Stanford & Stanford (Costs)
[2013] FamCAFC 76
•10 May 2013
FAMILY COURT OF AUSTRALIA
| STANFORD & STANFORD (COSTS) | [2013] FamCAFC 76 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Application for an extension of time to file an application for costs and application for costs – Where an extension of time was not opposed by the respondent – Where the costs issue for determination related only to the costs of submissions on the re-exercise of the trial judge’s discretion – Where the conduct of the respondent’s personal representatives and that the respondent was wholly unsuccessful were raised by the appellant – Where neither party had been wholly unsuccessful and each was entitled to conduct the litigation as they did – Where the appellant was afforded an opportunity to put before the Court the basis of the application for costs and failed to properly do so – Application allowed in part: extension of time to file an application for costs granted, application for costs dismissed. |
Family Law Act 1975 (Cth) s 117
| APPELLANT: | Mr Stanford by his case guardian K Stanford |
| RESPONDENT: | C Rafter and L Brims the personal representatives of Ms Stanford (Deceased) |
| FILE NUMBER: | PTW 4187 of 2009 |
| APPEAL NUMBER: | WA 19 of 2010 |
| DATE DELIVERED: | 10 May 2013 |
| PLACE DELIVERED: | Brisbane (in chambers) |
| PLACE HEARD: | By way of written submissions |
| JUDGMENT OF: | Bryant CJ, May & Moncrieff JJ |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 27 January 2011 |
| LOWER COURT MNC: | [2010] FCWAM 15 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Carr & Co |
| SOLICITOR FOR THE RESPONDENT: | Ferrier Athanasiou & Kakulas |
Orders
The Application in an Appeal filed 20 December 2012 be allowed in part.
The appellant husband, by his case guardian, be granted an extension of time to
20 December 2012 to file an application for costs in accordance with order 3 of the orders made by the Full Court on 19 January 2012.
The Application in an Appeal otherwise be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stanford & Stanford (Costs) 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 19 of 2010
File Number: PTW 4187 of 2009
| Mr Stanford by case guardian K Stanford |
Appellant
And
| C Rafter and L Brims the personal representatives of Ms Stanford (Deceased) |
Respondent
REASONS FOR JUDGMENT
On 21 October 2011 this Court allowed an appeal of the husband, by his case guardian, against final property orders made on 30 September 2010. The parties sought, and were each granted, a costs certificate in relation to the appeal. The parties were directed to file further written submissions in relation to whether the Full Court should re-exercise the trial judge’s discretion or remit the matter for rehearing.
We determined to re-exercise the trial judge’s discretion. On 19 January 2012 final property orders were made providing for the husband to pay the personal representatives of the wife the sum of $612,931, upon the death of the husband or at such earlier time as may be determined by the case guardian.
We also ordered that the costs of the submissions of each party in relation to the re-exercise be reserved (“order 3”). Each party was allowed 28 days within which to make any application for costs. Neither party did so.
On 17 February 2012 the husband filed an Application for Special Leave to the High Court, to appeal the decisions of this Court made on 21 October 2011 and 19 January 2012. A special leave hearing was held on 22 June 2012 and leave was granted on 2 July 2012.
On 4 September 2012 the matter was heard in the High Court. On
15 November 2012 the High Court allowed the husband’s appeal. Orders were made setting aside paragraphs 1 and 2 of the orders made on 19 January 2012. This had the effect of allowing the appeal in relation to the final property orders made in the re-exercise of the discretion. In addition, the High Court varied the orders allowing the appeal by adding a paragraph dismissing the wife’s originating application filed in August 2009.
As is customary in that Court, the respondent wife was ordered to pay the appellant husband’s costs of the appeal. The quantum of that order is not yet known.
The costs application in an appeal filed on 20 December 2012 now before us, follows the finalisation of the High Court proceedings.
The husband seeks an extension of time in which to file an application for costs pursuant to order 3 made on 19 January 2012 by this Court, an order undisturbed by the High Court. It is relevant to note that that order restricted any application for costs to the costs of the submissions on re-exercise.
As mentioned, the parties had already sought, and been granted, costs certificates in relation to the appeal itself.
The husband seeks that the respondent wife, by her personal representatives, pay his costs of the appeal proceedings on an indemnity, solicitor-client or party-party basis. We understand the costs sought in the amount of $78,783 extend to the whole of the appeal proceedings.
It is also asked that the wife pay the husband’s costs of and incidental to the application itself.
Upon the filing of the application, we made directions on 24 December 2012 in the following terms:
1 By no later than close of Registry on 31 January 2013 the Appellant file and serve written submissions with respect to the application for extension of time within which to seek costs, and with respect to any orders sought in relation to those costs;
2 Within 14 days the Respondent file and serve any written submissions in response.
Written submissions on behalf of the husband were filed on 18 January 2013, and on behalf of the wife filed on 27 February 2013 (following an extension of the 14 days to 28 February 2013).
