Threatening to run up legal bills/legal fees for the other party; Costs ordered; Conduct during the proceedings of the respondent considered – Family Law Case Note: Bilson & Geer (Costs) [2017] FamCAFC 7

AdminCase Note

Case Note:

Bilson & Geer (Costs) [2017] FamCAFC 7 (6 February 2017)

Threatening to run up legal bills/legal fees for the other party; Costs ordered and conduct during the proceeds of the respondent considered;

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the applicant seeks her costs of an abandoned appeal – Where the respondent’s conduct in the proceedings has caused undue delay and unnecessary costs to the applicant – Where a major purpose of the respondent’s abandoned appeal was to force the applicant to settle – Where an order for costs is justified – Discussion of principles for fixing costs – Order for costs in a fixed sum.

Legislation Cited

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

Family Law Rules 2004 (Cth) rr 22.21, 22.44

Cases Cited

Sresbodan & Sresbodan and Ors [2016] FamCA 954

Date of Appeal Hearing: 20 December 2016

Date of Appeal Judgment Delivered: 6 February 2017, Sydney

Judgment of Full Court of Family Court, Aldridge J

Lower Court Judgment Date: 17 September 2015

Lower Court: Federal Circuit Court of Australia, Judge Brewster

Orders

(1) The respondent is to pay the applicant’s costs fixed in the sum of $8,572.00 within twenty eight days.

(2) The applicant is at liberty to deduct any unpaid costs pursuant to Order 1 from the amount payable by the respondent to the appellant pursuant to the orders of Judge Brewster made on 17 September 2015.

Background

  1. Ms Bilson (“the applicant”) sought an order for the payment of her legal costs of an appeal lodged by Mr Geer (“the respondent”). The appeal was deemed to be abandoned on 20 May 2016 because the respondent failed to file the appeal books by that day.
  2. On 17 September 2015 Judge Brewster made final property orders in proceedings between the applicant and the respondent. The orders required that the applicant pay the respondent $90 000. Contemporaneously with this payment, the respondent was to provide the applicant with a withdrawal of caveat in registrable form with respect to a caveat lodged by him over the former matrimonial home.
  3. The Registrar made a number of procedural orders to prepare the appeal for hearing.  As the respondent had not filed the appeal books by 20 May 2016, the appeal was deemed to be abandoned pursuant to r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”).
  4. By an Application in an Appeal filed on 7 October 2016, the applicant now seeks her costs of the abandoned appeal and that those costs be fixed in the sum of $8,972.00 or assessed on an indemnity basis.
  5. The applicant also sought orders requiring the respondent to comply with the orders made by Judge Brewster on 17 September 2015. In the course of the hearing, the appellate Court explained to the self-represented litigant that enforcement of the orders of the Federal Circuit Court of Australia was a matter for that court, and not for an appellate court.
  6. The applicant relied on two matters to support her application for costs: namely, that the respondent’s appeal was entirely unsuccessful (s 117 (2A)(e), (f) and (g)) and the respondent’s conduct in relation to the appeal (s 117 (2A)(c)). Neither party addressed any evidence or submissions to the balance of the matters raised by s 117(2A).
  7. In relation to the respondent’s conduct, he filed three applications, each of which was unsuccessful: an application for expedition, an application for an extension of time in which to file the appeal books and an application for reinstatement.  Also, there is material before the Court which suggests that a significant purpose of the respondent’s appeal, if not the major purpose, was not to pursue it, but rather to use it to put pressure on the applicant to pay the respondent significantly more than she was ordered to pay by Judge Brewster.
  8. The only source of funds with which he could prosecute the appeal was the $90,000 to be paid to him by the applicant. However, that payment is conditional upon the respondent providing the applicant with a withdrawal of his caveat. The respondent steadfastly refuses to do this. Thus, the prospects of him ever being in a position to prosecute the appeal were remote, at best.
  9. On 8 December 2013, before the hearing and the appeal, the respondent sent the applicant an email, which included the following (as per the original):

I’m going to make sure I ruin the rest of your life and make sure you have nothing left too.

…

And I will make sure You spend $60,000 on Legals, hey I should get commission eh?

BUT I will still end up with my $180,000 as you will STILL have to pay me out!! Ok I lie as I admit I will spend $15,000, ONE day, using our assets as Surety just to be heard, when I’m ready to use the idiots. So I will still end up with $160,000 eh. :). How much will you end up with then. 🙂 think about it stupid as I promise you you will end up with LESS than ME. And maybe Even less than I have NOW!!

