WYNONA & FRIEND (NO. 2)
[2011] FamCAFC 228
•5 December 2011
FAMILY COURT OF AUSTRALIA
| WYNONA & FRIEND (NO. 2) | [2011] FamCAFC 228 |
| FAMILY LAW – APPEAL – COSTS – Where Federal Magistrate declined to make a costs order following a determination of parenting and property issues and where the husband was partly successful on his appeal – The need for this Full Court to determine the costs application in the light of the outcome of the appeal – Where the husband asked for costs of proceedings in State Courts – Where the husband asked for costs based on s 117AB – Appeal dismissed |
| Family Law Act 1975 (Cth) s 4(1); s 117; s 117AB |
| Browne v Green (2002) FLC 93-115 Collins and Collins (1985) FLC 91-603 Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123 Harris and Harris (1991) FLC 92-254 Hackshaw & Hackshaw (Costs) [2011] FamCA 570 House v The King (1936) 55 CLR 499 In the marriage of Greedy (1982) FLC 91-250 In the marriage of Robinson and Higginbotham (1991) FLC 92-209 Oliver & Oliver (Costs) [2011] FamCAFC 3 Penfold v Penfold (1980) 144 CLR 311 |
| APPELLANT: | Mr Wynona |
| RESPONDENT: | Ms Friend |
| FILE NUMBER: | BRC | 5174 | of | 2007 |
| APPEAL NUMBER: | NA | 12 | of | 2010 |
| DATE DELIVERED: | 5 December 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Faulks DCJ, May & Benjamin JJ |
| HEARING DATE: | Written submissions made in February and March 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 December 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1355 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Self-represented litigant |
| COUNSEL FOR THE RESPONDENT: | Mr Laurie |
| SOLICITOR FOR THE RESPONDENT: | Piper Craig Henry Lawyers |
Orders
The appeal is dismissed.
Within thirty (30) days of agreement or assessment of quantum the appellant shall pay the respondent’s costs of and incidental to this appeal, calculated on a party/party basis.
IT IS NOTED that publication of this judgment under the pseudonym Wynona & Friend (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 12 of 2010
File Number: BRC 5174 of 2007
| Mr Wynona |
Appellant
And
| Ms Friend |
Respondent
REASONS FOR JUDGMENT
Introduction
This appeal (“the costs appeal”) is from an order made by Federal Magistrate Jarrett dismissing the husband’s application filed 15 January 2010 asking that the wife pay his costs of the proceedings heard by the Federal Magistrate, or alternatively, that the wife pay part of his costs from 12 February 2008 to the conclusion of the proceedings.
The husband and wife had been engaged in property and parenting proceedings for some time. The trial was in February and August 2008 and determined when substantive parenting and property orders were made on 3 July 2009.
The costs application was heard by the Federal Magistrate on 12 October 2009. On 18 December 2009 reasons were delivered and orders were made dismissing the husband’s costs application.
The husband was dissatisfied with the parenting and property orders and filed an appeal. That appeal was determined by a Full Court on 28 January 2011. The appeal, in respect of parenting orders was dismissed but the appeal was, in part, allowed in relation to the property proceedings. The Full Court re-determined the property applications and different orders were made increasing the husband’s share of the property from 37 per cent to 47 per cent with consequent changes to the percentage of property to the wife. Each party was ordered to pay their own costs of the appeal.
In relation to the costs appeal from the Federal Magistrate the Full Court observed at paragraphs 13 and 207 of their reasons:
13.Although the costs appeal was not consolidated with the substantive appeal for hearing before us, at the conclusion of the substantive appeal we advised the parties the costs appeal would be dealt with by way of written submissions after we published our reasons in the substantive appeal.
…
207.At the commencement of these reasons, we indicated during the hearing of the appeal we would provide a timetable for the filing of written submissions, and deal with the costs appeal without the necessity for a further appearance by the parties. We are now aware that one of the members of this bench will retire early in 2011. In those circumstances, we will still make provision for the costs appeal to be subject of written submissions, but that appeal will be determined by a differently constituted Full Court.
This appeal has been conducted in accordance with the directions for filing written submissions and by a differently constituted Full Court.
The costs hearing before the Federal Magistrate
It is important to appreciate the issues that were raised before the Federal Magistrate relevant to the costs decision. The husband relied on the application and affidavit filed by him on 30 July 2009 and an affidavit filed on 8 October 2009. The wife relied on her response to the application and affidavit filed 18 September 2009 and an affidavit of Ms H also filed on 18 September 2009.
Before the Federal Magistrate the husband submitted that a costs order should be made in his favour because of his financial circumstances, because the wife had given false evidence and would not negotiate a settlement, and because there had been a lack of disclosure.
In relation to his financial circumstances the husband submitted that he was no better off financially than the wife and he believed that his financial circumstances were “worse than hers”. He submitted that the circumstances surrounding the wife’s unemployment are “quite suspicious” and that the wife having a history of employment in the legal field “is more than capable … of being able to work”.
The husband submitted that the wife had given false evidence beginning when she filed an application for a recovery order in April of 2007.
He also submitted that there had been “no opportunity whatsoever for there to be any negotiation” in relation to settling the proceedings. Added to this he submitted that although he was given disclosure of the wife’s documents the conditions placed on him in relation to viewing and copying the documents were unreasonable.
Counsel for the wife submitted to the Federal Magistrate that the husband’s application for costs did not “satisfy any of the matters referred to in section 117(2)(a)”. It was submitted accurately that the husband’s position had sought equal time with the children and a 50/50 distribution of the property and that the orders made by the Federal Magistrate were “nothing … like the order that was made” and that no offer had been filed that reflected the final orders made. It was further submitted that the Federal Magistrate had made adverse findings about both parties and their conduct of the litigation and that the “parties wasted an awful amount of money to come to the result which they have”.
