TEH & MUIR (DECEASED)
[2018] FamCAFC 43
•6 March 2018
FAMILY COURT OF AUSTRALIA
| TEH & MUIR (DECEASED) | [2018] FamCAFC 43 |
| FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the appellant sought to amend the appeal books to include an affidavit filed in the substantive proceedings – where the trial judge had directly considered the contents of that affidavit in his judgment – where the respondent did not object to the affidavit being included in the appeal books – where an application to adduce further evidence was not necessary in the circumstances – where the appeal book was amended to include the appellant’s further affidavit – application dismissed. FAMILY LAW – ORAL APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – where the respondent sought an order to summarily dismiss the appeal pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) – where the application was first foreshadowed in the respondent’s recently filed and served Summary of Argument – where the appellant is a self-represented litigant – where the objective of s 96AA(1) is for such applications to be made well in advance of the appeal hearing itself – where the challenges asserted by the appellant are clear enough from her Notice of Appeal and Summary of Argument – where the respondent has identified and addressed the complaints the appellant seeks to advance on appeal – where the appellant should be allowed the opportunity to make submissions as to the merit of her appeal – oral application dismissed. FAMILY LAW – APPEAL – COSTS – where the appellant appealed an order that she pay the respondent’s costs of trial in the fixed sum of $100,000 – where the case of the respondent was conducted by his case guardian – where the party died after the appeal was instituted – where the case guardian for the respondent was substituted for the respondent by an Appeals Registrar – where the respondent submitted that the appeal proceedings abate upon death – where the Full Court held the proceedings do not abate – where the case guardian for the respondent has standing to seek costs pursuant to r 6.14 of the Family Law Rules 2004 (Cth) and the costs orders made are characterised as costs of the case guardian within that rule – where the appellant alleged she was unable to meet an order for costs given her poor financial circumstances – where the appellant was wholly unsuccessful at trial – where financial impecuniosity is not a bar to a costs order being made – where there is no evidence that the trial judge exercised his discretion on wrong principles – where ordering the costs in a fixed sum was within the trial judge’s discretion – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $11,524. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Allison & M & Co Pty Ltd and Anor [2014] FamCAFC 210 Derek & Derek (2006) FLC 93-260; [2006] FamCA 339 Greedy & Greedy (1982) FLC 91-250; [1982] FamCA 41 Lenova & Lenova (Costs) [2011] FamCAFC 141 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Mallet and Mallet (1984) 156 CLR 605; [1984] HCA 21 Matani & Matani and Ors [2017] FamCAFC 65 Moorcroft & Moorcroft [2017] FamCAFC 147 Somerton & Wells and Anor (2014) FLC 93-574; [2014] FamCAFC 30 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 |
| APPELLANT: | Ms Teh |
| RESPONDENT: | Ms Becke as Case Guardian and Legal Personal Representative for Mr Muir (Deceased) | |||||
| FILE NUMBER: | ADC | 1922 | of | 2014 | ||
| APPEAL NUMBER: | SOA | 46 | of | 2017 |
| DATE DELIVERED: | 6 March 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Strickland & Kent JJ |
| HEARING DATE: | 6 March 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 June 2017 |
| LOWER COURT MNC: | [2017] FamCA 472 |
REPRESENTATION
| THE APPELLANT: | In person with the assistance of an interpreter |
| COUNSEL FOR THE RESPONDENT: | Ms Hurley |
| SOLICITOR FOR THE RESPONDENT: | Culshaw Miller |
Orders
The Application in an Appeal filed on 20 February 2018 be dismissed.
The oral application that the appeal be summarily dismissed pursuant to section 96AA(1) of the Family Law Act 1975 (Cth) be dismissed.
The appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeal fixed in the sum of $11,524.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Teh & Muir (Deceased) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 46 of 2017
File Number: ADC 1922 of 2014
| Ms Teh |
Appellant
| Ms Becke as Case Guardian and Legal Personal Representative for Mr Muir (deceased) |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
KENT J
Extensive litigation between Ms Teh (“the appellant”) and Mr Muir (“Mr Muir”) culminating in a trial which commenced on 24 October 2016 and proceeded for six days, was concluded by orders made by Berman J on 10 March 2017.
As a consequence of Mr Muir’s then legal incapacity, his case in the litigation was conducted by his daughter and case guardian, Ms Becke (“the case guardian”). By order of the Guardianship Board of South Australia made in April 2014 the case guardian was appointed the sole administrator of Mr Muir’s legal and financial affairs. Consequently, when the subject litigation was commenced by the appellant on 29 May 2014 the case guardian conducted Mr Muir’s case.
