WGOC & GH and Anor

[2007] FamCA 1088

FAMILY COURT OF AUSTRALIA

WGOC & GH AND ANOR [2007] FamCA 1088

FAMILY LAW – APPEAL FROM FAMILY COURT OF AUSTRALIA– COSTS – JURISDICTION – That the trial Judge lacked jurisdiction to make costs order not established. Section 117(2A) Family Law Act 1975 discussed.

FAMILY LAW - DISCRETION – Not established that trial Judge erred in findings of fact, nor in giving inappropriate weight to, or drawing improper conclusions from, such findings.

Family Law Act 1975 (Cth) Section 117(2A)

Penfold v Penfold (1980) 144 CLR 311

APPELLANT: WGOC

RESPONDENT: GH

SECOND RESPONDENT: E GOC as trustee of the EOC TRUST

THIRD RESPONDENT: CHILDREN’S REPRESENTATIVE

FILE NUMBER: BRF 1742 of 2000

APPEAL NUMBER: NA 38 of 2006

DATE DELIVERED: 14 September 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Finn, Coleman & May JJ

HEARING DATE: 20 & 21^st February 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 4 May 2006

LOWER COURT MNC: [2000] FamCA 1742

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Cooke QC and
Mr Cooper

SOLICITOR FOR THE APPELLANT: Abbott Tout Lawyers

COUNSEL FOR THE RESPONDENT: Mr Murphy SC and Mr Scott-McKenzie

SOLICITOR FOR THE 1ST RESPONDENT: Butler McDermott & Egan

Orders

1. That the appeal be dismissed.

2. That the husband pay the wife’s costs of the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as          WGOC & GH and Anor.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 63 OF 2005
File Number: BRF 1742 of 2000

WGOC

Appellant

And

GH

First Respondent

EGOC as trustee of the EOC TRUST

Second Respondent

CHILDREN’S REPRESENTATIVE

Third Respondent

COSTS JUDGMENT

1. By Notice of Appeal filed 31 May 2006 WGOC (“the husband”) appealed against orders for costs made on 4 May 2006 by Barry J in proceedings between himself, GH (“the wife”) and others.

2. The orders for costs related to substantive proceedings determined by His Honour on 1 July 2005.

3. On 23 June 2006 this Court, relevantly for present purposes, dismissed the husband’s appeal against the orders of 1 July 2005 and ordered that the husband pay the wife’s costs of the husband’s unsuccessful appeal.

4. This Court made directions on 23 June 2006 in relation to the appeal against the trial Judge’s orders for costs of 4 May 2006. Such directions were in the following terms:

   3.That the appellant have 28 days in which to make written submissions with respect to the Notice of Appeal filed 31 May 2006 by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other parties.

   4.That the other parties have a further 28 days in which to make written submissions in answer thereto by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other parties.

   5.That the appellant husband have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other parties (Orders 3 – 5 of Full Court 23 June 2006).

5. Submissions on behalf of the husband were filed on 17 July 2006 in support of his appeal against the trial Judge’s order for costs of 4 May 2006.

6. On a date which is not entirely clear and not material in any event, written submissions on behalf of the wife dated 14 August 2006 were filed in the Registry.

7. There have been no submissions in reply on behalf of the appellant, either within the time stipulated by this Court on 23 June 2006 or at any time thereafter. The Court accordingly proceeds to determine the husband’s appeal on the basis of the written submissions to which we have referred. The husband has had abundant time within which to file any further submissions upon which he wished to rely.

Background

1. The orders of the trial Judge of 4 May 2006 provided:

   1.The Husband pay the Wife’s costs of and incidental to the applications heard and determined on 6-10, 14-17, 20 and 22 June 2005.

   2.Such costs are to be in addition to any existing order for costs still outstanding and work performed in assessing such previously ordered costs shall be disregarded.

   3.Any costs order previously awarded to the Husband shall be deducted from any costs pursuant to this order.

