Hampton and Farley and Ors (No 2)

Case [2013] FamCA 785


FAMILY COURT OF AUSTRALIA

HAMPTON & FARLEY AND ORS (NO 2) [2013] FamCA 785
FAMILY LAW – COSTS – JURISDCITION – Where there are competing costs applications arising from primary proceedings for, inter alia, property settlement under Part VIIIAB of the Family Law Act 1975 (Cth) (“the FLA”) – Where the applicant in the primary proceedings (“the wife”) seeks costs against the second and third respondents – Where the second and third respondents seek costs against the wife – Where the determination of the claim brought by the second and third respondents in the primary proceedings required the invoking of the court’s accrued jurisdiction – Where the second and third respondents seek costs against the wife pursuant to the costs regime guided by s 98 of the Civil Procedure Act 2005 (NSW) (“the CPA”) and the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) – Where the wife seeks costs against the second and third respondents pursuant to the costs regime set out in s 117 of the FLA – Whether the court has jurisdiction to hear the competing costs applications under s 177 of the FLA given that the claim of the second and third respondents in the property proceedings was heard in the court’s accrued jurisdiction

Civil Procedure Act 2005(NSW)
Corporations Act 2001 (Cth)
Family Law Act 1975(Cth)
Federal Court Act 1976 (Cth)

Industrial Relations Act 1988 (Cth)

Judiciary Act 1903 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Workplace Relations Act 1996 (Cth)

Bonic v Pacific General Securities Ltd [2009] NSWSC 1221
Bryer & Bryer & Anor [2012] FamCA 884
C Pty Ltd v PGW As Liquidator of S Pty Ltd (in liq) (2011) FLC 93-485
Construction Forestry Mining and Energy Union & Anor v Director of the Fair Work Building Industry Inspectorate (No 2) (2013) 296 ALR 443
Fencott v Muller (1983) 152 CLR 570
Finlayson & Finlayson & Gillam (2002) FLC 93-121
Footes v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52
Gallieni & Gallieni & Ors [2013] FamCA 314
Hitch & Hitch (2012) 47 Fam LR 603
Jones & Anor & Markham [2010] FamCA 1026
Martin v the State of New South Wales (No 6) [2012] NSWLEC 227
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd; United States Surgical Corp v Hospital Products International Pty Ltd (1981) 148 CLR 457
Starr-Diamond v Diamond (No. 4) [2013] NSWSC 811
Skinner & Alfonso-Skinner (Costs) [2010] FamCA 1108
Telfer (as Executor for the Estate of the Late Telfer) v Telfer (No 2) [2013] NSWSC 823
Thorpe & Thorpe & Anor [2012] FamCA 719

APPLICANT: Ms Hampton
RESPONDENT: Mr Farley
SECOND RESPONDENT Mr Farley (Jnr)
THIRD RESPONDENT: Farley and Son Pty Ltd
FILE NUMBER: MLC 116 of 2011
DATE DELIVERED: 13 September 2013
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Le Poer Trench J
HEARING DATE: 14 August 2013; and written submissions filed on 30 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nicholson
SOLICITOR FOR THE APPLICANT:

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AGLC
Hampton and Farley and Ors (No 2) [2013] FamCA 785
Case
[2013] FamCA 785
Decision Date

CaseChat Overview and Summary

In *Hampton and Farley and Ors (No 2)*, Le Poer Trench J of the Supreme Court of New South Wales considered an application concerning the costs of a witness attending court for cross-examination. The dispute involved the wife, the second respondent, and the third respondent, with the court being asked to determine who should bear the reasonable expenses incurred by Ms T, a witness, in attending court in Sydney for her cross-examination.

The primary legal issue before the court was the quantification and allocation of the reasonable expenses incurred by Ms T for her attendance at court. Specifically, the court was required to determine whether these expenses should be borne by the wife, as the party seeking the cross-examination, or by the respondents.

Le Poer Trench J reasoned that the reasonable expenses incurred by the second respondent in facilitating Ms T's attendance at court for cross-examination should be paid by the wife. The court stipulated that these expenses would be quantified by reference to documentary evidence, such as receipts, demonstrating the actual costs incurred. The cost applications of the wife, the second respondent, and the third respondent were otherwise dismissed.

Orders

Orders of the court

1.

The reasonable expenses incurred by the second respondent in having Ms T attend at the court in Sydney for cross-examination are to be paid by the wife. Such expenses are to be quantified by reference to the provision of receipts, or such like documents, which demonstrate the costs actually incurred.

2.

The cost applications of each of the wife the second and the third respondents are otherwise dismissed.

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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