Garibaldi & Wootten and Anor - [2008] FamCAFC 90

FAMILY COURT OF AUSTRALIA

GARIBALDI & WOOTTEN AND ANOR

[2008] FamCAFC 90

FAMILY LAW - APPEAL – Costs – where third party instituted proceedings against husband and wife – husband conceded substance of application before trial – costs order made against husband in relation to entirety of proceedings – whether trial Judge took into account concession made – whether costs order was outside a reasonable exercise of discretion – extent of costs order unreasonable – appeal allowed

FAMILY LAW - APPEAL – Re-exercise of discretion – costs – circumstances justifying order

Family Law Act 1975, s 90AE, s 90AF, s 90AK, s 117
Federal Proceedings (Costs) Act 1981 (Cth), s 6

A & A [2006] FamCA 102
B & J [2006] FamCA 256
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd & Ors (1988) 81 ALR 397
I and I (No 2) (1995) FLC 92-625
Lasic & Lasic [2008] FamCA 80
Penfold v Penfold (1980) FLC 90-800
Robinson and Higginbotham (1991) FLC 92-209

APPELLANT:

MR GARIBALDI

FIRST RESPONDENT:

MR WOOTTEN

SECOND RESPONDENT:

MS GARIBALDI

INTERVENER:

PATERSON & DOWDING (A firm)

APPEAL NUMBER:

2007

FILE NUMBER:

PTW

1417

2004

DATE DELIVERED:

3 July 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Perth

JUDGMENT OF:

Coleman, Warnick and Penny JJ

HEARING DATE:

29 January 2008

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

2 February 2007

LOWER COURT MNC:

[2007] FCWA 21

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self represented

SOLICITOR FOR THE APPELLANT:

N/A

COUNSEL FOR THE FIRST RESPONDENT:

Mrs N Owen-Conway

SOLICITOR FOR THE FIRST

RESPONDENT:

MacKinlays Solicitors

COUNSEL FOR THE SECOND

RESPONDENT:

Dr A Dickey QC

SOLICITOR FOR THE SECOND

RESPONDENT:

Paynes

COUNSEL FOR THE INTERVENER:

Mr M Corboy SC

SOLICITOR FOR THE INTERVENER:

Pynt and Partners

Orders

That the appeal be allowed.
That order 5 of the orders made on 2 February 2007 be set aside.
That the appellant, [Mr Garibaldi], pay one third of the first respondent’s costs in the proceedings from 1 March 2005 until 9 December 2005 inclusive.
(a) That the appellant, [Mr Garibaldi], pay Paterson and Dowding’s professional fees on a solicitor/client basis as agreed or assessed.
(b)That rule 19.18 of the Family Court Rules 2004 not apply to the calculation of those costs.
That the Court grants to the first respondent, [Mr Wootten], a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.
That the Court grants to the second respondent, [Ms Garibaldi], a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate…

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.

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Details

AGLC: Garibaldi & Wootten and Anor [2008] FamCAFC 90
Case: [2008] FamCAFC 90
Decision Date: 3 July 2008

CaseChat Overview and Summary

In the matter of Garibaldi & Wootten and Anor, the appeal was brought before the court by Mr. Garibaldi against orders made in the Family Court. The initial dispute involved a third party who brought proceedings against Mr. Garibaldi and his wife, Ms. Garibaldi. The husband conceded the substance of the application before the trial, yet a costs order was made against him in relation to the entirety of the proceedings. The central issues before the court were whether the trial judge had appropriately considered the husband's concession and whether the costs order was beyond a reasonable exercise of discretion. Additionally, the court needed to determine if the extent of the costs order was unreasonable.

The court concluded that the trial judge did not adequately take into account the husband's concession, and as such, the costs order was outside a reasonable exercise of discretion. The court found that the extent of the costs order was unreasonable and set aside the original order. The appeal was allowed, and new orders were made. Mr. Garibaldi was to pay one third of the costs of the first respondent from 1 March 2005 until 9 December 2005 inclusive. Additionally, he was to pay the professional fees of Paterson and Dowding on a solicitor/client basis as agreed or assessed, with rule 19.18 of the Family Court Rules 2004 not applying to the calculation of those costs. The court also granted costs certificates to both respondents, indicating that it would be appropriate for the Attorney-General to authorize payments under the Federal Proceedings (Costs) Act 1981 for the costs incurred in relation to the appeal.

Orders

Orders of the court

That the appeal be allowed.

That order 5 of the orders made on 2 February 2007 be set aside.

That the appellant, [Mr Garibaldi], pay one third of the first respondent’s costs in the proceedings from 1 March 2005 until 9 December 2005 inclusive.

(a) That the appellant, [Mr Garibaldi], pay Paterson and Dowding’s professional fees on a solicitor/client basis as agreed or assessed.

(b) That rule 19.18 of the Family Court Rules 2004 not apply to the calculation of those costs.

That the Court grants to the first respondent, [Mr Wootten], a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.

That the Court grants to the second respondent, [Ms Garibaldi], a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the second respondent in respect of the costs incurred by the second respondent in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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