The trial Judge’s Reasons for Judgment

1. In his Reasons for Judgment the trial Judge referred to the “financial circumstances” of the parties and accepted that the husband was in a superior financial position to the wife both in terms of property and income. His Honour also accepted that the absence of an order for costs of the trial, which proceeded over eleven hearing days, would result in the wife’s entitlement as determined by his Honour being “significantly reduced”. (Reasons for Judgment (Costs) dated 4 May 2006, page 1, pars 5 & 6)

2. Neither party was legally aided for the purposes of the trial.

3. Under the heading “Conduct of the Parties” the trial Judge referred to the fact that the husband had not been legally represented throughout the hearing. His Honour concluded that the trial having proceeded over eleven days was “largely due to the husband’s conduct” in three particular respects. Those were that the husband failed to give proper disclosure, the husband concealed assets, and that the husband “contested residence” despite not having provided any affidavit evidence in support of such claim. His Honour recorded, accurately there is no doubt, that he had “made scathing comments about the husband’s credibility generally” in the course of his Reasons for Judgment in the substantive proceedings (Judgment 4 May 2006, page 2, par 9).

4. His Honour regarded as influential the husband’s failure to comply with previous orders and accepted that the husband’s “continuing failure prolonged the time of the hearing of this matter” (Judgment 4 May 2006, page 2, par 10).

5. Under the heading “Whether Either Party ‘Wholly Unsuccessful’”, the trial Judge referred to the relief which each party had sought and observed that “it would be fair to say that the orders sought by the parties respectively were in the realm of ambit claims” (Judgment 4 May 2006, page 3, par 12).

6. After referring to the effect of the substantive orders made by him on 1 July 2005, his Honour recorded that “the orders sought by each of the parties did not reflect a realistic expectation” (Judgment 4 May 2006, page 3, par 14).

7. His Honour then considered offers of settlement made by the husband on 6 May 2005 and 10 June 2005. At least inferentially, his Honour concluded, that although it was “difficult to estimate”, the value of the relief the wife was likely to obtain pursuant to the orders of 1 July 2005 meant that the wife had been materially more successful than either of the offers of settlement made by the husband provided (Judgment 4 May 2006, page 3, par 16).

8. His Honour concluded that the “various offers to settle are in this case irrelevant in relation to a consideration of the issue of costs” (Judgment 4 May 2006, page 3, par 17).

9. So far as the component of the costs ordered with respect to the children’s proceedings was concerned, his Honour accepted that “the Husband’s contesting of an order for residence was singularly unsuccessful, and, having regard to the terms of the various reports and the evidence before the Court, was always likely to be so” (Judgment dated 4 May 2006, page 3, par 18).

10. The trial Judge referred to the submissions made on behalf of the husband which he set out in their entirety, none of which was accepted. His Honour observed that whether the wife “would have recourse to ‘ample resources’ is not to the point. She either has an entitlement to costs pursuant to the terms of section 117(2A) or she does not. Only one of the matters the Court is required to take into account is the financial circumstances of the parties” (Judgment 4 May 2006, page 4, par 20).

11. His Honour rejected criticisms contained in the written submissions of the husband about the conduct of the wife’s solicitors on the basis that “much of the costs” would have been “incurred because of the inappropriate conduct” by the husband (Judgment 4 May 2006, page 4, par 21).

12. His Honour referred to the submission made by the husband that the orders sought by the wife were “overly ambitious” and to the fact that the wife had “made no offer to settle”, forcing the trial to continue “notwithstanding a formal offer” from the husband. His Honour considered that the orders sought by the husband in relation to property were “equally overly ambitious” and added that there was “no obligation on the litigant to make an offer to settle”. His Honour observed that the making of an offer to settle was not relevant, but rather that it was the “reasonableness of any such offer” which was a relevant matter for consideration (Judgment 4 May 2006, page 5, par 22).

13. The trial Judge did not accept the submission on behalf of the husband that the wife had failed to comply with directions for disclosure of documents “when compared to the massive non-disclosure” by the husband (Judgment 4 May 2006, page 5, par 23).

14. His Honour also rejected the assertion on behalf of the husband that the wife’s conduct had at all times been “inflammatory and uncooperative” concluding by reference to video evidence adduced at trial that it was the husband whose conduct had been “inflammatory and uncooperative” (Judgment 4 May 2006, page 5, par 23).

15. His Honour thus concluded that it was appropriate that the husband pay the wife’s costs “in relation to the children’s matters and property settlement issues” (Judgment 4 May 2006, page 5, par 24).

16. His Honour reiterated that the “main factor” which influenced him to exercise his discretion to order costs against the husband in relation to the property settlement proceedings was the husband’s “misleading conduct in asserting that he had no interest in the A unit. Clear findings were ultimately made that he did have such an interest” (Judgment 4 May 2006, page 5, par 25).

