Troy and Troy

[2006] FamCA 1315

FAMILY COURT OF AUSTRALIA

TROY & TROY [2006] FamCA 1315

FAMILY LAW – APPEAL – Application for reinstatement of the appeal - Review of an order made by an Appeals Registrar – Appeal reinstated - Application for review dismissed

FAMILY LAW – APPEAL – COSTS – Husband to pay the wife’s costs of and incidental to the review application 

Family Law Act 1975 (Cth)
Family Law Rules

APPELLANT:  TROY

RESPONDENT:  TROY

FILE NUMBER:  BRF 8564 of 2001

APPEAL NUMBER:  NA 18 OF 2005

DATE DELIVERED:  1 November 2006

PLACE DELIVERED:  Brisbane

JUDGMENT OF:  May J

HEARING DATE:  1 November 2006

LOWER COURT JURISDICTION:  Family Court of Australia

LOWER COURT JUDGMENT DATE:                22 December 2005

COUNSEL FOR THE APPELLANT: Mr Carter, Solicitor

SOLICITOR FOR THE APPELLANT: Carter Naughton Rice

COUNSEL FOR THE RESPONDENT: Mr Hamwood

SOLICITORS FOR THE RESPONDENT: Egan Simpson Solicitors

ORDERS

1. That the appellant have leave to amend paragraph 1 of the application filed 18 October 2006 asking that the appeal be reinstated.

1. That the appellant have leave to reinstate Appeal NA 18 of 2006.

1. That the appellant file in the Appeal Registry and serve the respondent with a written Summary of Argument and a List of Authorities to be relied upon by 4.00pm on 2 February 2006.

1. That the respondent file in the Appeal Registry and serve the appellant with a written Summary of Argument and a List of Authorities to be relied upon by 4.00pm on 16 February 2006.

1. That each party have liberty to apply for any further directions to the Honourable Justice May or if not reasonably available, to another member of the Appeal Division upon four (4) days notice in writing to the other party and to the Appeals Registrar in the Brisbane Registry.

1. That the costs of and incidental to these proceedings be reserved to the Full Court.

IT IS FURTHER ORDERED:

1. That the application for review be dismissed.

1. That the husband pay the wife’s costs of and incidental to the review application within 3 months of an agreement or from the date of assessment of the costs whichever be the earlier.

1. It is certified that it was reasonable to brief a lawyer to appear as counsel for the appellant in the proceedings.

IT IS NOTED that the estimated time for the hearing of the appeal is 1 day.

FAMILY COURT OF AUSTRALIA  AT BRISBANE

APPEAL NUMBER:          NA 18 of 2005

FILE NUMBER:                  BRF8564 OF 2001

TROY
Appellant Husband

And

TROY
Respondent Wife

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. In an application filed on 5 October 2006 on behalf of the appellant husband it is asked that pursuant to R 22.52 the decision of Registrar Bint made on 22 September 2006, be reviewed. The basis of the review of the Appeal Registrar's orders is that the Court should extend the documents contained in the present Appeal Index, as settled by the Registrar, to include a large number of documents. Mr Carter, the solicitor for the appellant, has very helpfully set out in considerable detail what these documents are in his affidavit filed on 5 October 2006. They would fill many more volumes of an appeal book. 

2. In essence, the review relates to the order made by his Honour, the trial Judge, that the husband contribute the sum of $200,000 towards the costs of the respondent. I was directed to paragraph 135 of the judgment where his Honour referred to what he understood was an agreement that: "[t]o conduct that aspect of the case using something of a broad brush approach."

