Strahan & Strahan (Appeal Costs)
[2009] FamCAFC 225
•21 December 2009
FAMILY COURT OF AUSTRALIA
| STRAHAN & STRAHAN (APPEAL COSTS) | [2009] FamCAFC 225 |
| FAMILY LAW - COSTS – Of the Appeal proceedings – s 117 (1), s 117 (2) and s 117 (2A) – Whether the order for costs should be made on an indemnity basis – Disparity in financial circumstances of the parties – Whether the husband should pay the wife’s costs of the appeal – Where the husband is in a stronger position than the wife – Where the appeal was successful – Where the husband was wholly unsuccessful in seeking that the Wife’s appeal be dismissed – Where costs should not be paid on an indemnity basis but on a party and party basis – Husband to pay the wife’s costs of the appeal |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 |
| Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Harris and Harris (1993) FLC 92-378 Kohan and Kohan (1993) FLC 92-340 Limousin v Limousin (Costs) [2007] FamCA 1178 Munday v Bowman (1997) FLC 92-784 NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77 Penfold v Penfold (1980) 144 CLR 311 Re Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 72 Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 Wenz v Archer (2008) 40 Fam LR 212 Yunghanns v Yunghanns (2000) FLC 93-029 |
| APPELLANT WIFE: | Ms Strahan |
| RESPONDENT HUSBAND: | Mr Strahan |
| FILE NUMBER: | ADF | 228 | of | 2005 |
| APPEAL NUMBER: | SA | 87 | of | 2008 |
| DATE DELIVERED: | 21 December 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Boland, Thackray & O'Ryan JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 September 2008 |
| LOWER COURT MNC: | [2008] FamCA 905 |
REPRESENTATION
| COUNSEL FOR THE WIFE: | Mr G. Holland |
| SOLICITOR FOR THE WIFE: | Pederick Lawyers |
| COUNSEL FOR THE HUSBAND: | Mr Ackman QC with Ms K. Macmillan SC |
| SOLICITOR FOR THE HUSBAND: | Robinson & Mason Pty Ltd |
Orders
The Respondent Husband pay the costs of the Appellant Wife of and incidental to the hearing of the appeal (SA 87 of 2008) by the Wife determined on
14 September 2009 including the hearing of the application for costs of that appeal.
The costs referred to in order 1 hereof be assessed on a party and party basis and be in an amount as agreed between the Appellant Wife and the Respondent Husband and failing such agreement within 56 days of the date of these orders as assessed by a taxing officer of the Family Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan (Appeal Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 87 of 2008
File Number: ADF 228 of 2005
| MS STRAHAN |
Wife
And
| MR STRAHAN |
Husband
REASONS FOR JUDGMENT
INTRODUCTION
On 3 March 2009 we heard an appeal in relation to an order made by
Strickland J and on 14 September 2009 delivered reasons and made the following orders:
1. Leave be granted to the Appellant Wife to amend the orders sought in the Amended Notice of Appeal filed on 12 December 2008 by the deletion from order 2(a) of the words “and that such sum be utilised on account of the costs and disbursements of the Wife in prosecuting her claim in these proceedings” and also the deletion of order 2(b).
2. Leave be granted to the Appellant Wife to appeal against Order 1 made by Strickland J on 24 September 2008.
3. The appeal be allowed.
4. Order 1 made on 24 September 2008 be set aside.
5. Within 30 days of the date hereof the Respondent Husband pay to the solicitors for the Appellant Wife on behalf of the Appellant Wife the sum of $5,000,000.00 by way of interim property settlement.
6. Either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the application for leave to appeal and the appeal by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 21 days of the date hereof.
7. The other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
8. Either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.
9. Each party endorse on the cover sheet of any submissions filed pursuant to orders 6, 7 and 8, the date upon which a copy of that submission was served on the other party.
Pursuant to the above orders we received written submissions in respect of costs from each of the Wife and the Husband.
The Wife seeks that the Husband pay her costs on an indemnity basis of and incidental to the Appeal and also her costs of and incidental to her original application dated 18 July 2008 and the hearing before Strickland J. In the alternative the Wife seeks the said costs on a party and party basis. In the further alternative the Wife seeks an order that the question of costs of and incidental to the hearing of the application filed on 18 July 2008 be referred to Strickland J for consideration. In the event that we did not make an order for costs against the Husband, the Wife seeks a certificate with respect to her costs of and incidental to the Appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The Husband opposes any order for costs.
