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Hackshaw & Hackshaw (Costs)

Hackshaw & Hackshaw (Costs)

Case [2011] FamCA 570 19 July 2011

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FAMILY COURT OF AUSTRALIA

HACKSHAW & HACKSHAW (COSTS)

[2011] FamCA 570

FAMILY LAW – COSTS – where each party seeks costs on an indemnity basis – whether the wife is entitled to costs pursuant to s 117AB of the Family Law Act 1975 – whether the husband knowingly made a false statement – consideration of “knowingly” – where the husband falsified a relevant document – where husband ordered to pay portion of wife’s costs of and incidental to the proceedings.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Charles & Charles [2007] FamCA 276
Child Support Registrar & Kanavos and Ors [2010] FamCAFC 244
Colgate-Palmolive and another v Cussons Pty Ltd (1993) 46 FCR 225
Fitzgerald v Fish (2005) 33 FamLR 123 at 130
Given & Pryor (1979) 39 FLR 437
Gregory v Commissioner of Taxation (1971) 123 CLR 547
I & I (No. 2) (1995) FLC 92-625
Idoport Pty Ltd v NAB and others [2007] NSWSC 23
In the Marriage of Greeby (1982) AFaLR 669 at 673
In the Marriage of Jensen (1982) FamLR 594 at 595, per Nygh J
Kohan v Kohan (1993) FLC 92-340
Krach & Krach (No. 2) [2009] FamCA 886
Lenova & Lenova [2011] FamCAC 141
Penfold v Penfold (1980) 144 CLR 311
Robinson & Higginbotham (1991) FLC 92-209
Sharma & Sharma (No. 2) [2007] FamCA 425
Yunghanns & Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Hackshaw

RESPONDENT:

Ms Hackshaw

FILE NUMBER:

BRC

10904

2007

DATE DELIVERED:

19 July 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

Written Submissions received:

Wife on 4 March 2011
Husband on 29 March 2011
Wife in reply on 1 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamwood

SOLICITOR FOR THE APPLICANT:

Robert W Blank & Associates

COUNSEL FOR THE RESPONDENT:

Mr Kirk of Senior Counsel

SOLICITOR FOR THE RESPONDENT:

Lehns Lawyers

Orders

IT IS ORDERED THAT

The application by the husband that the wife pay his costs of and incidental to the proceedings, including in respect of the application for costs be dismissed.
The husband shall pay:
(a)One half of the of the wife’s party and party costs of and incidental to the proceedings up to and including 7 December 2008;
(b)The whole of the wife’s party and party costs as and from 8 December 2008, including in respect of the application for costs.
The wife shall, within 14 days of the date of these Orders forward to the husband in writing an estimate of the amount of costs represented by paragraph 2 of these orders.
The husband shall, within 14 days of receipt of the written estimate required by paragraph 3 of these Orders, respond in writing as to whether he accepts the amount so specified, in which case:
(a) the said sum shall be paid by the husband within 7 days thereafter; and
(b)payment of the said sum shall be in full and final discharge of the husband’s obligations pursuant to paragraph 2 of these Orders.
In the event…

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 Hackshaw & Hackshaw (Costs)

Details

AGLC: Hackshaw & Hackshaw (Costs) [2011] FamCA 570
Case: [2011] FamCA 570
Decision Date: 19 July 2011

CaseChat Overview and Summary

In *Hackshaw & Hackshaw (Costs)*, Murphy J of the Federal Circuit Court of Australia was required to determine an application by the husband for an order that the wife pay his costs of and incidental to the proceedings, including the costs of the costs application itself.

The central legal issue before the court was the appropriate allocation of costs between the parties, particularly in light of the conduct of the proceedings and the outcome of the substantive matters. The court had to consider whether the husband's application for costs should be granted or dismissed, and what proportion of the wife's costs, if any, the husband should be ordered to pay.

Murphy J dismissed the husband's application for costs. The court ordered that the husband pay one half of the wife's party and party costs up to and including 7 December 2008, and the whole of the wife's party and party costs from 8 December 2008 onwards, including the costs of the application for costs. The orders then set out a detailed procedure for the estimation, acceptance, payment, or assessment of these costs, with provisions for indemnity costs in certain circumstances depending on the outcome of any assessment.

Orders

Orders of the court

IT IS ORDERED THAT

The application by the husband that the wife pay his costs of and incidental to the proceedings, including in respect of the application for costs be dismissed.

