SWENSAN & NESSBERT - [2013] FamCAFC 124

FAMILY COURT OF AUSTRALIA

SWENSAN & NESSBERT

[2013] FamCAFC 124

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the appellant filed a Notice of Discontinuance – where the respondent seeks his costs of and incidental to the appeal – where there is no appearance by or on behalf of the appellant – where there are circumstances which justify an order for costs being made – appellant to pay the respondent’s costs.

Family Law Act 1975 (Cth) – s 117
Family Law Rules 2004 (Cth)

APPELLANT:

Ms Swensan

RESPONDENT:

Mr Nessbert

FILE NUMBER:

DGC

4087

2011

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

16 August 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

16 August 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

17 June 2013

LOWER COURT MNC:

[2013] FCCA 701

REPRESENTATION

THE APPELLANT:

No appearance

THE RESPONDENT:

In person

Orders

The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of ONE THOUSAND DOLLARS [$1,000] such amount to be paid within three [3] months of the date hereof.

IT IS NOTED that publication of this judgment by this Court under the Swensan & Nessbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 38 of 2013
File Number: DGC 4087 of 2011

Ms Swensan

Appellant

And

Mr Nessbert

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an appeal filed by the appellant on 26 June 2013 appealing against orders made by Judge Small on 17 June 2013, albeit I note that the parties only received her Honour’s reasons for judgment on 24 July 2013.
As I understand it, for the purposes of the appeal, the appellant has not had legal representation, although as the respondent has pointed out, she has had legal representation in the past.
There was, as is required under the Family Law Rules 2004 Cth (“the Rules”), a draft appeal index filed by the appellant on 21 July 2013. Following the filing of that index, as is the usual practice of this court, the appeal was listed for directions today. However on 8 August 2013 the appellant filed a Notice of Discontinuance. That Notice of Discontinuance was served on the respondent’s solicitors on 12 August 2013.
There has been no appearance by the appellant today, although the court, again in accordance with its usual practice, forwarded a letter to her on 8 August 2013, advising that the appeal “remained listed before the Honourable Justice Strickland at 9:00am on 16 August 2013”. That letter was a letter by which the court also returned a service copy of the Notice of Discontinuance to the appellant. I am therefore satisfied that the appellant was on notice that despite her having filed a Notice of Discontinuance, the appeal remained listed, and that of course is for the purpose of hearing any applications that might be made in the matter.
The respondent has appeared in person, his solicitors having filed a Notice of Ceasing to Act. He made an oral application for costs, however he was not in a position immediately to indicate to me what costs he sought, and I stood the matter down to allow him to contact his previous solicitors to obtain an itemised bill of their charges in relation to this appeal.
The matter has now been called back on, and there is still no appearance by the appellant.
The respondent has provided to me the itemised bill that he has received from his former solicitors today and I marked that bill “Exhibit 1”. Upon perusing that bill I enquired of the respondent whether he had a costs agreement with his previous solicitors, and he indicated that he did. It is apparent from this bill that the charges are in accordance with a costs agreement and not the Family Court scale. As I have explained to the respondent, in his application for costs he is able to seek the costs he has incurred with his solicitors, but he needs to establish exceptional circumstances. Without going into the detail of that issue with the respondent, there I am referring to the fact that if he sought costs in accordance with his costs agreement, he would be seeking in effect indemnity costs, and the authorities are such that such costs are only awarded in exceptional circumstances. The normal basis is a party/party basis which would be in accordance with the scale under the Rules.
In any event, in my view, and I expressed this to the respondent, and he did not make any submission otherwise, I do not consider that there is such an exceptional circumstance here that would allow me to make an order for indemnity costs, and thus we are looking at party/party costs. That creates a practical difficulty though for the court in that, as I have said, the bill is drawn on the basis of the costs agreement. Nevertheless, my practice when I am asked to make an order for costs, is to fix a lump sum to avoid the need for parties to go to taxation, which can be a time consuming and sometimes an expensive exercise.
In this case I am prepared to fix a lump sum amount, if of course I am disposed to make an order for costs in the respondent’s favour, and I turn to that issue.
Any application for costs in the Family Court of Australia and including the Full Court of the Family Court of Australia is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). That section in so far as it is relevant provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) (4A), and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(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;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
As is apparent the section provides that each party is to bear their own costs, but if the court is of the opinion that there are circumstances that justify it in doing so, it may make such order as to costs as it considers just. In the event that the court considers making an order for costs, the court is directed to

s 117(2A) which sets out the factors that the court should have regard to when considering whether an order for costs should be made, and also what the quantum of that order should be.
In this case what has happened is an appeal has been filed but a Notice of Discontinuance has now ensued, and thus I proceed on the basis that the appellant has been wholly unsuccessful in the proceedings.
I am also to take into account the financial circumstances of the parties. That is difficult here because I have no financial information put before me in any formal way, and of course, I do not have the appellant here to put anything to me from the bar table.
I have ascertained from the bar table what the respondent’s financial circumstances are. He tells me that he expects to earn about $45,000 gross from his employment, but all of that will be eaten up in the expenses that he has. He has no other assets except his tools and he owes about $20,000 to $25,000 by way of legal costs. Clearly he is in difficult financial circumstances.
As I have said, I have no information as to the appellant’s financial circumstances. In any event, as this court has frequently said, impecuniosity is no bar to an order for costs being made. Even if I assume the worst namely, that the appellant is also in difficult financial circumstances, although it would be relevant, in this case I do not consider that such circumstances would prevent an order for costs being made.
It was the appellant who chose to file a Notice of Appeal and thereby caused the respondent to incur legal costs in addressing that Notice of Appeal. As a result of the Notice of Discontinuance those costs incurred by the respondent in effect have been lost.
For those reasons, in my view, there are circumstances here that justify an order for costs, and I propose to make such an order. In terms of the quantum, as I have said, I propose to fix a lump sum amount based on the itemised account that the respondent has tendered to me and which is marked “Exhibit 1”.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on

16 August 2013.

Associate:

Date: 21 August 2013