The final orders of 10 March 2017 recorded a finding that the appellant and Mr Muir were not at any stage in a de facto relationship (Order 1). By a further order a financial agreement made on 19 February 2015 between the appellant and Mr Muir was set aside (Order 2), and an order was also made to disburse to, or for Mr Muir’s benefit, remaining funds then held in a trust account from the sale of a property previously owned by Mr Muir (Order 3).
On 2 June 2017, on the application for costs of the proceedings brought by the case guardian, Berman J ordered that the appellant pay those costs fixed in the sum of $100,000 (“the costs orders”).
By Notice of Appeal filed on 30 June 2017 the appellant appeals from the costs orders and seeks that those orders be set aside and that the issue of costs be remitted for rehearing.
Sadly, on 25 November 2017 some five months after this appeal was instituted, Mr Muir passed away.
On 1 March 2018 an Appeals Registrar ordered, on the application of the case guardian, that pursuant to r 6.15(3) of the Family Law Rules 2004 (Cth) (“the Rules”) that she as the legal personal representative of the late Mr Muir be substituted as a party in the proceedings, and thus as the respondent to this appeal.
However the costs orders are readily characterised as “costs of the case guardian” within the meaning of r 6.14 of the Rules and the case guardian thus has standing to resist this appeal as respondent notwithstanding the death of Mr Muir, irrespective of the orders made on 1 March 2018.
At the outset of the hearing of this appeal, the respondent contended to the effect that the appeal had abated with Mr Muir’s death. I do not accept that contention.
As already noted, the costs orders were final orders made and are characterised as “costs of the case guardian” within the meaning of r 6.14. The appellant has an appeal as of right pursuant to s 94 of the Family Law Act 1975 (Cth) (“the Act”). Further, consistent with the decision of the Full Court in Somerton & Wells and Anor (2014) FLC 93-574 this appeal does not abate upon the death of Mr Muir.
Application in an Appeal
The appellant, who represents herself, filed an Application in an Appeal and a supporting affidavit on 20 February 2018 expressed as seeking to adduce further evidence on the appeal.
However, the further evidence identified is an affidavit of the appellant which was filed and served on 26 May 2017 in the costs application proceeding prior to the making of the costs orders. That affidavit was undoubtedly before the trial judge, as his Honour’s reasons make express reference to it and to the appellant’s Financial Statement also filed the same day (reasons at [14] and [15]).
Properly characterised, the application is not an application for further evidence pursuant to s 93A(2) of the Act. Rather, it is simply the appellant seeking to have the appeal record supplemented to include an affidavit which properly forms part of that record.
Thus, if the current appeal record is supplemented by including the affidavit of the appellant filed on 26 May 2017, as it should be and about which the respondent raises no objection, the Application in an Appeal ought be dismissed.
Application for summary dismissal of appeal – s 96AA
At the outset of the hearing of this appeal the respondent advances an application (which was foreshadowed for the first time in the respondent’s Summary of Argument filed on 5 February 2018 and amended on 14 February 2018) for this appeal to be summarily dismissed pursuant to s 96AA(1) of the Act.
The respondent seeks to emphasise, with justification it must be said, that the appellant’s grounds of appeal are unsupported by sufficient particularity to identify with any precision the error or errors contended for. It is submitted that the lack of particularity in the grounds themselves is not remedied by what is contained in the appellant’s Summary of Argument. Moreover, the respondent contends that the Notice of Appeal (coupled with the Summary of Argument) “is so incompetent, that it is doomed to failure”.
The respondent thus contends that, within the meaning of s 96AA(1) of the Act, having regard to the grounds of appeal as disclosed in the Notice of Appeal, this Court ought conclude that the appeal has no reasonable prospects of success and the appeal ought be dismissed. The respondent invited us to dismiss the appeal pursuant to that section. That would obviously result in the appellant not being permitted to advance any oral arguments in support of her appeal and would obviate any need for the respondent to address arguments in response.
The principles applicable to provisions such as s 96AA(1) permitting summary dismissal of a proceeding are well-known and need not be restated (see, for example, Spencer v The Commonwealth (2010) 241 CLR 118 (“Spencer”) and Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 (“Lindon”)). Those principles have been applied by this Court in relation to s 96AA(1) (see, for example, Allison & M & Co Pty Ltd and Anor [2014] FamCAFC 210 per Strickland J).
I would decline the respondent’s invitation for the following reasons.
First, the appellant is self-represented and English is not her first language. She required the assistance of an interpreter in her native language of Cantonese at trial, as she did on the hearing of this appeal. Her appeal is as of right, the costs orders being final orders.
