Zieth and Yim - [2019] FamCAFC 75

FAMILY COURT OF AUSTRALIA

ZIETH & YIM

[2019] FamCAFC 75

FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the appellant determined to withdraw his appeal partway through the hearing – Where the mother incurred significant costs in opposing the appeal – Where there are exceptional circumstances which allow for the costs ordered to be calculated on an indemnity basis – Where the appeal had no utility, was doomed to fail and should have been discontinued – Costs ordered on an indemnity basis.

Family Law Act 1975 (Cth) ss 117(1), (2) & (2A)

APPELLANT:

Mr Zieth

RESPONDENT:

Ms Yim

FILE NUMBER:

MLC

10467

2018

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

30 April 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:	30 April 2019
LOWER COURT JURISDICTION:	Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

10 December 2018

LOWER COURT MNC:

[2018] FCCA 3797

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Dr Parker

SOLICITOR FOR THE RESPONDENT:

Oakfair Lawyers

Orders

The Further Amended Notice of Appeal filed on 10 April 2019 be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of TEN THOUSAND DOLLARS [$10,000] with such costs to be paid within six [6] months of the date hereof.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zieth & Yim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: MLC 10467 of 2018
Appeal Number: SOA 94 of 2018

Mr Zieth

Appellant

And

Ms Yim

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is the hearing of the Further Amended Notice of Appeal filed on 10 April 2019 by Mr Zieth (“the father”), appealing against an order made on 10 December 2018 dismissing the father’s application filed on 25 October 2018.
Separate to that Notice, there is an Application in an Appeal filed on 26 April 2019 by Ms Yim (“the mother”), seeking summary dismissal of the appeal, leave to adduce further evidence, and costs on an indemnity basis.
Questions arose at the start of the hearing in relation to what I viewed as the late filing of that Application in an Appeal. There were discussions about whether the appeal should be adjourned because of that late filing, but in the end result, I determined that no adjournment should be granted, and the father was sufficiently able to address that application in the context of presenting his appeal today.
Thus, the hearing continued. However, partway through the hearing, the father indicated that he was withdrawing his appeal, and that primarily arose as a result of certain matters that I put to him, including specifically in relation to the utility of the appeal, given a number of factors. First, there is a final hearing set to commence on 29 May 2019 in the Federal Circuit Court of Australia. Secondly, the order under appeal was an order whereby the father’s application was dismissed, but he was given liberty to apply, and he took up that liberty, and pursued an application which was almost precisely the same as his previous application, and which was heard and ultimately dismissed with reasons for judgment on 28 February 2019.
I interpolate to say that the further evidence that the mother sought to put before the court was those further proceedings and, in particular, the reasons for judgment of 28 February 2019.
Thus, as I say, as a consequence of me putting the question of the utility of the appeal to the father, he determined, in my view wisely, to withdraw the Further Amended Notice of Appeal, and I propose to make an order shortly dismissing the appeal.
Given that, the mother has pursued an application for costs calculated on an indemnity basis. Initially that application was, as I understood it, to cover the entire process of the appeal, stretching back to when the first Notice of Appeal was filed, namely on 17 December 2018. However, in my view, costs really only can be an issue subsequent to the orders made by the primary judge on 28 February 2019. I say that because at that point the application that was dismissed on 10 December 2018 had, in fact, been re-heard by the primary judge on the basis of all the evidence that the father had wished to put before the court. What has happened subsequent to that date in terms of the appeal is there was a directions hearing on 21 March 2019, when the hearing date of the appeal was set, namely, today, and orders were made to prepare the appeal for that hearing.
The costs sought on an indemnity basis are $12,925, and on a party/party basis, by way of comparison, the costs are approximately $9,780.
The application for costs is opposed by the father.
The first question to be addressed is whether there should be an order for costs. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs the question of costs, including in relation to an appeal, and the primary position under that section is that each party is to bear their own costs (s 117(1)). However, where there are circumstances that justify it, then a costs order can be made (s 117(2)), and there are a number of factors which this Court is required to take into account in determining whether there should be an order for costs, and what that order should be (s 117 (2A)).
In my view, there are circumstances here that justify an order for costs, the least of those circumstances being that the father has now sought to withdraw his appeal, and to repeat, primarily on the basis of an acceptance that the appeal has a lack of utility. The mother, apart from arguing that there was no utility in the appeal, submitted that, in any event, there was no reasonable chance of success, and I must say that that submission struck a chord with me.
Although I give the father credit for his decision to withdraw the appeal, it still remains that up until then, he was pursuing his appeal, and as a result, the mother has incurred significant costs in opposing the appeal.
The next question is how the costs should be calculated.
The usual rule is that costs are calculated on a party/party basis. However, where there are exceptional circumstances, then costs can be calculated on an indemnity basis. There have been many examples identified of what exceptional circumstances qualify in various authorities of this Court and the Federal Court of Australia, but the category is not closed. As I understand it though, the submission of the mother is that the exceptional circumstance is found in the fact that this was an appeal that should never have been brought, and it was doomed to fail from the time of its filing.
I do not accept that it was doomed to fail from the time of its filing, but once the orders were made on 28 February 2019, it should have been obvious to the father that his appeal was not likely to succeed, to put it generously. Indeed as from that date, it should have been apparent to the father that his appeal was doomed to fail and should not have been continued. In other words, he should have withdrawn it at that point, but he determined to pursue it.
In my view, that circumstance is sufficiently exceptional.
On the one hand, I can understand and appreciate the frustration that the father has expressed, both in his documents and in oral submissions today, in relation to his view that the proceedings that are before the Federal Circuit Court of Australia are founded on fraud, for example, but, of course, that is his view. It remains to be seen whether that is a view which he can establish through proper evidence, and that, of course, is what the final hearing commencing on 29 May 2019 will be about, as far as the father is concerned.
However, that said, if the father had taken advice about the likely success of his appeal following the order made on 28 February 2019, in my view, that advice would have been that his appeal had no chance of success. Yet, to repeat, he has determined to continue the appeal.
I appreciate and understand that English is the father’s second language and that he is without legal representation, but he strikes me as an intelligent man, and he, of course, has professional qualifications; he is an engineer by trade. I suspect though that his judgement is perhaps clouded by his perception or belief as to the motives and the basis for the proceedings that have been brought in this matter by the mother.
The other side of the coin though, is that as a result of the father pursuing his appeal, the mother has been put to unnecessary expense.
I am obliged to take into account the respective financial circumstances of the parties. In that regard, the picture is a little unclear, because, of course, that issue is one for the final hearing at the end of May 2019, but in very basic terms, the father tells me that last year he earned about $100,000. There are also three properties, one of which he is the proprietor and two of which the mother is the proprietor. He says there are very few, if any, other assets.
The mother’s position is that she earns about $50,000 a year, and, of course, there are the properties that I have just referred to.
Although the father’s position, prima facie, would appear to be somewhat better than the mother’s, neither party can be said to be in such financial circumstances that they can readily afford to meet orders for costs in these proceedings.
However, there is ample authority in this Court that impecuniosity, and I know that is not the case here, but even impecuniosity is no bar to an order for costs being made where there are circumstances otherwise that justify an order, and that is the position here. Albeit the father says he is in poor financial circumstances, that cannot be a bar to an order for costs in favour of the mother, given the circumstances that I have outlined, namely that there are certainly circumstances that justify an order for costs, and particularly that as a result of the father pursuing this appeal, which, as I have found, has no utility, the mother has incurred substantial legal costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 30 April 2019.

Associate:

Date: 15 May 2019