WALLACE & JEFFREE
[2011] FamCAFC 137
•20 June 2011
FAMILY COURT OF AUSTRALIA
| WALLACE & JEFFREE | [2011] FamCAFC 137 |
| FAMILY LAW - APPEAL – Costs appeal – Where the order for costs was made after the mother failed to comply with orders and directions made to prepare the trial – Where the mother submitted that that the order should not have been made in view of her medical condition and her difficulties in obtaining Legal Aid – Where it is evident that the Federal Magistrate was aware of the mother’s difficulties and exercised his discretion to make a costs order – Where the Federal Magistrate was concerned that the father was incurring considerable legal expenses due to the actions of the mother – Where the Federal Magistrate made no error – Appeal dismissed. FAMILY LAW - COSTS – Where there was lack of proportionality in the mother expending moneys appealing the costs order – Mother to pay the father’s costs of and incidental to the appeal fixed at $3,000. |
| Family Law Act 1975 (Cth) s 117 |
| In the marriage of Greedy (1982) FLC 91-250 In the marriage of Robinson (1991) FLC 92-209 |
| APPELLANT: | Ms Wallace |
| RESPONDENT: | Mr Jeffree |
| FILE NUMBER: | TVC | 649 | of | 2007 |
| APPEAL NUMBER: | NA | 19 | of | 2011 |
| DATE DELIVERED: | 20 June 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 20 June 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 February 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 249 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lynham |
| SOLICITOR FOR THE APPELLANT: | Stevenson & McNamara Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Betts |
| SOLICITOR FOR THE RESPONDENT: | Roberts Nehmer McKee Lawyers |
Orders
The appeal is dismissed.
The appellant pay the respondent’s costs fixed at $3,000.
IT IS NOTED that publication of this judgment under the pseudonym Wallace & Jeffree is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 19 of 2011
File Number: TVC 649 of 2007
| Ms Wallace |
Appellant
And
| Mr Jeffree |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother filed a notice of appeal on 15 March 2011 appealing order 3 of the orders made by Federal Magistrate Coker made 15 February 2011. That order provides:
That the Respondent Mother pay the Applicant Father’s costs fixed in the sum of $2785.00 within 35 days.
The order for costs was made by the Federal Magistrate after the mother failed to comply with directions and orders designed to prepare the trial. The issues between the parties were related to property settlement and parenting orders.
Background
The parties married in 2005 and separated in February 2006. After the initial separation the parties reconciled and separated a number of times. During the reconciliation periods the parties had two children.
Counsel for the mother recounts the background of the matter in his written submissions. As the husband agrees that most of the background facts are “accurately recounted” it is useful to reproduce that history:
2.The [father] filed an application on 30 September 2010 seeking, inter alia, various property orders including that the [mother] vacate the former matrimonial home … a discharge of the orders dated 5 November 2007 and order with respect to the children [B] and [D].
3.The application was listed before Coker FM on 11 October 2010 at which time the [mother] appeared self-represented. An order prohibiting the disposal of property was made and the application was adjourned until 27 October 2010 on the basis of the [mother’s] medical condition.
4.On 27 October 2010 the [mother] appeared by telephone again self-represented. Further directions were made by Coker FM including that the [mother] file any response and supporting affidavit by 12 November 2010. The application was adjourned to 16 November 2010 again on the basis of the [mother’s] medical condition which was supported by a letter from a medical practitioner.
5.On 16 November 2010 the [mother] appeared again self-represented. The application was adjourned to 28 January 2011 consequent to Coker FM making further directions, including:
(a)Order 4- The [mother] and [father] attending relationships Australia within 7 days to complete any intake procedure to facilitate the [father] spending supervised time with the children;
(b)Order 5- The [mother] and [father] attending with a Family Consultant on 15 December 2010;
(c)Order 6- The [mother] provide to the [father] original Birth Certificates for the children and, if necessary, sign all documents required to have the [father’s] name included on the Birth Certificates within 7 days;
(d)Order 8- The [mother] file and serve a Financial Statement by 17 December 2010;
(e)Order 9- The [mother] file and serve an Affidavit or other accounting of monies received by her from the sale of a boat and trailer package.
6.On 22 December 2010 an application was brought on behalf of the [father] relating to the [mother’s] failure to comply with various of the orders made on 16 November 2010 including her failure to attend a child dispute conference and her failure to comply with orders 8 and 9 relating to the filing of an Affidavit and a Financial Statement. Coker FM ordered that the directions made on 16 November 2010 be extended until 7 February 2011 and that the application be adjourned to 15 February 2011 to proceed as an undefended hearing if there was non-compliance by the [mother] with the orders.