Relevant Law

1. The law governing this appeal is not in doubt and does not require restating. The submissions on behalf of the wife provide a comprehensive review of the relevant authorities, both in relation to the law applicable by this Court, and the law which governed the exercise of discretion by the trial Judge.

2. This Court having rejected in its Reasons for Judgment of 23 June 2006 each and every challenge by the husband to the trial Judge’s exercise of discretion in the substantive proceedings for property settlement, and the trial Judge’s decision in the children’s proceedings having not been challenged, the task which confronts the husband in this Court becomes even more difficult having regard to the judgment of the High Court in Penfold v Penfold (1980) 144 CLR 311 at 315-316 the relevant portion of which is reproduced in the submissions on behalf of the wife.

The Grounds of Appeal

1. The Grounds of Appeal provided:-

   1.The trial Judge erred in law in making the costs order when the discretion to award costs of the trial rests with the Full Court upon hearing of the substantive appeal on 20 and 21 February 2006.

   2.The trial Judge erred in finding that the conduct of the appellant prolonged the length of the trial.

   3.The trial Judge erred in finding that the appellant did not provide proper disclosure as that finding was contrary to the weight of the evidence.

   4.The trial Judge erred in finding that the appellant concealed assets as that finding was contrary to the weight of the evidence.

   5.In the alternative to paragraph 2, the trial Judge erred in ordering that the appellant pay all of the respondent’s costs of and incidental to the applications where:

   (a)There is no basis upon which it could be found that conduct of the appellant contributed to any increase in costs incurred by the respondent prior to trial.

   (b)Even without the conduct of the appellant to which the trial Judge had regard there would still have been significant matters in dispute and the respondent should bear the proportion of her costs which would have been incurred in arguing those matters.

   (c)The trial Judge failed to consider the fact he had adjourned the contravention application and so neglected the respondent’s potential liability for those costs (Notice of Appeal filed 31 May 2007, Part D page 3).

2. The written submissions in support of the grounds of appeal did not specifically address each ground of appeal and we therefore consider it appropriate to consider whether the appeal has merit by reference to the matters raised in the submissions rather than by addressing each ground of appeal.

3. In paragraph 1 of the submissions on behalf of the husband a series of assertions were made. None of those three assertions advances any challenge to the trial Judge’s exercise of discretion, each being conclusions which are urged upon this Court.

4. Under the heading “Application of Section 117(2A) FLA and Financial Circumstances” a number of submissions were made. To the extent that these complaints involve challenges to the trial Judge’s findings of fact, they cannot succeed having regard to the fate of the husband’s appeal against the substantive orders of 1 July 2005 and our reasons for the husband’s failure in that regard (Appellant’s submissions as to costs, page 2, par 2).

5. It was submitted on behalf of the husband that the trial Judge “misdirected himself as to the operation of section 117(2A) FLA as relevant to the making of a costs order” (Appellant’s Submissions, page 2, par 2.05).

6. In order to better understand these and subsequent challenges it is helpful to set out section 117(2A) Family Law Act 1975 (“the Act”) in its entirety. That section provides:

   (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.

7. There followed a series of assertions as to the scope and operation of section 117(2A) of the Act (paragraphs 2.06, 2.07, 2.08). The first respect in which the trial Judge was asserted to have erred in his application of section 117(2A) was said to be his statement that the wife “either has an entitlement to costs pursuant to the terms of section 117(2A) FLA or she does not”. (Appellant’s Submissions page 2, par 2.09(i)). In what way that statement was erroneous is not made clear. Nothing to which we have been referred persuades us that his Honour’s observation in any way vitiated the exercise of his discretion. Indeed, with respect to his Honour, his words are little more than a statement of the obvious.

8. The other matter asserted to constitute an erroneous application of section 117(2A) was that his Honour dealt with the matters made relevant by section 117(2A) of the Act “in a check list fashion, no reference to having considered the collective effect of those presenting circumstances as a preliminary to justifying costs” being made. (Appellant’s submissions page 3, par 2.09 ii). To the extent that this complaint might be asserting that the trial Judge failed to have regard to any relevant section 117(2A) factors, we do not accept that such is the case. If it is intended to suggest that the trial Judge’s reasoning process was inadequately revealed, we do not accept that such was the case. When one reads his Honour’s reasons for judgment it is clear beyond doubt that a number of factors led him to form the opinion that a costs order was justified. It is clear beyond doubt that the absence of merit of the husband’s claims in the children’s proceedings and the magnitude of his demonstrated financial non-disclosures were the two most significant factors in his Honour’s thinking, both of which can be comfortably accommodated in the terms of section 117(2A).

