Gissing and Sheffield (No 2) - [2013] FCCA 921

FEDERAL CIRCUIT COURT OF AUSTRALIA

GISSING & SHEFFIELD (No.2)

[2013] FCCA 921

Catchwords:
FAMILY LAW – Application for costs – applicant seeking indemnity costs – whether justifying circumstances to make a costs order – whether there are circumstances for a “very great departure from normal standard” for costs.

PRACTICE AND PROCEDURE – Whether the substantive proceedings should be transferred to the Family Court.

Legislation:
Family Law Act 1975 (Cth), ss.117, 117, (2A)

Federal Circuit Court of Australia Act1999 (Cth), ss.39, 39(4)
Federal Circuit Court Rules 2001 (Cth), rr.8.02, 8.02(4), 11.03, Div 21.2, Sch 1

Gissing & Sheffield [2012] FMCAfam 1111
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Kohan & Kohan [1993] FLC 92-340
Munday & Bowman (1997) 22 FamLR 321
Nemeck & Jump (2010) FamCA 2012
Penfold v Penfold (1980) 144 CLR 311
Latoudis v Casey (1990) 170 CLR 534
Cassidy v Murray (1995) FLC 92-633
PBF (as child representative for AF (Legal Aid Commission of Tasmania)) v TRF& Anor [2005] FamCA 158
Prantage & Prantage [2013] FamCA FC 105

Applicant:

MR GISSING

Respondent:

MS SHEFFIELD

File Number:

MLC 2548 of 2012

Judgment of:

Judge O'Sullivan

Hearing date:

25 July 2013

Date of Last Submission:

25 July 2013

Delivered at:

Melbourne

Delivered on:

25 July 2013

REPRESENTATION

Counsel for the Applicant:

Mr Robinson

Solicitors for the Applicant:

Mathews Family Law

Counsel for the Respondent:

Ms Carter

Solicitors for the Respondent:

Carew Counsel Pty Ltd

THE COURT ORDERS

The respondent pay the applicant’s costs fixed in the amount of

$19,927.50 within 30 days herein.

BY CONSENT THE COURT ORDERS

Until further order the respondent, whether by herself or her servants and agents be restrained from:
(a)selling, alienating, disposing of, encumbering or otherwise dealing with any asset in her name or the joint names of the parties or any company on trust controlled by the respondent, other than in the ordinary course of business without the written consent of the solicitors for the applicant or court order;
(b)incurring any liability or expense other than in the ordinary or usual course of business without the written consent of the solicitors for the applicant or court order.
Pursuant to section 39 of the Federal Circuit Court of Australia Act1999, these proceedings be transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court deems appropriate.
All extant applications otherwise be dismissed and removed from the Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Gissing & Sheffield (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 2548 of 2012

MR GISSING

Applicant

And

MS SHEFFIELD

Respondent

REASONS FOR JUDGMENT

These reasons for decision concern costs and other issues arising from proceedings between Mr Gissing (“the applicant”) and Ms Sheffield (“the respondent”).
The background to these proceedings is set out in Gissing & Sheffield [2012] FMCAfam 1111. For the…

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

Case: [2013] FCCA 921
Decision Date: 25 July 2013

CaseChat Overview and Summary

In *Gissing and Sheffield (No 2)*, the applicant sought an order for indemnity costs against the respondent in family law proceedings. The dispute concerned the circumstances justifying a departure from the usual costs orders in such matters, specifically whether the respondent's conduct warranted an order for costs on an indemnity basis, representing a "very great departure from the normal standard." The proceedings were heard by Judge O'Sullivan.

The court was required to determine whether there were exceptional circumstances present that justified making a costs order on an indemnity basis, rather than the standard basis. This involved an assessment of the respondent's conduct throughout the substantive proceedings and whether that conduct met the threshold for such a significant departure from the usual costs regime. A secondary issue, though not central to the costs determination, concerned the potential transfer of the substantive proceedings to the Family Court.

Judge O'Sullivan considered the principles governing costs orders in family law, particularly the discretion to award indemnity costs. The court noted that such orders are exceptional and require compelling justification, typically involving unreasonable or improper conduct by a party that has unnecessarily prolonged or complicated the litigation. The judge's reasoning focused on evaluating the respondent's actions against these established principles to ascertain if they amounted to the "very great departure" necessary to grant indemnity costs.

Orders