7.On 28 January 2011 the [mother] filed a Financial Statement in compliance with the orders made on 22 December 2010. On 11 February 2011 the [mother] filed an affidavit accounting for the proceeds from the sale of the boat. Although filed late, it otherwise complied in other respects with the order made on 16 November 2010 relevant to the sale of the boat.
8.On 15 February 2011 the [mother] was represented by a lawyer who had been engaged the day previously. It was conceded that the [mother] had not complied with orders 4, 5 and 6 of the orders made on 16 November 2010 and an explanation was given for these failures, an adjournment was requested on behalf of the [mother] by her lawyer. Coker FM granted the adjournment and, by order 3, ordered that the [mother] pay the [father’s] costs fixed in the amount of $2,785. It is with respect to this costs order that the [mother] now appeals.
The mother’s “medical condition” is an important element of this appeal. The evidence before the Federal Magistrate in this respect was that contained in the affidavit of the mother filed 12 November 2010. In that affidavit the mother explained that her application for legal aid had been refused and that:
… I am currently suffering chronic pain with my back and neck. My depression has become worse after the assault and [the father’s] emotional, mental and finacial (sic) abuse. …
The medical reports included findings made by a doctor on 18 March 2009 after a scan of the mother’s back, a medical certificate of Dr M dated 9 October 2010, referring to his treatment of the mother after an “alleged assault” who prescribed a pain killer for 5 days.
In addition, there was a medical report from another doctor’s surgery dated 30 October 2010 addressed to the Federal Magistrates Court. The doctor referred to the medication prescribed for the mother, which included pain killers and antidepressants. A description was given of the effect of such medication. It was noted that she had been on medication for 19 months but that her depression had worsened by reason of the pain and the stress associated with the litigation.
The same doctor had written a previous report dated 20 October 2010 that the mother was unfit for work from 13 October 2010 to 12 November 2010.
Apart from the mother’s assertion of ongoing pain with her back and neck there was no medical evidence supporting her inability to prepare for trial after 30 October 2010, certainly there is no evidence about her circumstances in this respect after 22 December 2010 when the orders were made.
Attached to the affidavit is an email from her former solicitors dated 10 October 2010, informing the mother that her application for legal aid had been refused.
The mother relies on five grounds of appeal:
1.That the [mother] was unable to comply with the court ordered directions to file her response and affidavit material in time due to the fact that the [mother] was suffering a medical condition namely pre-existing neck and back injury with was exacerbated as a result of a criminal assault in October 2010.
2. The [mother] was taking a significant amount of medication.
3.The learned Magistrate erred in that he failed to or did not properly take into account the [mother’s] medical condition and therefore her reasons for being unable to file her response and affidavit material in time.
4. The learned Magistrate also failed to take into account the [mother’s] personal and financial circumstances and therefore erred in making a costs order against the [mother].
5.The mother did not obtain legal representation until the time had passed for the filing of the response material.
Should the appeal be allowed the mother seeks that order 3 of the 15 February 2011 orders be dismissed and that the father pay the mother’s costs of and incidental to the appeal.
Relevant law
There is no presumption in this court that the successful party will receive an order in their favour for the other party to pay their costs. The court is at liberty to make an order for costs where there are justifying circumstances.
Although an appellate court should be reluctant to interfere with the exercise of discretion in respect of costs, it can and should interfere when the result is “plainly unjust or if the discretion was exercised on wrong principles” (see In the marriage of Robinson (1991) FLC 92-209). It is also accepted that, an appellate court will uphold an exercise of direction to order costs if it is apparent that there are appropriate reasons on which the judge could rely (see In the marriage of Greedy (1982) FLC 91-250).
It was held in Greedy, that “[a]n award of costs ought to bear some relation to the conduct of the proceedings by the parties or to their relative circumstances at the time of the application and hearing of the matter.”
Section 117 provides:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) 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; and
(g) such other matters as the court considers relevant.
The factors relevant to this case are highlighted correctly in the submissions on behalf of the mother and the father to which I will refer.
Mother’s Submissions
Counsel for the mother submits that an order for costs should not have been made against the mother in view of her medical condition and the difficulties experienced by her in securing Legal Aid. It is said that his Honour was aware of these problems by reason of the content of the affidavits.
