KAPPEL & CARLSSON (No.2) - [2018] FCCA 2973

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPPEL & CARLSSON (No.2)

[2018] FCCA 2973

Catchwords
FAMILY LAW – Costs – applicant wholly unsuccessful in substantive proceeding – respondent placed at considerable expense – costs awarded on an indemnity basis – cost order stayed for thirty days.

COSTS – Judge’s discretion – whether rare or exceptional circumstances are a precondition to awarding costs on an indemnity basis – key authorities considered – applicant’s impecuniosity not a reason for refusing to award costs.

Legislation

Family Law Act 1975, ss.117(2), (2A)

Cases cited

Fountain Selected Meats (Sales)Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (No 2) (1993) 40 FCR 511
Regatta Developments Pty Ltd v Westpac Banking Corporation (1993) 40 FCR 511
Andrews v Barnes (1887) 39 Ch D 133

Applicant:

MR KAPPEL

Respondent:

MS CARLSSON

File Number:

MLC 11185 of 2013

Judgment of:

His Honour Judge Wilson

Hearing date:

23 August 2018

Date of Last Submission:

31 August 2018

Delivered at:

Melbourne

Delivered on:

24 October 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the Respondent:

Ms M E Agresta

Solicitors for the Respondent:

Lampe Family Lawyers

Counsel for the Independent Children's Lawyer:

Ms S Buchanan

Solicitors for the Independent Children's Lawyer:

Trapski Family Law

ORDERS

The applicant pay the respondent’s costs of this proceeding on an indemnity basis fixed in the sum of $26 233.90.
Order 1 hereof is stayed until 23 November 2018.

IT IS NOTED that publication of this judgment under the pseudonym Kappel & Carlsson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11185 of 2013

MR KAPPEL

Applicant

And

MS CARLSSON

Respondent

REASONS FOR JUDGMENT

Introduction

On 24 August 2018 I held over the question of costs, inviting the parties to file submissions on point. The applicant chose not to file submissions, instead filing a notice of appeal from my orders. The respondent filed submissions seeking an order for the payment of costs in the sum of $26,233.90, being her costs on an indemnity basis.

Synopsis

In my view, an order should be made in the terms sought by the respondent. I make an order for the payment of indemnity costs in the sum of $26,233.90. Such an order is made for the following reasons.

In this court

First, the applicant was wholly unsuccessful in this case. Unless and until an appellate court sets aside my orders, they stand with the consequence that the father is to have no time with the children. A complete failure in a proceeding is specifically provided for as one basis for enlivening my power to make a costs order for the purposes of s 117(2A) of the Family Law Act (“Act”).
Second, in my earlier judgment I held in effect that there was no proper basis for bringing the proceeding.…

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 KAPPEL & CARLSSON (No.2)

Details

AGLC: KAPPEL & CARLSSON (No.2) [2018] FCCA 2973
Case: [2018] FCCA 2973
Decision Date: 24 October 2018

CaseChat Overview and Summary

In the Family Court of Australia, His Honour Judge Wilson considered an application for costs following a substantive proceeding in which the applicant was wholly unsuccessful. The respondent had incurred considerable expense in defending the proceedings.

The court was required to determine whether rare or exceptional circumstances were a precondition to awarding costs on an indemnity basis. The court also considered the relevance of the applicant's impecuniosity to the exercise of its discretion regarding costs.

His Honour Judge Wilson determined that rare or exceptional circumstances are not a precondition for awarding costs on an indemnity basis, referencing key authorities on the matter. The court found that the applicant's impecuniosity did not preclude an award of costs on an indemnity basis. Consequently, the applicant was ordered to pay the respondent's costs of the proceeding on an indemnity basis, fixed at $26,233.90. This order was stayed until 23 November 2018.

Orders

Orders of the court

The applicant pay the respondent’s costs of this proceeding on an indemnity basis fixed in the sum of $26 233.90.

Order 1 hereof is stayed until 23 November 2018.

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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