The husband shall pay:

(a) One half of the of the wife’s party and party costs of and incidental to the proceedings up to and including 7 December 2008;

(b) The whole of the wife’s party and party costs as and from 8 December 2008, including in respect of the application for costs.

The wife shall, within 14 days of the date of these Orders forward to the husband in writing an estimate of the amount of costs represented by paragraph 2 of these orders.

The husband shall, within 14 days of receipt of the written estimate required by paragraph 3 of these Orders, respond in writing as to whether he accepts the amount so specified, in which case:

(a) the said sum shall be paid by the husband within 7 days thereafter; and

(b) payment of the said sum shall be in full and final discharge of the husband’s obligations pursuant to paragraph 2 of these Orders.

In the event that the husband does not accept the amount specified by the wife in accordance with paragraph 3 of these Orders, or pay the said amount within the time so specified, the amount of the costs required to be paid in accordance with paragraph 2 of these Orders shall be as assessed.

In the event that an assessment of the amount of the wife’s costs payable pursuant to paragraph 2 of these Orders is required, and the amount so assessed is equivalent to or greater than the amount specified by the wife in compliance with paragraph 3 of these Orders, the husband shall:

(a) pay the amount of the costs so assessed within 7 days of the date thereof; and

(b) shall, in addition, pay the wife’s costs of and incidental to the said assessment as and from the date of this Order on an indemnity basis.

In the event that an assessment of the amount of the wife’s costs payable pursuant to paragraph 2 of these Orders is required, and the amount so assessed is less than the amount specified by the wife in compliance with paragraph 3 of these Orders:

(a) The husband shall pay the amount of costs so assessed within 7 days of the date thereof; and

(b) The wife shall pay to the husband within 7 days thereof his costs as and from the date of this Order on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Hackshaw & Hackshaw (Costs) [2011] FamCA 570

Most Recent Citation

WYNONA & FRIEND (NO. 2) [2011] FamCAFC 228

Cases Citing This Decision

Prantage & Prantage [2013] FamCAFC 105
Citation 1 (Para 10)

…As for the latter, we concur with Murphy J who, in Hackshaw & Hackshaw (Costs) [2011] FamCA 570, adopted for the purposes of s 117AB the definition of “statement” in this citation from Given v Pryor (1979) 39 FLR 437 at 439: It is necessary to examine the meaning of the word “statement” … It seems reasonably clear…
Freye & Gingko & Anor [2012] FamCA 942
Citation 2 (Para 6)

…Mr Rozario did raise the case Hackshaw & Hackshaw (Costs) [2011] FamCA 570 and section 117AB in his oral submissions but failed to establish how this section is applicable in the circumstances to justify departure from the general rule.…
Field and Bowers (No. 2) [2012] FamCA 376
Citation 3 (Para 8)

…In Hackshaw and Hackshaw [2011] FamCA 570 Murphy J observed that if the terms of s 117AB(1) are met, then the general principle that each party shall bear their own costs no longer applies. His Honour went on to say that a costs order of some type must be made. With respect, I agree.…
WYNONA & FRIEND (NO. 2) [2011] FamCAFC 228
Citation 4 (Para 14)

…that the wife “knowingly made a false allegation or statement in the proceedings” as required by s 117AB (see also Hackshaw & Hackshaw (Costs) [2011] FamCA 570).…

See all citing cases →

Cases Cited

Child Support Registrar & Kanavos [2010] FamCAFC 244
Citation 1 (Para 1)

…is was cited with approval by Boland J (sitting as a single judge on appeal from a Federal Magistrate) in Child Support Registrar & Kanavos and Ors [2010] FamCAFC 244, above as was the decision of Ryan J in Sharma & Sharma (No. 2) [2007] FamCA 425. Boland J said in Kanavos: 83. At paragraph 13 of her reasons, Ryan J…
Krach & Krach (No 2) [2009] FamCA 886
Citation 2 (Para 5)

…e favour a costs order will be made – in an expensive and undoubtedly lengthy process. (See eg the comments of Bennett J in Krach & Krach (No. 2) [2009] FamCA 886 at [40].)…
Charles & Charles [2007] FamCA 276
Citation 3 (Para 1)

…In Charles & Charles [2007] FamCA 276 Cronin J held in relation to the word “knowingly” as used in s 117AB: 24.“Knowingly” imports a serious subjective element into the question. In respect of many findings of fact as in this case, a trial judge determines which of two versions, sometimes diametrically opposed to o…
Sharma & Sharma (No 2) [2007] FamCA 425
Citation 4 (Para 1)

