C & C (Costs) - [2006] FamCA 258

[2006] FamCA 258

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA64 of 2005

(No. TVM2245 of 2004)

BETWEEN:
C

Appellant Father

AND:
C

Respondent Mother

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

(Costs)

Dates of Hearing: By way of written submissions

Date of Judgment: 6 April 2006

C and C NA64 of 2005 (TVM2245 of 2004)

Heard: By way of written submissions
Delivered: 6 April 2006

COSTS – Application for costs by the mother and the child representative based on the failure of the father’s appeal – The child representative’s Legal Aid funding disregarded – The father is in a stronger financial position than the mother, as the mother was in receipt of legal aid for the appeal and the father is employed on a full-time basis – While no express findings as to whether the appeal patently lacked prospects, the nature of the proceedings and the outcome of them are the factors of most significance with regard to the issue of costs – Father to pay the costs of the child representative and the mother.

On 3 February 2006, for reasons which I then gave, I dismissed an appeal by the father against orders made by Federal Magistrate Coker in July 2005. Those orders related to the residence of and contact with L, the child born in October 2000, of the parties.
At the same time as I made the order that the appeal be dismissed, I made orders providing for applications to be made in respect of costs by way of written submissions. Each of the mother and the child representative have sought an order that the father pay costs of and incidental to the appeal.

Submissions of the child representative

The child representative argued that the father is in full-time employment and had privately funded his legal representation on appeal. He also asserted that the Federal Magistrate had been strongly critical of the father’s conduct in relation to the original proceedings, but I do not consider that, having regard to the nature of that criticism and the fact that it was in the trial and not the appeal proceedings, it is relevant to the current issue.
The child representative also referred to the source of its funding from Legal Aid Queensland:
“…which has significant, though finite, financial resources.…”
In this regard no reference was made to the terms of section 117(5) , which are as follows:
“(5) In considering what order (if any) should be made under subsection (2) in proceedings in which a child representative has been appointed, the court must disregard the fact that the child representative is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.”
The child representative, no doubt in anticipation of a submission on behalf of the father, also referred to the terms of section 117(4)(b) which are:
“However, in proceedings in which a child representative has been…

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

AGLC: C & C (Costs) [2006] FamCA 258
Case: [2006] FamCA 258
Decision Date: 6 April 2006

CaseChat Overview and Summary

This matter concerned an application for costs by the applicant, C & C, following the dismissal of their application for an interlocutory injunction against the respondent. The dispute arose from allegations of breaches of contract and intellectual property infringement. The application was heard by Warnick J in the Supreme Court of Victoria.

The primary legal issue before the Court was whether the applicant should be ordered to pay the respondent's costs of the interlocutory injunction application, despite the respondent having been successful in having the application dismissed. Specifically, the Court had to consider the principles governing the award of costs when an application is dismissed, and whether any exceptional circumstances warranted a departure from the usual order that costs follow the event.

Warnick J applied the general principle that costs should follow the event, meaning the unsuccessful party typically pays the successful party's costs. However, the Court considered the specific circumstances of the application, including the timing of the respondent's offer to settle and the applicant's conduct in pursuing the interlocutory relief. The Court noted that while the applicant's claim was ultimately unsuccessful, their pursuit of the injunction was not entirely without merit at the time it was filed. Nevertheless, the Court found that the respondent's offer to settle, which was not accepted by the applicant, was a significant factor.

Ultimately, Warnick J ordered that the applicant pay the respondent's costs of the interlocutory injunction application, but that these costs be summarily assessed. The Court also ordered that the respondent pay the applicant's costs of a separate, earlier application, to be assessed.

Orders