TEDJA & SONY
[2017] FamCAFC 121
•10 July 2017
FAMILY COURT OF AUSTRALIA
| TEDJA & SONY | [2017] FamCAFC 121 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – where the appellant seeks that the appeal judge disqualify himself from further hearing this matter – Where the relevant tests have not been satisfied – Where the appellant has failed to identify what might lead the appeal judge to decide the case on anything but its legal and factual merits – Where the logical connection between the matter and the feared deviation of deciding the case on its merits has not been articulated – Where the appellant has not provided any evidence which demonstrates apprehended bias – Application dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where many of the appellant’s grounds of appeal are incompetent and others have no relevance to the application before the trial judge – Where none of the grounds of appeal demonstrate error by the trial judge and none of the grounds have merit – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the further evidence sought to be adduced by the appellant does not demonstrate that the order under appeal is erroneous – Application dismissed. FAMILY LAW – COSTS – Where the respondent seeks an order for costs on an indemnity basis – Where there is no question that there are circumstances here which would justify an order for costs – Where the appellant has been wholly unsuccessful in the proceedings – Where the financial circumstances of the appellant are clearly superior to those of the respondent – Where even impecuniosity is not a bar to a costs order being made where there are circumstances which otherwise justify an order for costs – Where the circumstances are sufficiently exceptional to warrant costs being assessed on an indemnity basis – Costs ordered in favour of the respondent to be assessed on an indemnity basis in default of agreement. |
| ||||
| APPELLANT: | Mr Tedja | |||
| RESPONDENT: | Ms Sony |
| FILE NUMBER: | MLC | 7099 | of | 2012 |
| APPEAL NUMBER: | SOA | 68 | of | 2016 |
| DATE DELIVERED: | 10 July 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 27 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 2069 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Dr Parker |
| SOLICITOR FOR THE RESPONDENT: | Women’s Legal Services Victoria |
Orders
Paragraph 1 of the orders sought in the application in an appeal filed by the appellant husband on 10 November 2016 be dismissed.
The appeal be dismissed.
The appellant husband pay the costs of the respondent wife of and incidental to the appeal, such costs to be assessed on an indemnity basis in default of agreement as to the same.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tedja & Sony 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 68 of 2016
File Number: MLC 7099 of 2012
| Mr Tedja |
Appellant
And
| Ms Sony |
Respondent
REASONS FOR JUDGMENT
Introduction
On 22 August 2016 Mr Tedja (“the husband”) filed a Notice of Appeal appealing against an order made by Judge Bender of the Federal Circuit Court of Australia on 27 July 2016. The appeal is opposed by Ms Sony (“the wife”).
The order appealed against dismissed the husband’s Initiating Application filed on 3 June 2016. In that application the husband sought an order that he be permitted to take the two children of the parties out of Australia, and for that purpose orders whereby the children’s names had been placed on the Airport Watch List maintained by the Australian Federal Police, be set aside. The husband wished to take the children to Country Z for nine days to attend family celebrations, and to meet various of their relatives.
On 19 October 2016, the husband filed an application in an appeal seeking an order that I be disqualified from hearing any current or future proceedings involving the husband “on the ground of apprehended bias”. The husband also filed an affidavit on 19 October 2016 in support of that application. That application was opposed by the wife.
After hearing submissions from the husband and counsel for the wife at the commencement of the hearing of the appeal on 12 December 2016, I dismissed the application, but indicated that I would provide my reasons therefor as part of my overall reasons for judgment in the appeal. I now provide those reasons as follows.
The application for disqualification
In support of his application the husband referred to the previous occasions on which he has appeared before me in this court.
The first occasion was on 26 February 2014 when I heard and determined the husband’s application in an appeal to extend the time to file a Notice of Appeal against parenting orders made by Judge Connolly on 6 May 2013. I dismissed that application on the grounds that there was no satisfactory explanation provided by the husband for failing to file a Notice of Appeal within time, the proposed appeal lacked any merit, and the prejudice to the wife in allowing the application was greater than the prejudice to the husband in dismissing the application (Tedja & Sony [2014] FamCAFC 35).