The Federal Magistrate’s reasons addressed the relevant considerations pursuant to s 117(2). In discussing the financial circumstances of the parties (s 117(2A)(a)) the Federal Magistrate accepted the argument of the wife that her earnings are less than those of the husband. The Federal Magistrate did not accept the husband’s submission that the parties would be capable of deriving similar income.
In relation to Legal Aid (s 117(2A)(b)) the Federal Magistrate noted that both parties had self funded their litigation and that they both have significant outstanding legal expenses.
As to the conduct of the parties (s 117(2A)(c)) the Federal Magistrate made comments that were critical of both parties:
13.… My view, having conducted most of the directions hearings in this matter, and the trial is that both parties are obstinate, difficult, headstrong people each set upon securing their own ends without regard for the consequences upon their family and in particular their children.
The Federal Magistrate then outlined the husband’s submissions that the wife had caused the protraction of the proceedings. His Honour said:
15.In my view the difficulties with disclosure in this case were attributable to both parties. The evidence contained in [the wife’s] affidavit filed on 18 September, 2009 (paras 13 – 26) makes it clear that both parties adopted an unreasonable stance (advised by their solicitors I suspect) when it came to disclosure, inspection and who was going to pay for that process.
…
18.As I set out above, I am of the view that neither party’s attitude was conducive to an early resolution of this case. It may well be the case that [the wife] “stonewalled” [the husband] in their communications in a number of respects, but both parties were legally represented throughout most of these proceedings and there was a mediation that took place between the parties.
19.In my view, much of [the husband’s] submissions about [the wife’s] conduct are not balanced. …
In relation to the outcome of the proceedings (s 117(2A)(e)) the Federal Magistrate found that neither party had been wholly successful or unsuccessful.
The Federal Magistrate referred to the submissions of the husband in relation to the offers of settlement made on his behalf (s 117(2A)(f)).
The Federal Magistrate did not accept the husband’s submission that the conduct of the wife had led to him incur “unnecessary and significant expense” or that the wife had “refused to negotiate a settlement of the proceedings in a meaningful and genuine way”. The Federal Magistrate found that the husband “must bear some of the responsibility for the failure of the proceedings to resolve earlier than they did” and that he demonstrated “a lack of commitment to a negotiated outcome”.
In conclusion the Federal Magistrate said:
34.[The husband] has been wholly unsuccessful in this application for costs. Nonetheless his arguments were not without merit. In my view the general rule provided for in s.117(1) of the Act ought also to apply to this costs application. There will be no order as to the costs of [the husband’s] costs application.
The legal principles governing an appeal
The principles governing an appeal from a discretionary judgment are well settled. They are as set out in the following passage from House v The King (1936) 55 CLR 499 where Dixon, Evatt and McTiernan JJ said at 504-505:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In determining a costs application the court has a wide discretion (see Penfold v Penfold (1980) 144 CLR 311; Collins and Collins (1985) FLC 91-603; Harris and Harris (1991) FLC 92-254; Browne v Green (2002) FLC 93-115 and Oliver & Oliver (Costs) [2011] FamCAFC 3). It is for this reason that it is generally difficult to succeed in demonstrating that the exercise of discretion has miscarried.
The legislation – Costs
Determination of costs applications are governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”), which provides:
Costs
(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.
In Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ) held that there is nothing to prevent any one factor being the sole determinate for an order for costs to be made.
It can be seen that s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, however, there is no additional or special onus on an applicant for an order for costs: see Penfold v Penfold (1980) 144 CLR 311.
In view of the submissions and findings of the Federal Magistrate it is also necessary to refer to the provisions of s 117AB:
Costs where false allegation or statement made
(1) This section applies if:
(a)proceedings under this Act are brought before a court; and
(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
(2) The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.
As some of the proceedings upon which the husband relies took place in state courts exercising jurisdiction pursuant to Family Violence legislation it is of interest to refer to the definition of “court” in s 4(1) of the Act as follows:
“court”, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act.
Background
The background and procedural history of this matter is set out in paragraphs 15 to 49 in the reasons delivered by the Full Court in the appeal from the substantive matters referred to earlier. We will repeat some of those paragraphs of the Full Court judgment as they are relevant to the costs appeal:
15.The following facts are set out in the reasons for judgment of the Federal Magistrate or the appeal book and are uncontroversial.
16.The parties were married in February 1990 and separated in early 2007.
…
19.There are two children of the marriage, O born on June 2001 and A born February 2003.
...
21.In 1998 the husband established his own business which was sold in 2005. Thereafter the husband devoted himself full-time to property development (reasons, paragraph 98).
...
23.The parties bought and sold, at times through corporate entities, a number of properties over the course of the marriage. The parties carried out renovations to properties acquired and sold them for profit. It is unnecessary we set out details of these purchases and sales.
24. In November 2005 the parties purchased vacant land on the north coast of NSW (“the NC property”) in the name of D Pty Ltd.
25.In October 2006 the parties purchased a franchise business. The franchise was purchased for approximately $24,200.00 plus $11,000.00 for training, some of which the wife undertook.
26.In December 2006 the parties purchased the property, S on the Sunshine Coast (“the matrimonial home”).
27.Shortly after separation, the wife confirmed with the franchisor that the franchise could be surrendered for a full refund of $35,200.00. The wife indicated she wished to retain the franchise until September 2007. At that time, when the franchise was actually surrendered, only $11,000.00 was refunded to the parties (reasons, paragraph 102).
28.After separation the wife retained a motor vehicle registered in the name of a corporate entity controlled by the parties and sold it to her mother.
29.Prior to the birth of the elder child the wife obtained a paraprofessional qualification which enabled her to conduct a practice in New South Wales and Queensland. Apart from a short period after separation when the wife worked as a paraprofessional for approximately three months, she was not in employment, but was involved with the parties’ business activities. She was not employed at the date of the hearing before the Federal Magistrate (transcript 12 February 2008, p 4; wife’s affidavit sworn 31 January 2008, paragraph 2).
30.At the date of the hearing the husband was working as a self-employed home handyman.
31.At the date of the hearing the parties had an investment with two other persons in a property development on the New South Wales far north coast.