…Federal Magistrate) in Child Support Registrar & Kanavos and Ors [2010] FamCAFC 244, above as was the decision of Ryan J in Sharma & Sharma (No. 2) [2007] FamCA 425. Boland J said in Kanavos: 83. At paragraph 13 of her reasons, Ryan J said: My finding that some of the wife’s allegations are fabrications introduces…
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Citation 5 (Para 8)

…Senior Counsel for the wife refers to a decision in the New South Wales Supreme Court by Einstein J in Idoport Pty Ltd v NAB and others [2007] NSWSC 23 in respect of “a similar power arising under the Civil Procedure Act 2005 ”. Included among the considerations outlined by his Honour “which inform the exercise of…
Magill v Magill [2006] HCA 51
Citation 6 (Para 1)

…ings has long been a feature of the common law. It was recently examined in the arguments about the tort of deceit in Magill v Magill [2006] HCA 51 (9 November 2006). Gummow, Kirby and Crennan JJ looked at the very old decision of Derry v Peek (1889) 14 App Cas 337 at 373 quoting Lord Herschell explaining: First…
Colgate-Palmolive Co v Cussons Pty ltd [1993] FCA 801
Citation 7 (Para 1)

…from the other costs on an indemnity basis. Each relies upon the well-known passage of Sheppard J in Colgate-Palmolive and another v Cussons Pty Ltd (1993) 46 FCR 225. In Kohan v Kohan (1993) FLC 92-340, the Full Court of this Court confirmed that an order for indemnity costs can be made in an appropriate case. (Se…
Pryor v Given [1980] FCA 90
Citation 8 (Para 1)

…In Given v Pryor (1979) 39 FLR 437 at 439, it was held: It is necessary to examine the meaning of the word “statement” … It seems reasonably clear that a statement may be made orally or in writing. One of the definitions in the Oxford English Dictionary (1933 ed), vol 10, in relation to “statement” is: “A written or…
Penfold v Penfold [1980] HCA 4
Citation 9 (Para 8)

…ges very frequently [making] orders for costs without giving reasons or making findings, even when costs are in issue”. ( Penfold v Penfold (1980) 144 CLR 311 at 315). That is, of course, all the more so when the substantive proceedings have themselves had those same financial circumstances as a central component.…
Gregory v Federal Commissioner of Taxation [1971] HCA 2
Citation 10 (Para 1)

…It is submitted by senior counsel (citing, for example, Gregory v Commissioner of Taxation (1971) 123 CLR 547) that evidence of a rejected offer is not evidence of value. That submission is, in my view, correct.…
Briginshaw v Briginshaw [1938] HCA 36
Citation 11 (Para 1)

…“probable” level set out in s 140(1) of the Evidence Act 1995 to consider the matters contemplated in s 140(2) of that Act. That is, the Briginshaw v Briginshaw (1938) 60 CLR 336 test applies. 25.Use of the word “knowingly” in civil proceedings has long been a feature of the common law. It was recently examined in the arguments…
Briginshaw v Briginshaw [1938] HCA 34
Citation 12 (Para 1)

…t in s 140(1) of the Evidence Act 1995 to consider the matters contemplated in s 140(2) of that Act. That is, the Briginshaw v Briginshaw (1938) 60 CLR 336 test applies. 25.Use of the word “knowingly” in civil proceedings has long been a feature of the common law. It was recently examined in the arguments about the…
Derry v Peek (1889) 14 App Cas 337
Citation 13 (Para 1)

…ceit in Magill v Magill [2006] HCA 51 (9 November 2006). Gummow, Kirby and Crennan JJ looked at the very old decision of Derry v Peek (1889) 14 App Cas 337 at 373 quoting Lord Herschell explaining: First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secon…
[1943] 4 DLR 433 [1943] 4 DLR 433
Citation 14 (Para 1)

…in the context of the statute under discussion, I think the discussion of the meaning of the word by Kellock JA in Sleight v Stevenson [1943] 4 DLR 433 at 441 is helpful in the facts relevant to this appeal. In dealing with a case under a statute pertaining to insurance, his Honour said “I think ‘knowingly’ in the…

Legislation Cited

Civil Procedure Act 2005 (NSW)
1 mention (from Para 8)
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention
Family Law Rules 2004 (Cth)
1 mention (from Para 5)