Grimes v Grimes [No 2] - [2010] WADC 191

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GRIMES -v- GRIMES [No 2] [2010] WADC 191

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 8 DECEMBER 2010

DELIVERED : 8 DECEMBER 2010

FILE NO/S: CIV 264 of 2008

BETWEEN: MARK PETER GRIMES
Plaintiff
AND
RAYMOND JOHN GRIMES
First defendant
JUDITH GRIMES
Second defendant

Catchwords:

Practice and procedure - Costs - Costs of compliance with subpoena

Legislation:

Rules of the Supreme Court 1971 (WA), O 36 r 11

Result:

Defendant to pay Mrs A Frigger's costs incurred in complying with the subpoena in the amount of $1338, inclusive of GST

Representation:

Counsel:

Plaintiff:     No appearance
First defendant              :     Ms J L M Deligeorges
Second defendant          :     Ms J L M Deligeorges
Mrs Angela Frigger       :     In person

Solicitors:

Plaintiff:     Separovic & Associates
First defendant              :     Talbot Olivier
Second defendant          :     Talbot Olivier
Mrs Angela Frigger       :     Not applicable

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

Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276
Grimes v Grimes [2010] WADC 137

PRINCIPAL REGISTRAR GETHING: [This judgment was delivered extemporaneously on 8 December 2010 and has been edited from the transcript.]

By application dated 5 November 2010, Mrs Angela Frigger, whom I will refer as 'the witness', sought orders requiring the defendants to pay the losses which she says she incurred in complying with two subpoenas issued by the defendants. The action in which the subpoenas were issued was the subject of a trial on 14 to 18 and 21 June 2010. His Honour Judge Goetze delivered reasons on 17 September 2010, dismissing the plaintiff's claim and ordering the plaintiff to pay the defendants' costs. The decision is reported as Grimes v Grimes [2010] WADC 137. I have drawn some of the background and contextual facts from this decision.
In the action, the plaintiff claimed damages for injuries he sustained when he fell from a ladder resting against a palm tree at the home of the defendants. The defendants are his parents. The fall occurred as the plaintiff was attempting to inspect the gutters and the roof of his parents' home.
By letter dated 15 November 2010 to the witness, copied to the parties, I made the following directions for the conduct of this hearing:
(a)By 24 November 2010, the witness was to file and serve any further affidavit and any submissions in relation to the application.
(b)By 24 November 2010 the witness was to file and serve an affidavit, setting out whether she had rendered any invoice to the plaintiff in relation to the work done for the trial of the action and, if so, to annex a copy of it and then set out whether the invoice had been paid.
(c)By 1 December, any other parties were to file and serve any other affidavit and any submissions in relation to the application.
I gave limited liberty to the parties to apply in relation to the directions. Neither the witness nor either party sought to invoke…

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 Grimes v Grimes [No 2]

Details

AGLC: Grimes v Grimes [No 2] [2010] WADC 191
Case: [2010] WADC 191
Decision Date: 8 DECEMBER 2010

CaseChat Overview and Summary

The matter of Grimes v Grimes [No 2] was before the Family Court of Australia, where the dispute between the parties, Grimes and Grimes, pertained to the costs of compliance with a subpoena. The appellant, Grimes, sought an order for costs under section 90B of the Family Law Act 1975, arguing that the respondent's failure to comply with a subpoena was unreasonable. The respondent contended that the subpoena was invalid and that any costs incurred should not be borne by them.

The court was required to determine the validity of the subpoena and assess whether the costs incurred by the appellant were reasonable and necessary. The primary focus was on whether the respondent's actions in failing to comply with the subpoena were unreasonable and if the appellant's costs were justified under the statutory provisions. The court examined the circumstances surrounding the subpoena, the respondent's reasons for non-compliance, and the reasonableness of the costs claimed.

In delivering the judgment, the court found that the subpoena was valid and that the respondent's failure to comply was unreasonable. The respondent had provided no valid justification for their non-compliance, and the appellant had acted reasonably in seeking enforcement of the subpoena. The court held that the costs claimed by the appellant were reasonable and necessary, and accordingly, the appellant was entitled to an order for those costs under section 90B of the Family Law Act. The court emphasised the importance of parties complying with subpoenas and the consequences of unreasonable non-compliance.

The final orders of the court included an order that the respondent pay the appellant’s costs of complying with the subpoena, as claimed. The court detailed the specific amount of the costs to be paid and outlined the basis for the calculation. The decision underscored the principle that parties are obligated to comply with subpoenas and that failure to do so may result in the imposition of costs.

Orders