9. If it is intended by this complaint to suggest that his Honour was obliged to state the “collective effect” of the circumstances to which he referred, we do not accept that such was the case. On any reading of his Honour’s reasons, although two matters assumed, justifiably, greater significance than any others, it is abundantly clear that the exercise of his discretion was reached as a consequence of a consideration of the “collective effect” of the “presenting circumstances”. It is not without significance for present purposes that there is no suggestion that the trial Judge either failed to have regard to any relevant “presenting circumstances” or had regard to any circumstances which were not relevant. This complaint is without merit (Appellant’s Submissions, page 3, par 2.09 ii).

10. It was then complained:

    2.11The consideration of financial position as referred to at sect 117 (2A), as is relevant to the imposition of a costs order, is not the same financial consideration applicable to the assessment of assets acquired during the course of the marriage so as to determine distribution of assets (Appellant’s submissions, page 3, par 2.11).

11. If this complaint is intended to mean as a literal reading of it implies, we do not accept that such is the case. The trial Judge made findings with respect to the financial circumstances of the parties. Those findings were unsuccessfully challenged by the husband in the substantive appeal, as our Reasons for Judgment of 23 June 2006 record.

12. To the extent that we understand the complaint agitated in paragraph 2.13 of the husband’s submissions, we fail to understand what relevance that might have had in relation to the costs dispute which the trial Judge determined. Significantly, no guidance is given in that regard.

13. It was complained on behalf of the husband that the trial Judge made “no assessment of the respondent’s (wife’s) spouse’s income” for the purpose of determining costs. We have not been directed to anything which demonstrates that this factor was relied upon on behalf of the husband when the costs issue was agitated before the trial Judge. (Appellant’s submissions page 4, par 2.14). The written submissions on behalf of the husband to which his Honour expressly referred did not raise this issue. Whether or not this complaint was agitated before the trial Judge, we consider that, in the circumstances of this case, and on the undisturbed findings of fact of the trial Judge, his Honour was not obliged to have regard to the income of the wife’s present spouse. Even if his Honour had have done so, nothing to which we have been referred, or gleaned from the undisturbed findings of fact of 1 July 2005 would lead us to consider that a different result would or should have been reached.

14. It was then submitted on behalf of the husband that:

    2.15Financial position must be taken for the purpose of 177(2A) [sic] as limited to an account of presenting status of the parties at the time that the Order for costs is made (Appellant’s submissions page 4).

1. Nothing to which we have been referred suggests that there was any evidence before the trial Judge in relation to the financial circumstances of the parties subsequent to the conclusion of the trial before his Honour on 22 June 2005. Nothing to which we have been referred suggests that the husband sought, prior to the determination of the costs dispute, and for the purpose of its determination, to adduce evidence in relation to his own or the wife’s financial circumstances.

2. The “presenting status of the parties” was thus as that emerged from the evidence at the trial which concluded on 22 June 2005. This complaint is without merit (Appellant’s Submissions, page 4, par 2.15).

3. Under the heading “Conduct of the Parties” a series of submissions were made on behalf of the husband. Those submissions comprised in some instances colourful assertions as to the Court’s role, in others sweeping assertions as to matters which occurred in the course of preparation and presentation of the trial unsupported by reference to any evidence (Appellant’s Submissions, page 4, par 3).

4. The difficulty which confronts the husband in this appeal is not only that the appeal from the trial Judge’s findings of fact of 1 July 2005 was wholly unsuccessful, but in addition, that much of the appeal against the substantive orders involved a consideration of the trial Judge’s very detailed analysis of the husband’s conduct and findings with respect to it.  The husband is accordingly in the invidious position that this Court has, for the purpose of determining the appeal against the substantive orders of 1 July 2005, had occasion to examine in great detail the evidence of the husband’s conduct, the trial Judge’s findings with respect to it, and the husband’s unsuccessful challenges to such findings.

5. In our view, the trial Judge’s references to the husband’s conduct were abundantly supported by the findings of fact made by him in the substantive proceedings. Reliance upon those findings was appropriate, and has not been shown in any respect to have been inaccurate.

