Lindner and Lindner - [2018] FamCA 928

FAMILY COURT OF AUSTRALIA

LINDNER & LINDNER

[2018] FamCA 928

FAMILY LAW – COSTS – where a person seeks costs although not a party to the proceedings where her private financial circumstances may have been the subject of a subpoena – consideration of the power to make an order for costs in favour of a non-party.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Collins and Collins (1985) FLC 91-603
McAlpin & McAlpin (1993) FLC 92-411
Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; 195 CLR 184
Sully & Sully [2018] FamCA 786

APPLICANT:

Ms A Lindner

RESPONDENT:

Ms B Lindner

FILE NUMBER:

MLC

10352

2017

DATE DELIVERED:

16 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wheeler

SOLICITOR FOR THE APPLICANT:

Mills Oakley

COUNSEL FOR THE RESPONDENT:

Mr Brown QC with Mr Cameron

SOLICITOR FOR THE RESPONDENT:

Mackay Lawyers & Advisors

Orders

The application for costs by the purported Interested Party, Ms A Lindner, is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10352 of 2017

Ms A Lindner

Applicant

And

Ms B Lindner

Respondent

REASONS FOR JUDGMENT

Ms A Lindner (“Ms Lindner”) is related to Mr Lindner (“the husband”) who is a party in the substantive property proceedings before the Court. Ms Lindner is also a director of some corporate entities. To the accountant of those entities, Ms B Lindner (“the wife”) had the Court issue a subpoena on 24 May 2018, to produce documents.
Ms Lindner was not served with the relevant subpoena but became aware of the extent of the documents being pursued. Through her solicitors, Ms Lindner contacted the wife’s solicitors asserting she was an “interested person” within the definition in the Family Law Rules 2004 (Cth) and insisted on being properly informed about what was being sought. In short compass, this all led to a costs application being made by Ms Lindner against the wife after other disputes involving the parties to the proceedings were resolved.
The dispute between the parties to the proceedings was heard in the judicial duty list on 14 November 2018 despite the fact that the subpoena had been issued as long ago as May 2018. Objection was lodged by the accountant to the release of the documents for inspection by the wife. His objection related to…

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: [2018] FamCA 928
Decision Date: 16 November 2018

CaseChat Overview and Summary

In the matter of *Lindner and Lindner*, heard before Cronin J, the court considered an application for costs brought by Ms A Lindner, who was described as a purported Interested Party. The specific nature of the underlying dispute between the parties is not detailed in the provided extract, however, the central issue before the court was the determination of whether Ms A Lindner was entitled to an award of costs in the proceedings.

The legal issue before Cronin J was whether the purported Interested Party, Ms A Lindner, had established sufficient standing or a legal basis to be awarded costs in the proceedings. The court was required to assess the role and interest of Ms Lindner in the litigation to determine if she met the criteria for an award of costs.

Cronin J dismissed the application for costs by Ms A Lindner. The reasoning for this dismissal is not elaborated upon in the provided text, but the outcome signifies that the court found no grounds upon which to grant her application for costs. The formal entry of the order in the Court’s records was noted as being subject to confirmation.

Orders

Orders of the court

The application for costs by the purported Interested Party, Ms A Lindner, is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.