Commissioner of Taxation and Darling and Anor (Appeal Against Costs)

[2014] FamCAFC 90

FAMILY COURT OF AUSTRALIA

COMMISSIONER OF TAXATION & DARLING AND ANOR (APPEAL AGAINST COSTS) [2014] FamCAFC 90

FMILY LAW – APPEAL – Where the Commissioner appealed against an order for costs made by the primary judge but made no submissions on appeal – Parties given the opportunity to be heard but did not wish to be heard – The basis for the costs order is now removed – Costs order set aside.

APPELLANT: Commissioner of Taxation

FIRST RESPONDENT: Mr Darling

SECOND RESPONDENT: Mrs Darling

FILE NUMBER: MLC 6328 of 2007

APPEAL NUMBER: SOA 16 of 2013

DATE DELIVERED: 19 May 2014

PLACE DELIVERED: Perth

PLACE HEARD: Melbourne

JUDGMENT OF: Thackray, Strickland and Murphy JJ

HEARING DATE: 16 October 2013

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 1 March 2013

LOWER COURT MNC: [2013] FamCA 118

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hanks QC with Mr Linden

SOLICITOR FOR THE APPELLANT: Australian Government Solicitor

COUNSEL FOR THE FIRST RESPONDENT: Mr de Wijn QC with Mr O’Loughlin

SOLICITOR FOR THE FIRST RESPONDENT: Kenna Teasdale

COUNSEL FOR THE SECOND RESPONDENT: Mr Brown SC with Ms Sotiropoulos

SOLICITOR FOR THE SECOND RESPONDENT: Livaditis & Co

Orders

(1)The order for costs made by the Honourable Justice Macmillan on 13 March 2013 be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner of Taxation & Darling and Anor (Appeal against costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 16 of 2013
File Number: MLC 6328 of 2007

Commissioner of Taxation

Appellant

And

Mr Darling

First Respondent

And

Mrs Darling

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. We delivered our reasons in the substantive appeal in this matter on 4 April 2014.  We gave the appellant leave to appeal, allowed the appeal, set aside the orders made on 1 March 2013, and made orders in their place.  Those orders dealt with an application by the Commissioner of Taxation to be released from an implied obligation not to make use of documents he obtained from a Family Court of Australia file relating to proceedings in which he was not a party.

2. In our reasons we also dealt with the appeal against an order made for costs by the primary judge on 13 March 2013.  Under the heading “The costs appeal” we said the following:

   204.There was also an appeal against the order made by Macmillan J on 13 March by which the Commissioner was ordered to pay the costs of the husband and the wife on a party and party basis.

   205.Unfortunately, there was some confusion about this issue at the hearing of the appeal, as there were no grounds of appeal directed to the costs order and it was not appreciated that the Commissioner had, in fact, appealed against the order.  Accordingly, no submissions were made in respect of that issue.

   206.In the family law jurisdiction, where costs do not follow the event, an appeal against a costs order is usually supported by grounds of appeal.  We recognise, however, that the appeal against the substantive orders having succeeded, the basis for the costs order against the Commissioner has been removed.  There would appear to be no result open other than that for the order to be set aside.

   207.We would seek, if possible, to re-exercise the relevant discretion.  The Commissioner, in his amended Notice of Appeal, sought an order that the respondents pay the costs of the hearing before the primary judge.  While we accept that the parties have not had a proper opportunity to be heard in respect of that issue, we are currently of the view that each party should bear their own costs of the proceedings below.  We have formed this view primarily because of the unsatisfactory circumstances in which the Commissioner obtained access to the documents on the court file.   

   208.We are anxious to avoid the parties incurring further costs or delay in the final determination of the issues in this Court.  We therefore propose to discharge the order for costs made on 13 March 2013 in the event no party to the appeal seeks to be heard in respect of that issue.  To that effect, we will direct that each party notify the Appeals Registrar in writing of their intentions within 14 days of the delivery of this judgment.  In the event that any party seeks to be heard further, we will issue appropriate directions for the filing of written submissions on the issue of costs of the proceedings below. 

3. We ordered each party to notify the Regional Appeal Registrar whether they wish to be heard further in relation to the appeal against the order for costs.  The parties have advised they do not wish to be heard on this issue.

4. We propose to discharge the order for costs made on 13 March 2013 on the basis set out in paragraph 206 of our earlier reasons.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 May 2014.

Associate: 

Date:  19 May 2014