Harrison & Ward

Case [2018] FamCAFC 136

FAMILY COURT OF AUSTRALIA

HARRISON & WARD & KRAMER [2018] FamCAFC 136

FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal –Where there was no merit in the asserted grounds of appeal – Where there was no reasonable excuse for the delay – Application dismissed.

FAMILY LAW – VEXATIOUS PROCEEDINGS – Where the first respondent sought an order preventing the applicant from filing any further applications against her until he complied with previous orders – Where the Court is not persuaded that the proceedings previously brought by the applicant in various courts meet the definition of vexatious proceedings in s 102Q.

FAMILY LAW – COSTS – Where the first respondent sought an order for indemnity costs against the applicant – Where the mandatory provisions of r 22.53(3) were not complied with – Where strict adherence to r 22.53(3) would cause injustice – Where it was appropriate to dispense with the strict application of that rule pursuant to r 1.12(1) – Where the total costs cannot be scrutinised and a conservative approach should be adopted to the costs claimed – Where the circumstances were extraordinary – Where an order for indemnity costs was appropriate – Applicant ordered to pay the first respondent’s costs in a fixed sum.
Family Law Act 1975 (Cth) ss 94AAA(10), 102Q, 102QB
Family Law Rules 2004 (Cth) rr 1.12(1), 22.13, 22.53
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1997] HCA 23
Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31
Kramer and Anor & Ward (2017) FLC 93-817; [2017] FamCAFC 270
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271; [1990] HCA 10
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
APPLICANT: Mr Harrison
1ST RESPONDENT: Ms Ward
2ND RESPONDENT: Mr Kramer
FILE NUMBER: BRC 4572 of 2016
APPEAL NUMBER: NOA 47 of 2018
DATE DELIVERED: 25 July 2018
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Murphy J
HEARING DATE: 18 July 2018
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 15 January 2018

REPRESENTATION

FOR THE APPELLANT: In person
COUNSEL FOR THE 1ST RESPONDENT: Ms K Buckley
SOLICITOR FOR THE 1ST RESPONDENT: Hartley Healy
FOR THE 2ND RESPONDENT: In person

Orders

  1. Appeal number NOA24 of 2018 is deemed abandoned.

  2. The Application in an Appeal filed 29 May 2018 is dismissed.

  3. The Applicant shall pay to the First Respondent her costs of and incidental to the Application in an Appeal fixed in the sum of $15,000.00 within seven (7) days of the date of these orders.

  4. The orders sought in paragraphs 3 and 4 of the Response to an Application in an Appeal filed 28 June 2018 be dismissed.

Note: The form of the order is…

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AGLC
Harrison & Ward [2018] FamCAFC 136
Case
[2018] FamCAFC 136
Decision Date

CaseChat Overview and Summary

The case of Harrison & Ward involved an appeal where the applicant sought to extend time to file a Notice of Appeal. The matter was heard by the Family Court of Australia. The applicant argued that there was merit in the grounds of appeal and that there was a reasonable excuse for the delay. The first respondent argued that there was no merit in the appeal and that the applicant had no reasonable excuse for the delay. The first respondent also sought an order preventing the applicant from filing any further applications against her until he complied with previous orders. Additionally, the first respondent sought an order for indemnity costs against the applicant.

The court found that there was no merit in the asserted grounds of appeal and that there was no reasonable excuse for the delay. The court was not persuaded that the proceedings previously brought by the applicant in various courts met the definition of vexatious proceedings in s 102Q. The court held that strict adherence to r 22.53(3) would cause injustice, and it was appropriate to dispense with the strict application of that rule pursuant to r 1.12(1). The court found that the circumstances were extraordinary and that an order for indemnity costs was appropriate. The applicant was ordered to pay the first respondent’s costs in a fixed sum.

The appeal number NOA24 of 2018 was deemed abandoned, and the application in an appeal filed 29 May 2018 was dismissed. The applicant was ordered to pay the first respondent’s costs of and incidental to the application in an appeal fixed in the sum of $15,000.00 within seven (7) days of the date of these orders. The orders sought in paragraphs 3 and 4 of the response to an application in an appeal filed 28 June 2018 were dismissed.

Orders

Orders of the court

1.

Appeal number NOA24 of 2018 is deemed abandoned.

2.

The Application in an Appeal filed 29 May 2018 is dismissed.

3.

The Applicant shall pay to the First Respondent her costs of and incidental to the Application in an Appeal fixed in the sum of $15,000.00 within seven (7) days of the date of these orders.

4.

The orders sought in paragraphs 3 and 4 of the Response to an Application in an Appeal filed 28 June 2018 be dismissed.

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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