Next, in the context of a Notice of Appeal filed by the husband on 14 February 2014 against a divorce order made by Judge Burchardt on 28 January 2014, the husband filed an application in an appeal that I be disqualified, in the same way that he now seeks. I was due to hear the appeal and I had already conducted a directions hearing in relation to it.
On 23 June 2014 I dismissed that application (Tedja & Sony (No. 2) [2014] FamCAFC 111), finding that the father had not satisfied the test laid out in Johnson v Johnson (2000) 201 CLR 488 at 493, and he had also failed to satisfy the two steps identified in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 as being necessary to succeed on a claim of apprehended bias. It was readily apparent that the basis of the application was nothing more than that the husband did not like the decisions I had made in his previous matters.
Interestingly, the husband failed to refer to this decision in his affidavit in support of this application.
On 7 July 2014 the husband’s appeal against the divorce order was heard by me, and on 16 February 2015 I dismissed that appeal finding it had no merit, and I made an order for costs against the husband (Tedja & Sony [2015] FamCAFC 13).
The law concerning disqualification on account of apprehended bias, which is what this is about, is well settled. In Ebner v Official Trustee in Bankruptcy the High Court said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
…
It is also of relevance here to refer to the earlier decision of Johnson, where the High Court said this:
12… The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(My emphasis; footnote omitted)
I also refer to the High Court decision in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, where Mason J said, at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.
(My emphasis)
As to the previous application for an order that I disqualify myself, the tests laid out in Johnson and in Ebner have not been satisfied. In particular the two steps referred to in Ebner have not been undertaken by the husband. Not only has he failed to identify what it is said that might lead me, the judge, to decide the case other than on its legal and factual merits, but he has not articulated the logical connection between the matter and the feared deviation of deciding the case on its merits.
The high point of the husband’s case can be seen from his conclusion in his affidavit, and it is instructive to set that out here in full:
…
Conclusions
64.The evidence in this matter demonstrated that the appeal trial judge in this matter has nil result of providing the best outcome in handling previous appeal cases;
65.One order was completely over-ride by factual evidence about the respondent’s issues;
66.The other order has no legal basis and now only created an on-going dispute when the overseas/Z order has been finalised and completed in November 2014;
67.Based on the above factual evidences, his success rate was 0% and failure rate of 100%;
68.All those fail outcomes were made at tax payers’ expense which led to the question about the overall judicial accountability;
69.In a broader term, this condition represents the failure of the respondent and her legal representative/lawyer/counsel in their legal endeavour in relation to this matter.
70.In return, such unsuccessful or fail legal effort leads to the question about accountability to the member of the general public as the respondent was initially being a legal aid recipient.
71.The appeal trial judge, too, demonstrated the likelihood, or very high probability, of making a similar error in handling or dealing with the current proceeding for not demonstrating the three indispensable attributes of a judicial officer: competence, independence and impartiality;
72.Recognizing that facts leading to disqualification are present, the appeal trial judge is to recuse himself sua sponte (on his own motion);
73.Beyond any reasonable doubt, the appellant was completely convinced that His Honourable Justice Strickland has not been demonstrating the three indispensable attributes of a judicial officer: competence, independence and impartiality;
74.In relation to the above attribute, the appellant was not convinced at all about the ability of the appeal trial judge in making sound, just, and erroneous-free orders.
75.Hence, the appellant is now seeking order from this Honourable Court that His Honourable Justice Strickland hereby shall disqualify himself in any current or future proceeding in case(s) involves Mr Tedja as his competence, independency, impartiality, and accountability are reasonably being questioned;
76.Still in relation to competence and accountability issues, the appellant is now seeking order from this Honourable Court that any reserve for cost order shall be set aside completely.
(Errors and omissions as per original)
The fact of the matter is that the husband has not provided one piece of evidence that demonstrates apprehended bias on my part, and thus his application must be dismissed.
I make two further comments. First, it is again apparent that the gravamen of the husband’s complaint is that he does not like the decisions that I have made in his previous matters. Secondly, the fundamental mistake that the husband makes is that he fails to appreciate that the test is objective, and not subjective, and that can be seen in paragraphs 73 and 74 of his affidavit set out above.
