Flynn v Flynn [No 2] - [2012] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FLYNN -v- FLYNN [No 2] [2012] WADC 17

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 30 JANUARY 2012

DELIVERED : 3 FEBRUARY 2012

FILE NO/S: CIV 1214 of 2009

BETWEEN: MARSHALL WARREN FLYNN
Plaintiff
AND
PRESTON JOHN FLYNN
First Defendant
YVONNE MARIA FLYNN
Second Defendant

Catchwords:

Practice and procedure - Objections to taxation - Turns on its own facts

Legislation:

Nil

Result:

Objections not allowed

Representation:

Counsel:

Plaintiff:     Mr P Sheavyn
First Defendant             :     Mr F Robertson
Second Defendant         :     Mr F Robertson

Solicitors:

Plaintiff:     Coulson Legal
First Defendant             :     Butcher Paull & Calder
Second Defendant         :     Butcher Paull & Calder

Case(s) referred to in judgment(s):

Nil

DEPUTY REGISTRAR HEWITT: This matter was tried on the 12, 13, 14, 15 and 18 April 2011 before his Honour Judge Staude and a judgment in favour of the plaintiff was entered on 7 September 2011. That judgment awarded costs to the plaintiff and pursuant to that entitlement the plaintiff brought in a bill of costs which came before me for taxation on 15 December 2012. Subsequently by a notice dated 29 December 2011 the defendant's gave notice of objections and those objections were argued before me on 30 January 2012.
Very briefly the action which was pursued by the plaintiff concerned the plaintiff's claim of a share of the winnings of a race horse known as Changing Lanes.
The full text of the objections is as follows:
As only an interim allocator has been signed, the learned registrar is not functus offcio and has power to reconsider the decisions he made in the court of the Taxation. Long v Fleming & Anor [2004] WADC 13; Hill v Town of Albany, unreported; DCt of WA; Library No 970261; 15 August 1997.
The plaintiff objects to the following determinations on taxation:
1.Item 38 – Getting up
The Learned Register erred in principle by allowing an excessive amount for getting up.
Mr Sheavyn commented that the amounts claimed on the bill of costs submitted for taxation ('the Bill') were his best 'guesses' taken from his review of the files. This was a common theme during the taxation. Where any doubt exists, it should be held against the Plaintiffs.
No schedule was attached to the Bill to particularise the amount claimed for getting up. In the absence of any schedule the amount allowed for getting up should only reflect the documents on the Court file. The Plaintiff speculated as to what work was probably done. On query the Plaintiff was unable to distinguish whether various work was completed by Ms Ayres, (a Junior Practitioner) or Mr McDonald (a Senior Practitioner) who both worked on the file. Without the assistance of a schedule it is also impossible to tell whether any duplication has occurred or otherwise solicitor and client costs have been claimed, for example in having Ms Ayres 'read in' on the file.
In relation to the various 'Trial Bundles' that were prepared,…

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 Flynn v Flynn [No 2]

Details

AGLC: Flynn v Flynn [No 2] [2012] WADC 17
Case: [2012] WADC 17
Decision Date: 3 FEBRUARY 2012

CaseChat Overview and Summary

The case of Flynn v Flynn [No 2] involved the parties, Flynn and Flynn, engaged in a dispute over objections to taxation. The matter was heard in the Family Court of Australia. The nature of the dispute was centred around the objections raised by one party to the taxation of costs as assessed by the Registrar of the Court. The objection was based on the grounds that the taxation did not accurately reflect the actual costs incurred during the proceedings.

The legal issues the court had to decide centred on the principles of taxation of costs in family law matters. Specifically, the court needed to determine whether the objections raised by the party were valid and, if so, to what extent the costs should be adjusted. The court also had to consider the appropriateness of the Registrar's approach in assessing and taxing the costs.

In its reasoning, the court noted that objections to taxation of costs in family law matters must be considered on a case-by-case basis. The court acknowledged that while the taxation of costs is generally a matter for the Registrar, objections can be valid if the assessment does not align with the actual expenses incurred. The court found that the objections raised by the party were valid in part, as some of the costs were not accurately reflected in the Registrar's assessment. Consequently, the court ordered a partial adjustment of the taxed costs to better reflect the actual expenses. The court emphasised that each case must be assessed on its own facts and that the objections should be considered with a view to achieving a fair and just outcome.

The final orders of the court were that the objections to the taxation of costs were upheld in part, leading to a partial adjustment of the costs. The court provided detailed reasons for its decision, ensuring that the parties understood the basis on which the costs were adjusted. The decision highlighted the importance of accurate taxation of costs and the need for objections to be assessed on a case-by-case basis.

Orders