QUANTUM OF COSTS SOUGHT
In relation to the appeal the Wife seeks an amount of $107,431.55 which comprises $60,595.90 for solicitor’s costs and disbursements, $18,975.00 for senior counsel and $27,860.65 for junior counsel. In relation to the hearing before Strickland J the Wife seeks $109,518.33 being $61,941.33 for solicitor’s costs and disbursements, $18,788.00 for senior counsel and $28,789.00 for junior counsel. These are the amounts that were charged to the Wife by her solicitor with regard to the hearing before this Court and with regard to the hearing before Strickland J. The Wife seeks the sums as indemnity costs and in the alternative, seeks an appropriate sum for party and party costs which would be two-thirds of the costs.
The Husband submitted that he unsuccessfully sought at the hearing before Strickland J an order for costs which included counsel's fees for preparation and hearing, interstate travel, accommodation and solicitors’ costs in the total sum of $60,000.00. It was submitted that there is insufficient detail or explanation to enable the Husband to respond to an application for costs, which on their face, considerably exceed his costs.
RELEVANT PRINCIPLES
General
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
Section 117(2) of the Act provides that if, in proceedings under the Act the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub secs (2A), (4) and (5) and the applicable rules, make such order as to costs whether by way of interlocutory order or otherwise, as it considers just.
Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g).
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (per Kay, Warnick and Boland JJ) referring to
s 117(2A) said at 130:
41. A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311 in joint reasons Stephen, Mason, Aicken and Wilson JJ said at 315-16:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
As to the nature of the hearing of an application pursuant to s 117 of the Act their Honours said at 315:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
There are various machinery provisions within Part 19 of the Family Law Rules 2004 (“the Rules”). Rule 19.08 provides:
(1) A party may apply for an order that another person pay costs.
(2) An application for costs may be made:
(a)at any stage during a case; or
(b)by filing an Application in a Case within 28 days after the final order is made.
(3) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
Part 19.5 of the Rules deals with the calculation of costs. Rule 19.18 provides:
(1) The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Example
For paragraph (1) (c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.(2) If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
(3) In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
Indemnity costs
An order for costs may be made upon an indemnity basis, subject to a judicial determination capable of being made that there ought be a departure from the usual basis that costs be payable on the party/party basis. In Colgate-Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 Sheppard J said at
256-257:It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
…
4. In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require.” Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo: “the categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
See also Kohan and Kohan (1993) FLC 92-340 (Full Court per Strauss, Lindenmayer and Bulley JJ); Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (1996) 141 ALR 727 at 729 (per Black CJ); Munday v Bowman (1997) FLC 92-784 at 84,660 (per Holden J; Yunghanns v Yunghanns (2000) FLC 93-029 (per Lindenmayer and Holden JJ with Mullane J dissenting); NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) 109 FCR 77 (per Lindgren J); and Limousin v Limousin (Costs) (2008) 38 Fam LR 478 at [41] - [43] (per Kay, Coleman and Boland JJ).
RELEVANT CONSIDERATIONS
Introduction
Submissions were only made in relation to the matters in s 117(2A)(a), (c) and (e) of the Act namely the financial circumstances of each of the parties to the proceedings; the conduct of the parties to the proceedings in relation to the proceedings and whether any party has been wholly unsuccessful in the proceedings.
Financial circumstances
The Wife submitted that the Husband is in a far superior financial position than her and is clearly in a position to pay the amounts sought. It was submitted that the Husband has and has had effective control of most of the parties' assets since separation and did not dispute that he could pay the
$5 million claimed by the Wife.The Husband submitted that whilst it was not disputed that he had the capacity to meet the order sought by the Wife by way of interim property settlement, in assessing any disparity in the parties' respective financial positions we should have regard to a number of “significant matters” relating to the circumstances of the Wife. First, the Wife resides in and has the use of unencumbered properties owned by the Husband and/or the Wife or their entities. Second, the Wife is in receipt of payments for the benefit of the child of the marriage in excess of $700,000.00 per annum. Third, the Wife had a total of $6,723,695.00 at the time of separation. Fourth, in consequence of the receipt of amounts pursuant to orders made since 23 January 2007 and the amount of $6,723,695.00, the Wife has had direct access to a total sum of $17,198,000.00. The Husband submitted that in those circumstances it could not be said that there is such disparity between the parties' respective financial positions that would justify an order for costs in the Wife's favour.
Conduct of the Parties
The Wife submitted that both before Strickland J and again before us it was the Husband's position that the Wife's Application should be dismissed in circumstances where the Wife required significant funds to continue her legal representation and it was agreed that the monies sought by the Wife would not exhaust her likely entitlement under s 79 of the Act when the matter was finally disposed of.
