FAMILY LAW – Costs – relevant considerations – non disclosure in financial proceedings –indemnity costs sought – costs sought against solicitor and wife – conduct of solicitor.
That the wife and Ms Curtis be jointly and severally liable to pay the husband’s costs of his application filed on 10 January 2008 on a party/party basis, as agreed or in default to be taxed.
That the wife and Ms Curtis be jointly and severally liable to pay the husband’s costs of his application in a case filed 9 December 2008 on a party/party basis as agreed or in default to be taxed.
The costs orders referred to in orders (1) and (2) herein be stayed until the wife’s appeal filed 14 August 2009 is determined or a Notice of Discontinuance is filed.
That the Registrar of the Federal Magistrates Court of Australia be requested to provide the Legal Services Commissioner with a copy of these reasons to pursue such investigation into the conduct of Ms Curtis as that organisation believes is appropriate.
IT IS NOTED that publication of this judgment under the pseudonym Parker & Jacks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
MLC 236 of 2008
MR PARKER
Applicant
And
MS JACKS
Respondent
REASONS FOR JUDGMENT
Introduction
The litigation between these parties has been ongoing for some considerable time. These reasons concern an application for costs arising out of the most recent skirmish in a protracted dispute between two parents over child support and a…
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
AGLC
Parker & Jacks (No.3) [2009] FMCAfam 993
Case
[2009] FMCAfam 993
Decision Date
CaseChat Overview and Summary
The Federal Magistrates Court presided over the case of Parker & Jacks (No. 3), which involved a dispute concerning the distribution of assets following a divorce. The husband sought costs against both his ex-wife and her legal representative, Ms Curtis. The husband contended that Ms Curtis had acted unprofessionally during the proceedings, leading to the necessity of these applications for costs.
The court needed to determine the appropriate liability for the costs incurred by the husband due to the conduct of Ms Curtis. Specifically, the court had to decide whether Ms Curtis's conduct warranted the imposition of costs on the wife and herself, and if so, the extent of that liability. Additionally, the court had to consider the implications of the wife's pending appeal on the enforcement of these costs.
The court held that Ms Curtis's conduct was indeed unprofessional and in breach of the legal obligations of a solicitor. As a result, the court ordered that both the wife and Ms Curtis be jointly and severally liable for the husband's costs from the specified applications. The court also directed that these costs orders be stayed pending the outcome of the wife's appeal or until a Notice of Discontinuance is filed. Furthermore, the court requested that the Registrar provide the Legal Services Commissioner with a copy of the reasons to facilitate an investigation into Ms Curtis's conduct.
In summary, the court ordered that the wife and Ms Curtis be jointly and severally liable for the husband's costs from the specified applications, subject to certain conditions regarding the stay and appeal process. Additionally, the court mandated an investigation into Ms Curtis's conduct by the Legal Services Commissioner.
Orders
Orders of the court
1.
That the wife and Ms Curtis be jointly and severally liable to pay the husband’s costs of his application filed on 10 January 2008 on a party/party basis, as agreed or in default to be taxed.
2.
That the wife and Ms Curtis be jointly and severally liable to pay the husband’s costs of his application in a case filed 9 December 2008 on a party/party basis as agreed or in default to be taxed.
3.
The costs orders referred to in orders (1) and (2) herein be stayed until the wife’s appeal filed 14 August 2009 is determined or a Notice of Discontinuance is filed.
4.
That the Registrar of the Federal Magistrates Court of Australia be requested to provide the Legal Services Commissioner with a copy of these reasons to pursue such investigation into the conduct of
Ms Curtis as that organisation believes is appropriate.