32.At the date of the orders the husband’s solicitors held cash funds of $160,205.78 being the proceeds of sale of the matrimonial home. Each of the parties had received a distribution by way of an interim property settlement from the proceeds of sale of the property of $5,000.00. The solicitors also held the proceeds of sale of the NC property of $43,226.01.
…
(b) the procedural history
35.On 11 April 2007 the wife filed an application in a local court seeking a recovery order for the children asserting the husband had removed them from the matrimonial home at S in March 2007.
36.On 23 April 2007 orders were made in a local court for the children to live in the matrimonial home with the wife.
37.On 3 May 2007 the wife filed an application for a domestic violence order in a local court and on 8 May 2007 the husband filed an application for a protection order in the same court.
38.On 22 May 2007 protection orders were made in a local court.
39.On 19 June 2007 the wife filed an amended application for final orders. The husband had earlier, on 17 April 2007, filed a response to the wife’s initiating application.
40.On 21 June 2007 interim parenting orders were made in the Federal Magistrates Court at Brisbane. Further orders were made on 30 August 2007, 9 October 2007 and 30 November 2007.
41.The proceedings were heard by Jarrett FM on 12 and 18 February 2008. The evidence concluded on 12 February 2008 at which time counsel then appearing for the husband (Dr Kellie) provided written submissions to the Federal Magistrate and spoke to those submissions (transcript, 12 February 2008, pp 97-99). As his Honour had insufficient evidence before him about various taxation issues, the matter was adjourned to 18 February 2008. On that day his Honour was advised by the husband’s counsel that she had been unable to reach agreement with the wife’s counsel about an agreed list of assets and liabilities (transcript, 18 February 2008, p 102).Later in the morning, after the matter had been stood down to enable the parties to inspect material produced under subpoena, the wife’s counsel handed up a schedule of assets and liabilities and counsel addressed his Honour on the areas of disagreement. That document was not marked as an exhibit and was not reproduced in the appeal book. At this point the matrimonial home had not been sold. The matter concluded with counsel for the husband’s oral submissions at 11.44 am.
42.On 2 May 2008 an application was made to the Federal Magistrate to re-open the hearing on the basis there had been substantial changes, including issues in respect of both the parenting and property proceedings (transcript, 2 May 2008, p 1). That application was granted and the property proceedings were re-opened on 25 August 2008.
43.At the time of the re-opening on 25 August 2008 the husband had filed contravention applications, but after negotiations, those applications were dismissed with no order as to costs (transcript, 25 August 2008, p 2). His Honour was advised the parties had reached agreement on a number of issues and signed a document containing proposed orders, which the husband’s counsel undertook to provide, in a clean typed transcript, to the Federal Magistrate’s chambers to be made by consent. His Honour then proceeded to hear further evidence including further cross-examination of the wife. At the conclusion of the evidence the parties’ counsel made oral submissions in respect of the further evidence, and his Honour was advised the matrimonial home and another property had been sold. The Federal Magistrate requested the parties send to him an updated list of agreed assets and liabilities (transcript, 25 August 2008, p 52).
44.Written submissions were provided to the Federal Magistrate on behalf of the husband on 29 August 2008 (including a schedule of assets and liabilities), and on behalf of the wife on 9 September 2008. Although the appeal book index refers to an agreed schedule of assets and liabilities dated 25 August 2008 that document is not in the appeal book as a separate item, the only schedule being a schedule annexed to the husband’s counsel’s written submissions. That schedule does not include the sale price achieved for the matrimonial home or the NC property. It does include an item for furniture of $20,000.00 as an agreed sum. Also reproduced, as an annexure to the wife’s solicitor’s affidavit sworn 17 September 2009, is an undated list of assets and liabilities which may have been forwarded to the Federal Magistrate. It is not identical to the schedule annexed to the husband’s submissions. We will later refer to the difficulties caused by the lack of an agreed schedule of assets and liabilities.
45.His Honour delivered his reserved reasons and made orders on 3 July 2009.
46.On 12 October 2009, after the husband had filed his substantive appeal, the proceedings were again before his Honour when an application was made by the husband for costs of the proceedings, and a dispute about interpretation of the orders was raised. On this occasion the husband appeared in person and the wife was represented by her counsel. The wife’s response filed on 18 September 2009, included (unusually) an application that the Federal Magistrate make an order for security for costs of the appeal rather than that application being filed in the appeal proceedings pursuant to s 94(2D) of the Act.
47.The Federal Magistrate delivered further reserved reasons, part of which appear in the appeal book, and made orders on 18 December 2009. Relevant to the substantive appeal, his Honour amended the orders made on 3 July 2009 to delete an order which required the payment of the parties’ credit card liabilities from the funds held from the proceeds of sale of the matrimonial home and the NC property. No issue was raised on the substantive appeal that his Honour was functus officio and thus lacked power to make further substantive orders (see Burrell v The Queen (2008) 238 CLR 218) or whether the order was properly made under r 16.05 of the FM rules (“the slip rule”). His Honour made machinery orders for the payment out from the proceeds of sale sums payable to the Australian Taxation Office for capital gains tax, and to the parties. Those orders were amended under the “slip rule” on 20 January 2009 to correct a typographical error in the sums to be paid to the Australian Taxation Office.
48.On 12 February 2010 his Honour published a “corrigendum” to his reasons for judgment published on 3 July 2009. The corrigendum comprised a table of “add backs” referred to in paragraph 87 of his Honour’s reasons for judgment.
49.We were advised that on 12 February 2010 the Federal Magistrate granted a partial stay of his orders, not limited to the hearing and determination of the appeal, requiring the payment to the wife to be stayed “to the extent of $62,258.39”. At our request, we were provided with a copy of the stay order.
