Vang & Chung (No 4)

[2024] FedCFamC1A 237

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Vang & Chung (No 4) [2024] FedCFamC1A 237

Appeal from:

Vang & Chung (No 5) [2024] FedCFamC1F 432

Appeal number:

NAA 183 of 2024

File number:

SYC 1433 of 2020

Judgment of:

ALDRIDGE, HARTNETT & RIETHMULLER JJ

Date of judgment:

13 December 2024

Catchwords:

FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly unsuccessful in her appeal – Where the second respondent relies on an offer of settlement made to the appellant – Where the appeal was devoid of merit –Costs ordered on a party/party basis in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Cases cited:

Cross v Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158

Number of paragraphs:

16

Date of last submissions:

18 November 2024

Date of hearing:

Determined in chambers on the papers

Place:

Sydney

The Appellant:

Litigant in person

The First Respondent:

Did not participate

Solicitor for the Second Respondent:

Mangioni Biggs + Co

ORDERS

NAA 183 of 2024
SYC 1433 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS VANG

Appellant

AND:

MR CHUNG

First Respondent

MR D

Second Respondent

ORDER MADE BY:	ALDRIDGE, HARTNETT & RIETHMULLER JJ
DATE OF ORDER:	13 DECEMBER 2024

THE COURT ORDERS THAT:

1.The appellant pay the costs of the second respondent fixed in the sum of $9,411 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 the pseudonym Vang & Chung has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, HARTNETT & RIETHMULLER JJ:

INTRODUCTION

1. The appellant’s Notice of Appeal filed 15 July 2024 was heard by the Full Court on 1 October 2024. Orders were made and reasons for judgment were delivered on 21 October 2024 dismissing the appeal.

2. Pursuant to Order 4 of the orders made 21 October 2024, the second respondent filed and served written submissions as to costs on 4 November 2024. He seeks the appellant pay his costs in the sum of $9,411 (as calculated in accordance with Sch 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

3. The appellant opposes any order for costs. The appellant filed and served written submissions as to costs on 18 November 2024.

4. The second respondent declined to file any further written submissions.

5. The first respondent did not file any submissions as to costs, having filed a submitting notice in the appeal.

   LEGAL PRINCIPLES

6. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the general rule that each party shall bear their own costs.

7. However, the Court has power, where the Court is of opinion that there are circumstances that justify it in doing so, to make such an order for costs as the Court considers just.

8. The Court must have regard to each of the discretionary criteria in s 117(2A) of the Act.

9. It is well settled law that no one factor in s 117(2A) of the Act is determinative, and the Court may give such weight as it considers relevant to any factor. Further, there is nothing to prevent any factor being the sole foundation for an order for costs (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fishand Another (2005) 33 Fam LR 123 at [41]).

   CONSIDERATION

   Section 117(2A)(a) of the Act: the financial circumstances of each of the parties to the proceedings

10. The financial circumstances of a party against whom a costs order is sought is a material consideration, albeit one that may be outweighed by another or other considerations. The second respondent, whose financial position is secure, referred to the appellant’s financial circumstances as set out in her Financial Statement filed 8 January 2024. In that document, the appellant deposed to her average weekly income being $1,740, and her average weekly expenses being $2,747, evidencing some impecuniosity. As the second respondent submitted correctly, impecuniosity is not a barrier to the making of a costs order where there are circumstances that justify the Court in doing so (Cross v Beaumont (2008) 39 Fam LR 389 at [60]). That remains the case even if, as submitted by the appellant, she has since May 2024 (having lost her job) been in receipt of JobSeeker payments of $1,400 a month. The appellant’s financial circumstances would appear to be constrained. Nevertheless, we are satisfied that an order for costs is appropriate in these circumstances.

    Section 117(2A)(c) of the Act: the conduct of the parties to the proceedings in relation to the proceedings

11. The second respondent’s Schedule of Costs records that in relation to the appeal hearing, the appellant served upon the second respondent voluminous material, which included many thousands of words, which the lawyers for the second respondent were required to peruse, consider, give advice and seek instructions on. Such voluminous material was, as submitted by the second respondent, not appropriately targeted to the real issues in dispute at the appeal hearing, resulting in the wastage of costs and resources. The appellant continued in her approach to the appeal in her written submissions as to costs, those submissions being prolix and largely irrelevant.

12. Following the orders made by the primary judge on 5 September 2024 and 10 September 2024, the appeal should not have proceeded. It was entirely devoid of merit and utility and so was bound to fail.

    Section 117(2A)(e) of the Act: whether any party to the proceedings has been wholly unsuccessful in the proceedings

13. The appellant was wholly unsuccessful in her appeal with significant parts of her appeal being redundant given the orders of the primary judge on 5 September 2024.

    Section 117(2A)(f) of the Act: whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

14. On 17 September 2024, the second respondent made an offer in writing to the appellant to settle the appeal. That offer was not accepted. It was an appropriate offer. It canvassed the difficulties for the appellant succeeding in her appeal, including that some grounds were superseded by orders of the Court, and others were not properly the subject of appeal. It concluded, relevantly:

    6. We advise both we and our counsel have begun preparation for the hearing of this appeal listed for 1 October 2024, and in respect of your application in an appeal filed 16 September 2024 and our client has incurred and is continuing to incur significant expense.

    7. Given matters set out as to the merits and prospects of your appeal, we invite you to withdraw your Notice of Appeal dated 15 July 2024 on the basis that should you do so and spare the parties the time and expense of a disputed hearing on 1 October 2024, our client shall not seek its costs of the appeal.

    8. Should you persist in forcing the parties to the trouble and expense of hearing your appeal and your application in an appeal on 1 October 2024, our client will seek his costs on an indemnity basis and this letter will be tendered in any such question of costs.

15. We observe that the costs order as sought by the second respondent is not an order for indemnity costs as foreshadowed above, but rather is a costs order based on the more common party/party costs of the appeal.

    Conclusion

16. We are satisfied, given the above matters, in particular the wholly unsuccessful nature of the appeal and the refusal of an appropriate offer of settlement, that there are circumstances justifying an award of costs in the quantum claimed in favour of the second respondent.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Hartnett & Riethmuller.

Associate:

Dated:       13 December 2024