Ericsson and Jarrold (No. 3) - [2020] FamCAFC 300

FAMILY COURT OF AUSTRALIA

ERICSSON & JARROLD (NO. 3)

[2020] FamCAFC 300

FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the respondent makes an oral application for her costs calculated on an indemnity basis – Where the appellant was wholly unsuccessful and his appeals and Applications in an Appeal were dismissed – Where the circumstances justify an order for costs – Where there are exceptional circumstances that warrant an order for indemnity costs – Where in the exercise of discretion, pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth), costs will not be ordered in the full amount as sought by the respondent - Indemnity costs ordered in favour of the respondent fixed in the sum of $25,000.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18(1)(a)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Munday v Bowman (1997) FLC 92-784; 22 Fam LR 321

APPELLANT:

Mr Ericsson

RESPONDENT:

Ms Jarrold

FILE NUMBER:

DGC

1317

2013

APPEAL NUMBERS:	SOA	34	of	2020
SOA	96	of	2018
SOA	73	of	2019

DATE DELIVERED:

2 December 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide by video link

JUDGMENT OF:

Strickland J

HEARING DATE:

4 August 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATES:

12 November 2018

28 November 2018
8 November 2019

LOWER COURT MNC:

[2018] FCCA 3987
[2018] FCCA 3462
[2019] FCCA 3201
[2019] FCCA 3202

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL-ADVOCATE FOR

THE RESPONDENT:

Mr Rockman

SOLICITOR FOR THE RESPONDENT:

Rockman & Rockman Lawyers

Order

The appellant father pay the costs of the respondent mother of and incidental to the Notices of Appeal and the Applications in an Appeal, fixed in the sum of $25,000.

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 Ericsson & Jarrold (No. 3) 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Numbers: SOA 34 of 2020; SOA 96 of 2018; SOA 73 of 2019
File Number: DGC 1317 of 2013

Mr Ericsson

Appellant

And

Ms Jarrold

Respondent

REASONS FOR JUDGMENT

I have separately made orders dismissing the appeals and the Applications in an Appeal filed by Mr Ericsson (“the father”) in appeal nos. SOA 34 of 2020, SOA 96 of 2018 and SOA 73 of 2019.
Those appeals were heard together, and in the event that they were dismissed Ms…

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 Ericsson and Jarrold (No. 3)

Details

AGLC: Ericsson and Jarrold (No. 3) [2020] FamCAFC 300
Case: [2020] FamCAFC 300
Decision Date: 2 December 2020

CaseChat Overview and Summary

The appeal involved the parties Ericsson and Jarrold, where the respondent, Jarrold, sought indemnity costs from the appellant, Ericsson. The case was heard in the Family Court of Australia. Jarrold applied for her costs on an indemnity basis, arguing that Ericsson was wholly unsuccessful in his appeals and applications in an appeal, which were subsequently dismissed. The court was required to determine whether the circumstances justified an order for costs and, if so, whether there were exceptional circumstances warranting indemnity costs. The court also needed to exercise its discretion, pursuant to rule 19.18(1)(a) of the Family Law Rules 2004 (Cth), to decide if the full amount of costs sought by Jarrold would be ordered.

The court considered the nature of the appeals and applications, the outcome of those appeals, and the conduct of the parties throughout the proceedings. The court found that the circumstances did justify an order for costs, and there were exceptional circumstances that warranted an order for indemnity costs. However, the court exercised its discretion to order costs in an amount less than the full amount sought by Jarrold. The court fixed the indemnity costs in the sum of $25,000, acknowledging the complexity and duration of the proceedings, as well as the conduct of the parties.

The court ordered that Ericsson pay Jarrold the costs of and incidental to the notices of appeal and the applications in an appeal, fixed in the sum of $25,000. This order was subject to entry in the court's records and potential review or variation as permitted by the Family Law Rules 2004 (Cth). The pseudonym "Ericsson and Jarrold (No. 3)" was approved for publication by the Chief Justice under section 121(9)(g) of the Family Law Act 1975 (Cth).

Orders

Orders of the court

Order

1. The appellant father pay the costs of the respondent mother of and incidental to the Notices of Appeal and the Applications in an Appeal, fixed in the sum of $25,000.

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 Ericsson & Jarrold (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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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