The assets and liabilities of the parties were set out in paragraph 190 of the Full Court’s reasons in relation to the substantive appeal, namely:
ASSETS Proceeds of sale of the matrimonial home J 160,205.78 Proceeds of sale of the NC property J 43,226.01 Wife’s car W 17,450.00 Husband’s car H 23,900.00 Wife’s distribution from the matrimonial property W 5,000.00 Husband’s distribution from the matrimonial property H 5,000.00 Joint Bank Account W 440.00 Joint Bank Account W 8,429.88 D Pty Ltd Bank Account H 12,230.14 Trailer H 800.00 Husband’s legal expenses H 29,715.00 Wife’s legal expenses W 44,610.86 Wife’s superannuation W 5,600.00 Husband’s superannuation H 8,000.00 Total Assets 364,607.67 LIABILITIES Husband’s Capital Gains Tax Liability H 9,687.57 Wife’s Capital Gains Tax Liability W 9,687.57 Total Liabilities 19,375.14 TOTAL ASSETS AND LIABILITIES 345,232.53
The property appeal was allowed not because of an incorrect assessment by the Federal Magistrate of the parties’ contributions or the value of their assets and liabilities but by reason of the s 75(2) assessment. This was explained in paragraph 200 and the effect of such adjustment in paragraph 201.
The property was then divided on the basis of $162,259.29 to the husband (47 per cent) and $182,973.24 to the wife (53 per cent). It can be seen that the ten per cent adjustment made by the Full Court did not involve property of substantial value as the value of the parties’ property was relatively small.
Grounds of appeal
The husband’s cost appeal asked the Full Court to re-exercise its discretion and make costs orders in his favour. On 16 February 2011 the husband filed a submission in respect of the eight grounds of appeal. The wife filed submissions in response on 7 March 2011. The husband filed a reply to the wife’s submission on 9 March 2011.
Ground 1
Although the appeal is primarily a challenge to the exercise of the Federal Magistrate’s discretion it is necessary for us to deal with each ground discretely.
In ground 1 the husband claims the:
[The Federal Magistrate] has failed to consider the added cost to [the husband] in these proceedings of the false allegations made by [the wife]. [The Federal Magistrate] should have applied s 117AB of The Family Law Act.
The husband in his submissions identifies two occasions when unnecessary costs were incurred by him as a result of alleged false allegations and misleading statements.
The first related to proceedings in the local court where the wife sought orders for the recovery of the children asserting that the husband had removed them from the matrimonial home in circumstances where orders had been made by the Local Court for the children to live in the matrimonial home with the wife (see the Full Court’s reasons para 35 & 36).
In the written submissions the husband provided a history in respect of this allegation.
In response to this assertion the wife submitted:
No findings of fact were made which support the Submission in relation to the Wife’s Application to the … local Court for a recovery order. There is, in any event, no jurisdiction, with respect, in the Full Court to award costs with respect to that appearance as there is no Appeal from the decision of the … local Court. The Application was successful; the Husband was ordered to return the children to the former matrimonial home.
The order, if any, made by the local court was not available to us nor was it available to the Federal Magistrate. The only mention of the orders of the local court were in paragraphs 26 and 107 of the reasons of the Federal Magistrate in the substantive proceedings, where it was said:
26.The first concerns her evidence about her knowledge of the whereabouts of the children following her leaving the former matrimonial home at the end of March, 2007. She swears that she did not know where the children were and that an application to the Local Court of New South Wales at … was necessary to have the children returned to her care. In fact, she had been in SMS contact with [the husband] who had indeed told her where the children were, although not in terms that she wanted to hear. The SMS messages were not challenged in cross-examination and the picture that [the wife] paints in her affidavit was very different to the situation in fact.
…
107.… I am satisfied that there was much tension and anxiety between [the parties] such that her [the wife’s] decision to remove herself from the home was reasonable. I note that she returned following the order of the … Local Court on 23 April, 2007 and [the husband] was not excluded from the home by order until 22 May, 2007.
The Full Court reasons observed in the substantive matter that on 23 April 2007 orders were made in the local court for the children to live in the matrimonial home with the wife and further that on 22 May 2007 protection orders were made in another local court.
Although it seems orders were made in the local court their precise nature was not part of the submissions before the Federal Magistrate and the affidavit material from the husband on this point was in reply, in the form of argument and was ambivalent in terms of the orders. The proceedings in the local court were not the subject of any meaningful comment during the submissions on costs before the Federal Magistrate.
If the husband was seeking costs orders arising out of any determination by a State Magistrate or the failure to make a determination he should have sought that order before the State Magistrate. Alternately he could have argued this history as a matter of background before the Federal Magistrate asking him to take it into account as part of the wife’s conduct in the proceedings. He did not do so. What the husband did was selectively use a criticism of the wife by the Federal Magistrate where there had been adverse findings as to credit in respect of each of the parties.
The husband claimed that the Federal Magistrate found that the wife had made false and misleading statements. That is not the whole picture. The Federal Magistrate made numerous criticisms of each of the parties commencing with paragraph 23 and 24:
23.It is necessary to record some impressions about the parties as witnesses. I found both [parties] very difficult witnesses. Neither seemed given to answering direct questions with direct answers, but rather, were more engaged in responding in a way that they thought would advance their case and damage that of the other parent. Both parties, although perhaps [the wife] more so, was most adept at avoiding answering questions. The consequence of that was that neither party impressed me as capable of seeing through the fog of this dispute to matters which might have assisted a resolution of it. Additionally, I am circumspect about accepting at face value the characterisation placed upon the event described by each of the parties in their affidavits. They seemed to be so intent upon painting themselves in a favourable light and the other in a less than favourable light that much of their evidence carries little weight.
24.Apart from the general impressions that I formed, there are some specific reasons to be concerned with the credibility of both parties.
Of the husband the Federal Magistrate found:
34.[The husband’s] credibility left something to be desired as well. It is apparent from the course of his cross-examination that he tended to be less than forthcoming and was not willing, it seems to me, to be frank when frankness was called for.
35.I approached the evidence of both of the parties with considerable caution
Of the wife the Federal Magistrate found:
25.[The wife] demonstrated that some care is necessary when accepting her evidence at face value. Two examples will suffice.