…

But revenge will be sweet and it is all I live for and dream about.

Aww you got a little bit upset, sob sob, as methinks your cruise was ruined somehow.

But that is fuck all compared to what I have planned for you as I can name a dozen things you hold important for a normal life and worth living for eh.

I have nothing to live for. Except ruining YOU. And nothing to lose.

  1. On 19 December 2013, the respondent wrote (as per the original):

Seeing I am in a good mood just letting you know I will take $120, 000 IF PAID WITHIN THE NEXT 2 WEEKS.

U should google Kate Wentworth’s court case. My plan is on sending you broke by adjourning and appealing whenever I can – just like Kate Wentworth did! Hehehe

You can do the Divorce case as I have no money to waste on legals. I’d rather go on cruises ☺

And just so you know I am happy with MY life as it is now. I choose to live like I do – it’s all Ive ever wanted in life and I cant wait to do it on YOUR money. Hehehe

  1. On 21 October 2015 the respondent wrote to the applicant’s lawyer foreshadowing an appeal and stating (as per the original):

I am seeking my 50% of our funds and I am Appealing the Court Orders as I feel they were flawed. And I will be continuing this case until I get my funds.

  1. On 29 January 2016 the respondent sent a letter which contained an offer to accept $180,000 in return for providing the caveat. The letter continued (as per the original):

Have your Legals actually offered good advice because I couldn’t even win a lousy Expediation hearing 🙁 And which I bet you wasted $3,000 fighting. You better learn to be a Lawyer like me as I actually read the Regs covering ‘claiming costs’, and you didn’t stand a chance.

And I am 100% confident of success with a mouth piece at my Appeal and I still have a Retrial left. And which Court cases will mean another $30,000 in Legals for you eh.

When I win you still have to pay me $220,000, whatever, and your $30,000 legals. And interest and costs if you don’t pay the $90k. Being $250,000e instead of $180,000.

Being a $70,000+saving!! Which is lot’s of Cruises. Your call as it is YOUR big gamble!

  1. On 18 February 2016 the respondent sent the following letter to the applicant’s lawyers (as per the original):

The 29th February, being three months interest, for your Client to suddenly pay me my funds is not acceptable as I have already booked and will be out of the State from 24/02/2016 and will be back for our Court appearance 9th March.

As such all I can offer is any afternoon until Tuesday the 23nd Feb.

As for Security Costs I suggest we let the Court decide when we appear.

But I disagree as your Client has not offered me any substitute security protection for when I lift my Caveat for the extra $ 130,000e I am seeking.

And I have already proven the true Villa valuation now is much more than the old $360k valuation the Court accepted.

As such I have already proven the validity of a small part of my Appeal case, being your Client owes me more funds.

PLEASE NOTE:

I am willing to take $170,000 now and before the Pre Appeal hearing 09/03/2016 as it is not much more than I have already proven my claim to be.

And no more costs for your Client to bear and this is all finished.

  1. On 24 June 2016 the respondent wrote to the applicant’s solicitor (as per the original):

14 day OFFER: If your Client is willing to pay the $90,000 already offered to me by 10th of June 2016 then I am willing to lift my Caveat, but only with proper protection of the extra $140,000e of funds I am seeking in my Appeal.

  1. On 13 September 2016 the respondent sent a letter in which he offered to lift his caveat from the property in exchange for a payment of $115,000.
  1. The Appellate Court considered that there were two things that emerged from these documents. The first is that at least one of the purposes of the respondent’s appeal was to place pressure on the applicant to accede to his demands for settlement. It is a fair inference that the respondent was prepared to cause maximum difficulty and expense to the applicant and to bring illegitimate pressure to bear upon her.
  1. The second aspect is that the correspondence confirms that the respondent had little intention of prosecuting the appeal.
  1. It not improper for an appellant to offer to settle the appeal in terms more favourable to him or her than were provided by the judgment from which the appeal was taken. However, the court considered that the respondent’s conduct went beyond that in such a manner as to support a costs order in favour of the applicant.
  1. The medical certificate from Dr S, which the respondent relied on in respect of a lengthy adjournment, said:

I can confirm that [Mr Geer] suffers from anxiety with depression. Currently he is not coping well with his stress levels and finding himself unable to deal with several ongoing issues. I would like to agree with his request that he needs a break from his legal matters. In my opinion it will help him recover from mental stress and prevent it from further worsening if his legal cases can be considered for adjournment for  6 months’ period.