The mother submits that difficulties were also experienced in complying with the Federal Magistrate’s orders due to Cyclone Yasi and the closure of the Townsville Registry. There is no evidence that this is so other than the assertion by the solicitor for the mother who was engaged by her the day before the hearing. The following is revealed from the transcript of the hearing on the day the costs order was made:
Your Honour, I only received instructions in relation to this matter late yesterday afternoon at approximately 3.30. I don’t actually have the – I was provided with a list of documents that have been presented in this matter by my friend. However, I haven’t actually received all of those documents and as a result I haven’t actually had the full time to fully understand what is actually proceeding in this matter at this time. However, I have spoken to Stevenson McNamara and in particular Ms McNamara who was intending to represent my client. However, she advised my client last week that she was unable to do so and she advised approximately Thursday last week, at which point my client contacted our office. However, as our office was without power all of last week and only resumed power or full power this week, this was the only time we could get an appointment is yesterday. And it is my understanding that my client did file an affidavit, however, the affidavit was filed after, I believe, tropical cyclone Yasi did hit. (Transcript 8 and 9)
The orders were made on 22 December 2010, a considerable time before the cyclone.
Father’s Submissions
In oral submissions it was correctly emphasised that there was a lack of proportionality in the mother expending moneys appealing an order of $2,785 which she has not paid as ordered.
In addition, the court was reminded that the father’s lawyers had expected to argue the case before the Federal Magistrate on an undefended basis as the mother had not filed the material. Instead, the matter was further adjourned with the small compensation of costs.
Conclusion
Proceedings between the parties commenced in October 2010 when the father filed an initiating application. As the Federal Magistrate observed since that time “[n]otwithstanding the numerous directions given” there has been limited compliance with the orders made. The mother’s non compliance has prevented the proceedings from being properly heard.
The costs order was made against the mother by the Federal Magistrate after the 22 December 2010 orders, which provided the mother with a further extension of time in which to file her material. Such material was to be filed by 4.00pm on 7 February 2011. The proceedings were also adjourned until 11.00am on 15 February 2011. The matter was to proceed as an undefended hearing if the mother did not comply with the orders.
In his Honour’s reasons for judgment he said that “whilst the mother has experienced particular difficulties” she has a “capacity to provide information and to file material in relation to these proceedings”.
The Federal Magistrate explained that whilst legal representatives may have the “carriage of proceedings” there ultimately is “an obvious obligation” on each of the parties to “conduct their own matters”.
At paragraph 4 the Federal Magistrate states:
One could not imagine, however, that properly pressing your own litigation would involve communicating with your lawyers and inquiring as to the position with regard to the readiness of matters. If it is the case that the mother has been, to use the vernacular, “left high and dry by the actions of her lawyers”, then she may have recourse elsewhere in relation to that, but what is clear is that the father has incurred continuing expense in relation to proceedings with regard to this matter. He should not be required to do so, and there must obviously be responsibility for the obvious consequences of failure to any real respect to comply with orders.
The mother was represented in the proceedings before his Honour on 15 February 2011. The Federal Magistrate granted the mother another opportunity to file further material so that additional “material which more comprehensively and completely addresses the various issues that are presently before the Court” could be filed. His Honour acknowledged that this would result in further expenses being incurred by the father, “through absolutely no fault of his own”.
In concluding his reasons his Honour said:
I do not intend, obviously, to make an order in relation to indemnity costs, but it is close. There has been repeated failure to comply and I err simply out of an abundance of caution on the side of saying that I am not finally satisfied in relation to indemnity costs. I should also note simply in passing that 35 days from today happens to be 22 March 2011, the day that the matter comes back before the Court, the question of good grace and appropriate attitude will therefore, no doubt, be a matter the subject of submission if the costs are not paid.
It can be seen from the reasons that the Federal Magistrate was aware of the mother’s difficulties but that this must be considered in the light of the history of the matter and the impact on the father.
Although the failure to comply with orders was the matter given the most consideration, the Federal Magistrate did not ignore the matters agitated on behalf of the mother. It cannot be seen that the Federal Magistrate made any error in the exercise of his discretion.
Costs
At the conclusion of the appeal submissions as to the costs of the appeal were heard.
The mother asked that should the appeal be allowed that no order for costs should be made.
In the event that the appeal is dismissed counsel for the mother resists an order for costs being made against the mother. The submissions made during the appeal are relied on in this regard.
Should the appeal be dismissed the father seeks an order for costs be made against the mother. Counsel for the father submits that the appeal should not have been brought. He asks how the mother can fund an appeal yet fail to satisfy the costs order that is the subject of this appeal.
An order for costs should be made in favour of the father. The appeal was without merit. A fixed sum of $3,000 was asked, there were no submissions by counsel for the mother that this sum was not appropriate.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 20 June 2011.
Associate:
Date: 20 June 2011
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