KELLY & LOMAX

FAMILY COURT OF AUSTRALIA

KELLY & LOMAX [2015] FamCA 520

FAMILY LAW – COSTS – where there was no abuse of process found – where one party wholly unsuccessful – where counsel found not to have acted negligently or unprofessionally – case application dismissed

Family Law Act 1975 (Cth) s117 s117AA s118
Family Law Rules  r19.08 r19.10 r19.18
Evidence Act 1995 (Cth) s140

Legal Profession Act 2004 (NSW)

Lemoto v Able Technical Pty Ltd & Ors (2005) 63 NSWLR 300
Cassidy & Murray (1995) FLC 92-633
Yunghanns & Ors & Yunghanns (2000) FLC 93-029
Colgate-Palmolive Company & Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) FCR 225
Kohan & Kohan (1993) FLC 92-340 and FLR 19.08(3)
Muldoon & Carlyle (2012) FLC 93-513
Daymond & Daymond & Ors (Costs) [2014] FamCA 302
Grefeld & Grefeld & Anor (Costs) [2015] FamCA FC 56
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364
J Corp Pty Ltd v Australian Building Labourers Federation Union of Workers (WA Branch)(No 2) [1993] FCA 42
Z (A Solicitor) v Limousin (Costs) [2010] FLC 93-433

APPLICANT: Ms Kelly

RESPONDENT: Mr Lomax

FILE NUMBER: BRC 6009 of 2010

DATE DELIVERED: 25 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 25 June 2015

REPRESENTATION

THE APPLICANT: In person

MS LOMAX: In person

MR KK: Mr Page QC

Orders

1. The Amended Application in a Case of Ms Lomax filed 8 September 2014 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC6009/2010

Ms Kelly

Applicant

And

Mr Lomax

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 27 June 2013, for reasons given on that day, I ordered that the then second respondent to these proceedings, Ms Lomax, be removed as a party to them.  However those reasons only dealt with a part of the controversy that had been earlier litigated before me, which was not finally resolved until 25 October 2013, when I gave further reasons.  I will detail the relevant history of the matter shortly.

2. By Amended Application in a Case filed 8 September 2014, Ms Lomax seeks orders that Ms Kelly (“the wife”) and her former counsel, Mr KK, “be ordered to pay the costs in the amount of $109,418.77 on an indemnity basis for legal fees incurred in [the] unsuccessful attempt to join [Ms Lomax] as a third party to the proceeding.”  I will deal with the various iterations of that application in due course as well.

3. On 4 September 2014 I made orders requiring the wife and Mr KK to make file and serve any material in opposition to Ms Lomax’s application by 4:00pm Thursday 16 October 2014.  Further orders were made facilitating Ms Lomax’s response to any such material, and the matter was adjourned for hearing before me in…