Harlen and Hellyar (No. 5) - [2020] FamCA 764

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

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)…

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 Harlen and Hellyar (No. 5)

Details

AGLC: Harlen and Hellyar (No. 5) [2020] FamCA 764
Case: [2020] FamCA 764
Decision Date: 16 September 2020

CaseChat Overview and Summary

In *Harlen and Hellyar (No. 5)*, Wilson J of the Supreme Court of Tasmania was required to determine the appropriate costs orders following proceedings between the parties. The dispute concerned the division of property and the court's previous orders in relation to that division.

The primary legal issue before Wilson J was whether the usual rule that costs follow the event should apply, or if there were exceptional circumstances warranting a departure from this rule, leading to each party bearing their own costs.

Wilson J considered the history of the litigation and the conduct of the parties. His Honour concluded that, in light of the overall circumstances and the nature of the proceedings, it was appropriate to depart from the usual rule. Consequently, Wilson J ordered that pursuant to section 117(1) of the relevant legislation, each party was to bear their own costs of the proceedings.

Orders

Orders of the court

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.

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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