Application for Leave to Extend Time
The written submissions for the husband and the affidavit of his case guardian accompanying the application focus almost entirely on the issue of leave to apply for costs out of time.
The written submissions correctly identify the decision of McHugh J in Gallo v Dawson (1990) 93 AR 479 as setting out relevant general principles applicable to extension of time leave applications.
Lengthy submissions are provided in relation to length of delay, reason for delay, reliance on passage of time, changed circumstances, conduct of the parties, history of the proceedings and nature of the litigation, and prejudice to the parties.
Some submissions are made arguing that the relevant time for filing an application may have been enlivened at the time the High Court made orders on 15 November 2012, rather than when this Court made orders on
19 January 2012. A detailed chronology of the steps taken to file the application after the High Court’s decision was delivered is provided.
In the submissions for the wife in reply it is submitted that the application for leave is not opposed. In view of this submission, and the clear connection between the finalisation of the High Court proceedings and the bringing of the application, we consider it unnecessary to address the issue in any further detail. Leave to file an application for costs out of time will be granted.
Application for Costs
By his application and his written submissions, it is apparent the husband, by his case guardian, seeks that the respondent pay the costs of the appeal on a number of alternative bases (indemnity, solicitor-client or party-party).
No specific account or breakdown of the sum sought is given, other than a statement from the husband’s solicitor in his affidavit filed 20 December 2012, that “the costs incurred by [Mr Stanford] in the Full Court appeal proceedings, including Counsel’s fees, office costs and disbursement amounted to approximately $78,783”.
As mentioned, any application for costs envisaged by order 3 made on
19 January 2012 was limited to the costs of the re-exercise of the trial judge’s discretion following the successful appeal. Both the appellant and the respondent had sought, and were granted, costs certificates for the substantive appeal itself.
It should have been clear to the parties from the directions made on
24 December 2012 that the matters of leave and any application for costs were to be considered together. The parties were directed to provide written submissions on both the issues of leave and the substantive costs application.
Notwithstanding the clearly communicated direction, the submissions on costs, as sought by the husband, are limited to one paragraph:
69.While it is the ordinary rule that each party to proceedings bears his or her own costs, the Appellant submits that the unique circumstances of this case and the final outcome (as determined by the High Court) give rise to a sound basis for the Court to depart from the usual rule. This is especially so given that by virtue of the High Court’s order the Respondents were wholly unsuccessful.
It is submitted for the husband that he “intends to provide further detailed submissions on this point in the event his application to extend the time to make an application for costs is granted”.
In the submissions on behalf of the wife in response it is submitted there should be no order as to costs. If the appellant is granted leave the lawyers for the wife object to those of the husband being permitted to file further submissions. If such permission is given, the wife’s lawyers seek to be heard in an oral hearing, and will file a formal response seeking that the application be dismissed and there be no order as to costs.
In the alternative the wife asks that this Court determine the question of costs and any quantum for both the first instance proceedings and the appeal proceedings. This Court is unable to make decisions about the costs of first instance proceedings unless the subject of an appeal. Accordingly, a judicial officer of the trial division will deal with any costs issues remaining in the first instance proceedings.
Conclusion
The appellant was afforded an opportunity, in clearly communicated terms, to put before the Court the basis of his application for costs in relation to the specific issue of the re-exercise of the trial judge’s discretion following his successful appeal. That has not been done.
In the submissions on behalf of the husband (paragraph 59) the issue of the conduct on the part of the wife’s personal representatives was raised, and that they were wholly unsuccessful. Such matters may be relevant considerations in an application for costs.
In the circumstances of this case, however, these submissions are misconceived. The wife’s case guardians defended an appeal from first instance orders and a re-exercise decision, both of which were in the wife’s favour. The appellant successfully appealed and the decision in relation to the re-exercise was set aside. Neither party has been wholly unsuccessful. Each was entitled to conduct the litigation as they did.
As to the husband’s present circumstances, the affidavit of his son (his case guardian), explained that the husband is a resident of a care facility having been diagnosed as suffering from dementia and assessed as requiring high care.
The husband is in receipt of a disability support pension, the amount being a little in excess of his personal expenditure.
The ordering of costs is an exercise of discretion. In the circumstances of this case we accept the submission on behalf of the wife that there are no
s 117(2A) circumstances present which would cause us to depart from the provision of s 117(1) that each party shall bear their own costs.
The appellant’s application for costs will be dismissed.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Moncrieff JJ) delivered on 10 May 2013.
Associate:
Date: 10 May 2013
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