Flinn v Flinn

Case [1999] VSCA 134


SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 4350 of 1996

MARY ANN CAROLINE FLINN (who is sued as the Executrix of the Estate of WILLIAM CHARLES GEORGE FLINN deceased and in her personal capacity.)

Appellant

V

DANIEL FLINN and BRONWYN ELLEN FLINN

Respondents

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JUDGES: BROOKING, CHARLES and BATT, JJ.A.
WHERE HELD: MELBOURNE
DATES OF HEARING: 22, 23, 24 June, 19 July,
10, 23, 24, 25 August 1999
DATE JUDGMENT  4 and 25 August 1999
HANDED DOWN:
MEDIA NEUTRAL CITATION: [1999] VSCA 134

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COSTS – Application against non-party – Costs of appeal – Fact finding procedure – Appellant mentally incompetent and impecunious – Non-party controlling and financing appeal.

Supreme Court Act 1986, s.24.

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APPEARANCES: Counsel Solicitors
For the Appellant  Mr B.R.S. Kendall and Neil A. Young & Co.
Mr J.D. Mattin
For the Respondents  Mr R.M. Garratt, Q.C. and John R. Buman & Co.
Mr R.H. Miller
For the further party  Mr A.K. Panna Newbury Bell
Bernard Robert Flinn
on summons only

THE COURT:

  1. On 4 August we published our reasons for decision in this appeal and intimated that we would later entertain the foreshadowed application by the plaintiffs for an order for the costs of the appeal against Bernard Robert Flinn and hear argument on the terms of the order we should make disposing of the appeal.

  2. We shall continue to call the parties the plaintiffs, the defendant and (without any disrespect to Mr Flinn) Robbie. It seemed to us on reflection that to dispense by consent with the filing of a summons in support of the application for costs made against Robbie, as we were minded to do, might be too informal, and accordingly a summons has now been filed by the plaintiffs. We deal with this summons first.

  3. An affidavit sworn on 9 August 1999 has been filed by Robbie in opposition to the costs application. We made it clear that this affidavit, and paragraph 9 of his affidavit sworn on 23 August 1999, and the evidence taken on his cross-examination, were received only for the purposes of the application and could not be resorted to for the purposes of the appeal. (Those affidavits are headed in the appeal, just as the summons is headed in the appeal.) The power of attorney was also put in evidence. The plaintiffs have not filed any affidavit in support of the application. Mr Garratt's position has been that he asks us to have regard to the view of the facts taken by the trial judge, and by this Court in determining the appeal, for the purposes of his submission that the power undoubtedly conferred by s.24 of the Supreme Court Act 1986 to make an order for costs against a non-party should be exercised in this case in relation to the costs of the appeal. He accepts that it is open to Robbie to endeavour to challenge those findings on the present application.

  4. The general rule is, not only that the non-party is not bound…

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Flinn v Flinn [1999] VSCA 134
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[1999] VSCA 134
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CaseChat Overview and Summary

In Flinn v Flinn, the respondent, who is the appellant in the matter before this court, applied for costs against a non-party, being the appellant’s daughter, who controlled and financed the appeal. The respondent sought the costs of the appeal as well as the costs of the fact-finding procedure conducted by a Commissioner, as the appellant was mentally incompetent and impecunious.

The primary legal issue before the court was whether it had the jurisdiction to make an order for costs against a non-party, and if so, the extent of that jurisdiction. The court considered whether the appellant’s daughter, who was not a party to the proceedings, could be held liable for the costs incurred by the respondent. The court also had to determine the appropriate quantum of costs in light of the appellant’s mental incompetence and financial incapacity.

The court found that it did have the jurisdiction to make an order for costs against a non-party, relying on section 24 of the Supreme Court Act 1986. The court held that the appellant’s daughter, who was controlling and financing the appeal, was in a position to bear the costs. The court considered the principles of fairness and justice in determining the appropriate quantum of costs, taking into account the appellant’s mental incompetence and impecunious nature. The court ultimately ordered that the appellant’s daughter pay the costs of the appeal and the fact-finding procedure.

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