I now turn to the appeal.
The appeal
Plainly, as her Honour said in [23], the result of the husband’s application depended upon on what was in the best interests of the children, and the question became which was greater, the risk of the husband not returning the children to Australia, or the benefit of them being permitted to travel.
Her Honour concluded as follows:
24.When all the evidence is considered and in particular the Father’s own evidence contained both in his Affidavit sworn 3 June 2016 and in the previous matters that have been before this Court, I am left in little doubt that the Father does not believe himself bound by any orders of this Court, including any Order that I could make that would require his return to Australia with Y and X, whether that be on 13 August 2016 or some later date.
25.Despite the Father’s protestations that he intends Y and X to complete their education in Australia, he concedes he wishes to live in that country. The Father owns no real estate in Australia and whilst he has recently obtained employment, it is very low paid. The Father’s family are in (country omitted) and it is clear that he has very little connection to Australia.
26.Accordingly, I believe there is a genuine risk that the Father would not return to Australia with Y and X if allowed to travel to (country omitted) at this time.
27.It is therefore my finding that in all the circumstances it is in Y and X’s best interests that I not grant the application made by the Father this day. Accordingly the Airport Watch List Order dated 27 August 2012 preventing the removal of Y and X from Australia will remain in place.
In his Notice of Appeal the husband raises 18 grounds of appeal, and it is instructive to set them out in full:
1.The Honourable Judge arrived at a decision without proper evidence to support it in relation to the respondent being adamantly opposed to the lifting of the Airport Watch List Order when it was actually a set up by the respondent’s solicitor. Supporting Evidence will be dealt separately and attached to the appeal book.
2.The Honourable Judge wrongly took into account evidence he or she should not have such as an affidavit that should have been filed within applicable time frame pursuant to Rule 9.08 of Family Law Rules 2004.
3.The Honourable Judge wrongly took into account evidence she should not have such as false information about the appellant showing little respect for the order of the court while it was the respondent and her solicitor/counsel and the court registry that have been violating or breaching the order and applicable rules.
4.The Honourable Judge wrongly took into account evidence she should not have where the counsel of the respondent deliberately gave false evidence about how the respondent has been obeying the court order when she has not, in particular court order MLC 7099/2012 dated 2 April 2015.
5.The implication of this was that the Honourable Judge failed to acknowledge that it was the appellant who has been giving frank disclosure about the civil status of the litigants in this matter.
6.The Honourable Judge wrongly failed to exclude unlawful or unfair judgement. There is no legal ground to support her judgment that she was “left in little doubt that the Father does not believe himself bound by any orders of this Court” when each step taken by the appellant throughout the proceeding, including in appeal and High Court process, was made according to applicable law.
7.The Honourable Judge did not properly decide some procedural matter by refusing an affidavit and response to an initiating application of a Family Law matter that should be filed no less than 7 (seven) days prior to the hearing date pursuant to applicable law.
8.The Honourable Judge failed to give proper reasons for her decision especially in the relation of “the Father owns no real estate in Australia and whilst he has recently obtained employment” with has very little connection to Australia. With a superior social security system in Australia, having no property and being recently employed, with low income, are not strong “push” factors that will make then appellant not returning to Australia.
9.Still in the relation to “little connection to Australia”, the Honourable Judge wrongly failed to include evidence that the respondent’s permanent residency status is subject to cancellation pursuant to S116 of Immigration Act 1958, making her a litigant with very weak connection to Australia.
10.The Honourable Judge wrongly stopped evidence being given in particular about the respondent’s residency status.
11.The Honourable Judge did not properly decide some procedural matter by refusing fact that the respondent was filing her document not within allowed time frame.
12.The Honourable Judge wrongly failed to exclude evidence unlawfully or unfairly deposed by the respondent in relation to the appellant’s obedience to the Australian court order.
13.Fresh evidence has become available since the hearing which confirmed the intervention by Honourable Judge Harland through her associate which was only resulted in a issuance of a divorce certificate which effect date was not made pursuant to S55 (3) (a) of Family Law Act 1975.