The Wife submitted that the Husband did not concede that her apparent need for funds was “sufficiently compelling circumstances to require the husband to make a payment to the wife by way of interim property settlement”. Further, that although the Husband was continuing to pay his legal fees as they fell due he contended that it would not be unreasonable for the Wife's solicitors to take a charge over the Wife's assets such that the costs be paid upon the conclusion of the proceedings.
The Wife submitted that in those circumstances the decision of the Husband to oppose the Application and the Appeal, “was really a means of putting off the inevitable i.e. payment of the further sum claimed by the wife”. It was submitted that, “[s]uch opposition even if justified on the basis of the husband's entitlement to pursue his rights … can only be seen in terms of decisions by the [Husband] to further embarrass the [Wife] in a financial sense by incurring further costs and delaying the finalisation of this action”.
The Wife submitted that as a result of the Husband's opposition there has been a delay from the date of the application on 4 July 2008 through the hearing before Strickland J on 23 and 24 September 2008 until the pronouncement of our judgment on 14 September 2009. It was submitted that the opposition of the Husband, “was unnecessary and has resulted in needless extra costs being incurred by the parties”.
The Husband submitted that in the circumstances, he was entitled to oppose the Wife's application and support the decision of the trial Judge. Further, the Husband, “has prosecuted the case in an appropriate manner and has not caused any unnecessary delay in the conduct of the proceedings”.
The Husband submitted that there is no basis for the Wife's assertion nor any evidence nor any finding by the trial Judge or by us on appeal to support the Wife's contention that the Husband's actions were an attempt to, “embarrass the Applicant wife in a financial sense by incurring further costs and delaying the finalisation of this action” or in any other manner. It was submitted that it is relevant to note that the proceedings have been significantly delayed by the Wife's application and subsequent appeal against the refusal of the trial Judge to disqualify himself.
The Husband submitted that there were no findings by either the trial Judge or by us of any, “inappropriate conduct whatsoever on the part of the [Husband]”.
The Husband also submitted that the Wife relied upon “the test” in Harris and Harris (1993) FLC 92-378 and that test having been applied by the trial Judge, the Husband was entitled to argue before us that the judgment should be upheld. Elsewhere in the written submissions of the Husband it was contended that in her Outline of Argument before the trial Judge, the Wife submitted that the relevant authority was Harris and Harris and that the power to make an order for interim property settlement “should be confined to cases where circumstances ‘at that time are compelling’”. It was submitted that the Husband also filed an Outline of Argument in which he agreed that the Wife was required to meet the test in Harris and Harris. Reference was also made to a submission to the trial Judge by senior counsel for the Wife that, “[t]here appears to be no issue between the parties as to the legal principles, and your Honour addressed those in your decision in this matter of 23 February 2007, where your Honour referred back in turn to the statement of principle in Harris [and] Harris (1993) FLC 92-378”.
It was then submitted that in the Wife's Summary of Argument for the hearing of her appeal and in her counsel's submissions to us, for the first time it was submitted that the test to be applied was not the presence of compelling circumstances but a “proper case in all of circumstances”. Reference was made to what happened after the hearing when we gave the parties the opportunity to make further submissions having regard to what was said by Reithmuller FM in Wenz v Archer (2008) 40 Fam LR 212.
The Husband submitted that in Wenz v Archer Reithmuller FM found that the requirement of compelling circumstances was not proscriptive of the categories in which an order may be made for interim property settlement. It was submitted that before us senior counsel for the Husband submitted that the term compelling circumstances as used in Harris and Harris was descriptive not proscriptive. It was also submitted that the Wife's counsel had not sought to rely on nor refer to Wenzv Archer in making her submissions to us.
The Husband submitted that the Appeal was successful because we found that the trial Judge, “erred in principle in confining the circumstances of the discretion to order an interim property settlement to 'compelling’ circumstances rather than simply to a proper case in all of the circumstances”.
The Husband submitted that in circumstances where we “required further guidance and ultimately delivered a significant decision clarifying the law in relation to the test to be applied by the Court in determining applications for part property settlement” it would not be just to make an order for costs against the Husband. We observe that in referring the parties to Wenzv Archer we did not require “further guidance” but were concerned to give the parties the opportunity to be heard given the relevance of that case.
Outcome of the proceedings
The Wife submitted that, “there can be no question that the [Husband] has been wholly unsuccessful on this Appeal and it follows the Application”.
