Prosser & Prosser (No. 3)

Case [2021] FamCA 386

FAMILY COURT OF AUSTRALIA

Prosser & Prosser (No. 3) [2021] FamCA 386

File number(s): BRC 1320 of 2015
Judgment of: BAUMANN J
Date of judgment: 22 June 2021
Catchwords: FAMILY LAW – COSTS – application for costs sought by the Applicant against the Respondent where the Respondent was wholly unsuccessful in her claim against the Applicant – where the Court is satisfied circumstances exist to justify an order for costs – Order made for the Respondent to pay a contribution of $12,000 to the costs of the Applicant. 
Legislation:

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.08

Cases cited:

Kohan & Kohan (1993) FLC 92-340

Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920

Prosser & Prosser and Anor [2020] FamCA 378

Prosser & Prosser and Anor (No. 2) [2020] FamCA 500

Prosser & Prosser and Anor [2018] FamCA 1077

Rigby & Kingston and Ors [2020] FamCA 415

Smith & Fields (third party costs) [2013] FamCA 505

Stasiuk & Guild [2021] FamCAFC 62

Yunghanns & Yunghanns (2000) FLC 93-029

Number of paragraphs: 32
Date of last submission: 23 October 2020
Date of hearing: In chambers on the papers
Place: Brisbane

ORDERS

BRC 1320 of 2015
BETWEEN:

MR B PROSSER
Applicant
AND:

MS PROSSER
Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

22 JUNE 2021

THE COURT ORDERS:

1.That within sixty (60) days of the date of this Order the Respondent, Ms Prosser, pay the sum of $12,000 to the Applicant, Mr B Prosser, as a contribution to the costs paid by him.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prosser & Prosser has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

  1. On 22 May 2020, Reasons for Judgment were delivered in respect of the substantive property proceedings between the Applicant wife, Ms Prosser, the First Respondent husband, Mr A Prosser, and the Second Respondent, Mr J (the Applicant wife’s son from a previous marriage) and Orders were made for the parties to confer and reach an agreement as to a form of orders consistent with those Reasons (see Prosser & Prosser and Anor [2020] FamCA 378).

  2. The parties negotiated but did not agree on the form of orders and, on 12 June 2020, the parties provided to the Court minutes of order and written submissions as to why their draft was to be preferred.

  3. On 19 June 2020, brief Reasons for Judgment were delivered and final property Orders were made (see Prosser & Prosser and Anor (No 2)

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Details
AGLC
Prosser & Prosser (No. 3) [2021] FamCA 386
Case
[2021] FamCA 386
Decision Date

CaseChat Overview and Summary

In *Prosser & Prosser (No. 3)*, Baumann J of the Family Court of Australia considered an application for costs brought by the Applicant, Mr B Prosser, against the Respondent, Ms Prosser. The dispute arose in circumstances where the Respondent was wholly unsuccessful in her claim against the Applicant.

The primary legal issue before the Court was whether circumstances existed to justify an order for costs against the Respondent, and if so, what form that order should take. The Court was required to determine the appropriate contribution towards the Applicant's costs, considering the usual rule in family law proceedings that each party bears their own costs, and the exceptional nature of indemnity costs.

Baumann J reasoned that while the usual rule in family law is that parties bear their own costs, and indemnity costs are reserved for rare situations, the circumstances of this case justified an order for costs in favour of the Applicant. The Court noted that the Respondent was wholly unsuccessful and that the Applicant had been successful in his application for summary dismissal. While acknowledging that the parties had consented to the Applicant being joined, the Court found that the Applicant's success in obtaining summary dismissal warranted a costs order. The Court declined to award indemnity costs, deeming the circumstances not exceptional enough to warrant such an order. Instead, the Court opted to fix a contribution towards the Applicant's costs to avoid the further expense of taxation or assessment. The Court determined that a contribution of $12,000 was just, reflecting the legal costs incurred by the Applicant from a specified date and taking into account the material relied upon for the summary dismissal application.

Orders

Orders of the court

BRC 1320 of 2015

BETWEEN:

MR B PROSSER

Applicant

AND:

MS PROSSER

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

22 JUNE 2021

THE COURT ORDERS:

1. That within sixty (60) days of the date of this Order the Respondent, Ms Prosser, pay the sum of $12,000 to the Applicant, Mr B Prosser, as a contribution to the costs paid by him.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

More recently in Stasiuk & Guild [2021] FamCAFC 62, the Full Court (Strickland, Ryan and Kent JJ) confirmed that Kohan & Kohan (1993) FLC 92-340 “is precedential authority”, and at [20] when seeking to demonstrate that Kohan remains good law, referred to Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920 at [7] where the Full Court said:7.The Full Court noted in Prantage & Prantage (2013) FLC 93-544 (“Prantage”) at [42], that even in jurisdictions where the usual rule is that costs follow the event, it is well settled that indemnity costs “should only occur in an extremely rare situation” (see Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] 179 ALR 406). We agree with Murphy J in Prantage at [152] that in proceedings under the Act, where the usual rule is that each party shall bear his or her own costs, an order for indemnity costs is even more exceptional.CONCLUSION Having decided circumstances exist to justify a costs order payable by the Respondent, Ms Prosser, in favour of the Applicant, Mr B Prosser, the issue is what order is just. As explained, the circumstances are not so exceptional as to enliven costs on an indemnity basis. It is in the interests of both parties that costs be fixed, so as to award the further costs associated with taxation or other assessment. I do accept that the husband and the wife consented to Mr B Prosser being joined, but that does not mean Mr B Prosser agreed. The Court’s recollection is, certainly after the Supreme Court proceedings were the subject of findings, and when I began to case manage these proceedings the issue of any application of summary dismissal was raised by the Court. In the assessment of costs, I take into account the delay after Mr B Prosser was joined (on 15 April 2015). He could have agitated that relief for summary dismissal more quickly however ultimately he was successful in his application and the Respondent was “wholly unsuccessful”. Of course “costs issues” relating to the proceedings in the Supreme Court of New South Wales are not a matter for this Court. Some attention needs to be given to avoid “double counting”. Doing the best I can on the evidence offered, and with a view to achieving some finality and avoid taxation or assessment, I have decided to fix costs in the sum of $12,000. In my view, this assessment of costs is just; arises from the legal costs incurred by the Applicant from 18 March 2018 (adopting the proper and sensible alternate submission of Counsel at paragraph 42). I take into account the material relied upon by the parties for the summary dismissal application filed (by way of amended Response) on 28 March 2018. The Application was heard “on the papers” without cross-examination on 20 April 2018. Both parties were represented by Counsel. I will order that Ms Prosser pay the sum of $12,000 to Mr B Prosser as a contribution to the costs paid by him, such sum to be paid within 60 days.

Ratio Decidendi

Legal Principle Established

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