Uttar & Rajendra (No 2)
[2024] FedCFamC1A 89
•22 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Uttar & Rajendra (No 2) [2024] FedCFamC1A 89
Appeal from: Uttar & Rajendra [2023] FedCFamC2F 1609 Appeal number: NAA 337 of 2023 File number: SYC 6488 of 2014 Judgment of: CHRISTIE J Date of judgment: 22 May 2024 Catchwords: FAMILY LAW – APPEAL – Appeal from orders for enforcement and variation of final consent orders – Appeal from the dismissal of application seeking the respondent be dealt with for contempt – Appeal from the award of indemnity costs – No error established on the part of the primary judge – Appeal dismissed – Order for the appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117B
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth)
Cases cited: Bennett and Bennett (1991) FLC 92-191
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Gregory R Ball Pty Ltd v Stead CA (1993) 9 NSWCCR 148
Uttar & Rajendra [2024] FedCFamC1A 46
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 47 Date of hearing: 20 May 2024 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Ms Rusiti Solicitor for the Respondent: Arch Law (Australia) Pty Ltd ORDERS
NAA 337 of 2023
SYC 6488 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS UTTAR
Appellant
AND: MR RAJENDRA
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
22 MAY 2024
THE COURT ORDERS THAT:
1.Appeal NAA 337 of 2023 is dismissed.
2.The appellant pay the respondent’s costs in the sum of $14,000 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Uttar & Rajendra has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
By Notice of Appeal filed 8 December 2023, the appellant challenges all of the orders made on 6 December 2023 by a judge of the Federal Circuit & Family Court of Australia (Division 2). The primary judge had two applications before her: an application by the respondent to this appeal for enforcement and variation of final property orders made by consent on 30 April 2019 (“the final consent orders”) and an application by the appellant that the respondent be found to have been in contempt of court.
For the reasons which follow, the appeal will be dismissed.
THE TRIAL
As indicated above, the primary judge heard and determined the respondent husband’s application for enforcement and variation of final consent orders and the appellant wife’s application for the respondent to be dealt with for contempt.
In 2019 the parties had reached agreement in respect of the disposition of their respective applications for property adjustment which was reflected in the final consent orders providing for the sale of a property (“the B Street property”), with the appellant to remain in occupation pending sale (subject to certain conditions). The proceeds of sale were to be divided so as to ensure an overall 55/45 division in favour of the appellant, taking into account the other assets and superannuation of the parties.
As a consequence of enforcement proceedings, on 5 February 2020 the respondent was appointed by the Court as trustee for sale of the B Street property. While the appellant sought to revisit this determination before the primary judge, it was not properly before her and accordingly she declined to deal with that aspect of the appellant’s case.
The appellant’s contempt application sought findings that certain actions (or inactions) of the respondent constituted a contempt of court. The primary judge dismissed the appellant’s application.
It was an agreed fact at the hearing before the primary judge that arrears of interim spouse maintenance owing to the appellant had accrued in the period leading up to the making of the final consent orders and the respondent’s minute of order made allowance for those arrears to be paid to the appellant.
THE APPEAL
While the appellant’s Notice of Appeal challenges all orders, the appeal grounds appear to address the enforcement aspect of the matter as opposed to the contempt application.
While not necessarily apparent from the grounds of appeal, the appellant is plainly aggrieved by a number of matters which could never be addressed on appeal. These are:
(a)The fact that the respondent ceased paying spouse maintenance prior to the making of the final orders;
(b)The fact that a line of credit secured over the B Street property with a $650,200 limit at the time of the final consent orders reduced to $160,000 in about December 2019 in circumstances where the final consent orders obliged the respondent to maintain his personal guarantee;
(c)The fact that the respondent did not secure release of funds to her when the appellant requested same;
(d)The fact the respondent’s solicitors complied with the court order to pay money to the appellant’s former solicitors;
(e)The conduct of the respondent generally as trustee for sale of the B Street property.
These recurring themes have been the subject of the appellant’s various applications to this Court and the Federal Circuit and Family Court of Australia (Division 2) over a number of years and the appellant, who has appeared without the assistance of lawyers, has some difficulty accepting that these issues have been finally determined. This has led to a mismatch between the issues which the appellant wished to agitate and the grounds of appeal. I have endeavoured to understand how the matters which were the subject of the appellant’s various written submissions might be considered under each of her grounds.
