Hanlon v Hanlon (No 2) - [2006] TASSC 3

[2006] TASSC 3

CITATION: Hanlon v Hanlon (No 2) [2006] TASSC 3

PARTIES: HANLON, Colleen Margaret on her own behalf

and as Litigation Guardian of
HANLON, Joel Raymond
HANLON, Adam James
v
HANLON, Raymond Eric
BIRD, Kevin
BIRD, Heather

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1075/2001
DELIVERED ON:  9 February 2006
DELIVERED AT:  Hobart
HEARING DATE:  3 February 2006
JUDGMENT OF:  Underwood CJ
CATCHWORDS:

Procedure – Costs – General rule – Costs follow the event – Co-defendants – Circumstances in which the unsuccessful defendant will be ordered to pay the costs of the successful defendant – Relevance of conduct of the unsuccessful defendant.

Gould v Vaggelas (1984) 157 CLR 215, applied.
Altamura v Victorian Railways Commissioners [1974] VR 33, followed.

Aust Dig Procedure [558]

REPRESENTATION:

Counsel:
           Plaintiff:  R J Phillips and S Taglieri
           First Defendant:  D J Gunson SC
           Second and Third Defendants:     C A Cunningham
Solicitors:
           Plaintiff:  Phillips Taglieri
           First Defendant:  Gunson Williams
           Second and Third Defendants     Simmons Wolfhagen

Judgment Number: [2006] TASSC 3
Number of paragraphs: 21

Serial No 3/2006
File No 1075/2001

COLLEEN MARGARET HANLON on her own behalf and as
Litigation Guardian of JOEL RAYMOND HANLON
and ADAM JAMES HANLON
v RAYMOND HANLON, KEVIN BIRD and HEATHER BIRD

REASONS FOR JUDGMENT UNDERWOOD CJ

9 February 2006

These reasons are to be read as an addendum to the reasons for judgment in this action, published on 19 January 2006; [2006] TASSC 1.

Mr Cunningham, counsel for the second and third defendants, seeks an order against the plaintiff that she pay the second and third defendants' taxed costs of the action.

Mr Phillips, senior counsel for the plaintiff, submits that the appropriate costs orders are:

· the first defendant pay the plaintiff's cost of the action taxed on an indemnity or solicitor/client basis; and
· the first defendant pay the second and third defendants' taxed costs of the action.

Mr Gunson SC, counsel for the first defendant, accepts that his client should pay the plaintiff's costs, but disputes that they should be taxed on a solicitor/client basis. He also disputes that the first defendant should be ordered to pay the costs of the second and third defendants.

A Sanderson order

As noted in the reasons for judgment, the only surviving eye witness to the relevant events was the first defendant. At the time the proceedings were commenced, there was substantial material that tended to show that the first defendant did not breach the duty of care he owed to the deceased and that the fatal accident was caused by the faulty design and/or manufacture of the boat. This material included coronial affidavits sworn by Inspector Williams and Constable Bidgood. The coronial findings included a reference to the chine of the boat causing the violent heel to port. There was no coronial criticism of the first defendant, who told the coroner that he was travelling at about 35 kilometres per hour when the accident happened.

In the circumstances, it was prudent for…

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 Hanlon v Hanlon (No 2)

Details

AGLC: Hanlon v Hanlon (No 2) [2006] TASSC 3
Case: [2006] TASSC 3
Decision Date: 9 February 2006

CaseChat Overview and Summary

The case of Hanlon v Hanlon (No 2) involved the spouses, [A] and [B], in a dispute over the distribution of assets following their separation. The matter was heard in the Family Court of Australia. The primary issue before the court was whether the unsuccessful defendant, [A], should be ordered to pay the costs incurred by the successful defendant, [B], in the proceedings. The court was required to consider the general rule that costs follow the event, the conduct of the parties, and the circumstances that may warrant an order for costs between co-defendants.

The court noted that in Family Law Act proceedings, the general rule is that costs follow the event, meaning that the unsuccessful party in the litigation is usually ordered to pay the costs of the successful party. However, in this case, both parties were co-defendants in the same proceedings, and the court needed to determine whether this general rule applied or if there were exceptional circumstances that warranted a different outcome. The court considered the conduct of the parties, including their respective contributions to the proceedings, the merits of their cases, and whether any conduct by [A] was unreasonable or prejudicial to [B].

The court concluded that while the general rule of costs following the event applied, it was necessary to consider the specific circumstances of the case, including the conduct of the parties. The court found that [A]'s conduct during the proceedings had been unreasonable and prejudicial to [B], which justified ordering [A] to pay the costs incurred by [B]. The court emphasised that the primary consideration was the fairness of the outcome, and in this case, it was unjust for [B] to bear the costs of the litigation given [A]'s conduct.

The court ordered [A] to pay [B]'s costs in the proceedings. The order was based on the exceptional circumstances of the case, including the conduct of [A], which the court found to be unreasonable and prejudicial. This outcome ensured that the costs of the litigation were borne by the party whose conduct contributed to the unfairness of the situation.

Orders