FAMILY COURT OF AUSTRALIA
| ELDRED & ELDRED (NO 2) | [2015] FamCA 188 |
FAMILY LAW – COSTS – Circumstances justifying a departure from the general rule that each party pay their own costs – disproportionate costs incurred during proceedings – certification for senior counsel – costs order
| Family Law Act1975 (Cth) ss 117, 117(2A) Family Law Rules 2004 (Cth) rr 1.04, 15.52, 15.64B, 15.65, 15.69, 19.50, Sch 3 Federal Circuit Court Rules 2001 (Cth) |
| Bergman and Bergman (No 2) [2008] FamCA 414 |
| APPLICANT: | Ms Eldred |
| RESPONDENT: | Mr Eldred |
| INTERVENOR: |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 10616 | of | 2012 |
| DATE DELIVERED: | 24 March 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 11 February 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr St John QC |
| SOLICITOR FOR THE APPLICANT: | Tolhurst Druce & Emerson |
| COUNSEL FOR THE RESPONDENT: | Mr Robinson |
| SOLICITOR FOR THE RESPONDENT: | Clancy & Triado |
Orders
IT IS ORDERED THAT:
The husband contribute to the wife’s costs of the proceedings in the sum of $14,676.29.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) certification is given to the wife for engagement of senior counsel.
Any party wishing to make an application for the costs of this proceeding file and serve by not later than 12 noon on Wednesday 1 April 2015 a written submission to that effect, such submission to be of not more than four pages in length and include (but not be limited to) details of:-
(a) the sum at which such costs could be fixed on a party/party basis;
(b)an itemisation of professional fees for solicitors, counsels’ fees to prepare and counsels’ fees to appear; and
(c)a statement as to whether that party wishes, at this stage, for the matter to be listed for oral argument as to costs.
Any party against whom an application for costs is made file and serve by not later than 12 noon on Monday 13 April 2015 a written submission in response, such submission to be of not more than three pages in length and include (but not be limited to) details of:-
(a)the sum at which the costs claimed should be fixed on a party/party basis in the event that a costs order is to be made; and
(b)a statement as…
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- [2015] FamCA 188
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CaseChat Overview and Summary
The primary legal issue before the court was the determination and quantification of costs to be awarded. This involved assessing the appropriate sum for party/party costs, considering professional fees for solicitors and barristers, and deciding whether oral argument was necessary for the final resolution of the costs application. The court also had to consider the procedural framework for making and responding to costs applications, including the timelines for written submissions and the possibility of oral hearings.
Bennett J applied the principles governing costs in family law proceedings, including the need for detailed submissions to justify claimed amounts. The court outlined a structured process for parties to present their cases on costs, allowing for initial applications, responses, and replies. The judge also provided certification for the wife's engagement of senior counsel, indicating a recognition of the complexity or significance of the matter. The court reserved the right to determine costs based on written submissions if no party sought oral argument, but also provided a mechanism for scheduling such hearings if required.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
The husband contribute to the wife’s costs of the proceedings in the sum of $14,676.29.
2.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) certification is given to the wife for engagement of senior counsel.
3.
Any party wishing to make an application for the costs of this proceeding file and serve by not later than 12 noon on Wednesday 1 April 2015 a written submission to that effect, such submission to be of not more than four pages in length and include (but not be limited to) details of:-
(a) the sum at which such costs could be fixed on a party/party basis;
(b) an itemisation of professional fees for solicitors, counsels’ fees to prepare and counsels’ fees to appear; and
(c) a statement as to whether that party wishes, at this stage, for the matter to be listed for oral argument as to costs.
4.
Any party against whom an application for costs is made file and serve by not later than 12 noon on Monday 13 April 2015 a written submission in response, such submission to be of not more than three pages in length and include (but not be limited to) details of:-
(a) the sum at which the costs claimed should be fixed on a party/party basis in the event that a costs order is to be made; and
(b) a statement as to whether that party wishes, at this stage, for the matter to be listed for oral argument as to costs.
5.
Any party who is served with a response pursuant to the preceding paragraph of this Order may, within 14 days of service upon them of that response, file and serve a written submission in reply, of not more than three pages, confined to alleged errors of fact and law and say, finally, whether that party wants the matter to be listed for oral argument.
6.
If no party seeks to have the matter listed for oral argument on the issue of costs, the Court may proceed to determine the applications for costs based on written submissions.
7.
If either party does seek to have the matter listed for oral argument on the issue of costs, counsel for that party confer with counsel who will be briefed to appear for the other party to ascertain mutually convenient dates on which the matter can be listed before me at 9.00 am estimated to take not more than one hour.
8.
Subject to further order of the court, the times for filing and service of submissions as to costs may be varied by agreement between the applicant for costs and the party against whom costs are sought and any such agreement should be referred to in the submissions or evidenced by correspondence attached to any submission which is filed and served.
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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