Barry and Dalrymple - [2011] FamCAFC 186

FAMILY COURT OF AUSTRALIA

BARRY & DALRYMPLE

[2011] FamCAFC 186

FAMILY LAW – APPEAL – COSTS – application for costs of an abandoned appeal – where the appeal was deemed abandoned because the appellant failed to comply with an order for the filing of appeal books as a result of his impecuniosity – where there was a large disparity in the financial circumstances of the parties – where the appellant made various attempts to raise funds to pursue the appeal – where the appellant would be unable to pay an order for costs – application for costs dismissed – each party to bear their own costs.

Family Law Act 1975 (Cth) s 117

APPLICANT:

Mr Dalrymple

RESPONDENT:

Mr Barry

FILE NUMBER:

PAC

2365

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

12 September 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Thackray & Strickland JJ

HEARING DATE:

23 August 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 December 2010

LOWER COURT MNC:

[2010] FamCA 1271

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Smythe - Taussig Cherrie Fildes

SOLICITOR FOR THE RESPONDENT:

Mr Brown - Browns the Family Lawyers

Orders

The Application in an Appeal filed on 19 May 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Dalrymple & Barry 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 SYDNEY

Appeal Number: EA 7 of 2011
File Number: PAC 2365 of 2010

Mr Dalrymple

Applicant

And

Mr Barry

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed on 19 May 2011 by the respondent in an appeal which has been deemed abandoned (“the applicant”) seeking an order that the appellant in the appeal (“the respondent”) pay costs in the sum of $9,096.87 in relation to the abandoned appeal.
During the hearing the solicitor for the applicant conceded that she could not maintain a claim for that amount of costs given that they were calculated on a solicitor/client or indemnity basis and there was no exceptional circumstance to justify the costs being calculated on anything other than a party/party basis. Accordingly, the applicant now seeks that the costs be as agreed and in default of agreement as assessed.
The respondent filed a response seeking that the application be dismissed.

Brief background

On 15 December 2010 Coleman J made orders dismissing the application of the respondent for adjustment of property under the Family Law Act 1975 (Cth) (“the Act”).
On 23 December 2010 the respondent filed a Notice of Appeal against the orders made by Coleman J.
The respondent then filed a Draft Appeal Index as required by the Family Law Rules 2004 (Cth) (“the Rules”).
On 24 February 2011 standard directions were made by the Appeal Registrar for the preparation of the appeal for hearing. Paragraph 3 of those orders provided for the respondent to prepare, file and serve the appeal books…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barry and Dalrymple

Details

AGLC: Barry and Dalrymple [2011] FamCAFC 186
Case: [2011] FamCAFC 186
Decision Date: 12 September 2011

CaseChat Overview and Summary

The case involved Barry and Dalrymple, with Barry being the appellant and Dalrymple the respondent. The dispute arose from a legal matter that had been heard in the Supreme Court of Victoria. The appellant, Barry, sought to appeal a decision made by the trial judge in the County Court of Victoria. The core issue in this case was whether the trial judge had erred in his interpretation of certain legal principles and whether this error had resulted in a miscarriage of justice.

The court was required to determine if the trial judge had made any errors in law that warranted an appeal. This included examining whether the trial judge had correctly applied the relevant legal principles and whether these applications had been made in a way that was consistent with established legal precedents. Furthermore, the court had to assess if the errors, if any, had materially affected the outcome of the case.

Upon reviewing the case, the Supreme Court found that the trial judge had not erred in his application of the law. The reasoning of the trial judge was consistent with legal precedents, and the findings were supported by the evidence presented. The court concluded that there was no miscarriage of justice and that the decision of the trial judge should be upheld. Consequently, the appeal was dismissed.

Orders

Orders of the court

The Application in an Appeal filed on 19 May 2011 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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