Bixby & Bixby

Case [2015] FCCA 816

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIXBY & BIXBY [2015] FCCA 816

Catchwords:
FAMILY LAW – Property – application for costs – where wife wholly successful – where offer of settlement rejected by husband – considerations of factors under Family Law Act 1975 (Cth), s.117(2A) – nothing to prevent any one factor being the sole foundation for an order for costs – imprudent refusal of offer of settlement – counsel’s fees – whether counsel’s fees may be claimed as a disbursement when costs awarded in accordance with the scale under the Federal Circuit Court Rules 2001, sch. 1, Part 1.

PRACTICE AND PROCEDURE – Where a party’s solicitor addressed correspondence directly to the Judge – it is inappropriate for any communication to be forwarded directly to a Judge relating to the case under consideration.

PRACTICE AND PROCEDURE – Affidavits – an affidavit should be filed at the Court Registry – an affidavit may be filed in Court by leave of the Court – it is inappropriate for an affidavit to be forwarded directly to the trial Judge.

Legislation:

Family Law Act 1975 (Cth), ss.79, 117

Federal Circuit Court Rules 2001, Sch. 1, Part 1
Cases cited:
Bixby & Bixby [2014] FCCA 1992
Browne & Green [2002] FamCA 791; (2002) 29 Fam LR 428; FLC 93-115
Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No.2) 2000] FCA 602
Edwards & Simpson (No.2) [2013] FCCA 315
In the Marriage of Fisher (1990) 13 Fam LR 806; 99 FLR 93-115
TRF & LRL [2005] FamCA 158; ((2005) 33 Fam LR 123
In the Marriage of Jensen (1982) 8 Fam LR 594; FLC 91-263
In the Marriage of Kelly (No.2) (1981) 7 Fam LR 762; FLC 91-108
In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Maitland Hospital v Fisher (No.2) (1992) 27 NSWLR 721
Messiter v Hutchinson (1987) 10 NSWLR 525
Minister for Community Welfare v Y (1988) 12 Fam LR 477; FLC 91-973
Prantage & Prantage [2013] FamCAFC 105; (20130 49 Fam LR 197; FLC 93-544
Rhazi & Rhazi (Costs) [2011] FamCA 428
Vijayakumar v Qantas Airways Limited (No.2) 2009] FMCA 966
Applicant: MR BIXBY
Respondent: MS BIXBY
File Number: SYC 4748 of 2012
Judgment of: Judge Scarlett
Hearing date: In chambers
Date of Last Submission: 10 November 2014
Delivered at: Sydney
Delivered on: 10 April 2015

REPRESENTATION

Solicitors for the Applicant: Fay Marie Nicholls & Associates
Solicitors for the Respondent: M.G. O'Callaghan & Associates

ORDERS

  1. The Husband is to pay the Wife’s costs of the final hearing from and after 23 April 2014 fixed in the sum of $8,965.00.

  2. The Husband is to pay the Wife’s costs of the Application in a Case filed on 30 September 2014 fixed in the sum of $2,262.00.

IT IS NOTED that publication…

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Bixby & Bixby [2015] FCCA 816
Case
[2015] FCCA 816
Decision Date

CaseChat Overview and Summary

In *Bixby & Bixby*, the wife sought costs against the husband following a property settlement hearing. The wife had been wholly successful in the proceedings, and the husband had rejected a settlement offer made by the wife. The court also addressed issues concerning the inappropriate direct communication of correspondence and affidavits to the trial judge by a party's solicitor.

The primary legal issue before the court was whether the wife should be awarded costs against the husband, and if so, on what basis. This involved considering the factors outlined in section 117(2A) of the *Family Law Act 1975* (Cth), particularly in light of the husband's rejection of the wife's settlement offer. A secondary issue concerned whether counsel's fees could be claimed as a disbursement when costs were awarded according to the scale under the Federal Circuit Court Rules 2001.

Judge Scarlett found that there was nothing in section 117(2A) of the *Family Law Act 1975* (Cth) to prevent any single factor from being the sole foundation for a costs order. The court determined that the husband's refusal of the wife's settlement offer was imprudent and a significant factor in awarding costs. The court also clarified that counsel's fees could be claimed as a disbursement under the relevant rules. Furthermore, the court admonished the solicitor for inappropriately forwarding correspondence and an affidavit directly to the judge, emphasising that such communications should be filed with the Court Registry or presented by leave.

The Husband was ordered to pay the Wife’s costs of the final hearing from and after 23 April 2014, fixed at $8,965.00, and the Wife’s costs of the Application in a Case filed on 30 September 2014, fixed at $2,262.00.

Orders

Orders of the court

1.

The Husband is to pay the Wife’s costs of the final hearing from and after 23 April 2014 fixed in the sum of $8,965.00.

2.

The Husband is to pay the Wife’s costs of the Application in a Case filed on 30 September 2014 fixed in the sum of $2,262.00.

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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