Hartnett & Sampson (Costs) - [2007] FamCA 1456

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON (COSTS)

[2007] FamCA 1456

FAMILY LAW – COSTS – Costs orders in relation to non-parties – Consideration of s 117(2A) matters – Indemnity or party/party costs

Family Law Act 1975 (Cth)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Kohan and Kohan (1993) FLC 92-340
McAlpin and McAlpin (1993) FLC 92-411
Molier and Van Wyk (1980) FLC 90-911
Pagliarella and Pagliarella (No. 3) (1994) FLC 92-460
Penfold v Penfold (1980) FLC 90-800

Re JTT; Ex parte Victoria Legal Aid (1998) FLC 92-812
Re Z (No. 4) (Costs of the case stated) (Unreported, Full Court of the Family Court of Australia, Nicholson CJ, Fogarty and Frederico JJ, 6 March 1997)

S v S; The Child Representative; Victoria Legal Aid; The Chief Commissioner of Victoria Police (1997) FLC 92-762

Yunghanns v Yunghams (2000) FLC 93-029

APPLICANT:

Mr Hartnett

RESPONDENT:

Ms Sampson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYF

3827

2004

DATE DELIVERED:

14 December 2007

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

12 October 2007 and 25 October 2007 by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Livingston

SOLICITOR FOR THE RESPONDENT:

Mr Paul

COUNSEL FOR NON-PARTIES GAYLE MEREDITH, MICHAEL TAUSSIG AND DEBRA CHERRIE:

Ms Meredith (solicitor)

COUNSEL FOR NON-PARTY IMPACT CAPITAL LTD:

Mr Wahhab (solicitor)

ORDERS

The costs of Gayle Meredith, Michael Taussig and Debra Cherrie and Impact Capital Limited in respect of an application in a case heard the 12 October 2007 be paid by the applicant Mr Hartnett. Such costs and disbursements to be on a party/party basis as agreed between the parties or if not agreed determined under the Rules of Court.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Hartnett & Sampson (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827 of 2007

MR HARTNETT

Applicant

And

MS SAMPSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These reasons concern an application for costs made orally on the 12 October 2007 by several third parties against Mr Hartnett (“the husband”). These third parties are not parties to the proceedings, having never been joined and were not sought to be joined by the husband. The third parties (or non-parties) were given leave to appear on the basis that their interests could be affected by the determination of the husband’s application for orders to be made that day.
The matters insofar as they related to these non-parties were ultimately determined so that their interests were not adversely impacted. Had the non-parties been joined as parties to the proceedings, I indicated that I would have then considered whether in the circumstances I should make an order…

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 Hartnett & Sampson (Costs)

Details

AGLC: Hartnett & Sampson (Costs) [2007] FamCA 1456
Case: [2007] FamCA 1456
Decision Date: 14 December 2007

CaseChat Overview and Summary

This matter concerned an application for costs orders made by Gayle Meredith, Michael Taussig, Debra Cherrie, and Impact Capital Limited (the respondents) against Mr Hartnett (the applicant) in proceedings heard on 12 October 2007. The application sought to recover the costs incurred by the respondents in relation to a specific application within the broader case.

The primary legal issue before the Court was whether costs should be awarded against the applicant, Mr Hartnett, in favour of the respondents, who were non-parties to the original proceedings. The Court was required to consider the relevant provisions of the *Family Law Act 1975* (Cth), specifically section 117(2A), which governs costs orders in relation to non-parties, and to determine the appropriate basis for such costs, namely indemnity or party/party.

In reaching its decision, the Court applied the principles governing costs orders against non-parties. The Court found that it was appropriate to order the applicant to pay the costs of the respondents. These costs were to be assessed on a party/party basis, with any agreement between the parties to be given effect, or failing agreement, to be determined in accordance with the Rules of Court. Furthermore, the Court certified that it was reasonable to engage counsel to attend the hearing, pursuant to Rule 19.50 of the *Family Law Rules 2004*.

Orders

Orders of the court

The costs of Gayle Meredith, Michael Taussig and Debra Cherrie and Impact Capital Limited in respect of an application in a case heard the 12 October 2007 be paid by the applicant Mr Hartnett. Such costs and disbursements to be on a party/party basis as agreed between the parties or if not agreed determined under the Rules of Court.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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