McAlpin v McAlpin

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.