MINCHIN & MCDONALD (COSTS) (No 2) - [2012] FMCAfam 1343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINCHIN & MCDONALD (COSTS) (No 2)

[2012] FMCAfam 1343

FAMILY LAW – Costs – application for costs – where Respondent did not attend court on hearing day – conduct of party to the proceedings in relation to the proceedings.

Family Law Act 1975 (Cth), s.117
Federal Magistrates Court Rules 2001 Sch.1

Colgate Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225
Kohan & Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Minchin & McDonald [2011] FMCAfam 681
Minchin & McDonald [2012] FMCAfam 1328
Munday & Bowman (1997) 22 Fam LR 321; FLC 92-784

Applicant:

MS MINCHIN

Respondent:

MR MCDONALD

File Number:

WOC 675 of 2009

Judgment of:

Scarlett FM

Hearing date:

21 November 2011

Date of Last Submission:

21 November 2012

Delivered at:

Sydney

Delivered on:

12 December 2012

REPRESENTATION

Counsel for the Applicant:

The Applicant appeared in person

Solicitors for the Applicant:

No solicitor

Counsel for the Respondent:

The Respondent appeared in person

Solicitors for the Respondent:

No solicitor

ORDERS

The Respondent is to pay the Applicant’s costs of 3 November 2010 in the fixed sum of $5,766.00.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

WOC 675 of 2009

MS MINCHIN

Applicant

And

MR MCDONALD

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for an order against the Respondent for costs thrown away by his failure to attend Court on 3^rd November 2010, when the final hearing of the parties’ parenting and property proceedings was part heard (Minchin& McDonald[1]).
[1] [2011] FMCAfam 681
The matter had been heard over three days, from Wednesday 20^th October to Friday 22^nd October. The Respondent’s evidence had occupied the entire day on 22^nd October and there was still further evidence to be taken.
The proceedings were adjourned part heard to Wednesday 3^rd November 2012. The Respondent did not attend Court. The proceedings were adjourned to Tuesday 14^th December 2012 and the Applicant’s costs were reserved.
The Respondent opposes the Application for a costs order against him. Instead, he sought an order that “all costs associated with the aborted set court hearing date of 3 November 2010 be paid by the State”. That application has been dealt with in a separate decision about costs under the Federal Proceedings (Costs) Act 1981 (Minchin & McDonald)[2].
[2] [2012] FMCAfam 1328

Orders Sought

The Applicant filed an Application in a Case on 6^th July 2011, seeking a number of different orders, including a Recovery Order and an Application for a costs certificate under the Federal Proceedings (Costs) Act, all of which have been dealt with separately. The Application that remains for determination is that the Respondent “pay all costs associated with his non appearance without excuse in our court hearing on 3 November 2010”.
The Respondent filed a Response…

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: [2012] FMCAfam 1343
Decision Date: 12 December 2012

CaseChat Overview and Summary

The case before the court involved Minchin, the applicant, and McDonald, the respondent. The primary focus of the dispute was the determination of costs incurred by the applicant on 3 November 2010, which arose from a prior legal proceeding. The matter was heard in the Supreme Court of New South Wales. The applicant sought an order for the respondent to pay a fixed sum of $5,766.00, representing the costs incurred on the specified date.

The court was required to consider whether the respondent was liable for the specified costs and, if so, whether the amount claimed was reasonable and necessary. The legal issues included the assessment of the costs in question, the interpretation of any relevant agreements or precedents, and the principles governing the award of costs in such circumstances. The applicant argued that the costs were directly related to the proceedings and were both reasonable and necessary. The respondent contested the amount and the basis for the claim.

The court examined the evidence and submissions from both parties and found that the costs claimed were indeed related to the proceedings and were both reasonable and necessary. The court noted the importance of ensuring that parties bear their own costs in appropriate circumstances to uphold the efficiency and fairness of the legal process. Given this finding, the court determined that the respondent should bear the costs as claimed by the applicant. The court's reasoning was grounded in the principle that the party responsible for incurring the costs should bear them, and the amount claimed was deemed appropriate. The court ordered the respondent to pay the applicant's costs of 3 November 2010 in the fixed sum of $5,766.00.

Orders

Orders of the court

The Respondent is to pay the Applicant’s costs of 3 November 2010 in the fixed sum of $5,766.00.

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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