Jess & Ors & Jess & Ors (Costs) - [2015] FamCAFC 184

FAMILY COURT OF AUSTRALIA

JESS AND ORS & JESS AND ORS (COSTS)

[2015] FamCAFC 184

FAMILY LAW – APPEAL – COSTS – Indemnity costs – Where the appeal was wholly unsuccessful – Where the respondents sought indemnity costs and the appellants opposed any order for costs – It is appropriate that costs follow the event, and the appellants have capacity to pay – The respondent husband’s failure to provide information about the extent of his costs is fatal to his application for indemnity costs – The outcome of the appeal was not as clear as submitted by the respondents – Order for the appellants to pay the respondents’ costs, but not on an indemnity basis.

FAMILY LAW – APPEAL – COSTS – Practice and procedure – Written costs submissions should generally only be made if there has been an offer of settlement that cannot be disclosed prior to the delivery of judgment.

Family Law Act 1975 (Cth) – s 117

Jess and Ors & Jess & Ors (2014) FLC 93-620
Nada & Nettle (Costs) (2014) FLC 93-612
Prantage & Prantage (2013) FLC 93-544

1^ST TO 10^TH APPELLANTS:

Mr Jess Jnr and others

1^ST RESPONDENT:

Ms Jess

2^ND RESPONDENT:

Mr Jess

3^RD TO 20^TH RESPONDENTS:

H Company and others

FILE NUMBER:

MLF

3444

2006

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

23 September 2015

PLACE DELIVERED:

Perth

PLACE HEARD:

In chambers

JUDGMENT OF:

Bryant CJ, Thackray & Ainslie-Wallace JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 November 2013

LOWER COURT MNC:

[2013] FamCA 863

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Mr Waller QC, Mr Strum & Mr Mereine

SOLICITOR FOR THE APPELLANTS:

HWL Ebsworth Lawyers

COUNSEL FOR THE 1^ST RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE 1^ST RESPONDENT:

Kenna Teasdale Lawyers

COUNSEL FOR THE 2^ND RESPONDENT:

Mr McCormick

SOLICITOR FOR THE 2^ND RESPONDENT:

Goldsmiths Lawyers

COUNSEL FOR THE 3^RD TO 20^TH RESPONDENTS:

Unrepresented

SOLICITOR FOR THE 3^RD TO 20^TH RESPONDENTS:

Unrepresented

Order

The appellants pay the costs of the first and second respondents of and incidental to the appeal as agreed, and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jess and Ors & Jess and Ors (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 74 of 2013
File Number: MLF 3444 of 2006

Mr Jess Jnr and others

1^st to 10^th Appellants

And

Ms Jess

1^st Respondent

And

Mr Jess

2^nd Respondent

And

H Company and others

3^rd to 20^th Respondents

REASONS FOR JUDGMENT

On 27 November 2014, we made orders dismissing the appellants’ application for leave to appeal against an anti-anti-suit injunction: Jess and Ors & Jess and Ors

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.

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Details

Case: [2015] FamCAFC 184
Decision Date: 23 September 2015

CaseChat Overview and Summary

In the matter of Jess & Ors v Jess & Ors, the Family Court of Australia was tasked with determining the costs associated with an appeal that had been wholly unsuccessful. The appellants, who were the original plaintiffs in the case, had appealed against the decision of the primary judge, but their appeal was dismissed. The respondents, who were the original defendants, sought indemnity costs on the basis that the appeal was entirely without merit. The appellants, however, opposed any order for costs, arguing that they lacked the capacity to pay.

The central legal issue before the court was whether the respondents were entitled to indemnity costs following the wholly unsuccessful appeal. The court considered the principles of costs following the event and the capacity of the appellants to pay. The court also noted that the respondents had not provided sufficient information regarding the extent of their costs, which undermined their application for indemnity costs. Furthermore, the court found that the outcome of the appeal was not as clear as the respondents had suggested, which also militated against an order for indemnity costs.

In its judgment, the court held that the costs should follow the event, but it was not appropriate to order indemnity costs given the circumstances. The court found that the appellants had the capacity to pay the costs and that the respondents' failure to provide detailed information about their costs was a significant factor. Consequently, the court ordered that the appellants were to pay the respondents' costs, but not on an indemnity basis. The court did not consider it necessary to provide a detailed breakdown of the respondents' costs at that stage, as the parties had not made an offer of settlement that could not be disclosed prior to the delivery of judgment.

The court's final order was that the appellants were to pay the respondents' costs of the appeal, but not on an indemnity basis. This decision reflects the court's careful consideration of the principles of costs following the event, the capacity of the parties to pay, and the procedural requirements for written costs submissions.

Orders