26.The first concerns her evidence about her knowledge of the whereabouts of the children following her leaving the former matrimonial home at the end of March, 2007. …
27.The second concerns her evidence about the six month lease that she claims that she signed so as to secure alternative accommodation at the time of separation. She claimed that she had spent a little more than $6,630 on the rent for those premises, even though she only occupied them for about four weeks. On the face of her trial affidavit the position was relatively straight forward. She had signed a lease, had to break the lease, but was liable for the rent for the whole of the lease term.
28.At the rehearing it became apparent, having regard to the records produced on subpoena from the relevant real estate agent, that in fact [the wife] did not pay rent on the unit after 22 May, 2007 (after giving one months notice). So the amount paid by her for rent to the agents was nowhere near the $6,630 that she had claimed. She went on to elaborate in cross-examination (none of this was revealed in her evidence-in-chief) that although she did not live in the unit after about 23 April, 2007, the incoming tenant was unable to pay the rent and so [the wife] continued to pay it for them. She did not mention in here evidence in chief that the new tenant was her mother and that the unit was made available by her to members of her family for the purposes of coming to Queensland to provide her with “support”. [The wife] asserts that she continued to pay the rent after her mother took up occupation, but the fact that she continued to pay the rent is not borne out by the records from the relevant real estate agent (exhibit 2, 28 August, 2008).
29.What the true position was is not particularly important. What is important is that [the wife] found it necessary to give an incomplete and, in my view, inaccurate view of what occurred at the relevant time in her evidence at the first hearing and it was not until the second reopened hearing that the true position became apparent. It demonstrates a lack of candour.
30.Additionally, [the wife] conceded in cross-examination at the rehearing that there may have been passages of the telephone conversation that occurred between [the husband] and [Mr S] on 25 March, 2008 that had not been transcribed and which did not form part of the transcript attached to her affidavit. That is notwithstanding that she swore that the exhibit to her affidavit was a transcript of the telephone conversation, the clear implication being that it was accurate and complete.
31. In general, I found much of [the wife’s] evidence disingenuous.
The comments made by the Federal Magistrate were in the context of determining the weight he could attach to their evidence and was not a formal finding that the wife’s evidence was false and misleading, as submitted by the husband. The parts of the reasons to which the husband has referred do not demonstrate that the Federal Magistrate concluded that the wife “knowingly made a false allegation or statement in the proceedings” as required by s 117AB (see also Hackshaw & Hackshaw (Costs) [2011] FamCA 570).
The Federal Magistrate was entitled to conclude that he did not accept the submission that the wife’s conduct alone had led the husband to incur unnecessary and significant expense in these proceedings.
We are not satisfied that the basis of this criticism has been established by the husband.
The second occasion where the husband suggests that there were “false allegations and misleading statements” relates to the domestic violence proceedings. These proceedings were commenced by the wife in early May 2007 and an interim protection order was made on 22 May 2007. No doubt these proceedings were commenced pursuant to State family violence provisions.
The husband asserts that the wife discontinued the domestic violence proceedings and he [the husband]:
… [r]egrets not having the matter heard because it was completely false and I did not realise that without having the matter heard I had no opportunity for costs to be awarded to me.
The question of costs in those proceedings was a matter for the State Magistrate Court and was not, in the context of the Family Law Act1975 (Cth) proceedings, a matter for the Federal Magistrate nor for us. It may have been possible for the husband to pursue costs in the State proceedings. It may also have been possible for him to seek adverse findings against the wife in the State Court proceedings, but he did not do so.
Counsel for the wife submits, correctly in our view, that costs related to the domestic violence proceedings were not issues before the Full Court (or for that matter in the Federal Magistrates Court) and are not issues before us.
In this ground of appeal the husband seeks an order that the wife pay the full costs of the two appearances in the local court. Having regard to the above circumstances, the first ground of appeal must fail.
Grounds 2, 4 and 6
These three grounds of appeal relate to the cost of the re-opening of the case by the wife.
The husband claims that the Federal Magistrate failed to consider the unnecessary cost to him of the re-opening. In addition, he claimed that the Federal Magistrate made a finding about the re-opening that was clearly wrong. In that regard he observed that the Federal Magistrate said:
20.Although the re-opening of the case was ultimately of limited utility, it is not a matter, in my view, that weighs significantly in the balance on this costs application.
The husband says the costs incurred by him because of the wife re-opening the case were about $50,000, a significant sum.
In addition, the husband claimed that the Federal Magistrate made an error of fact when he concluded that:
31.I do not accept the submissions that [the wife’s] conduct has led [the husband] to incur unnecessary and significant expense in these proceedings.
The husband argues that this conclusion is clearly wrong and is not supported by the facts.
Ground 6 was not separately argued by the husband in his submissions, but is clearly referred to in the material filed in respect of grounds 2 and 4. In those submissions the husband asserted:
13.[The Federal Magistrate] failed to consider the unnecessary cost to me for the reopening of the case. In his reason for judgment he said: “Although the re-opening of the case was ultimately of limited utility, it is not a matter, in my view that weighs significantly in the balance on this cost application” (appeals book page 19 para. 20.). This differs from what he said on the day of the trial some 16 months before when I am sure; it would have been much clearer in his mind. On this occasion he said: “I’ve regretted giving leave to re-open, because it's really added nothing to the case at all” (appeals book page 116 (b)). It is clear [the Federal Magistrate] in his reasons for judgment (on costs) has later tried to water down what was said on the day of the trial. That is: “it's really added nothing to the case at all.”
14.It is very clear from the transcript dated 2nd May 2008 when Mr Lawrie, counsel for [the wife] argued for the case to be reopened on matters concerning the children and property orders.
15. I have already highlighted what [the Federal Magistrate] said at the end of the day, at the reopening, when he said that it added nothing to the case at all. In regard to the childrens’ matters this [sic] true.
