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CAHILL & CAHILL

CAHILL & CAHILL

Case [2013] FamCA 339 8 May 2013

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

CAHILL & CAHILL

[2013] FamCA 339

FAMILY LAW – COSTS – Interlocutory hearing – Costs for the named persons who successfully obtained orders to set aside subpoenae – Named persons are not parties for costs purposes

FAMILY LAW – PRACTICE AND PROCEDURE – Slip rule – Use of rules to amend orders.

Family Law Act 1975 (Cth)

Brown vBrown (1998) FLC 92-822
Bulleen & Bulleen [2011] FamCA 253
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Commissioner of Taxation & Worsnop and Anor [2009] FamCAFC 4
DJL v Central Authority[2000] HCA 17; (2000) 201 CLR 226
Fuelxpress Pty Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284
Jensen v Jensen (1982) FLC 91-263
Kelleher & Anderson [2008] FamCA 113
Kohan and Kohan (1993) FLC 92-340
Markoska & Markoska and Anor (Costs) [2011] FamCA 833
Moriarty & Moriarty [2009] FamCA 369
McAlpin v McAlpin (1993) FLC 92-411
Newmont Yandale Operations Pty Ltd v The J Aron Corporation and the
Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411
Ninnis v Miller [1905] VicLawRp 99; [1905] VLR 669)Penfold v Penfold (1980) 144 CLR 311
Re J W Challand Pty Ltd(1945) 62 WN (NSW) 166
Re JJT and Others;Ex parte Victoria Legal Aid (1998) 195 CLR 184 Shipwright v Clements [1890] WN 134
Vance & Vance [2011] FamCAFC 17
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Cahill

RESPONDENT:

Mr Cahill

NAMED PERSONS:

Mr Canuzzio & Ms Canuzzio

FILE NUMBER:

MLC

10670

2010

DATE DELIVERED:

8 May 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

29 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Strum

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Brown SC

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

COUNSEL FOR THE NAMED PERSONS:

Dr Ingleby

SOLICITOR FOR THE NAMED PERSONS:

Howe Martin & Associates

Orders

That the husband pay the costs of the named persons on a party and party basis by agreement and in default of agreement, as assessed.
That the subpoenae issued in this dispute all be set aside.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cahill & Cahil has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10670 of 2010

Ms Cahill

Applicant

And

Mr Cahill

Respondent

And

Mr Canuzzio and Ms Canuzzio

Named persons

REASONS FOR JUDGMENT

In this interlocutory hearing, both husband and wife as parties, along with the wife’s brother and mother as persons who had received subpoenae to which they objected, seek orders. Each was represented by counsel and the hearing was conducted on the papers. Four issues were canvassed. They were:
(a)What…

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: CAHILL & CAHILL [2013] FamCA 339
Case: [2013] FamCA 339
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms. Cahill (Applicant) and Mr. Cahill (Respondent) were involved in proceedings concerning their marital dispute. This interlocutory hearing also involved Mr. Canuzzio and Ms. Canuzzio (the named persons), who had been served with subpoenas. The primary dispute before the court concerned the setting aside of these subpoenas, the costs associated with that application, and a separate issue regarding a company tax debt.

The court was required to determine four key issues. Firstly, what costs order should be made in favour of the named persons who successfully objected to the subpoenas. Secondly, when such costs should be paid. Thirdly, whether existing orders should be amended under the slip rule to set aside all relevant subpoenas, including those directed to financial institutions, or if the named persons should have leave to make a further oral application. Finally, the court had to decide whether a company tax debt should be paid from the proceeds of the former matrimonial home sale, which were held in trust for the parties.

The court found that the named persons were entitled to party and party costs, to be paid forthwith or within a reasonable time. It was also determined that all subpoenas issued in the dispute should be set aside. Regarding the company tax debt, the court found that the husband had not discharged the onus of proof to establish a nexus between the company debt and the parties, nor had he proven his argument of impecuniosity. Consequently, the tax debt was not to be paid from the proceeds of the home sale. The court also noted that it was reasonable to engage counsel, including senior counsel, for the interlocutory hearing concerning the subpoenas.

The court ordered that the husband pay the costs of the named persons on a party and party basis by agreement, and in default of agreement, as assessed. It was further ordered that all subpoenas issued in the dispute be set aside. The court also made a note that the publication of the judgment under the pseudonym Cahill & Cahill had been approved by the Chief Justice.

Orders