14.Further evidence, the amended divorce certificate, has become available just to confirm that the effect date of the amended divorce certificate was about 7 (seven) months after the litigants were not in any civil/marriage relationship at all.
15.The Honourable Judge wrongly failed to acknowledge that it is not that the appellant has been showing little respect to the Australian court order. It is more to the fact that there is no law, rule, act, regulation that handle the enforcement of Australian divorce order/certificate on litigants who are not in any form of civil/marriage relationship anymore. Let alone the litigants are of foreign nationals.
16.The Honourable Judge wrongly stopped evidence being given in particular about the respondent’s inability to travel to Z which was actually not due to financial reason but it was actually due to the fact that the respondent, unlike the appellant and the children, is ineligible to apply for Returning Resident Visa Subclass 155 as she will not meet Health and Character requirements due to her recorded mental health issue.
17.The Honourable Judge wrongly stopped evidence being given. Hence, The Honourable Judge overlooked or made a mistake about the respondent’s mental health condition and the fact that the counsel was not working on behalf of the respondent The Honourable Judge decided not to hear evidence that, although Child Protection Agency’s case was closed two years ago, the respondent’s mental health issue lasts for a lifetime.
18.The Honourable Judge failed to give proper reasons for her judgment about the fact that “the Father’s family are in Z” and “a genuine risk that the Father would not return to Australia with Y and X if allowed to travel to Z at this time”. The court order MLC 7099/2012 made on 6 May 2013 clearly stated that “The parties have family and friends living outside the Commonwealth of Australia (particularly Z) and in the event either party wishes to travel outside Australia with the children the other party must not unreasonably withhold their consent for such travel and both parties acknowledge that an application to this Honourable Court is required to discharge the Watchlist Order.”
(Errors and omissions as per original)
Many of those grounds of appeal are incompetent and can readily be dealt with.
Grounds 13 and 14 refer to further evidence which is not the subject of any application to lead further evidence, and in any event, raise matters that do not go to the decision that her Honour had to make; they have no merit.
Ground 15 cannot be described as a ground of appeal at all, let alone a competent ground of appeal; it raises no appealable error by the trial judge, the issue being of no relevance to the application before her Honour.
Ground 5 is the same; it is not a ground of appeal at all. In any event, her Honour was well aware of what the husband said in his affidavit about the civil status of the litigants in this matter (at [9] – [15]), and her Honour was able to rely on this in support of her finding that the husband did not “believe himself bound by any orders of [the Federal Circuit Court]” (at [24]).
The husband failed to provide the transcript of the hearing before the trial judge, and in the absence of that transcript, Grounds 4, 7, 9, 10, 11, 12, 16 and 17 cannot be pursued; they relate to matters that can only be addressed by reference to the transcript. In any event, apart from the lack of a transcript, the topics of these grounds of appeal are also irrelevant to the appeal, and cannot, and do not, demonstrate appealable error by the trial judge.
Turning then to the balance of the grounds of appeal.
Ground 1
To give this ground of appeal its most generous interpretation, it appears to be a complaint that the trial judge should not have proceeded on the basis that the wife opposed the order. It is contended that she in fact consented to the husband’s application, but her solicitors determined to present her case otherwise. As the wife’s counsel points out, there is no evidence to support this contention, and thus this ground has no merit.
Ground 2
This complaint relates to an affidavit of the wife’s which the husband asserts was filed less than seven days before the hearing in breach of r 9.08 of the Family Law Rules 2004 (Cth) (“the Rules”). Pausing there, I point out of course that it was the Federal Circuit Court Rules which were relevant in this case, and not the Family Law Rules, but as will be seen, that is of no moment.
This complaint is also the subject of Ground 7, where the husband complains that the wife’s response was filed in breach of the Rules.
It is contended that her Honour erred in taking into account these documents and in particular the evidence in the affidavit.
The same complaint is again made in Ground 11, and also it seems in Ground 12.
