Phipson & Phipson (Costs) - [2010] FamCAFC 196

FAMILY COURT OF AUSTRALIA

PHIPSON & PHIPSON (COSTS)

[2010] FamCAFC 196

FAMILY LAW - EXTENSION OF TIME – Where reasonable explanation for delay – Application granted

FAMILY LAW - COSTS – Where no determination of costs made in proceedings below – Full Court has power to determine only the costs of the appeal

FAMILY LAW - COSTS – Offers of settlement – offers of settlement made before trial – even if able to be taken into account would not provide basis for an order for costs

FAMILY LAW - COSTS CERTIFICATES – Where the appeal was allowed on a question of law – Costs certificate granted to appellant

Family Law Act 1975 (Cth), s 117
Federal Proceedings (Costs) Act 1981 (Cth), s 9

APPELLANT:

Mr Phipson

RESPONDENT:

Ms Phipson

FILE NUMBER:

PTW

3678

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

8 October 2010

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Finn, Thackray and Crisford JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

28 March 2008

LOWER COURT MNC:

[2008] FCWA 38

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr M Supljeglav

SOLICITOR FOR THE APPELLANT:

DS Family Law

COUNSEL FOR THE RESPONDENT:

Mr G Giudice

SOLICITOR FOR THE RESPONDENT:

George Giudice Law Chambers

Orders

The time within which the respondent wife had to make an application for costs of the appeal be extended to 1 April 2009.
The application of the husband for costs filed on 18 March 2009 and the application of the wife for costs filed on 1 April 2009 be dismissed.
The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Phipson and Phipson (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 16 of 2008
File Number: PTW 3678 of 2007

Mr Phipson

Appellant

And

Ms Phipson

Respondent

REASONS FOR JUDGMENT

On 4 March 2009 this Court delivered reasons for judgment and made orders allowing an appeal by the husband against orders for property settlement made by Crooks J on 28 March 2008.
In our orders of 4 March 2009 we made directions that within 14 days the parties file and serve written submissions in the event either sought “costs in relation to the appeal”. Any response was to be made 14 days after service of such submissions.
In written submissions filed on his behalf on 18 March 2009, the husband sought that the wife should pay his “costs of and incidental to the [substantive property settlement] proceedings as from…

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 Phipson & Phipson (Costs)

Details

AGLC: Phipson & Phipson (Costs) [2010] FamCAFC 196
Case: [2010] FamCAFC 196
Decision Date: 8 October 2010

CaseChat Overview and Summary

In this family law matter, the husband, Phipson, appealed against the orders made by the trial judge regarding the costs of the proceedings. The wife, also Phipson, applied for an extension of time to file her application for costs of the appeal. The case was heard in the Federal Circuit Court of Australia. The husband opposed the wife's application for an extension of time, arguing that it was unreasonable and should be dismissed. The wife contended that there was a reasonable explanation for the delay and that the application should be granted.

The legal issues before the court were whether the wife's application for an extension of time should be granted, whether offers of settlement made before the trial could be taken into account in determining costs, and whether a costs certificate should be granted to the husband. The court had to consider whether there was a reasonable explanation for the delay in the wife's application for costs, whether the offers of settlement could be considered, and whether the husband was entitled to a costs certificate.

The court held that there was a reasonable explanation for the delay in the wife's application for costs, and therefore, the application for an extension of time should be granted. The court found that the offers of settlement made before the trial could not provide a basis for an order for costs. The court also held that since the appeal was allowed on a question of law, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the husband in respect of the costs incurred by him in relation to the appeal. Consequently, the court granted a costs certificate to the husband.

The court dismissed the husband's application for costs and the wife's application for costs of the appeal. The court also extended the time within which the wife had to make an application for costs of the appeal to 1 April 2009.

Orders

Orders of the court

The time within which the respondent wife had to make an application for costs of the appeal be extended to 1 April 2009.

The application of the husband for costs filed on 18 March 2009 and the application of the wife for costs filed on 1 April 2009 be dismissed.

The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

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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