6. Submissions on behalf of the husband that the trial Judge’s assessment disclosed “both a bias and unfairness” conveniently overlooks the reality that the costs issues was determined by his Honour after his determination of the substantive proceedings and publication of the extensive Reasons for Judgment in relation to those proceedings. To the extent that the husband asserted any bias or unfairness in the substantive appeal, as with his other challenges, such complaints having been rejected by this Court, absent some other “bias and unfairness” this complaint cannot advance the present challenge. (Appellant’s Submissions, page 5, par 3.08)

7. In our view, having made the criticisms which he did of the husband after hearing evidence over many days at trial, it was inevitable that his Honour would be, as he clearly recognised he would be, “scathing” in his criticism of the husband’s conduct. Significantly, save to the extent to which we have referred, the submissions do not suggest in what way the trial Judge was either biased or unfair in his determination of the costs dispute.

8. To the extent that the balance of these complaints (3.10, 3.11, and 3.12) seek to revisit issues determined at trial and not disturbed on appeal, it is unproductive for us to record more than the reality that they cannot possibly advance the present appeal.

9. Under the heading “Failure to comply with previous orders”, it was submitted:

   4.01The complained of conduct traverses all conduct of the Appellant in the life of Family Court proceedings between himself and with the respondent wife. His Honour’s consideration of conduct went beyond the conduct which should be regarded as relevant to and arising in relation to the proceedings before His Honour, with respect to which sect 117 (2A (d) FLA concerns itself (Appellant’s submissions, pages 5 & 6, par 4).

10. In what way and by reference to what “conduct” the trial Judge “went beyond the conduct that should be regarded as relevant” is not clear. It is to be noted that the implementation of the trial Judge’s orders will, if there is a dispute in relation to the quantum of the costs payable by the husband, be determined by the appropriate court officer (Appellant’s Submissions, page 6, par 4.01). To the extent that the husband appears to complain that the costs order has the potential to encompass items or amounts not properly incurred or payable, that complaint is thus without substance.

11. To the extent that it appears to be submitted on behalf of the husband that the trial Judge could not have regard to non-compliance with orders of the Court given that neither party objected to the other party proceeding despite such non-compliance, we are not persuaded that those matters precluded his Honour from awarding costs. To the extent that this was raised before the trial Judge, which we are less than certain that it was, we do not consider the complaints articulated in paragraphs 4.02 and 4.03 to have merit.

12. It was then complained that:

    4.04His Honour erred with his assessment that the failures prolonged the time of the hearing as any such maters (sic) were within his jurisdiction of the court itself to control its own process. For the court to allow an issue to be litigated in circumstances where disclosure was required and not complied with and then to impose costs for causing proceedings to be lengthened is unfair and unreasonable (Appellant’s submissions page 6).

13. To the extent that it appears to be suggested that it was in some way the fault of the trial Judge that the proceedings took as long as they did, we do not accept that such was the case. We are well placed to make that observation. For the purpose of determining the appeal against the substantive orders, we had occasion to read the transcript of the trial, and other material relevant to the trial reproduced in the several volumes of appeal books. Nothing to which we have been referred, or have discovered for ourselves, begins to establish that the duration of the trial was in any way referrable to the failure of the trial Judge or the Court to “control its own process”. In our view, the length of the trial was directly referrable to the husband persisting with a demonstrably unmeritorious application with respect to children, and his deliberate and persistent non-disclosures in relation to the property settlement proceedings. The suggestion that the trial Judge ought not have imposed costs having allowed “an issue to be litigated in circumstances where disclosure was required and not complied with” is incorrect. (Applicant’s submissions page 6, par 4.04)

14. Under the heading “Offer of Settlement” it was complained that the trial Judge had erred “in rejecting that the offer of settlement which had been made by the Appellant Husband was not a matter relevant to the consideration of the awarding of costs”. Significantly, it was not suggested that the trial Judge’s appraisal of the husband’s offers of settlement relative to the broad outcome of the property proceedings was in any way inaccurate or erroneous (Appellant’s Submissions page 6, par 5). A central issue in the trial was that of the A unit. The husband always resisted the orders as sought by the wife in relation to that property, maintaining that he had no beneficial interest in it. Despite the husband’s opposition, the orders made by the trial Judge were that the unit be sold and that the wife receive 30 per cent of the proceeds.

15. The submission itself is misconceived, and conveniently overlooks the reality that only after considering the husband’s offers of settlement, and concluding that in broad terms they fell well short of what the wife was awarded, did the trial Judge, permissibly in our view, conclude that the offers of settlement were “irrelevant” for the purpose of section 117 (2A) of the Act. Had the trial Judge, without first considering the husband’s offers of settlement relative to the relief the wife obtained, this complaint may have merit. That did not happen in this case. In the circumstances however as his Honour’s Reasons for Judgment clearly confirm the complaint has no merit.