16. In regards to property matters [the wife] in fact lost ground. She was found to have made false statements about the property she rented (appeals book page 106-107 para 28 and 29). As a result an adjustment was made in my favour. However this adjustment was insignificant to what it cost me in legal costs for the reopening of the case.
17.It was also found [the wife] made false statements regarding evidence she provided to the court. This is when [the wife] recorded and transcribed a telephone conversation between myself and her boy friend [Mr S]. When [the wife] transcribed the recorded conversation she left out parts that she did not want the court to hear, as it would not have supported her case (appeals book 107 para. 30).
18.The transcript of the telephone conversation was [the wife’s] main peace [sic] of new evidence for the reopening of the case. This evidence was found to be edited, which is a false statement.
19. Mr Lawrie (counsel for [the wife]) at the hearing when [the wife] made application to reopen the case on the 2nd May 2008, said in short to [the Federal Magistrate] “evidence was very relevant. So, in my respectful submission, the ground has changed so far that your Honour needs to be appraised of /the current situation”. Giving [the Federal Magistrate] no choice but to reopen the case on Mr Lawrie’s submission (appeals book pages 115-117.
20. This was a false statement by Mr Lawrie because of [the Federal Magistrate] conclusion on the day, “I’ve regretted giving leave to re-open, because it's really added nothing to the case at all” (page 116, b.). Mr Lawrie has misled the court with this application. It has been proven to be baseless and unnecessary.
21.It is my belief that [the wife’s] legal team throughout these proceedings have done all they can to ramp up their fees and the above is another example of this.
22. It is my submission that the only just thing to do is for [the wife] to pay all my legal costs from 2nd May 2008, when [the Federal Magistrate] gave the case leave to re-open until the end of the trial day of the reopening (25th August 2008), as it was solely the submission of [the wife] and her legal team. This cost me [the husband] another $50,000 in legal fees not to mention the cost of the delay in selling the family home (18 months interest payments further depleting the asset pool). (original emphasis)
The husband seeks in this respect that the appeal be allowed and that a re-exercise of the discretion will lead to an order that the wife pay the husband’s costs of the re-opening of the case from 2 May 2008 until the end of the trial on 25 August 2008. We note that the first date is different to the orders that the husband sought in his Notice of Appeal however that is not of any consequence.
The wife’s response to these grounds were:
The Wife applied to re-open the case on the basis that circumstances arising after the hearing of the evidence were relevant to [the Federal Magistrate’s] determination, particularly in relation to parenting issues because the evidence of the report was premised upon an assumption that the relationship between the Husband and the Wife and the level of conflict between them would in all likelihood improve following the conclusion of proceedings. The evidence the Wife produced demonstrated that his assumption was unfounded.
Whilst this evidence was not determinative, it was relevant.
[The Federal Magistrate] observed that the re-opening of the case was ultimately of limited utility, but there is no suggestion in [the Federal Magistrate’s] judgement that it was other than a proper course for the Wife to have adopted.
The fact that [the Federal Magistrate] did not accord the evidence the relevance that the Wife thought it should attract, is simply a matter of judicial discretion and ought not militate in favour of a costs order against the wife.
Counsel’s submissions were probably [sic] made and in no way mislead the Court.
The husband made a submission in reply which was a reiteration of his primary submission.
The first submission of the husband was that the Federal Magistrate failed to consider the unnecessary costs to him of re-opening the case. From his reasons it is clear that the Federal Magistrate did consider the cost to the husband. He refers to the legal fees, the husband’s outstanding legal costs were $89,828.98. In paragraph 14(f) of the reasons the claim for unnecessary costs of re-opening the case was referred to by the Federal Magistrate.
We are satisfied that the Federal Magistrate did adequately consider the submission by the husband.
The second assertion of the husband was that set out in grounds 4 and 6 of his Notice of Appeal. To this end the husband makes submissions about the Federal Magistrate’s reasons at paragraph 20 as compared to the comments made by the Federal Magistrate on 25 August 2008 (as referred to earlier). As is not unusual, the Federal Magistrate made some robust comments during the hearing and then reserved his decision. His findings and reflection in his considered reasons were, in all of the circumstances, open to him.
In the substantive proceedings the Federal Magistrate, noted that the asset pool had changed between the conclusion of the first part of the hearing and the re-opening of the case.
It was open to the Federal Magistrate to decide, as he did, that whilst the re-opening of the case was ultimately of limited utility, it was not a matter, in the Federal Magistrate’s view, that was determinative in favour of the husband’s costs application in the broad exercise of his discretion. The Federal Magistrate was correct.
The husband also asserted that the wife made false statements in her evidence and we have commented on that earlier in the context of the weight that ought to be attached to the evidence rather than formal findings of false facts.
The husband expressed strong criticism of and about the professional behaviour of the legal representatives for the wife. He submitted that this was a factor in the re-opening of the case, and that those legal practitioners were motivated by their own fees. There was no evidence before the Federal Magistrate or us which would ground such a submission, and as such, it is rejected.
The re-opening of the case may not, in the long run, have been determinative. However, the evidence presented was a factor which contributed to the Federal Magistrate making his substantive determination. The Federal Magistrate had considered the relevant issues and the exercise of his discretion was, in all the circumstances, reasonable.
The approach adopted by the Federal Magistrate was not in error and those grounds each fail.
Ground 3
In this ground the husband claims an error by the Federal Magistrate in that in paragraphs 6 and 8 of the reasons the Federal Magistrate said:
6.I accept [the wife’s] argument that she has gross earnings that are less than half of [the husband]. She also receives a partial Centrelink benefit.
…
8.I do not accept [the husband’s] argument that “on balance it would seem that both myself and [the wife] are likely to be capable of deriving a similar income to each other in our chosen occupations”. (original emphasis)
The husband argues that his income was less than double that of the wife. The Federal Magistrate found that:
4.[The husband] deposes that he is currently attempting to improve and grow a home handyman business that he commenced sometime ago. He deposed at trial that he wished to continue as a self-employed property developer, but did not have the available capital to do so. Subsequently he deposed to having commenced a home handyman business. That business is ongoing. Despite the closing of a financial year since deposing to the commencement of the handyman business, however, no evidence of [the husband’s] earnings from that business are in evidence. He relies on his, now dated, estimates of earning between $35,000 and $40,000 per annum gross. In his most recent affidavit he estimates his income will be about $18,000 gross per annum in the 2009 financial year. There is no explanation for the difference in the estimates.
