Fielder & Kirby - [2022] FedCFamC1A 32

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fielder & Kirby [2022] FedCFamC1A 32

Appeal from: Fielder & Kirby [2021] FCCA 2151

Appeal number(s): NOA 50 of 2021

File number(s): LEC 343 of 2019

Judgment of: ALDRIDGE J

Date of judgment: 10 March 2022

Catchwords: FAMILY LAW – APPEAL – COSTS – Appeal against an order for costs thrown away – Quantum of costs – Where the appellant’s solicitors withdrew from the proceedings at the trial hearing – Conduct of the appellant to the proceedings – Whether the costs order was wrong in principle – Weight challenges – Procedural fairness – No error established – Appeal dismissed – Appellant to pay costs of respondent in a fixed sum.

Legislation:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Federal Circuit Court Rules 2001 (Cth) r 21.02(2)(a)

Cases cited:
Beach Petroleum NL v Johnson (1995) 135 ALR 160

Cassimatis v Australian Securities and Investments Commission (2016) 334 ALR 350; [2016] FCA 131

House v The King (1936) 55 CLR 499; [1936] HCA 40

Leary v Leary [1987] 1 All ER 261

Stasiuk & Guild [2021] FamCAFC 62

Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4

Number of paragraphs: 41

Date of hearing: 16 February 2022

Place: Sydney (via video link)

Counsel for the Appellant: Ms Murphy

Solicitor for the Appellant: Hannigans Solicitors

Counsel for the Respondent: Mr Haddrick

Solicitor for the Respondent: Parker & Kissane
ORDERS

NOA 50 of 2021
LEC 343 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS FIELDER

Appellant

AND:
MR KIRBY

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

10 MARCH 2022

THE COURT ORDERS THAT:
1.The Application in an Appeal on 10 February 2022 is dismissed.
2.The appeal is dismissed.
3.The appellant is to pay the respondent’s costs of the appeal fixed in the sum of $20,204.24

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fielder & Kirby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION

This is an appeal against an order for costs made by a judge of the Federal Circuit Court of Australia (as it was then known) on 27 July 2021 in property settlement proceedings between Ms Fielder (“the appellant”) and Mr Kirby (“the respondent”). That was the second day of a final hearing which the primary judge found could not continue due to the conduct of the appellant.
This led…

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 Fielder & Kirby

Details

AGLC: Fielder & Kirby [2022] FedCFamC1A 32
Case: [2022] FedCFamC1A 32
Decision Date: 10 March 2022

CaseChat Overview and Summary

In the matter of Fielder & Kirby, the appellant, Ms Fielder, appealed against a costs order made in the Federal Circuit and Family Court of Australia. The order in question involved costs thrown away, and the respondent, Mr Kirby, sought to adduce further evidence regarding the quantum of the costs. The appeal centred on whether the primary judge had erred in making the costs order and if the procedural fairness of the proceedings had been compromised. The court was also required to consider the application to adduce further evidence regarding the quantum of costs.

The court determined that no error had been established in the primary judge's decision to dismiss the appeal. The application to adduce further evidence was also dismissed as the evidence proposed was considered otiose and lacked utility. The court noted that the appeal would be dismissed regardless of the evidence. The appellant did not challenge the amount of the costs claimed by the respondent, and thus, an order for the appellant to pay the respondent's costs of the appeal in a fixed sum was made.

The court dismissed the appeal and ordered that the appellant pay the respondent's costs of the appeal, fixed in the sum of $20,204.24. The application to adduce further evidence was also dismissed. This case underscores the importance of ensuring that any further evidence adduced in an appeal has probative value and utility in challenging the orders under appeal. Additionally, the court's decision highlights the consequences of failing to challenge the amount of costs claimed by the respondent in the event of an unsuccessful appeal.

Orders

Orders of the court

NOA 50 of 2021

LEC 343 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS FIELDER

Appellant

AND:

MR KIRBY

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

10 MARCH 2022

THE COURT ORDERS THAT:

1. The Application in an Appeal on 10 February 2022 is dismissed.

2. The appeal is dismissed.

3. The appellant is to pay the respondent’s costs of the appeal fixed in the sum of $20,204.24

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I am not satisfied that any error has been shown. It follows that the appeal will be dismissed.APPLICATION TO ADDUCE FURTHER EVIDENCE Shortly prior to the hearing of the appeal, the respondent filed an Application in an Appeal on 10 February 2022, seeking to rely on further evidence, which was an affidavit from his solicitor to the effect that the actual costs thrown away by his client at the hearing were $55,372. It is well established that further evidence can be called to bolster the correctness of the orders under appeal. Such evidence must, of course have probative value. Here, however, the affidavit simply refers to professional costs, presumably of the respondent’s solicitors, and quantifies them at $35,000 in a one line entry. That limited evidence takes the issue of quantum no further. The evidence is otiose in any event, given that the appeal will be dismissed. However, the application also fails because of the lack of utility of the evidence.COSTS No submissions were advanced as to why a costs order ought not to be made against the appellant in the event that the appeal was unsuccessful, and there was no challenge to the amount claimed by the respondent. There will therefore be an order that the appellant pay the respondent’s costs of the appeal fixed in the sum of $20,204.24.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NOA 50 of 2021 LEC 343 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS FIELDER Appellant
AND:	MR KIRBY Respondent

Appeal from:	Fielder & Kirby [2021] FCCA 2151
Appeal number(s):	NOA 50 of 2021
File number(s):	LEC 343 of 2019
Judgment of:	ALDRIDGE J
Date of judgment:	10 March 2022
Catchwords:	FAMILY LAW – APPEAL – COSTS – Appeal against an order for costs thrown away – Quantum of costs – Where the appellant’s solicitors withdrew from the proceedings at the trial hearing – Conduct of the appellant to the proceedings – Whether the costs order was wrong in principle – Weight challenges – Procedural fairness – No error established – Appeal dismissed – Appellant to pay costs of respondent in a fixed sum.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17 Federal Circuit Court Rules 2001 (Cth) r 21.02(2)(a)
Cases cited:	Beach Petroleum NL v Johnson (1995) 135 ALR 160 Cassimatis v Australian Securities and Investments Commission (2016) 334 ALR 350; [2016] FCA 131 House v The King (1936) 55 CLR 499; [1936] HCA 40 Leary v Leary [1987] 1 All ER 261 Stasiuk & Guild [2021] FamCAFC 62 Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4
Number of paragraphs:	41
Date of hearing:	16 February 2022
Place:	Sydney (via video link)
Counsel for the Appellant:	Ms Murphy
Solicitor for the Appellant:	Hannigans Solicitors
Counsel for the Respondent:	Mr Haddrick
Solicitor for the Respondent:	Parker & Kissane

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	10 MARCH 2022