MAYNE & MAYNE (No.2) - [2009] FMCAfam 910

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAYNE & MAYNE (No.2)

[2009] FMCAfam 910

FAMILY LAW – Practice and procedure – costs – extension of time for filing costs application – stay of earlier orders made – access to documents produced under subpoena.

Family Law Act 1975, ss.117(1), (2), (2A)(g), (3), (4), (5), 117AA, 117AB, 117AC, 118

Inwood & Barnett [2008] FMCAfam 1446
McAlpin (1993) 16 FamLR 888
Penfold v Penfold (1980) 114 CLR 311
Re LGM and CAM (2006) 35 FamLR 598
Starkey and Starkey (2009) 41 FamLR 177

Applicant:

MR MAYNE

Respondent:

MS MAYNE

File Number:

CAC 114 of 2007

Judgment of:

Neville FM

Hearing date:

5 August 2009

Date of Last Submission:

5 August 2009

Delivered at:

Canberra

Delivered on:

4 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr Nash SC

Solicitors for the Applicant:

Farrar Gesini & Dunn

Counsel for the Respondent:

Mr Watkins

Solicitors for the Respondent:

Strong Law Pty Ltd

ORDERS

The Wife’s application to extend time for the filing of an Application in a Case in relation to costs be refused.
The Wife is to pay the costs of the Husband in relation to the professional costs incurred by him by the attendance of Ms Bell to inspect late-produced documents on the first day of the trial.
Order 9(a) of the Orders of 5^th June 2009 be varied to the extent that the Respondent Wife pay the Applicant Husband’s costs, on an indemnity basis, in relation to the Court events set out in that Order.
The Respondent Wife pay the Applicant Husband’s costs, as agreed or taxed, in relation to the Application in a Case filed on 26^th June 2009.
Save for Order 1 herein refusing the Wife’s application to extend time to file an Application in a Case in relation to costs, all Orders made in relation to these proceedings be stayed.
The issue of access to documents produced under subpoenae be stood over to be dealt with by the Full Court of the Family Court of Australia.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 114 of 2007

MR MAYNE

Applicant

And

MS MAYNE

Respondent

REASONS FOR JUDGMENT

A. Introduction

1. On 5^th June this year I delivered judgment and made orders in property proceedings between these parties.
So far as is relevant, those orders provide as follows:
(1) The Wife pay to the Husband the sum of $230,369.26 (“The Payment”) within 60 days of the date of these Orders (“The Due Date”).
(2) If the whole of the Payment has not been made by the Due Date:-
(a) The Wife do such things necessary to transfer to the Husband at the expense of the Husband a portion of her interest in the Property known as Property C, New South Wales being the whole of the land contained in the Certificate 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 MAYNE & MAYNE (No.2)

Details

AGLC: MAYNE & MAYNE (No.2) [2009] FMCAfam 910
Case: [2009] FMCAfam 910
Decision Date: 4 September 2009

CaseChat Overview and Summary

In the matter of Mayne and Mayne (No.2), the Family Court of Australia was presented with a case where the husband, M. M., sought costs against his ex-wife, D. M., arising from the late production of documents and the costs incurred due to the need to inspect these documents during the trial. The central issue was whether the wife should be granted an extension to file an application regarding costs and the extent to which she should compensate her ex-husband for costs incurred due to her actions.

The court needed to decide whether the wife’s application for an extension to file a costs application was justified and, if not, what consequences should follow from her late disclosure of documents. It also needed to determine the appropriate compensation for the husband's costs related to the late production of documents and the inspection thereof.

The court ruled that the wife's application for an extension to file a costs application should be refused. It found that the wife's failure to produce the documents on time was unreasonable and prejudiced the husband, leading to additional costs. Consequently, the wife was ordered to pay the husband's costs for the professional inspection of the late-produced documents. Furthermore, the court varied the existing orders to require the wife to pay the husband's costs on an indemnity basis for certain court events and his costs related to a specific application in the case. The court also stayed all orders except for the refusal of the extension application and deferred the issue of document access to the Full Court for further consideration.

Orders

Orders of the court

The Wife’s application to extend time for the filing of an Application in a Case in relation to costs be refused.

The Wife is to pay the costs of the Husband in relation to the professional costs incurred by him by the attendance of Ms Bell to inspect late-produced documents on the first day of the trial.

Order 9(a) of the Orders of 5th June 2009 be varied to the extent that the Respondent Wife pay the Applicant Husband’s costs, on an indemnity basis, in relation to the Court events set out in that Order.

The Respondent Wife pay the Applicant Husband’s costs, as agreed or taxed, in relation to the Application in a Case filed on 26th June 2009.

Save for Order 1 herein refusing the Wife’s application to extend time to file an Application in a Case in relation to costs, all Orders made in relation to these proceedings be stayed.

The issue of access to documents produced under subpoenae be stood over to be dealt with by the Full Court of the Family Court of Australia.

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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