5.It seems that [the wife] secured some employment between the first dates of trial and subsequent re-opening of the trial, but according to her latest affidavit that employment has not lasted. She has had different employment since the days of trial, and she is now working casually as a child minder. In the 2008 financial year she earned $12,090.00 (apart from capital gains income). In the 2009 financial year she earned $16,090.00.
In our view paragraph 6 of the costs reasons should be read in the context of the previous two paragraphs of those reasons which set out the differential income capacities of the parties.
The Federal Magistrate concluded that the wife had a modest earning capacity and that he was not satisfied that she would qualify to act as a broker. The Full Court in its reasons in the substantive appeal observed:
171.The Federal Magistrate took into account the respective earning capacity of each party. While the husband is critical of the Federal Magistrate’s findings in paragraph 115 about his earning capacity, we discern no error in those findings which were well open to the Federal Magistrate on the evidence.
It is not open for the husband to make another challenge to that finding. Similarly, the Full Court did not discern any error in the findings about the wife’s earning capacity. The Federal Magistrate considered the husband’s income and was aware of his most recent assessments. It was open to the Federal Magistrate to conclude, in all the circumstances, that the wife’s income was less than half of the husband’s income.
The finding was open to the Federal Magistrate and there is no appealable error identified in ground 3. In any event the respective financial circumstances of the parties were of limited relevance to the question of whether there were circumstances to justify an order for costs. The Federal Magistrate accepted that the wife would have few funds left from the property settlement after payment of her legal expenses and the husband would be left with debts.
Ground 5
In ground 5 of the appeal the husband complains that the Federal Magistrate made an error about the offer made by the husband in concluding that the wife received more of the property than proposed by the offer. The husband asserts that this was clearly wrong.
The Federal Magistrate considered the question of offers and said in his reasons:
23. [The husband] says that he made three offers of settlement pursuant to s.117C of the Act in these proceedings. None were accepted by [the wife].
24.The first was made on 7 September, 2007 wherein [the husband] says that he offered to settle:
a)the parenting litigation in accordance with the recommendations made by the family report writer [Mr W] (alternate weeks; calls 4 nights a week); and
b)the property litigation: 50:50 division; or alternatively
c)the children live with husband, and spend time with wife;
d)property be divided 60:40 to [the husband].
25.The written offer is not in evidence. In any event, the orders that I made did not follow the recommendations of the report writer, and [the wife] received more of the property than that proposed by [the husband] under the offer.
26. The second offer was made on 17 December, 2007. It provided:
(a)the parenting litigation be settled by an order that the children live alternate weeks with each parent;
(b)the property litigation be settled by orders dividing the parties property 55:45 in [the wife] favour.
27.[The wife] points out that this offer was made on the basis that certain funds withdrawn by her ($137,500.00) were added back to the pool of assets for distribution, that a car retained by her was included with a value of $20,000.00 and the value of the franchise was included at $30,000.00.
28.In the result, the parenting orders I made did not follow the family report recommendations. There was no order for equal time. Moreover, the pool used by me to calculate the property adjustment orders did not include any add backs for the value of the franchise (although the value of some chattels from that business were included) or the certain funds withdrawn by [the wife] form [sic] the parties’ accounts. The vehicle was included at a lower value.
29. The third offer was made on 16 April, 2008. It was that:
(a)the liabilities of the parties be paid from the assets then remaining and that [the wife] would have the opportunity to buy [the husband]’ interest in the former family home if she was able to raise the necessary finance;
(b)That the net equity then available be divided on an equal basis;
(c)That all claims for add backs or contribution adjustments be ignored;
(d)That the children spend equal time with each of the parties in accordance with the family report.
30.[The wife] did not accept that offer. In my view, the orders that I made for property adjustment were more favourable to [the wife] than the terms of the above offer. The children’s orders I made did not follow the family report.
This analysis of the offers was not challenged by the husband, but its application to the facts was challenged. The husband said that the Federal Magistrate needed to do an “outcome” analysis in respect of each of the offers. The husband submitted that had the wife accepted his offers, the wife would have substantially less legal expenses and would have been greatly better off.
As can be seen the Federal Magistrate treated the offers as a package which, in the circumstances of this case he was entitled to do, particularly as the offers were in respect of the whole proceedings, including children’s issues.
As we have already explained, the Full Court in allowing the appeal in part, altered the property split by reducing the wife’s entitlement from 63 per cent to 53 per cent and increasing the husband’s entitlement from 37 per cent to 47 per cent. We have had regard to that change in terms of the complaint made by the husband in respect of the question of consideration of offers.
If the offers are compared on a percentage basis then the outcome for the wife is better than the offers made by the husband in his first and third offers. Thus, the reasons of the Federal Magistrate were not impeached by the determination of the Full Court on the primary appeal, at least in terms of the first and third offers.
As to the second offer made on 17 December 2007, it appeared, on its face, better than the outcome determined by the Full Court when it made orders in respect of the property proceedings. However, that offer was made on the basis that funds withdrawn by the wife, of $137,500 were added-back to the pool of assets for distribution, that the car retained by her was included in the value of $20,000 and the value of the franchise was included at $30,000. The Federal Magistrate correctly observed that there was no add-back for the value of the franchise or an add-back for the monies withdrawn by the wife. Finally the vehicle was added back so they were valued.
The Federal Magistrate concluded that the wife had not refused to negotiate the settlement of the proceedings in the Magistrates Court in a genuine way and further that the husband must bear some of the responsibility for failure of the proceedings to resolve earlier.
