Dobson and Dobson - [2017] FamCA 485

FAMILY COURT OF AUSTRALIA

DOBSON & DOBSON

[2017] FamCA 485

FAMILY LAW – COSTS – where dispute arises over costs claimed on an indemnity basis for the solicitor – firm acting on its own behalf – where conduct of both firms of solicitors warrants criticism for loss of objectivity – where the court’s time was unnecessarily wasted – no order for costs made.

Family Law Act 1975 (Cth)

Batey-Elton and Elton (Costs) [2010] FamCAFC 219
Moriarty and Moriarty [2009] FamCA 369

APPLICANT:

Mr Dobson

RESPONDENT:

Ms Dobson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGC

1915

2015

DATE DELIVERED:

10 July 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

29 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Phelan

SOLICITOR FOR THE APPLICANT:

B Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Southey

SOLICITOR FOR THE RESPONDENT:	C Pty Ltd
COUNSEL FOR C PTY LTD:	Mr Thomas

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Taghdir

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

Orders

That the application by C Pty Ltd for costs against the husband rising out of the subpoena objection is dismissed.
To the extent necessary, the objection by C Pty Ltd is dismissed.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1915 of 2015

Mr Dobson

Applicant

And

Ms Dobson

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

C Pty Ltd (“CPL”) is a firm of lawyers which acts for the wife in pending property and parenting proceedings but in this discrete matter, CPL stands by itself and seeks an order for costs against the husband.
The costs sought amounts to $7700. Counsel for CPL acknowledged that was “indemnity costs” for what is said to be compliance with a subpoena issued by the court at the request of the solicitors for the wife.
At the commencement of the hearing, which encompassed a range of other interlocutory disputes and including a management of the substantive pending trial, the court was told that the document dispute giving rise to the costs argument had been resolved. Thus, the outstanding issue was costs. Even as the hearing progressed, disputes arose around documents which had been the subject of the subpoena.
It is immediately apparent that there is a distinction here between the costs sought and the expenses claimed which were said to be associated with compliance with the subpoena. CPL was seeking its legal costs not expenses. There…

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.

Continue reading Dobson and Dobson

Details

AGLC: Dobson and Dobson [2017] FamCA 485
Case: [2017] FamCA 485
Decision Date: 10 July 2017

CaseChat Overview and Summary

In the matter of *Dobson and Dobson*, Cronin J of the Family Court of Australia considered an application by C Pty Ltd for costs against the husband arising from an objection to a subpoena. The court also addressed the objection itself.

The primary legal issue before the court was whether C Pty Ltd should be awarded costs against the husband in relation to its objection to a subpoena. A secondary issue, to the extent necessary, was the validity of C Pty Ltd's objection to the subpoena.

Cronin J dismissed the application by C Pty Ltd for costs against the husband. The court also dismissed C Pty Ltd's objection to the subpoena, to the extent that such dismissal was necessary. The final form of the orders was subject to the formal entry of the orders in the Court's records.

Orders

Orders of the court

That the application by C Pty Ltd for costs against the husband rising out of the subpoena objection is dismissed.

To the extent necessary, the objection by C Pty Ltd is dismissed.

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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