The Husband submitted that, “the success of the wife’s Appeal must be considered on the basis that we found that the trial Judge “erred in principle in confining the circumstances of the discretion to order an interim property settlement to compelling circumstances rather than simply to a proper case” in circumstances where the Wife, “had argued at trial that the power should be confined to cases where the circumstances were compelling”.
CONCLUSION
Costs of the appeal
As to the appeal we accepted the submissions made to us on behalf of the Wife and came to the conclusion that the trial Judge was in error. The Husband opposed the appeal and submissions were made on his behalf in opposition to what was submitted on behalf of the Wife. The Husband was wholly unsuccessful in seeking that the Wife’s appeal be dismissed. In our view the Wife has therefore established a justifying circumstance.
We also take into account the financial circumstances of the parties. We accept that the Wife has had the benefit of significant sums of money. However we are also aware that the Wife’s costs have been very significant and that the Husband is in a superior financial position to the Wife. We have no doubt that the Husband has the capacity to pay the amount of any costs order including if we so ordered the amounts contended for by the Wife.
We propose to make an order that the Husband pay the Wife’s costs of and incidental to the appeal.
Quantum of costs of the appeal
The Wife put two reasons forward as to why we should order that the costs be assessed on an indemnity basis. First, because the opposition of the Husband to the Appeal, “was carried on for an ulterior motive”: Re Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 72 (unreported, Federal Court of Australia, Davies J, 5 March 1993) at [8]. Second, because the result of the Husband's opposition, “has caused unnecessary delay”: Tetijo Holdings Pty Ltd v. Keeprite Australia Pty Ltd [1991] FCA 187 (unreported, Federal Court of Australia, French J, 3 May 1991).
The Husband submitted that we “should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind”: Kohan and Kohan at p 79,614. The Husband submitted that, “there is nothing in the circumstances of this case by way of [his] opposition to the wife's application at trial or on appeal or in the findings of the Full Court that would cause [us] to exercise [our] discretion and order that [he] pay the wife's costs on an indemnity basis or indeed on any other basis”.
In the property settlement proceedings there is a significant issue as to the extent and value of the assets of the parties. However accepting for present purposes what we understand are the contentions of the Husband, the assets have a significant value. Further, in the substantive proceedings there has been extensive litigation and the costs of that litigation have been enormous. However it does not follow that any order for costs should be on an indemnity basis. We have to be satisfied that there are circumstances that justify departure from the ordinary rules as to costs between party and party.
As to the first matter relied upon by the Wife we are not persuaded that the opposition of the Husband to the Appeal, “was carried on for an ulterior motive”. There is no evidence that establishes this contention. As to the second matter we are also not persuaded that the result of the Husband's opposition “has caused unnecessary delay”. We make the observation that for a variety of reasons the litigation appears to be protracted. However the reasons for this are not obviously the fault of one party. In all the circumstances we are of the view that the costs should be assessed on a party and party basis.
Order for a specific sum
We assumed that the Wife was also seeking a costs order of a specific amount as envisaged by r 19.18(1)(a) of the Rules. However the amounts are not agreed. We are of the view that the amount to be paid by the Husband should be as agreed or assessed by a taxing officer.
Federal Proceedings (Costs) Act certificate
We also observe that the Wife had sought a certificate under the Federal Proceedings (Costs) Act. However, the Wife only sought a certificate in the event that we did not make an order for costs against the Husband. The Husband did not make an application for a certificate. No submissions were made by either party in relation to the granting of such a certificate. In any event we propose to make an order that the Husband pay the costs of the Wife and hence each party will not bear his or her own costs: see s 9(1)(b) of Federal Proceedings (Costs) Act.
Costs of the hearing before the trial Judge
The Wife submitted that when Strickland J delivered judgment on
24 September 2008, the Husband made an oral application for costs. It was submitted that, “[i]n the light of the facts that Strickland J had only ordered payment of a sum of $1 million dollars [sic] rather than the $5 million claimed by the [Wife], the [Wife] opposed that Application for costs and asked that the usual situation apply, namely that each party bear their own costs (pg 966 Appeal books)”. His Honour dismissed the Application and made no orders for costs. The Wife submitted that as she “has been wholly successful” on the Appeal, the question of the costs of the Application should be revisited.We do not propose to deal with the application by the Wife for the costs of the hearing before Strickland J. We are only concerned with the costs of the appeal and the costs of a rehearing if, rather than re-exercise the discretion we had remitted the application for rehearing before a single judge. The Wife of course can always make an application to the trial Judge although we express no view about the outcome of such an application.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of Boland, Thackray & O’Ryan JJ.
Associate:
Date: 21 December 2009
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