Dent & Melville and Anor [2009] FamCAFC 193; (14 October 2009)

[2009] FamCAFC 193

FAMILY LAW - APPEAL - COSTS APPLICATIONS - Orders were made by a Family Court Judge in the absence of the husband - The husband filed a Notice of Appeal appealing all the orders made -Appeal books were not filed in time - The appeal was deemed abandoned - The Wife and the husband's previous law firm filed applications for costs on an indemnity basis - Parties submitted there was a lack of bona fides in filing the appeal - Not convinced that the appeal was filed without bona fides - Offers were made by each to the husband to settle costs issues for lesser amounts - Offers may ground a claim for costs of the application on an indemnity basis but not the costs of the appeal as a whole - Costs ordered on a lawyer-client basis in relation to the wife and in a fixed sum representing a lawyer-client basis for the law firm

Family Law Rules 2004 (Cth) rule 22.2(1)

(1) That the husband pay the costs of Forte Family Lawyers of and incidental to the abandoned appeal and application in an appeal in the fixed amount of $4687.

(2) That the husband pay the wife's costs of and incidental to the abandoned appeal and application in an appeal on a lawyer-client basis as agreed, or in default of agreement as assessed.

(3) That the appeal filed 20 May 2009 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Dent & Melville and Anor 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 MELBOURNE

1. I will, as I say, give reasons for the orders that I would propose. Before doing that, I should record that this court has received, from Mr Dickson on behalf of Forte Lawyers, a copy of an email and a letter forwarded by email of 28 September 2009 to the husband at an email address. The letter is to an address in Hong Kong. An earlier letter on 14 September, sent to the Hong Kong address, enclosed the application currently before us, and the affidavit in support, and a letter from the Family Court of 10 September 2009.
2. A Notice of Ceasing to Act filed by the previous solicitors for the husband on 3 August 2009, showed an intention to advise the court that the husband's last known residential address was that which I have described a moment ago, as the Hong Kong address, and the email address which was the email address to which the documents I have previously referred to were forwarded by email.
3. I am satisfied that notice has been given to the husband. He has been called and there is no appearance today. That same satisfaction applies to the application of the wife.
4. On 23 April 2009, proceedings between the husband and wife over various parenting and financial issues came before Cronin J. Forte Family Lawyers were intervenors in those proceedings in relation to costs which were owed to them by the husband. There was no appearance by the husband or for him, and Cronin J proceeded to make orders in respect to the issues to which I have referred, including orders in favour of the intervenors.
5. The husband filed a notice of appeal on 20 May 2009 against all of the orders of Cronin J. On 30 June 2009, the appeals registrar made directions. The husband, at that time, was represented by a Ms B. The directions included detail as to the filing of the appeal books. The appeal books were to be filed by 11 August 2009. As they have not been, the appeal, pursuant to rule 22.2(1) of the Family Law Rules, was deemed to be abandoned.
6. This history provoked two applications - one on behalf of the wife, and one on behalf of Forte, for the costs of the appeal and the costs of the application for costs before us. Costs in each instance are sought on an indemnity basis. I have no hesitation in concluding that each of the applicants ought to receive an order for costs. The history which I have just described, in my view, is the significant circumstances of all those that bear upon the issue of costs, and calls for an order.
7. I should say that, in the affidavit of the wife, she sets out her financial circumstances. She sets out what she knows of the husband's financial circumstances. I noted her deposition in that regard, and simply say that there is certainly nothing in the financial circumstances of either which would dissuade me from making an order for costs, because of the history, in relation to the appeal, and the application for costs of the appeal.
8. The wife also deposes to the husband's conduct in the proceedings leading to the orders of Cronin J subsequently, and the husband's conduct in relation to the appeal. I will refer to those aspects a little further in relation to the issue of whether costs ought to be on an indemnity basis, but simply say that, in forming the view that I have, that costs ought to be awarded, I would arrive at that view quite independently of whether I accepted the assertions and contentions of the wife in relation to the husband's conduct.
9. In relation to the issue of whether costs ought to be on an indemnity basis, Mr Robinson made his submissions first, and they have been substantially followed by Mr Dickson for Forte. Mr Robinson submitted that there was a lack of bona fides in relation to the appeal; that this could be discerned from, perhaps, a combination of circumstances, including the fact of discontinuance, but including, also, the husband's behaviour in relation to the proceedings generally, leading to the orders by Cronin J, and in relation to the appeal.
10. There is much in the history outlined in the wife's affidavit to make me sceptical of the position of the husband, which may well be, as Mr Robinson put it, to engage in court proceedings from time to time, not properly engaging, but quite possibly for the purposes of delay. Nonetheless, when I come to address the bona fides of the appeal, I am not led to the conclusion that more probably than not, it was filed with an absence of bona fide intent.
11. The grounds of appeal asserted that the trial judge erred in the exercise of discretion by making the orders on an undefended basis, by making findings in relation to disclosure not supported by the evidence and/or against the balance of the evidence; erred in relation to the orders for property adjustment by - and then a number of specific matters bearing upon the question of the discretion in relation to property were listed; erred in making an order for lump sum child support, which, I might indicate was a very substantial sum, and a failure to give adequate reasons for various aspects of the orders. I am certainly not in a position to conclude, from an examination of the grounds of appeal, that they were so unmeritorious as to cast doubt on the bona fides of the husband.
12. There were other circumstances, namely, an application for a stay, by the husband, which was initially adjourned at his request and then ultimately discontinued, and the fact that he ceased to instruct solicitors, and, of course, as seen, did not file the appeal books on time. But again, whilst this behaviour attracts scrutiny, I would not because of it conclude that the appeal was filed without bona fides.
13. There were, in each instance, offers made with regard to the costs of responding to the appeal, and those offers have, on the face of it, been simply disregarded. As I have already indicated during submissions, my view is that those offers may form a basis for ordering the costs of the application for costs of the abandoned appeal on an indemnity basis, but not for ordering costs on an indemnity basis in respect of the appeal itself.
14. The offers are for amounts somewhat less than those propounded at the time, and certainly less than those now put before us, but without more, whilst the fact of the offer is certainly relevant to the question of costs, I am not persuaded that, they constitute a sufficient basis for ordering the costs on an indemnity basis.
15. The costs of Forte are more confined than those of the wife.
16. In relation to costs sought by the wife, I should first of all record that relevant to the claim for those costs on an indemnity basis, we have been handed the costs agreement, an itemised account, a summary of the wife's solicitor/client costs and related documents.
17. I should also record, just going back to the issue of service, that the court has been handed a receipt for delivery by way of registered post international to the Hong Kong address that I have referred to, of the wife's application and supporting material.
18. I am not satisfied that any feature of the claims for costs of Forte or the wife justifies an order on an indemnity basis.
19. As to quantum, the wife's costs seem, particularly in the light of what she says in her affidavit, to be possibly encompassing some matters that do not relate directly to the appeal or the application for costs of the appeal, but may include the costs of an intended, but not filed, application for security. I am also not personally satisfied that I can identify costs on a lawyer and client basis.

1. I agree with the reasons of the presiding judge, and I also agree with the orders he proposes.

1. I too agree with the reasons and proposed orders of the presiding judge.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.