Legal Research
Cases
Flinn v Flinn

Flinn v Flinn

Case [1999] VSCA 134 25 August 1999

Costs

Appeal

Limitation Periods

Civil Litigation & Procedure

Type to search within this case.

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

---

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

---

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.

---

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:

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

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 Flinn v Flinn

Details

AGLC: Flinn v Flinn [1999] VSCA 134
Case: [1999] VSCA 134
Decision Date: 25 August 1999

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.

Orders