Tamas & Spanou (No 2) [2025] FedCFamC1A 228 (11 December 2025)

(a) The fact that the appellant was wholly unsuccessful;

(b) The fact that the appellant had made an early offer of settlement;

(c) The fact that the flaw in the appellant's approach had been drawn to his attention by the Appeal Judicial Registrar when the appellant was provided with the authorities which relate to appeals against consent orders.

1. The appellant submitted that each party should meet his or her own costs because the proceedings related to parenting matters and had been brought bona fide. I accept that the proceedings were not brought for an ulterior purpose but because of the significance of the subject matter to the appellant. I accept that there is nothing in the appellant's conduct of the appeal itself which would warrant the making of an order for costs against him. The appellant indicated that he is currently not employed, but I accept the submission of the respondent that impecuniosity is no bar to the making of a costs order.
2. The circumstances here require a departure from the usual rule. The question then is whether costs should be on an indemnity basis as sought by the respondent (or otherwise). The respondent submitted that one of the circumstances identified by Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 ("Colgate-Palmolive") was established on the facts, namely unreasonable pursuit of litigation which had no prospects of success.
3. Orders for indemnity costs are exceptional in nature. Here, the appellant acted on his own behalf on the appeal. Accordingly, I am not persuaded that I could rely upon the conclusion that he commenced appeal proceedings knowing that they were doomed to fail. The question is whether or not, having had the flaws in his argument brought to his attention, he ought to have known, from that point, that the appeal was unarguable.
4. In Munday v Bowman (1997) FLC 92-784 at 84,660, Holden CJ referred to the decision of Sheppard J in Colgate-Palmolive and set out a number of examples of circumstances which might attract indemnity costs. The paragraph upon which the respondent relies in this case is as follows:

(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397.

1. I am not persuaded that the appellant, while informed about the challenges an appeal against consent orders would face, was properly advised about the impact of the decisions which were brought to his attention on his specific appeal. While I have not found merit in his claims of apprehended bias or procedural unfairness, I do not find they were unarguable. Accordingly, I decline the application for indemnity costs.
2. The respondent seeks that the Court make a costs order in a fixed sum to avoid the need for further litigation. I agree that it is not appropriate to require the parties to engage in a further action to quantify costs, since rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) empowers me to fix the sum. I have had regard to the respondent's costs schedule. It is not plain that all the costs are party/party or that they relate specifically to the appeal. Some costs seem excessive, for example the charges to draft, produce, file and serve the Notice of Address for Service. Doing the best to fix costs, I order that the appellant pay the respondent's costs in the sum of $10,000.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.