There is no doubt that the parties’ assets were depleted by the costs of the proceedings. However the Federal Magistrate in his reasons observed, correctly in our view, at paragraph 13 of his costs reasons:
13.[The husband] submits that [the wife’s] conduct throughout the course of proceedings has not been conducive to speedy disposition of the matter. My view, having conducted most of the directions hearings in this matter, and the trial is that both parties are obstinate, difficult, headstrong people each set upon securing their own ends without regard for the consequences upon their family and in particular their children. The conflict between them is so entrenched and so bitter that neither seemed to retain the ability to be reasonable to each other. The consequences for their children do not bear thinking about. The fact that they both say they will be left with nothing from the property settlement, after having spent collectively nearly $200,000 in legal costs is an indictment on both of them, not just one or the other.
The husband complained that the Federal Magistrate did not consider the net outcome of any of his offers. In doing so he assumed that the offers were able to be accepted in part rather than as a whole (having regard to the offer in respect of the parenting arrangements), those offers being predicated upon the children spending equal time with him.
The husband asserted that the Federal Magistrate made an error of fact in determining that the wife received more of the property than that proposed under one or other of the offers. The husband then compared the outcome of the proceedings after the parties had expended funds on a defended hearing. This is not a sound comparison, particularly having regard to the holistic nature of the offer and the entrenched conflict referred to by the Federal Magistrate.
The exercise of the Federal Magistrate’s discretion, notwithstanding the subsequent adjustment of property by the Full Court, was well within his Honour’s discretion and the husband has not established an error of law or a mistake of fact.
Ground 7
In this ground the husband says that the Federal Magistrate erred at paragraph 32 of his reasons in that he failed to consider all of the facts and exercised his discretion to arrive at a conclusion which was clearly wrong. The husband complains that the Federal Magistrate’s reasons are not in the children’s best interests.
Paragraph 32 of the Federal Magistrates reasons is as follows:
32.I do not accept that [the mother] refused to negotiate a settlement of the proceedings in a meaningful and genuine way. In my view [the father] must bear some of the responsibility for the failure of the proceedings to resolve earlier than they did – his insistence as demonstrated by a series of written offers that he made that the children live equal time with him demonstrate the lack of commitment to a negotiated outcome.
In his submissions the husband sets out five examples where he submits the wife was unreasonable.
In many ways the concerns set out by the Federal Magistrate at paragraph 32 are reinforced by a submission of the husband where he says at paragraph 40 of his submissions:
40.… Why would I negotiate anything less than the court appointed expert witness recommendations and my belief of what is in the children’s best interests?
That submission, in itself reflects, in the words of the Federal Magistrate “a lack of commitment [by the husband] to a negotiated outcome”. It seems that the husband was not prepared to make any compromise inconsistent with the recommendations in the family report. It was unfortunate that the wife did not respond to the offers or make counter offers.
The approach adopted by the Federal Magistrate in terms of the exercise of his discretion was reasoned and reasonable and the conclusions he reached were open to him.
Consequently ground 7 of the appeal fails.
Ground 8
Ground 8 seems to be a “catch all” ground of appeal. The paragraph of the reasons specifically referred to by the husband is the following:
33.In my view no case is made out to displace the general rule provided in s.117(1) of the Act.
We are satisfied that, on the material available to him, the Federal Magistrate was correct and there was no appealable error.
Conclusion
Having regard to our reasons in relation to each ground, we are not satisfied that the Federal Magistrate made errors such that the appeal should be allowed. It was, in all of the circumstances, an exercise of his discretion which was reasonably open to him and his reasons were adequate. The Federal Magistrate was clearly familiar with the evidence and the conduct of the proceedings by each party.
An appellate court should be very reluctant to interfere with the exercise of discretion in respect of costs, and should only interfere when the result is “plainly unjust or if the discretion was exercised on wrong principles” (In the marriage of Robinson and Higginbotham (1991) FLC 92-209). It is accepted that an appellate court will uphold the exercise of a discretion to order costs if it is apparent that there are appropriate reasons on which the judge could rely (In the marriage of Greedy (1982) FLC 91-250). It was also said that an “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” (In the marriage of Greedy).
Costs of this appeal
The financial circumstances of the parties
The Federal Magistrate in his reasons set out the financial circumstances of the husband. The Full Court in the substantive appeal set out the assets and liabilities to which we have alluded earlier in these reasons. We have had regard to those circumstances and the effect of the decision of the Full Court in the substantive appeal.
The husband’s circumstances, in terms of capital, are therefore better than they were at the time of the determination of the Federal Magistrate.
We have accepted the findings and the inferences of the Federal Magistrate, as discussed earlier in these reasons. The husband has a far greater earning capacity than that of the wife. The wife is in receipt of a partial Centrelink benefit.
The litigation, and the appeals, were funded privately by the parties. The husband was self-represented in the appeal and was self-represented in this appeal. There was no costs order arising out of the substantive orders of the previous appeal.
The Federal Magistrate found that the wife had a litigation funding debt of about $85,975 and that the husband, at that time, owed his former solicitors about $89,828.
In this appeal the husband continues to represent himself. The wife had solicitors file the submissions on her behalf.
Conduct of the parties
The Federal Magistrate set out in his reasons his views of the conduct of each of the parties. Part of the basis of this appeal is the criticism of the Federal Magistrate by the husband in relation to his treatment of that aspect of the costs determination. We have discussed this elsewhere in these reasons and see from the reasons of the Federal Magistrate that both parties bear part of the responsibility for this litigation.
This Full Court, exercising that broad discretion that it has in relation to the question of costs has decided that the appeal should be dismissed.
Conclusion
We have had regard to the factors referred to earlier in relation to the costs of the appeal and that on this appeal the husband has been wholly unsuccessful. We are satisfied, in all the circumstances, that there ought be a costs order in favour of the wife in respect of this appeal.
Accordingly an order will be made in that respect.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, May & Benjamin JJ) delivered on 5 December 2011.
Associate:
Date: 5 December 2011
0
7
1