3. It seems, based on what Mr Carter has said, that it is now asserted that there was no such agreement and that his Honour therefore was wrong in taking the approach he took. Although the Notice of Appeal has already been amended once, it seems that this contention is not part of the current Notice of Appeal.  There is certainly an appeal against the orders made for costs. I was taken to paragraph 14 of the current amended Notice of Appeal which says:

   "The trial Judge erred in ordering the husband to pay part of the costs of the wife by failing to deliver adequate reasons in respect of the order,, [sic] by failing to consider and place appropriate weight upon the evidence relevant to the arguments in respect to costs, by failing to adequately consider and properly weigh the conduct of the wife and her non compliance with directions that required the matter to be ready for trial on two occasions namely 21 June 2005 and 31 October 2005, by failing to consider the refusal of the application of the wife for an equal divide as set out in the pleadings, by failing to make a decision in respect of the review application filed prior to trial in respect of the decision made by Justice Jordan on the 21 day of October 2005 and further failed to deliver a reasonable and justifiable reason for the making of the said order in respect of costs."

4. It is apparent to me, at least, that the Notice of Appeal does not contain this very important assertion that is now made, that the fundamental approach taken by his Honour was in error. Whether there is anything that supports that, of course, I cannot tell because I do not have the transcript.

5. This apparently is the sole basis for numerous documents to be included in the appeal books because it is asserted that had his Honour looked at all these documents, which are reasons of other Judges given in various interim hearings, all sorts of orders, affidavits of the wife and of the husband going back to 2001, then he would have made a different order. 

6. The fundamental difficulty, it seems to me, about that assertion is that none of these documents were referred to his Honour at the time of the hearing.  As I have said to Mr Carter, who is the solicitor for Mr Troy, perhaps if there is a further amendment to the Notice of Appeal raising this ground, and if that part of the appeal succeeds, then it may well be on a re-hearing of the issue about costs such documents could be relevant. In that case some of these documents may become relevant, but it cannot possibly be said that they are presently relevant and considering the provisions of R 22.21(1)(a)(i) I will not allow them. 

7. I should add that it was submitted by Mr Carter that these documents should be included because they are in the nature of documents listed in paragraph 22.22(3). As I understand that part of the Rules, it is merely a method for the use of appellants to assist them in understanding how their documents should be arranged and does not mean that all of those documents are relevant and should be included. These documents were not before his Honour, I can see no reason why they should be included. 

8. The application filed on 5 October 2006 is refused. The only orders that will be made are the ones that I have mentioned already, and that is that the appeal is reinstated and the directions in relation to when there the various summaries of arguments are to be filed. 

Costs of the Appeal

1. An application has been made on behalf of the respondent asking for an order for costs, in particular in relation to the application filed on 5 October 2006. It also is necessary to give leave for the appeal to be reinstated and generally costs would follow the event in relation to a matter of that nature.  In this Court, of course, the provisions of section 117 provide that costs do not follow the event and there are a number of matters that ought to be considered.

2. It was submitted by Mr Hamwood, who appears for the respondent wife, that in this case an order should be made for costs and that as the application was not just unsuccessful but had no merit, an order for costs should be made on a solicitor and client basis. Mr Carter asks that no order for costs be made, in particular, he wished to submit that there was some merit in the application and he has mentioned various matters to me about his client's poor financial circumstances.

3. This application, no doubt, will cost Mr Troy a significant amount of money because of the preparation that went behind it, but I can only observe and I have already said in my reasons that there was no basis at all for the application and, as I have mentioned, not only was it unsuccessful but as it sought to include some 113 documents which after, no doubt careful consideration, Registrar Bint refused to allow when one looked at the current Notice of Appeal, it did not seem to be sustainable, by reason of any connection with the Notice of Appeal. In addition none of the documents were before his Honour.

4. In the circumstances I intend to make an order for costs. I am mindful of the fact that the husband has already had to pay two previous orders for costs and I accept what Mr Carter tells me that his financial circumstances currently are poor in the sense that he has very little capital, he is not in employment and therefore an order for costs will be difficult for him to meet.

5. I order that the husband pay the costs of the wife in relation to the application filed on 5 October 2006, and that such costs be paid three months from the date of assessment or from the date of agreement and I will certify for counsel, Mr Hamwood.

I certify that the preceding [13] paragraphs
are a true copy of the reasons for judgment delivered by this Honourable Full Court.


Legal Associate