Byrd and Byrd and Ors - [2012] FamCAFC 170

FAMILY COURT OF AUSTRALIA

BYRD & BYRD AND ORS

[2012] FamCAFC 170

FAMILY LAW ─ APPEAL ─ PRACTICE AND PROCEDURE ─ Appeal against interlocutory orders made by the trial Judge which allowed the husband to amend his Application for Final Orders during the course of the trial to seek orders for costs against the wife’s former solicitor and the former adversarial forensic accounting expert for the wife ─ Where there are no reported case of an application for costs being allowed to be brought against a non-party prior to the delivery of judgment in the proceedings in which the non-party had played a role ─ Where the Court followed the observations of Peter Smith J in the English authority of Phillips v Symes [2004] EWHC 2330 (Ch); [2005] 4 All ER 519 ─ Where the Court found that allowing the claim for costs against the wife’s former solicitor and the former adversarial forensic accounting expert for the wife to be made prior to the delivery of judgment in the substantive proceedings could serve no useful purpose, and had the very considerable, and realised, potential for mischief, particularly when the practice was sought to be defended upon the fallacious ground that the husband was only trying to do them a favour by giving them early notice ─ Where although the Court had no doubt that the trial Judge was motivated by natural justice concerns, allowing the husband to bring a claim for costs against the wife’s former solicitor and the former adversarial forensic accounting expert for the wife was erroneous ─ Applications for leave to appeal granted ─ Appeals allowed.

FAMILY LAW ─ APPEAL ─ PRACTICE AND PROCEDURE ─ Joinder ─ Whether the orders of the trial Judge joined the wife’s former solicitor and the former adversarial forensic accounting expert for the wife to the proceedings, and, if so, whether his Honour erred in doing so ─ Where although the trial Judge’s reasons for judgment may suggest otherwise, his Honour did not make an order joining either the wife’s former solicitor or the former adversarial forensic accounting expert for the wife as parties to the proceedings, nor was there an order for leave to intervene pursuant to s 92 of the Act.

Family Law Act 1975 (Cth) ss 92, 94, 117(2)
Family Law Rules 2004 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Aiden Shipping Co Ltd v Interbulk Ltd, The Vimeira [1986] AC 965; [1986] 2 All ER 409; [1986] 2 WLR 1051
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) (2012) 200 FCR 154
Hypec Electronics Pty Ltd (in liq) v Mead & Ors (2004) 61 NSWLR 169
Knight and Another v FP Special Assets Limited and Others (1992) 174 CLR 178
Lemoto v Able Technical Pty Ltd and others (2005) 63 NSWLR 300
Myers v Elman [1940] AC 282
Phillips v Symes [2004] EWHC 2330 (Ch); [2005] 4 All…

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.

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Details

Case: [2012] FamCAFC 170
Decision Date: 30 October 2012

CaseChat Overview and Summary

In the case of Byrd and Byrd and Ors, the parties involved were the husband and wife, along with the wife's former solicitor and adversarial forensic accounting expert. The dispute arose from interlocutory orders made by the trial judge during a family law trial, which allowed the husband to amend his application for final orders to seek costs against the wife's former solicitor and the adversarial forensic accounting expert. The wife and the other respondents appealed the orders of the trial judge, arguing that they were erroneous and should be set aside.

The legal issues before the court were whether the trial judge erred in allowing the husband to bring a claim for costs against the wife's former solicitor and the adversarial forensic accounting expert, and whether the trial judge had joined the wife's former solicitor and the adversarial forensic accounting expert as parties to the proceedings. The court found that there were no reported cases of an application for costs being allowed to be brought against a non-party prior to the delivery of judgment in the proceedings in which the non-party had played a role. The court also found that although the trial judge's reasons for judgment may suggest otherwise, his Honour did not make an order joining either the wife’s former solicitor or the adversarial forensic accounting expert as parties to the proceedings.

The court held that allowing the husband to bring a claim for costs against the wife’s former solicitor and the adversarial forensic accounting expert was erroneous, as it could serve no useful purpose and had the potential for mischief. The court followed the observations of Peter Smith J in the English authority of Phillips v Symes and found that the trial judge's decision was fallacious. The court allowed the appeals and set aside the orders of the trial judge. The wife, Mr Y and Ms D were granted leave to appeal the orders of the trial judge, and their appeals were allowed. The court also ordered that written submissions in support of any application for costs be filed and served within 28 days, and that written submissions in opposition to any such claim(s) be filed and served within 56 days.

Orders

Orders of the court

That Ms Byrd (“the wife”), Mr Y and Ms D have leave to appeal the orders of Le Poer Trench J made on 5 April 2012.

That the Appeal No. EA 51 of 2012 by the wife, and the Appeal No. EA 53 of 2012 by Mr Y and Ms D against the orders of Le Poer Trench J of 5 April 2012 be allowed and the orders set aside.

That written submissions in support of any application for costs be filed and served within 28 days and that written submissions in opposition to any such claim(s) be filed and served within 56 days.

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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