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Field and Kingston (No. 4)

Field and Kingston (No. 4)

Case [2021] FamCA 357 1 June 2021

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FAMILY COURT OF AUSTRALIA

FIELD & KINGSTON (NO. 4)

[2021] FamCA 357

FAMILY LAW – COSTS – each party seeking indemnity costs – both parties behaving badly in the conduct of the litigation – no costs order made – costs to be borne by each party under s 117(1).

Family Law Act 1975 (Cth) ss 79, 117(1), 117(2), 117(2A)
Family Law Rules 2004 (Cth) r 19.18

Bacall & Zagar [2020] FamCA 350
Brewer & Brewer [2019] FamCA 247
Browne v Green (2002) 29 Fam LR 428
Colgate–Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Field & Kingston (No. 4) [2019] FamCA 863
Fitzgerald v Fish (2005) 33 Fam LR 123
Guild & Stasiuk (No. 2) [2020] FamCA 564
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
In the Marriage of Kohan (1992) 16 Fam LR 245
Kingston & Field [2020] FamCAFC 171
Kingston v Field [2020] HCASL 230
Kingston v Field [2021] HCASL 2
Medlon & Medlon (No. 6) (2015) 54 Fam LR 1
Ohn v Walton (1995) 36 NSWLR 77
Penfold v Penfold (1980) 144 CLR 311
Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315
Simic & Norton [2017] FamCA 1007
Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103
The Ampthill Peerage [1977] AC 547
Wentworth v Rogers [1999] NSWCA 403

APPLICANT:

Ms Field

RESPONDENT:

Mr Kingston

FILE NUMBER:

PAC

2095

2014

DATE DELIVERED:

1 June 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

1 June 2021

DATE OF FINAL SUBMISSION:

1 June 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr R. Schonell SC

SOLICITOR FOR THE RESPONDENT:

Cathers Beaver & Kamiya

Orders

Pursuant to s 117(1) each party must bear his and her own costs of this proceeding.
I dismiss the wife’s application for security for 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 Field & Kingston 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: PAC 2095 of 2014

Ms Field

Applicant

And

Mr Kingston

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This litigation has been on foot since 2014. It is very far from being emblematic of the way litigation in this court should be conducted. By reason of the unusually large number of appearances on the hearing of interlocutory applications and appeals, the parties have incurred exceptionally large legal fees in the period 2014 to 2021.[1]
[1] In Simic…

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 Field and Kingston (No. 4)

Details

AGLC: Field and Kingston (No. 4) [2021] FamCA 357
Case: [2021] FamCA 357
Decision Date

CaseChat Overview and Summary

In *Field and Kingston (No. 4)*, the Family Court of Australia considered competing applications for costs made by the applicant wife, Ms Field, and the respondent husband, Mr Kingston. The dispute arose from extensive litigation concerning property settlement and spousal maintenance, which had been ongoing since 2014 and had resulted in exceptionally high legal fees for both parties. The wife sought indemnity costs, or alternatively, party/party costs, while the husband sought indemnity costs from the wife, or alternatively, party/party costs, and the dismissal of the wife's costs applications.

The primary legal issues before the court were whether either party was entitled to an order for indemnity costs or party/party costs, and how the costs of the proceeding should be borne, having regard to the conduct of the parties throughout the litigation. The court was required to consider the provisions of section 117 of the *Family Law Act 1975* (Cth), which governs costs in family law proceedings, and the various grounds advanced by each party to justify their respective claims for costs.

Wilson J found that both parties had engaged in conduct that contributed to the protracted and costly nature of the litigation. The wife sought to rely on a series of unsuccessful applications and appeals made by the husband, as well as his alleged failures to comply with court orders and his opposition to various applications. The husband, in turn, sought to hold the wife responsible for the costs incurred. However, the court concluded that the conduct of both parties demonstrated a pattern of "bad behaviour" in the litigation, making it inappropriate to award costs in favour of either party on an indemnity or party/party basis.

Consequently, the court ordered that each party bear their own costs of the proceeding pursuant to section 117(1) of the *Family Law Act 1975* (Cth). The wife's application for security for costs was also dismissed.

Orders