Second, no Application in an Appeal was made by the respondent pursuant to s 96AA(1) following the respondent’s receipt of the appellant’s Notice of Appeal filed on 30 June 2017 containing the grounds of appeal now complained about. In Lindon Kirby J, having noted at [1] of the principles his Honour identified (at pp 255/6) the seriousness of depriving a person of access to the courts where the rule of law is upheld, stated at [6] the guiding principle, and purpose, of a provision such as s 96AA(1) (in that case a rule of court) as follows:
The guiding principle is, as stated in [the relevant rule], doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Here the objectives referred to by Kirby J of saving costs, trouble and burdens are not fulfilled by an application advanced for the first time on the hearing of the appeal itself, and one which was first foreshadowed in a Summary of Argument filed as recently as 5 February 2018. The appellant has already incurred the additional costs and trouble of preparation of the appeal record, and preparation for the appeal, undertaken subsequent to the filing of her Notice of Appeal and for its part this Court has allocated a hearing of this appeal by three of its judges.
That s 96AA(1) is primarily directed, consistent with the objectives identified by Kirby J referred to, to applications being made in advance of the appeal hearing itself, can be seen from the 2011 amendments to the section. Prior to those amendments, and as discussed by the Full Court in Derek & Derek (2006) FLC 93-260, in its previous iteration by its express terms s 96AA could only operate on the hearing of the appeal itself. The amendment was clearly designed to achieve application pursuant to s 96AA(1) being made in advance of an appeal hearing.
Third, and allied to the previous point, as Kirby J also observed in Lindon at [5], of the principles identified, if it appears a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow a party to reframe its pleading. To similar effect are the observations of French CJ and Gummow J in Spencer’s case at [22] referring to an “incurable” deficiency in pleadings.
Fourth, for all the deficiencies in the Notice of Appeal and the appellant’s Summary of Argument, it is clear enough that the appellant advances the challenge that the trial judge failed to have any regard to her financial circumstances in making the costs order his Honour made (Grounds 1 and 3 of the Notice of Appeal as expanded in the appellant’s Summary of Argument). Leaving aside for the moment whether the appellant can establish that ground (bearing in mind that s 96AA(1) requires the Court to have regard to the grounds of appeal themselves), given that s 117(2A)(a) of the Act mandates that the Court shall have regard to the financial circumstances of each of the parties to the proceedings in considering what order (if any) for costs should be made, it cannot readily be concluded that if that ground were to be established there would exist no reasonable prospects of success of the appeal.
Finally, reference to the content of the respondent’s Amended Summary of Argument does not reflect any fundamental difficulty on the part of the respondent in identifying and addressing complaints the appellant seeks to advance on appeal.
In my judgment the operation of these factors in combination results in the conclusion that the application for summary dismissal of this appeal pursuant to s 96AA of the Act ought be dismissed. The appellant should have the opportunity of demonstrating whether there is any merit in her appeal.
I emphasise that nothing I have said should be interpreted as suggesting that an application pursuant to s 96AA of the Act can never be advanced for the first time on the appeal hearing itself. There will be cases where it is entirely appropriate for such an application to be advanced for the first time on the hearing of the appeal. However, in the general run of cases, it ought be evident to a respondent upon service of the Notice of Appeal containing the grounds whether an application under the section should be advanced so as to achieve the objectives earlier referred to even if the result of such an application is to confine the grounds of appeal which go forward to the hearing of the appeal itself. What I have sought to demonstrate is that the current application ought be dismissed in the particular circumstances of this case.
We indicated during the hearing that this application would be dismissed and these are my reasons for so concluding.
Resolution of the appeal
Within the ambit of discretionary judgments, a determination as to costs under s 117 of the Act is quintessentially a discretionary exercise. As Wilson J observed in Mallet and Mallet (1984) 156 CLR 605 an exercise of discretion to order costs will be upheld if it appears that there are reasons on which a judge could rely.
In Matani & Matani and Ors [2017] FamCAFC 65 it was stated by the Full Court:
9.In Harris and Harris (1991) FLC 92-254 at 78,711, the Full Court held that costs orders are “peculiarly a matter which are within the discretion of the trial judge” and that “only in the rarest of cases” should an appeal court interfere with such orders. Although this may state the proposition “at its highest” (Browne v Green (2002) FLC 93-115), the authorities consistently emphasise the extent to which costs orders are protected from appellate interference.
10.An exercise of discretion to order costs will be upheld if it appears to the appellate court that there were reasons upon which the trial judge could rely in making the order: Greedy and Greedy (1982) FLC 91-250 at 77,382; Luadaka v Luadaka (1998) FLC 92-830 at 85,509.
