Prosser & Prosser (No. 3)

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.