FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Glover & Webster (No. 2) [2021] FedCFamC1A 91
Appeal from: Webster & Glover [2021] FamCA 127 Appeal number(s): NOA 23 of 2021 File number(s): BRC 11228 of 2016 Judgment of: AINSLIE-WALLACE & ALDRIDGE JJ Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – Circumstances do not justify a costs order being made – Application dismissed. Cases cited: Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Number of paragraphs: 7 Date of last submissions: 14 December 2021 Date of hearing: By way of written submissions Place: In Chambers The Appellants: Self-represented litigant Counsel for the Respondents: Mr Bunning Solicitor for the Respondents: Damien Greer Lawyers ORDERS
NOA 23 of 2021
BRC 11228 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS GLOVER
First Appellant
R PTY LTD
Second Appellant
AND: MR WEBSTER
First Respondent
S PTY LTD
Second Respondent
ORDER MADE BY:
AINSLIE-WALLACE & ALDRIDGE JJ
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.The respondents’ application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Glover & Webster (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE & ALDRIDGE JJ:
On 19 November 2021, the appeal in this matter was dismissed. The first respondent now seeks an order that the first appellant pay his costs.
On 19 November 2021, a member of the bench that heard the appeal retired. The parties have consented to the remaining two judges determining the costs application.
The appeal was dismissed because the first appellant became a bankrupt shortly before the appeal was to be heard. Consequently, she no longer had the requisite standing as a person interested in the appeal.
The first appellant remains a bankrupt. There is no evidence of any means, such as income, which she might have that would be sufficient to meet a costs order.
The merits of the appeal were not determined because of the difficulties with the first appellant’s standing. The Court cannot now try a hypothetical appeal but there is nothing in the material that we have read that indicates that the appellant acted unreasonably in bringing the appeal (Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624). Indeed, there was a basis for thinking that the appeal outcome had reasonable prospects of success.
We are not satisfied in the circumstances that it is just that there be a costs order in this matter.
The application for costs will be dismissed.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace & Aldridge. Associate:
Dated: 17 December 2021
- AGLC
- Glover & Webster (No. 2) [2021] FedCFamC1A 91
- Case
- [2021] FedCFamC1A 91
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the first appellant should be ordered to pay the first respondent's costs. The Court had to consider whether the circumstances justified making a costs order, taking into account the appellant's lack of standing and financial means. The Court was required to balance the principle that costs should follow the event against the fact that the appeal was dismissed on procedural grounds rather than on the merits. The Court also had to determine whether the appellant acted unreasonably in bringing the appeal. Given that the appeal was dismissed due to procedural issues and there was no evidence suggesting unreasonable conduct, the Court found that the circumstances did not warrant a costs order.
The Court's reasoning focused on the appellant's lack of standing and financial means as key factors in dismissing the costs application. The Court noted that the appeal was dismissed not on the merits but due to the procedural issue of the appellant's bankruptcy. Since the merits of the appeal were not determined, the Court could not assess the reasonableness of the appeal's outcome. However, the Court found no evidence suggesting that the appellant acted unreasonably in bringing the appeal. The Court also considered the precedent set by Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin, which indicated that the appellant's actions had reasonable prospects of success. The Court concluded that it was not just to order the appellant to pay costs under the circumstances.
The final order of the Court was that the respondents' application for costs was dismissed. The Court found that the circumstances did not justify making a costs order against the first appellant. The decision was based on the procedural dismissal of the appeal, the lack of evidence of unreasonable conduct, and the absence of any means for the appellant to pay the costs. This outcome reflects the Court's consideration of the balance between procedural fairness and the potential impact on the appellant.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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