Aside from the discretionary nature of the costs determination involved, a trial judge with intimate knowledge of the issues and relevant circumstances of the subject litigation derived from presiding over a trial of significant duration, such as occurred here, enjoys an advantage this Court does not have. That is, an advantage in assessing whether there exists, in the context of the particular case, justifying circumstances for a costs order and, if so, the just order to be made, within the meaning of those concepts as they are expressed in s 117(2A) of the Act.
The appellant was wholly unsuccessful, within the meaning of s 117(2A)(e), in the substantive proceedings. By pursuing an entirely unmeritorious case in those proceedings, Mr Muir was put to substantial expense including the cost of defending himself at a six day trial.
Moreover, the reasons for judgment of the trial judge in the substantive proceedings place significant emphasis on the conduct of the appellant in those proceedings. In a lengthy discussion of the appellant’s evidence in those proceedings commencing at [19] of those reasons the trial judge set out at some length the appellant’s withdrawals of funds belonging to Mr Muir and her failure to account for those funds. In the course of that discussion the trial judge observed:
43.Her explanation was not credible and I did not accept the applicant’s evidence that her documents including bank statements had been stolen. I considered that the applicant did not tell the truth and well understood that if the documents were produced they would have disclosed that substantial sums of money had come into her possession emanating from the financial resources of the respondent, but in particular by way of mortgage drawdown.
44.The applicant’s evidence was appalling and her evidence of being unable to recollect what became of the money the subject of the various transfers was not credible.
…
48.The applicant’s evidence was unconvincing and whilst it was
self-evident that she and her son could not have managed financially on $150 per week, she refused to concede that in circumstances where she was not employed she must have had access to other funds. No documents evidencing her employment were produced.
…
110.The applicant was an unimpressive witness. I consider that her evidence was concocted and contrived. She showed no preparedness to assist the Court in respect of the provision of discovery and in particular her bank statements. I am left in little doubt her evidence of a theft having taken place and her discoverable documents having been stolen, or in some way retained by her landlord, is complete fabrication.
111.There is little about her evidence that was credible and I was left with the clear impression that she was prepared to do all in her power to take advantage of the respondent for her own financial benefit.
The above paragraphs are included in an extensive discussion containing numerous findings adverse to the appellant. There having been no appeal from the orders made in the substantive proceedings, there has been no challenge to those findings and, to the extent the appellant attempts any challenge to them in this appeal, the attempt is rejected as illegitimate.
Moreover, the trial judge’s reasons in the substantive proceedings are replete with findings adverse to the appellant concerning her financial disclosure in the proceedings. For example, commencing at [172] the following appears:
172.Moreover, I accept the evidence of the case guardian that significant sums of money were withdrawn by the respondent via a reverse mortgage facility at the instigation and contrivance of the applicant.
173.The applicant has done all that she could to avoid providing her bank statements and details which would have demonstrated the deposit of funds which could only have come from the resources of the respondent. I accept the applicant’s evidence that she had scant employment of a part-time nature and that she came to Australia with little money.
174.The applicant was motivated to resist discovery because of the obvious inference that would be drawn from evidence that demonstrated substantial sums being deposited into her various accounts and then being transferred from one to the other.
These findings were recorded against the background of uncontroverted facts, as found by the trial judge (at [8]) that Mr Muir was diagnosed on 19 April 2014 as suffering “well established generalised dementia” and “characteristics … most likely those of an early Alzheimer’s disease”.
On any reasonable reading of the trial judge’s reasons for the final orders in the substantive proceedings, the appellant’s attempt in those proceedings to obtain orders adverse to Mr Muir can properly be characterised as unconscionable and her conduct of those proceedings, including as to her lack of financial and other disclosure of information, was worthy of, and received, criticism by the trial judge.
As can be seen, significant and serious findings were made about the appellant’s failure to disclose or account for substantial funds belonging to Mr Muir. Knowing of those findings, the appellant made no attempt to remedy those profound defects in her evidence provided for the purpose of the costs proceedings. That is, whilst the appellant filed the affidavit and Financial Statement on 26 May 2017 purporting to deal with her current financial circumstances, her assertions as to her impoverished circumstances were not corroborated by any detailed historical accounting of the use made of funds belonging to Mr Muir that she was found in the substantive proceedings to have made use of.
The trial judge plainly had regard, in the costs proceedings, to the appellant’s affidavit filed on 26 May 2017 as his Honour makes specific reference to that affidavit at [14]. Reference is also made at [15] to her Financial Statement. Plainly his Honour also had regard to Mr Muir’s then financial position (at [24]). Commencing at [36] of his Honour’s reasons delivered on 2 June 2017 for the costs orders his Honour observed:
36.The financial circumstances of the parties are clearly relevant and it is relevant that neither party has significant, or indeed, any financial resource.
