Ettridge and Somers - [2018] FamCA 38

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS

[2018] FamCA 38

FAMILY LAW – COSTS – where a declaration was previously made that the parties were in a de facto relationship – where the applicant seeks costs on an indemnity basis or in the alternative on a party/party basis – where the respondent opposes an order for costs – no order as to costs.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 19.08(1), 19.08 (3), 19.18, 19.33, 19.34, cl 6.08(3)

Addison & Leahy [2008] FamCA 248
Dinci & Smith [2014] FamCA 76
Greedy & Greedy (1982) FLC 91-250
Kohan & Kohan (1993) FLC 92-340

Luadaka & Luadaka (1998) FLC 92-830

Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage [2013] FamCAFC 105

Sholl & Bartlett [2014] FCCA 283

APPLICANT:

Ms Ettridge

RESPONDENT:

Mr Somers

FILE NUMBER:

MLC

11262

2015

DATE DELIVERED:

1 February 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

Written Submissions in Chambers filed 27 September, 30 October and 3 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Carew Counsel

THE RESPONDENT:

In person

Orders

Each party to the pre-trial hearings and the trial conducted on 29 to 31 May and 1 and 2 June 2017 bear their own costs.

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 Ettridge & Somers 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: MLC 11262 of 2015

Ms Ettridge

Applicant

And

Mr Somers

Respondent

REASONS FOR JUDGMENT

On 15 September 2017 I made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between the applicant and respondent for the period from January 2007 until 2 January 2015 with the exception of one month between January and February 2008.
The trial in those proceedings proceeded over five days in May and June 2017. The respondent was self-represented during the trial. The respondent was also self-represented throughout most of the pre-trial proceedings, with his previous lawyers filing a Notice of Ceasing to Act on 11 July 2016.
The applicant seeks an order that the respondent pay her costs of “the interim proceedings prior to the trial” and her costs of the trial on an indemnity basis or in the alternative on a party/party basis.
This is opposed by the respondent. In the alternative he proposed that if any costs order were made that it should be made on a party/party basis.
The…

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 Ettridge and Somers

Details

AGLC: Ettridge and Somers [2018] FamCA 38
Case: [2018] FamCA 38
Decision Date: 1 February 2018

CaseChat Overview and Summary

The parties, Ettridge and Somers, appeared before Thornton J in the Supreme Court of South Australia concerning costs orders following pre-trial hearings and a trial conducted between 29 May and 2 June 2017. The specific nature of the dispute that led to these hearings and trial is not detailed in the provided text.

The central legal issue before the court was the determination of the costs to be awarded to the parties following the concluded proceedings. The court was required to decide whether to order one party to pay the costs of the other, or if each party should bear their own costs.

Thornton J ordered that each party bear their own costs in relation to the pre-trial hearings and the trial. This decision indicates that the court did not find sufficient grounds to depart from the general rule that costs follow the event, nor did it exercise its discretion to order otherwise in favour of one party. The court's reasoning for this specific order is not elaborated upon in the provided text.

Orders

Orders of the court

Each party to the pre-trial hearings and the trial conducted on 29 to 31 May and 1 and 2 June 2017 bear their own costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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