person, that does not give him any advantage. The fact is that if a party fails to raise an issue before the trial Judge, then that party, save in unusual circumstances, cannot be heard to complain on appeal.
I therefore doubt whether this appeal, notwithstanding the underlying sense of injustice the applicant undoubtedly feels, raises a substantial issue. If it did, I would be required to go on to consider the other matters that Lindenmayer J referred to in Joshua. I will, however, briefly refer to those matters, in case I am wrong in concluding there is no “substantial issue”.
Although there is an explanation of the delay, given the long delay, I do not find it to be an adequate explanation. Secondly, looking at the hardship or prejudice to the respondent, she sets out, albeit by hearsay evidence from her solicitor, the impact an appeal would have on her. Even discounting the evidence as hearsay, it is the case this matter has gone on for a long time. It has been trying for the applicant, and I am sure it has been trying for the other parties. I consider there would be considerable hardship associated with an appeal being allowed to proceed at this late stage.
Finally, in looking at other relevant matters, there is a strong public interest in appeals being brought within the prescribed time. There is also a strong public interest in appeals dealing with matters that might be seen as “weighty”. Although I agree with the applicant that the charging practices of legal practitioners are an important matter, there has to be a sense of proportionality.
Notwithstanding the important principle that may underlie it, the actual issue between the parties as to quantum is a relatively minor issue and does not warrant the Court exercising the discretion it has to extend the time within which an appeal can be filed against the decision of Crooks J.
For those reasons the application will be dismissed.
Costs of the appeal
The application now before the Court is that of the respondent to this application for an extension of time within which to appeal for costs, calculated on an indemnity basis. Such costs are estimated to be in the region of $4000, and at scale would be $1500 or thereabouts.
The Court has the discretion to order costs in circumstances set out in section 117 of the Family Law Act 1975 (Cth) (“the Act”).
One of the circumstances that can justify costs being ordered is where a party to an application has been entirely unsuccessful. Particularly at the appellate level, that is a factor of considerable importance and commonly leads to an order for costs. In my view, none of the other factors set out in the Act outweigh that factor and I do consider this to be an appropriate case for an order for costs.
The only question is whether or not the costs should be on an indemnity basis or at scale. I accept that a litigant properly advised would not have brought this application because it had no realistic chance of success, and that would in itself be a justifying factor for an award for indemnity costs. On this occasion, however, I take into account the fact that the applicant did at least endeavour to resolve the matter informally. I also take into account the fact that the applicant endeavoured, although inadvisably, to have the matter rectified by approaching the trial Judge under the slip rule.
Although it is a close call, in these circumstances I am not satisfied that it is an appropriate case for indemnity costs. The order will be that the applicant pay the respondent’s costs of and incidental to the application, such costs to be assessed if not agreed, and fixed in accordance with the scale laid down in the Family Law Rules 2004 (Cth).
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray J) delivered on 22 February 2012.
Associate:
Date: 22 February 2012
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