McAlpin v McAlpin - [1994] HCATrans 288

•

.

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S118 of 1993
B e t w e e n -
RACHEL MARY McALPIN

Applicant

ahd
WARREN JOHN McALPIN

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J

TOOHEY J

McAlpin

22/4/94

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 1994, AT 10.00 AM

MR D.M.J. BENNETT, OC:

May Lt please the Court, I appear

for the applicant with my learned friend,

MR B.J. KNOX. (instructed by Fleming Muntz
Summons)

MR D. MILNE, OC: If the Court pleases, I appear with my

learned friend, MR P.H. BLACKBURN-HART, for the
respondent. (instructed by Gibney & Gunson)

TOOHEY J:

Mr Bennett, this is an application for leave to

appeal against an order for costs?

MR BENNETT:

Yes, Your Honour.

Your Honour, a visit to the

Family Court can be a frightening, emotional and expensive experience for many litigants.
Fortunately, those consequences are frequently
assuaged because litigants have friends, parents,
new partners or concerned associations, which give
them emotional and financial support when they need

it most. What the majority decision of the
Full Court does in this case is create a new hazard
for the good samaritans of the Family Court and for
their proteges.
There are two things the case is not about:

it is not about orders for costs against a third

party, as in Knight v F.P. Special Assets. No such
order was made here and, indeed, the circumstances
Your Honours laid down in that case for the making
of an order were not satisfied because there was no
interest, as is required by that case.

TOOHEY J: In a sense it is though, is it not, because one

of your proposed grounds of appeal is that the
third party was denied natural justice.

MR BENNETT:

It was denied natural justice in relation to

the order for costs, yes.

TOOHEY J: If the order for costs is not against the third

party, how does the question of natural justice
arise?

MR BENNETT: Because, Your Honour, the reason for making the

order for costs, or one of the reasons given for
the making of the order, was that it would be paid
by the third party because of the attitude the
third party had evinced towards the litigant, the
charitable attitude.
What this case is about, Your Honours, is a

factor being taken into account which, we submit,
is quite impermissible and indeed is a means of
avoiding the rules laid down in
Knight v F.P. Special Assets where, first of all, there must be, among other things, an interest and,

McAlpin

22/4/94

secondly, natural justice must be given to the
third party.

TOOHEY J: Yes, I understand the argument that says

"an impermissible element was taken into account".
I just have difficulty with the other argument that
there was a failure to accord natural justice to a
third party, against whom…

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 McAlpin v McAlpin

Details

AGLC: McAlpin v McAlpin [1994] HCATrans 288
Case: [1994] HCATrans 288
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Mr. McAlpin, sought leave to appeal against an order for costs made by the Full Court of the Family Court. The dispute centred on whether a third party's likely financial contribution to an impecunious litigant's costs could be a permissible factor for a court to consider when making a costs order against that litigant.

The primary legal issue before the High Court was whether the Full Court had impermissibly taken into account the likelihood of a third party paying the costs of an impecunious litigant when making its costs order. A secondary issue, raised by the court, was whether the third party had been denied natural justice in relation to the costs order, given that the order was not directly against them but their potential contribution was a stated reason for its making. The applicant argued that this consideration was impermissible and circumvented the principles established in *Knight v F.P. Special Assets*, which required a demonstrable interest and adherence to natural justice for orders against third parties.

The applicant's central submission was that the Full Court had taken into account an impermissible factor by considering the potential financial support from a third party. This, it was argued, allowed courts to make costs orders against a party where they otherwise would not, by relying on the prospect of a third party covering those costs, effectively creating a "new hazard" for those providing support. While the court acknowledged the applicant's argument regarding an impermissible element being considered, it expressed difficulty with the natural justice argument as no order was made directly against the third party. The applicant contended that if the third party's potential contribution was a reason for the order, then that party should have been heard.

Orders