  1. That medical statement, addressed “To Whom It May Concern”, was dated 27 June 2016. Thus we are toward the end of the six month period envisaged by the doctor. The medical certificate was considered to be sparse in detail and appeared to be based mainly upon the comments of the respondent. The Appellate Court gave it little weight. In doing so, it was taken into account as evidence that since that date the respondent has managed to deal with assault proceedings taken against him by the applicant. He was convicted of assault on 2 September 2016 and has lodged an appeal. In this time, he has also managed to make an application for the reinstatement of his appeal in this Court and an application for a vacation of the hearing date as just described.
  2. It was also noted that the respondent had a successful application to vacate the earlier hearing date so that he could go on a cruise. He did not raise any issues of ill health then.
  3. The applicant asked me to fix the amount of costs.
  1. In Sresbodan & Sresbodan and Ors [2016] FamCA 954 Alridge J set out the principles to be applied when fixing costs as follows:

46Section 117 of the Act and r 19.18(1)(a) of the Family Law Rules 2004 (Cth) clearly permit the Court to fix the amount of the costs to be paid.

47Whilst it is relatively common for costs to be fixed where the costs are not significant, it is rare, for obvious reasons, where the costs are substantial.

48In Idoport Pty Limited v National Australia Bank Limited and Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23, Einstein J considered the application of s 98(4)(c) of the Civil Procedure Act NSW (2005), which permits the making of an order for costs in “a specified gross sum”. There the costs sought exceeded $61 million. Einstein J comprehensively summarised the principles to be involved in such an assessment, saying:

8As may be expected in what is likely the largest claim ever made in this country for a gross sum costs order, both parties took the court to the authorities which inform the principled exercise of the relevant discretion. Notwithstanding that some areas of difference arose concerning disparate parameters/appropriate emphases, in terms of the application of the appropriate principles, there were in the main no areas of serious disagreement.

9For present purposes it seems convenient to commence with a recitation of the principles which inform the exercise of the discretion:

ithe purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson [1995] FCA 1250; (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation” (All ER page 265)];

iithe touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];

iiiiii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738, per Giles JA at para [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199];

iv. iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22];

v. the gross sum “can only be fixed broadly having regard to the information before the Court”: Beach Petroleum at 124;

[In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that … is what the rule contemplates”.]

ivi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) [1995] FCA 1250; (1995) 57 FCR 119 at 120;

vii. In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) [1995] FCA 1250; (1995) 57 FCR 119, put the matter as follows, at paras [16]:

“On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary ‘fail safe’ discount on the cost estimates submitted to the Court: Leary v Leary at 265. … ”

A closer examination of the requirement to act judicially

10. I accept as correct the submissions of the Idoport Parties in contending that the proper approach of the Court in the present environment should not be described as ‘arbitrary’. In short:

ialthough the principles set forth above are helpful in providing guidance to the Court as to the manner in which the discretion to make a gross sum costs order is to be exercised, ultimately whether an approach is logical, fair and reasonable falls to be determined by reference to the particular case before the Court;

iias explained by Purchas LJ in Leary v Leary [1987] 1 WLR 72 at 76:

“The unlimited discretion given by Ord. 62, r. 9 must be exercised in a judicial manner. How the powers are to be used varies widely from case to case and each case must be considered on its own merits. It is easy to envisage cases where a judge could be said to have acted unjudicially, e.g. by clutching a figure out of the air without having any indication as to the estimated costs; receiving such an estimate without the details being made available to the other side; or refusing a request to hear submissions on such a schedule if the party against whom the order is to be made makes, on reasonable grounds, an application to be heard.”;

iiiiii. the requirement that the power to award a gross sum should be exercised judicially does not mean that it must be exercised in any scientific or formulaic manner.; At the heart of the judicial function is the responsibility to weigh up competing factors and considerations, many of which might conflict, to reach a determination. Acting judicially carries with it an obligation to apply the rules of natural justice, to act impartially and to apply the law to the facts. As Kitto J explained in The Queen v Trade Practices Commission; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 374:

“Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation so that an exercise of the power creates a new charter by reference to which that question is in the future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.”;

ivthe scope and nature of judicial power was also addressed by Gaudron J in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 150 in these terms:

“Judicial power is usually defined in terms of its subject matter, but it is a power that, for complete definition, requires description of its dominant and essential characteristic, namely, that it is exercised in accordance with that process which is referred to as ‘the judicial process’. Thus, in general terms, it is a power which cannot be exercised until the ‘tribunal which has power … is called upon to take action’ (Huddart Parker), which (subject to limited exceptions) proceeds by way of open and public inquiry, which involves the application of the rules of natural justice, and which is directed to ascertaining ‘the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined’: Tasmanian Breweries, per Kitto J.” (references omitted);

v. more recently, Gaudron J explained the nature of judicial power in Nicholas v The Queen in these terms:

“In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with the rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to the law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.” [1998] HCA 9; (1998) 193 CLR 173 at [74].

11. In the result it is not an arbitrary exercise of power for the Court to weigh up competing factors and make a determination, even if, as is often the case, the task cannot be undertaken in a mathematical or precise manner. As the Court of Appeal found in Norris v Blake (by his Tutor Porter) [No 2] (1997) 41 NSWLR 49 mathematical weightings of potential outcomes in loss of chance cases might be unsustainable and reliance rather should be placed on more intuitive methods to determine loss: (1997) 41 NSWLR 49 at 71-73. Similarly, the courts are frequently required to estimate damages that are not capable of precise quantification and require a degree of approximation and even guesswork. [Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 83, 138 and 153; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 at [37]– [38]]

49.In Stoian & Fiening (Costs) [2014] FamCA 944, Kent J referred to those principles with approval. His Honour said:

95…In short, I am satisfied that the purpose of the subject rule to avoid the expense, delay and aggravation involved in further litigation surrounding assessment of costs ought in this case be achieved and is achievable.

96I am fortified in the conclusion that, accepting that r 19.18(1)(a) is “to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation” that purpose or object ought be attained in any case where it is possible to so do by reference to the Rules more generally.

97For example, r 1.04 expresses the main purpose of the Rules and provides as follows:

Rule 1.04 Main purpose of Rules

The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

98 Rule 1.06 mandates that the Court applies the Rules to promote that main purpose.

99 Rule 1.07 relevantly provides:

Rule 1.07 Achieving the main purpose

To achieve the main purpose, the court applies these Rules in a way that:

(a) deals with each case fairly, justly and in a timely manner;

…

(c) is proportionate to the issues in a case and their complexity, and the likely costs of the case;

(d) promotes the saving of costs;

(e) gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and

…

  1. Aldridge J in this case was satisfied that costs should be fixed if possible. Much expense, delay and aggravation that would otherwise be involved in the taxation will be avoided. There is no advantage whatsoever to further litigation between these parties if it can be avoided. There is every reason to think that the assessment of costs would be as protracted and as antagonistic as the other proceedings have been to date.
  2. The applicant sought the sum of $8,972, of which $1,080 are sums payable to a barrister for advice in relation to the appeal and for appearances on the expedition application. The applicant relies upon detailed and well itemised bills of costs from her solicitor and barrister.
  3. Aldridge J considered that the rates involved were modest.
  4. It is likely that the only asset the respondent has is his interest in the $90,000 which is the subject of Judge Brewster’s orders. He may also own a caravan. The only realistic manner in which the applicant could be paid her costs is from the money she owes to him.
  5. The appropriate order therefore was that she be entitled to deduct her costs from any monies that would be payable to the respondent. Accordingly the orders are that the respondent is to pay the applicant’s costs fixed in the sum of $8,572.00 within twenty eight days. The applicant is at liberty to deduct any unpaid costs from the sum of $90,000, which Judge Brewster ordered her to pay to the respondent.

Orders

(1) The respondent is to pay the applicant’s costs fixed in the sum of $8,572.00 within twenty eight days.

(2) The applicant is at liberty to deduct any unpaid costs pursuant to Order 1 from the amount payable by the respondent to the appellant pursuant to the orders of Judge Brewster made on 17 September 2015.

 

 

This article does not represent the views of the firm.  It a case note based on a decision made by the Full Court of the Family Court in relation to family law property case appeal involving issues of conduct of the parties during the proceedings and costs application.

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