Ground 1
Ground 1 asserts that the primary judge “[e]rred in ordering indemnity costs instead of each party to bear their own costs.”
The primary judge made the following order:
6.The Wife pay the Husband’s costs of and incidental to the Husband’s Application – Enforcement filed 25 May 2022 and these proceedings since the filing of that Application fixed in the sum of $100,000…
The respondent had sought $113,059.27. The order was for payment in the fixed sum of $100,000. The primary judge set out the basis upon which she had concluded that the costs should be ordered on an indemnity basis at [126]. The primary judge took into account the respondent’s concession that the appellant was to be paid outstanding spouse maintenance and costs orders in reducing the costs awarded.
The decision to award costs and quantum of same is a discretionary one. Of discretionary decisions, the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204-205 stated:
19.“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
…
21.Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in the process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified in House v The King [(1936) 55 CLR 499] in these terms:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
(Footnotes omitted)
The appellant has not pointed to any error in the process by which the discretion was exercised to make the costs order in the sum ordered.
Ground 2
Ground 2 is expressed as: “Jurisdictional errors and invalid decisions, erred Div 2 had no jurisdiction and no reply to application filed.” (as per the original)
As Austin J noted in Uttar & Rajendra [2024] FedCFamC1A 46 at [31]:
…In general terms, jurisdictional error occurs if a court mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in instances where it correctly recognises jurisdiction does exist (Stanley v DPP (NSW) (2023) 407 ALR 222; Kirk v Industrial Court of NSW (2010) 239 CLR 531; Craig v South Australia at 177–180).
If the appellant is arguing that the fact a Response was not filed (or alternatively not before the primary judge) robbed the primary judge of jurisdiction, that submission is rejected. The primary judge had before her the respondent’s application and the orders which the appellant sought (Exhibit 5). They in effect amounted to an application for an adjournment which was not pressed and not granted. The primary judge also had before her the appellant’s application that the respondent be dealt with for contempt.
I was not otherwise able to ascertain from the written summary of argument or oral submissions on what basis the appellant asserted jurisdictional error/s nor was I able to determine why the appellant contended that the primary judge, as a judge of the Federal Circuit and Family Court of Australia (Division 2), lacked jurisdiction to hear and determine the applications which were before the Court. It follows that Ground 2 is not established.
Ground 3
Ground 3 asserts a “[f]ailure to take into account relevant considerations and failure to give adequate reasons.”
This ground asserts two errors:
(1)Failure to take into account relevant considerations; and
(2)Failure to give adequate reasons.
They are separate and distinct grounds.
I accept that the submissions of the appellant assert that the primary judge failed to take into account certain matters. In the main, those matters were not statutory considerations but rather factual matters contended for by the appellant, many of which were not matters which bore on the enforcement or contempt applications.
In order for the appellant to establish error, it is for her to persuade the appellate court that relevant considerations were the subject of evidence, the subject of submissions and not the subject of judicial consideration. It is not plain from the submissions that any relevant consideration was omitted from the judge’s consideration.
To the extent that the ground also argued a failure to provide adequate reasons it is also rejected. The Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266, applying the test in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 has said that reasons will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based or if justice is not seen to have been done. Neither apply here.
Ground 4
Ground 4 asserts a “[s]ubstantial miscarriage of justice and errors of material fact including unjust forgery finding.”
I have interpreted the ground as arguing that there has been a “substantial miscarriage of justice” by reason of material factual errors. I turn first to consider the contention that the orders effected a substantial miscarriage of justice. I accept that it is a proper function of the appellate court to remedy a miscarriage of justice: Gregory R Ball Pty Ltd v Stead CA (1993) 9 NSWCCR 148.
The appellant must demonstrate the error which gives rise to the miscarriage of justice. It is not sufficient to merely assert that the outcome was unfavourable to the appellant. A miscarriage of justice usually refers to a failing in the procedure by which the resulting orders were made.
The ground itself refers to a specific alleged error namely an “unjust forgery finding”. It is necessary to examine this allegation.
