HEWSON & HEWSON - [2020] FCCA 2886

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEWSON & HEWSON

[2020] FCCA 2886

Catchwords:
FAMILY LAW – COSTS – Application for costs on an indemnity basis – applicant self-represented.

Legislation:

Family Law Act 1975 (Cth), ss.117

Federal Circuit Court Rules 2001 (Cth), r. 21.02

Cases cited:

Chocrane & Chocrane [2012] FMCAfam 984

Colgate & Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225

Collins & Collins (1985) FLC 91-603

Kohan & Kohan (1993) FLC 92-340

Latoudis v Casey (1990) 170 CLR 534

Penfold & Penfold (1980) 144 CLR 311

Sala & Habner (No.2) [2018] FCCA 2738

Wrensted & Eades [2016] FamCAFC 46

Applicant:

MR HEWSON

Respondent:

MS HEWSON

File Number:

PAC 2084 of 2020

Judgment of:

Judge Obradovic

Hearing date:

15 September 2020

Date of Last Submission:

21 September 2020

Delivered at:

Parramatta

Delivered on:

23 October 2020

REPRESENTATION

Appearing for the Applicant:

In person

Appearing for the Respondent:

No appearance

ORDERS

That within six months of the date of these orders, the respondent is to pay the applicant’s costs in the amount of $2,802.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2084 of 2020

MR HEWSON

Applicant

And

MS HEWSON

Respondent

REASONS FOR JUDGMENT

Introduction and Relevant Facts

The parties to these proceedings are the applicant father Mr Hewson and the respondent mother Ms Hewson.
There is one child of the relationship, namely, X born 2018. X lives with the applicant pursuant to final orders of this Court made on 15 September 2020.
On 15 September 2020 the applicant pressed the Court to make an order for costs as sought by him in paragraph 8 of his Amended Initiating Application filed 16 August 2020 being, “that the mother, Ms Hewson pay to the Father, Mr Hewson all associated costs incurred in this court matter”.
The Court directed the applicant to file an affidavit in support of his costs application within 14 days together with submissions as to why a costs order should be made as sought by him and that such application would be dealt with by the Court “on the papers”.
On 21 September 2020 the applicant filed an Affidavit as directed by the Court in support of his application for costs, together with annexures to his affidavit which was accepted for filing on 24 September 2020.
These are the Court’s Reasons for Judgment with respect to the applicant’s application for costs.

Summary of Costs Sought

In the applicant father’ affidavit filed 21 September 2020 he summarises the costs sought by him as follows:
a)$5,000 in payment to his legal representatives for legal fees;
b)$470 to the Court to commence proceedings;
c)$5,000 further payment to his legal representatives for legal fees;
d)$3,919.13 in owing legal fees to his legal representatives; and
e)$176.76 for the cost of serving the respondent with the initiating process.
The total amount of costs the applicant…

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 HEWSON & HEWSON

Details

AGLC: Hewson and Hewson [2020] FCCA 2886
Case: [2020] FCCA 2886
Decision Date: 23 October 2020

CaseChat Overview and Summary

In *Hewson & Hewson*, heard before Judge Obradovic, the applicant sought an order for costs on an indemnity basis against the respondent. The applicant was self-represented in the proceedings.

The central legal issue before the court was whether the applicant had established grounds for an award of costs on an indemnity basis. This required the court to consider the circumstances of the litigation and the conduct of the parties to determine if such an exceptional order was warranted.

Judge Obradovic reasoned that an award of costs on an indemnity basis is an exceptional remedy, typically reserved for cases where there has been misconduct or unreasonable conduct during the litigation. While the applicant was self-represented, the court found that the threshold for an indemnity costs order had not been met in this instance. The court ultimately ordered that the respondent pay the applicant's costs in the amount of $2,802, to be paid within six months of the date of the orders.

Orders

Orders of the court

That within six months of the date of these orders, the respondent is to pay the applicant’s costs in the amount of $2,802.

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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