Dowling and Dowling (No 2)

[2012] FamCA 595

FAMILY COURT OF AUSTRALIA

DOWLING & DOWLING (NO. 2) [2012] FamCA 595

FAMILY LAW - Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr D

RESPONDENT: Ms D

THIRD PARTY: C Pty Ltd

FILE NUMBER: MLC 3686 of 2011

DATE DELIVERED: 26 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Coulter Roache

SOLICITOR FOR THE THIRD PARTY: Stephen Farmer & Associates

Orders

1. That upon the written application by C Pty Ltd for costs against Mr Dowling (“the husband”), the application is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dowling & Dowling 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 3686  of 2011

Mr Dowling

Applicant

And

Ms Dowling

Respondent

And

C Pty Ltd
Third Party

REASONS FOR COSTS JUDGMENT

1. On 6 January 2012, I made orders arising out of a contested interim hearing which had taken place on 16 December 2011.

2. I now have an application by the third party against the applicant husband.  The order sought is that failing agreement, the costs be fixed in the sum of $5270 and the calculations of that amount were set out in paragraph 5 of the written submissions filed 9 February 2012.

3. In the reasons for judgment I said the following:

   2.This summary dismissal application was argued on the basis that it is possible that the Full Court of this Court or possibly in the future, the High Court of Australia, may take the view that long-standing authorities of this Court are no longer the contemporary view of the law in this country.

   3.In an enticing argument, Mr North of Senior Counsel for the husband acknowledged that I was bound by the authorities of this Court but that as a result of some statements both in judgment and in argument in the High Court, I should allow the controversial issue to go to trial where it could become part of the substantive dispute.

   4.In his simple response, Mr Wilson of counsel for the third party who was joined at the behest of the applicant husband,  supported by Mr Dickson of counsel for the wife, pointed out that I would be bound to follow the extant authorities of the Full Court of this Court and so would the trial judge. In either event, it was submitted, if the husband wanted to show that the existing authorities were wrong by contemporary standards, he could take the point on appeal either now or later.

   5.As much as the point is an interesting one, I am bound by the doctrine of stare decisis and as such, the argument of Mr North must fail.

4. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party in proceedings before this Court (and that obviously includes third parties) shall bear their own costs unless the Court is satisfied that there are circumstances justifying a departure from that principle and if the Court is so contemplating that departure, it must take into account the matters set out in s 117(2A) of the Act.

5. The company which is the third party in these proceedings sought costs on the basis that the husband had been wholly unsuccessful and had pursued orders despite a frank concession which is referred to in the judgment mentioned above.

6. The husband by response denied that the husband had been wholly unsuccessful or that his conduct justified an order for costs.  Importantly, the husband pointed to the fact that other orders were made on 6 January 2012 including orders to valuations of property and discovery as between the husband and the third party.  Those orders can be seen as follows:

   3.The husband and Third Respondent jointly instruct an agreed Single Expert Valuer to value the property known as [Property 2] on the following basis:

   (a)Current market value in its current state;

   (b)Current market value as though the improvements to [Property 2] as set out in the husband’s pleadings had not been performed.

   4.The … valuation [of Property 2] be at the shared expense of the husband, wife and Third Respondent, subject to any adjusting Order at trial.

   5.The parties provide discovery of:

   (a)All documents relevant to the matters contained in the Statement of Claim and the Defences of the First and Third Respondent; and

   (b)As between the husband and wife, bank statements for all accounts in their respective names.

7. Also on 6 January 2012, I made an order that the parties which included the third party, attend a conciliation conference.

8. Whilst the argument may have been tantalising but wasted the Court’s time, all parties attended Court and pursued orders which included the third party.

9. In my view, there is no justification for an order for costs having regard to the fact that costs were effectively not thrown away that day.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 July 2012.

Associate: 

Date:  26 July 2012