Harrell and Nesland (No.3) - [2019] FCCA 1794

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRELL & NESLAND (No.3)

[2019] FCCA 1794

Catchwords:
FAMILY LAW – Costs – intention of the court clarified contextually – orders accordingly.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.16(2), 16.05, 21.11

Family Law Rules 2004 (Cth), r.19.21

Applicant:

MS HARRELL

Respondent:

MR NESLAND

File Number:

BRC 6489 of 2012

Judgment of:

Judge Egan

Hearing date:

22 May 2019

Date of Last Submission:

22 May 2019

Delivered at:

Brisbane

Delivered on:

22 May 2019

REPRESENTATION

Solicitor for the Applicant:

Mr M. Love, Solicitor of Matthew Love Family Lawyers

Solicitor for the Respondent:

Mr R. Hirst, Solicitor of Hirst & Co Lawyers

ORDERS

Pursuant to Rule 16(2) of the Federal Circuit Court Rules 2001, paragraph 1 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules.
Pursuant to Rule 16.05(2) of the Federal Circuit Court Rules 2001, paragraph 2 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules 2004.
Paragraphs 1 – 6 of the orders sought by the Applicant in her Response to Application in a Case filed 10 May 2019 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Harrell & Nesland (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 6489 of 2012

MS HARRELL

Applicant

And

MR NESLAND

Respondent

REASONS FOR JUDGMENT

On 3 December 2018, the respondent filed an application in a case which sought orders:
(a)That the respondent de facto husband’s costs, pursuant to the order of Egan J, dated 19 April 2018, be assessed pursuant to schedule 3 of the Family Law Rules 2004 (Cth) (‘Family Law Rules’).
(b)Pursuant to rule 1.14 of the Family Law Rules, the respondent de facto husband be given leave to serve his itemised costs account on the applicant de facto wife outside of the time period specified in rule 19.21 of the Family Law Rules;
(c)The applicant de facto wife pay the respondent de facto husband’s costs of and incidental to this application;
(d)Such further or other order as this Honourable Court may deem necessary.
The hearing date for that application in a case was set for 15 April 2018. It transpired that the application was heard on 18 April 2018. At that time, Mr Love, a solicitor, appeared on behalf of the applicant, and Mr Hirst, solicitor, appeared on behalf of the respondent. On 19 April 2018, the Court made orders on a final basis as follows:
“1. That the Applicant pay the Respondent’s costs of and incidental to the proceedings – excluding the costs of appeal – on and…

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 Harrell and Nesland (No.3)

Details

AGLC: Harrell and Nesland (No.3) [2019] FCCA 1794
Case: [2019] FCCA 1794
Decision Date: 22 May 2019

CaseChat Overview and Summary

This matter concerned an application to vary an order made by Judge Egan on 19 April 2018, which had been amended on 20 April 2018. The respondent husband sought the variation pursuant to rule 16.05(2) of the Federal Circuit Court Rules 2001, arguing that the original order either did not reflect the Court's intention or contained an accidental omission regarding the assessment of costs. The applicant wife had also filed a response seeking various orders, including the dismissal of orders sought by the respondent.

The primary legal issue before the Court was whether the previous order, which had been entered, should be varied to include a reference to taxation of costs under Chapter 19 of the Family Law Rules. This required the Court to consider the grounds for varying an entered judgment or order under rule 16.05(2) of the Federal Circuit Court Rules, specifically whether the original order failed to reflect the Court's intention or contained a clerical mistake or accidental omission.

The Court found that it was not the intention of the Court to deny the respondent husband the benefit of an order for the assessment of costs. The omission of a specific reference to taxation was considered an accidental slip or omission, falling within rule 16.05(2)(h). Consequently, the Court varied the previous order to reflect the intention that costs be referred to taxation. The Court also dismissed the orders sought by the applicant in her response filed on 10 May 2019.

The Court ordered that paragraphs 1 and 2 of the order of 19 April 2018 (as amended) be varied to provide for costs to be referred to taxation under Chapter 19 of the Family Law Rules. Paragraphs 1 to 6 of the orders sought by the applicant in her response filed on 10 May 2019 were dismissed, and there was no order as to costs.

Orders

Orders of the court

Pursuant to Rule 16(2) of the Federal Circuit Court Rules 2001, paragraph 1 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules.

Pursuant to Rule 16.05(2) of the Federal Circuit Court Rules 2001, paragraph 2 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules 2004.

Paragraphs 1 – 6 of the orders sought by the Applicant in her Response to Application in a Case filed 10 May 2019 be dismissed.

There be no order as to costs.

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

An application has now been made for orders, pursuant to rule 16.05(2) of the FCC Rules, for the variation of the order made by the Court on 19 April 2018, such order having been amended on 20 April 2018. Rule 16.05 provides as follows:“Setting aside or varying judgments or orders(1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered. (2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:(a) it was made in the absence of a party; or(b) it was obtained by fraud; or(c) it is interlocutory; or(d) it is an injunction or for the appointment of a receiver; or(e) it does not reflect the intention of the Court; or(f) the party in whose favour it was made consents; or(g) there is a clerical mistake in the judgment or order; or(h) there is an error arising in the judgment or order from an accidental slip or omission. (3) This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.Note: See sections 57 and 58 of the Family Law Act in relation to rescission of a divorce order.” Mr Hirst, who appears on behalf of the respondent husband, makes that application for the variation of the order based upon either rule 16.05(2)(e) or (h) of that rule. The Court did not have the intention of denying to the respondent husband the benefit of an order for the assessment of costs, as made in the application filed on 13 February 2018, pursuant to rule 21.02 of the FCC Rules, for the payment of costs under chapter 19 of the Family Law Rules. It was not the Court’s intention, by the omission of reference to taxation, pursuant to rule 21.11(2) (a) of the FCC Rules, to deny the respondent husband the benefit of such order. The order, accordingly, is varied in accordance with the further amended application filed by leave today, in paragraphs 1, 2 and 3 thereof. The applicant filed a response to the application in a case on 10 May 2019. The orders sought in that response are as follows:“1. Pursuant to Rule 16.05(2) of the Federal Circuit Court Rules, paragraph 1 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules.That the Applicant pay the Respondent’s costs of and incidental to the proceedings excluding the costs of appeal on and from 27 August 2014 until 10 January 2018, to be assessed on a party-party basis pursuant to Schedule 3 of the Family Law Rules (2004).The Respondent de facto Husband’s costs pursuant to the order of His Honour Judge Egan dated 19 April 2018 be assessed pursuant to Schedule 3 of the Family Law Rules (2004).2.Pursuant to Rule 16.05(2) of the Federal Circuit Court Rules, paragraph 2 of the order of His Honour Judge Egan dated 19 April 2018 (amended on 20 April 2018) be varied to read that the costs ordered be referred to taxation under Chapter 19 of the Family Law Rules.That the Applicant pay the Respondent’s costs of and incidental to the Respondent’s Application in a Case filed on 13 February 2018, including the costs of appearance on 18 April 2018, such costs to be assessed on a party-party basis pursuant to Schedule 3 of the Family Law Rules (2004).3. Pursuant to Rule 1.14 of the Family Law Rules, the Respondent de facto Husband be given leave to serve his Itemised Cost Account on the Applicant de facto Wife outside of the time period specified in Rule 19.21 of the Family Law Rules. 4. The Applicant de facto Wife pay the Respondent de facto Husband’s costs of and incidental to this Application.5. The orders sought by the Applicant de facto Wife in the Response filed 10 May 2019 be dismissed. 6. Such further or other order as this Honourable Court may deem necessary.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.