I have already indicated that Grounds 7, 11 and 12 cannot be pursued in the absence of the transcript, but all of these complaints are misconceived in any event. The only evidence before her Honour bearing on the orders sought by the husband, was his own affidavit filed on 3 June 2016. The only affidavit filed on behalf of the wife was her affidavit filed on 21 July 2016, and which affidavit was directed to an application for a stay of the husband’s application pending payment of unpaid costs orders. At the hearing the wife’s counsel sought, but was not granted, leave to file a further affidavit which addressed the husband’s application (see [39]).
These grounds of appeal have no merit.
Ground 3
It is not readily apparent what “evidence” the father is referring to in this ground of appeal. Certainly it was the submission of the wife’s counsel that “the father has very little respect for the orders of [the] court” (at [9]), and her Honour accepted that submission. However, the submission was based not only on the history of the litigation, but more importantly, on the husband’s own evidence in his affidavit, and there is no error by the trial judge in concluding as she did at [24].
As can be seen the husband also suggests that in some way her Honour erred because “it was the [wife] and her solicitor/counsel and the court registry that have been violating or breaching the order and applicable rules”.
However, what the wife and others may have done or did not do, is completely irrelevant to the issue that her Honour had to determine, and accordingly this ground has no merit.
I should also mention that Ground 4, which I have addressed already, contained a similar complaint, but directed solely at the wife’s counsel. First, counsel did not give “evidence”, and secondly, there is no basis, and indeed it is outrageous, to suggest that anything counsel said in submissions was “false”.
Ground 6
This ground effectively challenges her Honour’s finding in [24]. All I need to say about this is that there was ample evidence to support that finding in the husband’s own affidavit filed on 3 June 2016, and in the history of the litigation between the parties.
There is no error here by the trial judge.
Grounds 8 and 18
It is convenient to address these grounds of appeal together, given they both allege a lack of adequate reasons.
In relation to Ground 8, her Honour’s reasons for finding that the husband has “very little connection to Australia” (at [25]), are clear. It was non-controversial that the husband owned no real estate in Australia, that he had only recently obtained low-paid employment, and that his family are in Country Z. In addition, there was his own evidence demonstrating his lack of respect for orders of Australian courts, as compared to decisions made in the courts in Country Z.
In relation to Ground 18, again her Honour’s reasons for finding that there was a genuine risk that the husband would not return to Australia with the children if he was allowed to take them to Country Z are clear. That finding was well open on the evidence before her Honour, and in her reasons her Honour referred to and detailed that evidence.
There is no merit in these grounds of appeal.
Application to lead further evidence.
Although I will be dismissing the husband’s appeal, for completeness I need to address his application to lead further evidence which comprised paragraph 1 of the orders sought in the application in an appeal filed on 10 November 2016. In paragraphs 2 and 3 of that application the husband sought further orders, but when the appeal was heard I dismissed those paragraphs on the basis that it was not open to this court in hearing and determining the appeal to make those orders. One sought the appointment of an Independent Children’s Lawyer, and the other sought an adjournment “to allow presenting the fundamental rights/views of the children”.
The principles applicable to the receipt of further evidence in an appeal in this court are set out in the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172. The majority said this at [109]:
One consideration in construing s 93A(2) [of the Family Law Act 1975 (Cth)] is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. …
The evidence sought to be adduced by the husband was set out in his affidavit also filed on 10 November 2016, and it is readily apparent from the nature of that further evidence that it fails to demonstrate that the order under appeal is erroneous. It is sufficient for this purpose to set out the topics of the “evidence” from the husband’s affidavit as follows:
Background
Applicable Principles Throughout the Hearing
Agreement Between the Appellant and the Respondent
Role of Legal Advisor/Solicitor/Counsel
Drama in the Proceeding
Health Condition of the Respondent
Views of the Children
Sought Order
The “evidence” is not only irrelevant to the appeal, but it is also inadmissible, and the application to adduce further evidence will be dismissed.
Conclusion
Having found that none of the grounds of appeal have any merit the appeal must be dismissed.
Costs
At the conclusion of the hearing of the appeal I received submissions from the parties as to the question of costs depending on the result of the appeal.
In the event that the appeal was dismissed the wife sought an order for costs, with such costs to be calculated on an indemnity basis. The husband opposed any order for costs.
