Hill v Hill - [2007] FamCA 1657

FAMILY COURT OF AUSTRALIA

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[2007] FamCA 1657

FAMILY LAW – COSTS – Service of itemised costs accounts – Extension of time for service – Review of Registrar’s order extending time – Review constitutes original hearing – Time for service of itemised costs accounts extended

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth); Rules 1.14, 18.10, 19.21, 19.23, 19.24

Gallo v Dawson (1990) 93 ALR 479

Harris v Caladine (1991) 172 CLR 84

Morrison v Morrison (1995) FLC 92-573

OP & HM [2002] FamCA 454

Parrott v The Public Trustee of New South Wales (1994) FLC 92-473

Penfold & Penfold (1980) 144 CLR 311

Prowse v Prowse (1995) FLC 92-557

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT:

Ms Home

RESPONDENT:

Mr Home

FILE NUMBER:

BRF

2057

2004

DATE DELIVERED:

1 November 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Justice O’Reilly

HEARING DATE:

1 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Blattman

SOLICITOR FOR THE APPLICANT:

Mc Donald Brown

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Mr Hoskins

Berck & Associates

Orders

IT IS ORDERED BY CONSENT

To the extent necessary, the time for the wife to file her application for a review of the orders made by Registrar Stevens on 5 September 2007 is extended to 28 September 2007.

AND IT IS ORDERED

The Registrar’s orders made on 5 September 2007 are set aside.
The time for service by the husband on the wife of three itemised costs accounts in relation to the costs order made by Coleman J on 14 December 2006 (the three itemised costs accounts being for the husband’s costs of and incidental to proceedings on 5 and 6 December 2005, 26 May 2006 and 8 June 2006) is extended to 1 November 2007.
The husband pay the wife's costs, including Counsel's fees, of and incidental to the husband's application filed on 26 July 2007 before Registrar Stevens, to be assessed if not agreed, to be set off against the costs the wife is to pay the husband pursuant to Coleman J’s costs order made on 14 December 2006.
There be no order as to costs of or relating to the wife's review application.

NOTATION:

The intent of paragraph 3 of these orders is that for the purpose of Rule 19.23 of the Family Law Rules 2004 all 3 itemised costs accounts (although already delivered on 27 September 2007 as to the first and 2 October 2007 as to the second and third) be regarded as served on 1 November 2007 so that the time for the service of notices disputing the itemised costs accounts will run from 1 November 2007 and, if the parties are unable to resolve the dispute, the time pursuant to Rule 19.24(3) for either party to ask the Court to determine the dispute, by filing in the Registry the itemised costs accounts and the notices disputing the itemised costs accounts, will run from 28 November 2007.

IT IS NOTED that publication of…

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 Hill v Hill

Details

AGLC: Hill v Hill [2007] FamCA 1657
Case: [2007] FamCA 1657
Decision Date: 1 November 2007

CaseChat Overview and Summary

In *Hill v Hill*, Justice O’Reilly considered an application by the wife for a review of orders made by Registrar Stevens on 5 September 2007. The husband also filed an application on 26 July 2007. The proceedings involved a dispute over costs orders previously made by Coleman J on 14 December 2006.

The primary legal issues before the court were whether to extend the time for the wife to file her review application, whether to set aside the Registrar's orders of 5 September 2007, and whether to extend the time for the husband to serve itemised costs accounts related to the earlier costs order. The court also had to determine the costs of the husband's application and the wife's review application.

Justice O’Reilly, by consent of the parties, extended the time for the wife to file her review application and set aside the Registrar's orders of 5 September 2007. The court also extended the time for the husband to serve three itemised costs accounts, deeming them served on 1 November 2007 for the purposes of the Family Law Rules 2004, which would then trigger the timeframes for disputing those accounts. The husband was ordered to pay the wife's costs of his application, to be assessed and set off against the costs the wife was to pay him under the previous order of Coleman J. No order was made as to the costs of the wife's review application.

Orders

Orders of the court

IT IS ORDERED BY CONSENT

To the extent necessary, the time for the wife to file her application for a review of the orders made by Registrar Stevens on 5 September 2007 is extended to 28 September 2007.

AND IT IS ORDERED

The Registrar’s orders made on 5 September 2007 are set aside.

The time for service by the husband on the wife of three itemised costs accounts in relation to the costs order made by Coleman J on 14 December 2006 (the three itemised costs accounts being for the husband’s costs of and incidental to proceedings on 5 and 6 December 2005, 26 May 2006 and 8 June 2006) is extended to 1 November 2007.

The husband pay the wife's costs, including Counsel's fees, of and incidental to the husband's application filed on 26 July 2007 before Registrar Stevens, to be assessed if not agreed, to be set off against the costs the wife is to pay the husband pursuant to Coleman J’s costs order made on 14 December 2006.

There be no order as to costs of or relating to the wife's review application.

NOTATION:

The intent of paragraph 3 of these orders is that for the purpose of Rule 19.23 of the Family Law Rules 2004 all 3 itemised costs accounts (although already delivered on 27 September 2007 as to the first and 2 October 2007 as to the second and third) be regarded as served on 1 November 2007 so that the time for the service of notices disputing the itemised costs accounts will run from 1 November 2007 and, if the parties are unable to resolve the dispute, the time pursuant to Rule 19.24(3) for either party to ask the Court to determine the dispute, by filing in the Registry the itemised costs accounts and the notices disputing the itemised costs accounts, will run from 28 November 2007.

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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