37.I am entirely satisfied as to the transparency of the financial circumstances of the respondent. I am satisfied that the respondent had available to him via his case guardian a significant sum of money following the sale of his property. That money has been extinguished and exhausted, not by his expenditure but by the expense that he was required to incur in order to meet the barren claim of the applicant.
38.Whilst it is likely that the applicant’s resources are meagre, it is a relevant consideration that there were findings made on the evidence that she was resistive to making full and frank disclosure. Indeed, to the very present, it is still the position that her level of disclosure in terms of bank accounts and her true position in terms of the movement of significant sums of money, most of which emanated from the resources of the respondent, whilst the parties lived under the same roof, is wholly inadequate and continues to raise the spectre that the applicant is not prepared to reveal the full extent of her financial resources. But I nonetheless still accept that her financial situation is likely to be poor. Having said that, that is not a barrier in and of itself to an order for costs being made. It may present as a difficulty in terms of enforcement but it is not a barrier.
It can be seen that despite his significant reservations about the appellant’s evidence, including in the substantive proceedings, the trial judge concluded that the appellant’s “financial situation is likely to be poor” but correctly observed that financial impecuniosity is not in itself a barrier to a costs order if other circumstances exist to justify an order being made. That is consistent with authority (see, for example, Lenova & Lenova(Costs) [2011] FamCAFC 141).
There plainly existed justifying circumstances, within the meaning of s 117(2A) of the Act, as referred to by the trial judge, for the making of a costs order against the appellant notwithstanding her “poor” financial situation. It was well within the trial judge’s discretion to conclude that countervailing factors, including Mr Muir’s own financial situation as a result of defending himself in unmeritorious litigation pursued by the appellant, were overwhelming.
As to the trial judge ordering the costs in a fixed sum rather than making an order for an assessment, that was likewise well within his Honour’s discretion and the reasons for judgment provided by the trial judge adequately explain the trial judge’s methodology in arriving at the sum ordered which the trial judge considered to be just. That approach is consistent with authority, most recently referred to in Moorcroft & Moorcroft [2017] FamCAFC 147.
Nothing to which the appellant has directed us on this appeal demonstrates that the result embodied in the trial judge’s costs order is plainly unjust nor has it been shown that in any respect the trial judge exercised his discretion on wrong principles.
For these reasons the appeal ought be dismissed.
THACKRAY J
I agree with the reasons of Kent J and therefore agree the appeal ought to be dismissed.
STRICKLAND J
I too agree with the reasons given by Kent J and the orders proposed.
Costs of the appeal
KENT J
The appeal having been dismissed, the respondent consequently seeks an order for costs of the appeal, fixed in the sum of $11,524.
It is clear from the reasons earlier delivered that the appeal has been wholly unsuccessful which in itself, in the circumstances of this case being an appeal from a costs order, is a justifying circumstance within the meaning of s 117(2) of the Act for an order for costs to be made.
In opposition to the application, the appellant asserts that her financial circumstances would prevent her from meeting a costs order. As has been repeatedly observed by this Court, financial impecuniosity is not in itself a barrier to a costs order if other circumstances exist to justify an order being made (Lenova & Lenova (Costs) [2011] FamCAFC 141).
I am of the opinion that there are circumstances that justify an order for costs in favour of the respondent and I am satisfied that in circumstances where solicitor and own client costs are estimated at $17,200, an application of a 33 per cent reduction to arrive at the sum of $11,524 is an appropriate and just order for party and party costs.
The fixing of costs avoids the parties the further costs, delay and inconvenience involved in an assessment of the costs being undertaken and $11,524 is a reasonable sum having regard to the issues raised on the appeal and the extent of work undertaken by the respondent.
I would therefore make that order.
THACKRAY J
I agree with the reasons of Kent J. I too would make the order for costs sought by the respondent.
STRICKLAND J
I agree with the reasons given by Kent J in relation to the application for costs and the order proposed.
So the formal orders of the Court will be:
(1)The Application in an Appeal filed on 20 February 2018 be dismissed.
(2)The oral application that the appeal be summarily dismissed pursuant to section 96AA(1) of the Family Law Act 1975 (Cth) be dismissed.
(3)The appeal be dismissed.
(4)The appellant pay the costs of the respondent of and incidental to the appeal fixed in the sum of $11,524.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Kent JJ) delivered on 6 March 2018.
Associate:
Date: 6 March 2018
0
9
2