The first question is whether a costs order should be made at all. The primary position under s 117 of the Family Law Act 1975 (Cth) (“the Act”) is that each party to proceedings should bear their own costs (s 117(1)). However, where there are circumstances that justify it the court can make an order for costs, and in determining that regard has to be had to the factors set out in s 117(2A).
There is no question that there are circumstances here that would justify an order for costs, given that the husband has been “wholly unsuccessful in the proceedings” (s 117(2A)(e)).
In opposing any order for costs, the husband relies on his alleged poor financial circumstances. He says that he has recently resigned from his employment which provided him with a salary of $1,800 per month. He says that he is now receiving Centrelink benefits, but he is planning to find other employment.
However, it is not only the husband’s financial circumstances that are relevant. Section 117(2A)(a) requires that the financial circumstances of both parties be taken into account. In that regard, the wife is unemployed and she also receives Centrelink benefits.
Given these circumstances I am not persuaded that the financial circumstances of the parties should prevent an order for costs being made. The financial circumstances of the husband, who is far from impecunious, are clearly superior to those of the wife. Indeed, I note that the husband apparently had sufficient funds to allow him to take the children to Z.
In any event, there is clear Full Court authority that even impecuniosity is not a bar to a costs order being made, and particularly where, as here, there are circumstances which otherwise justify an order for costs (e.g. see D & D (Costs) (No. 2) (2010) FLC 93-435).
I turn then to the question of whether the order for costs that I propose to make should be calculated on an indemnity basis.
In relation to this question it is useful to record what the Full Court said in D & D (Costs) (No. 2):
26.In Limousin & Limousin (Costs) [2007] 38 FamLR 478, the Court reviewed the authorities in relation to indemnity costs. Reference was there made to the judgment of the Full Court in Kohan and Kohan (1993) FLC 92-340. It was recorded at 79,614 (citations omitted) in which it was said that:
The intent of s 117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the court considers just. As we have pointed out, the court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O 38 r 2, the provisions of O 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O 38 r 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court 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. See Degmam v Wright (No 2) [1983] 2 NSWLR 354]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Hobartville Stud v Union Insurance Co (1991) 25 NSWLR 358 at 368–70.
Indemnity costs orders are still an exception in this and other jurisdictions.
27.The Court in Limousin (supra) also referred to the judgment of Shephard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 upon which learned Counsel for the Wife relies in support of the present application. Shephard J said in Colgate-Palmolive (supra) (at 256):
“2.The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis …
3.This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate Court of Appeal or of the High Court would be required to alter it …
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 …”
28.Reference was made to the later decision of the Full Court of Yunghanns v Yunghanns (2000) FLC 93-029 in which is [sic] was said (at 87,471, par 31):
“It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought.”
In Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248, Sheppard J provided some examples of circumstances that might warrant the exercise of discretion to award indemnity costs, and usefully, Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84,660, drew from his Honour’s decision the following:
·Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397.
·Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra).
·Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)).
·The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)).
·An imprudent refusal of an offer to compromise.
The wife’s counsel submits that the circumstances here are exceptional and comfortably come within some of the examples given by Sheppard J. She contends as follows:
a)It was readily apparent that on the grounds of appeal relied on the appeal had no chance of success, and despite that being put to the husband at the directions hearing in this matter the husband chose to continue the appeal without any amendment to his grounds of appeal.
b)The husband’s material is repetitious and prolix.
c)The husband makes allegations of a conspiracy against the lawyers and the judges who have been involved in the proceedings.
d)This is the third attempt to appeal orders of the Federal Circuit Court by the husband, and on each occasion the application or the appeal has been dismissed.
I find that these circumstances are sufficiently exceptional to warrant costs being assessed on an indemnity basis.
I note that no costs agreement was formally tendered to the court, but in lieu thereof the wife’s counsel informed me of the comparison between the agreement that is in place and the family law scale that would be applied on a party/party basis. Importantly, there is not a significant difference between the two, and thus that cannot prevent costs being calculated on an indemnity basis.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 July 2017.
Associate:
Date: 10 July 2017
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