In the reasons for judgment the primary judge under the heading “CHRONOLOGY” said:
36.The husband further alleges that on 5 October 2022, the wife seeks and is granted an adjournment in reliance upon what appeared to be a forged letter, purporting to be from and on the letterhead of the wife’s former solicitors, [J Lawyers].
It is plain that the primary judge was doing no more than reciting the respondent’s contention.
The primary judge also referred to this allegation at [126](d)(i).
Again, while I accept that the primary judge makes a finding in this paragraph that the appellant’s conduct occasioned delay, she explicitly does not make a finding about the allegation that the letter was a forgery – it remains the respondent’s allegation. There is no finding and hence no unjust finding and, of consequence, the appellant has not established that there was a miscarriage of justice.
Ground 5
Ground 5 asserts that the primary judge “[e]rred in failing to order a joint independent accountant to calculate amount of interest payable to [Ms Uttar].”
Each party sought that the primary judge calculate interest in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) on amounts due and payable under the orders.
The judgment debts said to attract interest fell into three categories:
(a)Delayed proceeds of sale arising from delayed sale and/or settlement of the B Street property;
(b)Costs orders; and
(c)Spouse maintenance orders.
The primary judge concluded at [76]: “…[h]aving regard to both positions taken, and the difficulty arising from the calculations, I will exercise my discretion to not include interest...”
Neither party sought appointment of an independent accountant to undertake a calculation of the interest and the primary judge cannot be in error for failing to do so of her own motion. There is no merit to this ground.
It should however be noted that s 117B(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that where “a court makes an order for payment of money (other than an order for payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court…” (emphasis added). Section 117B(2) of the Act gives the judge who makes the original order discretion to waive interest. To the extent that the primary judge was exercising a discretion here, it would appear to be in respect of the enforcement of the interest which was payable pursuant to s 117B(1), which plainly does not provide for interest on periodic spouse maintenance. Accordingly, the failure to order that the appellant receive interest could not in these circumstances, constitute a miscarriage of justice.
Ground 6
Ground 6 asserts that the primary judge “[e]rred in failing to order on its own motion leave to serve subpoenas upon [Mr H] and Commonwealth Bank.”
The ground asserts that the primary judge was in error for failing to take two specific actions on her own motion. The conduct of the proceedings, in particular the determination as to what evidence ought be placed before the court is uniquely the role of the parties to the proceedings. This ground needs only to be articulated to be rejected.
Ground 7
Ground 7 asserts that the primary judge “Erred in all findings and conclusions and erred in making of all orders 1 to 6 on 6 December 2023” (as per the original).
The appeal ground as articulated is incompetent. It is not open to an appellant to make a global assertion of factual error and expect the appellate court to discern the argument: Bahonko v Sterjov (2008) 166 FCR 415. This ground will not be further considered.
Ground 8
Ground 8 asserts that the primary judge “Erred in calculating 55% of [Ms Uttar]’s UNPAID share of net assets and any interest payable to [Ms Uttar]” (as per the original).
If there is a mathematical error asserted by the appellant then nothing in the written summary of argument nor the oral submissions has elucidated the error.
As I understand the written submissions of the appellant, they contain complaints about monies paid out pursuant to previous orders not the subject of this appeal, in particular the payment of monies to the appellant’s former solicitors made pursuant to an order providing for same.
In order to establish error, the appellant must first demonstrate an error and then satisfy the appellate court that it is material. She falls at the first hurdle.
COSTS
The respondent sought indemnity costs of the appeal in the event that the appeal failed. The appellant has been wholly unsuccessful. While the financial circumstances of the appellant are modest, she has capacity to meet an order. I find there are sufficient justifying circumstances to depart from the usual rule. The respondent filed detailed schedules of the costs of solicitor and counsel at scale as required. The costs in the respondent’s schedule include some entries which are not party/party costs and so ought be omitted. Doing the best I can, I will order costs in the fixed sum of $14,000.
I accept that the proceedings have been lengthy but this alone is not a warrant for indemnity costs. It is the conduct of the appeal itself (and not the litigation which preceded it) which must satisfy the test for the award of indemnity costs and I decline to make an indemnity costs order in the circumstances of this appeal.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 22 May 2024
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