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Prantage & Prantage

Case [2013] FamCAFC 105 4 July 2013

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FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE

[2013] FamCAFC 105

FAMILY LAW – APPEAL – Appeal against a costs order made on an indemnity basis – Where the trial Judge understood but questioned the settled law relating to indemnity costs – The trial Judge’s discretion miscarried in apparently not applying the settled law – Appeal allowed.

FAMILY LAW – RE-EXERCISE – The appellant knowingly made a false allegation or statement – The appellant was wholly unsuccessful – Parties not in a strong financial position after incurring substantial legal costs – Indemnity costs not appropriate – Costs in favour of the respondent awarded on a party and party basis.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Family Law Act 1975 (Cth) ss 117, 117AB
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Schedule 1
Family Law Rules 2004 rr 1.04, 1.05, 1.08, 19.04, 19.08, 19.18, 19.19, 19.33, 19.34, 19.53; Part 19.4; Schedules 1 and 3
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 1979
Federal Proceedings (Costs) Act 1981 (Cth)

Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] 179 ALR 406
Boyapati v Rockefeller Management Corporation (No 2) [2008] FCA 1375
Browne v Green (2002) FLC 93-115
Charles and Charles [2007] FamCA 276
Child Support Registrar & Kanavos (2010) 44 Fam LR 422
Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248
Derry v Peek (1899) 14 App Cas 337
Farnell & Farnell (1996) FLC 92-681
Given v Pryor (1979) 39 FLR 437
Hackshaw & Hackshaw (Costs) [2011] FamCA 570
Hand & Bodilly [2013] FamCAFC 98
Harris & Harris (1991) FLC 92-254
Hayward v Forest Practices Tribunal (No 3) [2004] TASSC 14
I & I (No. 2) (1995) FLC 92-625
Kenneally v Pouras & Ors [2007] SASC 303
Kohan and Kohan (1993) FLC 92-340
Magill v Magill (2006) 231 ALR 277
Marks v GIO Australia Holdings Ltd (1996) 137 ALR 579
Michos v Council of the City of Botany Bay (No 3) [2012] NSWSC 1465
Nguyen v Nguyen (1990) 169 CLR 245
NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77
Oshlack v Richmond River Council (1998) 193 CLR 72
Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc (t/as East Coast Apprenticeships) v Group Training Assoc Qld and Northern Territory Inc [2013] QSC 87
Prantage & Prantage [2011] FamCA 481
Re Malley SM; Ex parte Gardner [2001] WASCA 83
Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Robinson & Higginbotham (1991) FLC 92-209
Sharma & Sharma (No. 2) [2007] FamCA 425
State of Victoria v Grawin Pty Ltd [2012] VSC 157
Strahan & Strahan (Appeal Costs) [2009] FamCAFC 225
Transurban City Link Ltd v Allan (1999) 95 FCR 553

APPELLANT:

Mr Prantage

RESPONDENT:

Mrs Prantage

FILE NUMBER:

MLC

11263

2008

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

4 July 2013

PLACE DELIVERED:

Perth

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Ryan and Murphy JJ

HEARING DATE:

17 June 2013

LOWER COURT…

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: Prantage & Prantage [2013] FamCAFC 105
Case: [2013] FamCAFC 105
Decision Date

CaseChat Overview and Summary

This appeal concerns an order for indemnity costs made in the Family Court of Australia in proceedings between Mr Prantage and Mrs Prantage. The appeal was heard by Thackray, Ryan and Murphy JJ on 17 June 2013 and the Court's reasons were delivered on 4 July 2013. The appeal was allowed and the costs order was set aside. Instead, it was ordered that Mr Prantage pay Mrs Prantage’s costs of the parenting proceedings from 28 January 2010 on a party and party basis. The Court also granted costs certificates to both parties. The appeal concerned the basis on which costs were to be assessed. The trial Judge had ordered that costs be assessed on an indemnity basis. The appeal was based on two grounds. The first was that the trial Judge erred in departing from the principle that each party should bear their own costs. The second was that the trial Judge erred in ordering that costs be assessed on an indemnity basis. The Court found that the trial Judge had impermissibly conflated the husband's conduct as a parent with his conduct as a litigant in determining that costs should be payable on an indemnity basis. The Court also found that the trial Judge had departed from settled authority. The Court held that the settled law relating to the ordering of costs on an indemnity basis had been well established for many years. It was a well entrenched principle that indemnity costs orders were a very great departure from the normal standard and were to be awarded only in exceedingly rare situations. The Court found that the trial Judge had misunderstood the settled law and that he had not properly applied it. The Court accordingly re-exercised the trial Judge's discretion. The Court found that it was appropriate the husband should pay the wife's costs. The issue that arose now was the basis upon which the costs should be assessed. The Court was not persuaded that the costs should be calculated on anything other than a party and party basis. It found that, although the husband's behaviour was reprehensible, his poor behaviour was primarily in his capacity as a parent rather than as a litigant.

Orders