Harlen and Hellyar (No. 5)
[2020] FamCA 764
•16 September 2020
FAMILY COURT OF AUSTRALIA
| HARLEN & HELLYAR (NO. 5) | [2020] FamCA 764 |
| FAMILY LAW – COSTS – applicant seeking costs of debate about waiver of legal professional privilege – nothing in the elements of s 117(2A) to enliven a costs order under s 117(2) – usual principle under s 117(1) applied. |
| Family Law Act 1975 (Cth) s 117 (1), (2), (2A) |
| In the Marriage of Wilson (1989) 13 Fam LR 205 Harlen & Hellyar (No. 4) [2020] FamCA 600 |
| APPLICANT: | Ms Harlen |
| RESPONDENT: | Mr Hellyar |
| FILE NUMBER: | MLC | 13634 | of | 2017 |
| DATE DELIVERED: | 16 September 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 9 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J. St John QC |
| SOLICITOR FOR THE APPLICANT: | Peter Szabo Family Law |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Mann Lawyers |
Orders
Pursuant to section 117(1) each party bears his and her own costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harlen & Hellyar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 13634 of 2017
| Ms Harlen |
Applicant
And
| Mr Hellyar |
Respondent
REASONS FOR JUDGMENT
The applicant has applied for costs associated with the application that I dealt with concerning legal professional privilege. The respondent has opposed the making of a costs order.
The applicant contended that the usual principle set out in s 117(1) should not apply. She argued that by reason of one or more matters set out in s 117(2A), it was appropriate for me to make an order under s 117(2) for the respondent to pay the applicant’s costs of and incidental to the application to which my decision is addressed.[1]
[1] [2020] FamCA 600.
The solicitor for the respondent argued that the ordinary costs situation in s 117(1) should apply.
For reasons that follow in my view s 117(1) applies and each party should bear his and her own costs.
On the day I handed down my reasons in Harlen & Hellyar (No. 4) the solicitor for the applicant wrote to the respondent’s solicitor seeking costs. That was resisted.
It is necessary to go to s 117(2A). None is determinative of the fate of the application, however.
In In the Marriage of Wilson,[2] it was held that factual matters must be placed before the court, not just submissions, on matters relevant to s 117(2A). In this case, the applicant filed and relied on her affidavit made 5 August 2020.
[2] (1989) 13 Fam LR 205.
So far as s 117(2A)(a), was concerned, the wife said she is in receipt of social welfare benefits. Mr St John QC’s submissions described the applicant as being in a “very poor financial state.” Mr St John QC argued that conversely the respondent lived in unencumbered real estate and he had substantial superannuation available to him.
Neither party relied on s 117(2A)(b) as neither was in receipt of legal aid.
So far as s 117(2A)(c) was concerned, Mr St John contended that the conduct of the respondent justified an order for costs. He said the respondent’s argument about the existence of an implied waiver of privilege was insipid which had no prospects of success.
I do not agree. Despite ultimately holding against the respondent on the implied waiver point, it could not be said that the point was beyond argument, especially having regard to the 90 paragraphs of reasons given on the point and the large number of authorities considered.
Section 117(2A)(d) was conceded to be inapplicable.
The applicant said the respondent was wholly unsuccessful for the purpose of s 117(2A)(e). True, the respondent did not succeed in the implied waiver argument. But that did not mean the point should not have been taken or that it was doomed from inception. For that matter, it was good that the point was ventilated at this stage rather than at trial as some preliminary point. By addressing the point now and well ahead of trial, complications were avoided that would otherwise have beset the trial with attendant costs and delays.
It was open to the respondent to take the implied waiver point, even though he failed on it.
Section 117(2A)(f) was not enlivened as no offer was put.
Neither party relied on s 117(2A)(g).
In those circumstances I take the view that no basis has been shown for an order to be made under s 117(2). Consequently, s 117(1) applies.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 16 September 2020.
Associate:
Date: 16 September 2020
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