Darrow and Malden & Ors (No 2) - [2017] FamCA 660

FAMILY COURT OF AUSTRALIA

DARROW & MALDEN AND ORS (NO. 2)

[2017] FamCA 660

FAMILY LAW – COSTS – JURISDICTION – Where the application was dismissed for want of jurisdiction – Where the proceedings to determine if the Court had jurisdiction were proceedings in the inherent jurisdiction of the Court, not proceedings under the Family Law Act 1975 (Cth) – Where s 117 of the Family Law Act 1975 (Cth) does not apply – Where pursuant to s 79 of the Judiciary Act 1903 (Cth) costs should be determined in accordance with the Civil Procedure Act 2005 (NSW).

FAMILY LAW – COSTS – Application by the respondents for indemnity costs – Wholly unsuccessful – Where the proceedings should never have been brought in the Family Court – Disregard of clearly established law – Second, third and fourth respondents entitled to indemnity costs – First respondent entitled to indemnity costs up until the date that the issue of jurisdiction was raised – Whether applicant and first respondent’s legal advisers should be ordered to pay some or all of the costs – Orders made for further submissions.

Civil Procedure Act 2005 (NSW) s 98
Corporations Act 2001 (Cth) s 471B, Part VIIIAB

Family Law Act 1975 (Cth) s 117 Judiciary Act 1903 (Cth) s 79
Chapman v Luminis Pty Ltd [2003] FCAFC 162 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 ReThe Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622

APPLICANT:

Ms Darrow

FIRST RESPONDENT:

Mr Malden

SECOND RESPONDENT:

Australia and New Zealand Banking Group Limited

THIRD RESPONDENT:

Mr Quaid and Mr Vincent

FOURTH RESPONDENT:

B Pty Ltd

FIFTH RESPONDENT:

D Pty Ltd (ABN …) (Deregistered)

SIXTH RESPONDENT:	Ms Egan
FILE NUMBER:	NCC	1896	of		2015

DATE DELIVERED:

28 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

14 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT AND THE FIFTH AND SIXTH RESPONDENTS:

Ms Nolan

SOLICITOR FOR THE APPLICANT AND THE FIFTH AND SIXTH RESPONDENTS:

Legal Minds

SOLICITOR FOR THE FIRST RESPONDENT:

Watts McCray

COUNSEL FOR THE SECOND RESPONDENT:

Mr Fernon

SOLICITOR FOR THE SECOND RESPONDENT:

Kemp Strang Lawyers

SOLICITOR FOR THE THIRD AND FOURTH RESPONDENTS:

Wiggins Cheffings Lawyers (no appearance)

Orders

IT IS ORDERED

That the applicant pay the costs of the second, third and fourth respondents on an indemnity basis.
That the applicant pay the costs of the first respondent, on an indemnity basis, from the date of the filing of the Initiating Application until 29 September 2016.
That further to either or both s 99 of the Civil Procedure Act 2005 (NSW) and the implied power of this Court, the Court orders that:
(a)By 4.00 pm, on 18 September 2017, the solicitors for the applicant, Legal Minds, and the former solicitors for the first respondent, Watts McCray, file and serve by way of exchange an affidavit and any submissions on the question of the costs of these proceedings.
(b)By no…

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: [2017] FamCA 660
Decision Date: 28 August 2017

CaseChat Overview and Summary

In *Darrow and Malden & Ors (No 2)*, Rees J of the Family Court of Australia considered an application for costs following the dismissal of proceedings for want of jurisdiction. The applicant sought to have certain matters determined, but the Court found it lacked the necessary jurisdiction under the *Family Law Act 1975* (Cth).

The primary legal issue before the Court was the basis upon which costs should be awarded, particularly whether the indemnity costs sought by the respondents were appropriate. This involved determining whether the proceedings themselves, which were dismissed for lack of jurisdiction, were conducted in a manner that warranted a departure from the usual costs orders. A further issue was the application of the *Civil Procedure Act 2005* (NSW) to the determination of costs, given the proceedings were not brought under the *Family Law Act 1975* (Cth).

Rees J reasoned that the proceedings to determine jurisdiction were not proceedings under the *Family Law Act 1975* (Cth), meaning section 117 of that Act did not apply to the costs. Instead, the Court invoked section 79 of the *Judiciary Act 1903* (Cth) to apply the cost rules of New South Wales, specifically the *Civil Procedure Act 2005* (NSW). The Court found that the proceedings should not have been brought in the Family Court, demonstrating a disregard for established law, and therefore ordered the applicant to pay the second, third, and fourth respondents' costs on an indemnity basis. The first respondent was also awarded indemnity costs, but only from the date jurisdiction was raised. The Court also ordered further submissions regarding the costs, including requiring the applicant's and first respondent's former solicitors to file affidavits and submissions on the question of costs.

Orders

Orders of the court

IT IS ORDERED

That the applicant pay the costs of the second, third and fourth respondents on an indemnity basis.

That the applicant pay the costs of the first respondent, on an indemnity basis, from the date of the filing of the Initiating Application until 29 September 2016.

That further to either or both s 99 of the Civil Procedure Act 2005 (NSW) and the implied power of this Court, the Court orders that:

(a) By 4.00 pm, on 18 September 2017, the solicitors for the applicant, Legal Minds, and the former solicitors for the first respondent, Watts McCray, file and serve by way of exchange an affidavit and any submissions on the question of the costs of these proceedings.

(b) By no later than 1 September 2017, the solicitor for the applicant is to provide a copy of these Orders to:

(i) the former solicitor for the applicant, Ms C; and

(ii) the former solicitor for the first respondent, Mr E.

(c) By 4.00 pm on 18 September 2017, the solicitors referred to in order 3(b)(i) and 3(b)(ii) above file an affidavit and any submissions on the question of the costs of these proceedings.

That the solicitors referred to in orders 3(b)(i) and 3(b)(ii) above have leave to inspect and uplift the court file for the purposes of copying it.

That on or before 6 October 2017, the solicitors referred to in orders 3(a) and 3(b) herein, file and serve any evidence and submissions in reply.

That this matter be listed for mention on 16 October 2017 before the Honourable Justice Rees.

That there be liberty to apply on three days’ notice by way of email to the Associate to the Honourable Justice Rees.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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