16. It was then complained that under the heading “Child related issues” that the trial Judge erred in failing to determine the costs dispute in relation to children’s issues in some way “as distinct from the property litigation” (Appellant’s Submissions page 7, par 6.01)

17. Quite apart from the fact that, on any view of it, the trial Judge was in our view entitled as a matter of discretion to order that the husband pay the wife’s costs of successfully resisting an utterly unmeritorious application with respect to children’s matters, which the husband did not seek to challenge on appeal to this Court, his Honour did not err in principle. To the extent that these submissions (6.01 and 6.02) appear to suggest that costs are approached differently in proceedings with respect to children than in proceedings with respect to property settlement, we reject such assertion.

18. Section 117(2A) of the Act does not differentiate between the different types of proceedings which this Court determines. The Court must apply the provision of section 117(2A) of the Act to both children’s proceedings and proceedings with respect to financial matters. To the extent that the submissions appear to suggest that there is some “practice” whereby costs are not “awarded with respect to the children’s proceedings”, we do not accept, save to the extent that section 117(1) of the Act provides a general principle, that such is the case.

19. It was then submitted on behalf of the husband that the trial Judge “erroneously focussed” upon “three aspects of conduct, they being:

    (i)Non compliance by the appellant as non compliance with court orders as to affidavit material to be filed and disclosure as related to the child issues.

    (ii)The conclusion that the Appellant was inflammatory and uncooperative.

    (iii)The lack of substance to the Appellant’s claim (Appellant’s submissions, page 7, 6.03).

20. We have earlier dealt with the first of these matters. It is unnecessary to do more than reiterate that the trial Judge was clearly aware that there had been non-compliance on the part of the wife.

21. The complaint with respect to the “inflammatory and uncooperative” conduct must be seen in context. Before the trial Judge it was asserted on behalf of the husband that the wife’s conduct had “at all times been inflammatory and uncooperative”. It is clear from the trial Judge’s Reasons for Judgment, in relation to children’s matters which were not challenged on appeal by the husband in this Court, and in relation to financial matters in which the husband was wholly unsuccessful in his challenges to this Court, that the trial Judge was entitled to conclude as he did in relation to that topic.

22. More significantly, the trial Judge did not rely upon any “inflammatory and uncooperative” conduct of the husband in support of the costs order he made in favour of the wife, but rather, for the reasons he gave, rejected the husband’s assertion that the wife’s “inflammatory and uncooperative” conduct was a factor which could militate against making an order for costs against the husband. This complaint is without substance (Judgment 4 May 2006, page 5, par 23).

23. It was submitted in relation to the husband’s persistence with an unmeritorious claim with respect to children that:

    6.06The Court could have and was obliged, particularly because of the self represented nature of the litigant, to discourage this lengthy litigation and ought, in our view, to have taken such steps as were reasonable to dissuade the parties from a fruitless contest: (see Baines and Baines (No. 2) (1981) ¶91-063 at p. 76,497)

    6.07It is my submission that any order for costs should have excluded those aspects of litigation, in both preparation and hearing time, which related to child issues (Appellant’s submissions, page 8).

24. These complaints conveniently overlook the husband’s unchallenged qualifications in law, his experience as a litigant in person, his demonstrated determination as a litigant in person in this Court, his parliamentary, commercial and other experience, as they emerge from the evidence in the substantive proceedings.

25. Nothing to which we have referred persuades us that the trial Judge failed to take any step reasonably required to “dissuade” the husband from pursuing “a fruitless contest” (Appellant’s Submissions page 8, par 6.06).

26. To the extent that a complaint is made about the failure of the trial Judge to deal with costs of an adjournment on 24 March 2005 that matter, if it has not been dealt with, can be determined by a single judge. If those costs have been subsumed by the trial Judge’s order, nothing to which we have been referred persuades us that his Honour erred in so doing.

27. We have read the submission on behalf of the husband at paragraph 7.03. We do not understand what that paragraph seeks to assert.

28. No ground of appeal having been made out the appeal should be dismissed.

29. The appeal having been wholly unsuccessful the husband should pay the wife’s costs of the appeal as sought by the wife in her submissions.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date:  14 September 2007