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Rayburn & Pritchard

Rayburn & Pritchard

Case [2014] FamCAFC 13 13 February 2014

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Family Law

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FAMILY COURT OF AUSTRALIA

RAYBURN & PRITCHARD

[2014] FamCAFC 13

FAMILY LAW – APPEAL – Procedure – Costs – Appeal against decision of trial judge granting leave to extend time to file an itemised bill of costs – where no satisfactory explanation for lengthy delay – appeal allowed – trial judge’s discretion re-exercised.

FAMILY LAW – COSTS CERTIFICATES – Where the appeal was allowed on a question of law – Each party granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth), ss 44, 117

Federal Proceedings (Costs) Act 1981 (Cth), ss 6, 9
Family Law Rules 2004 (Cth), rr 1.04, 1.14, 19.21; sch 6, cl 6.22

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Carlon and Carlon (1982) FLC 91-272
Clivery and Conway [2007] FamCA 1435
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Gallo v Dawson (1990) 93 ALR 479
House v The King (1936) 55 CLR 499
In the Marriage of Neocleous (1993) FLC 92-377
Kite & Kite [2010] FamCAFC 107
KLD & SCVG [2009] FamCAFC 56
Olsthoorn v Collins [2003] FCWA 93
OP v HM (2002) 168 FLR 465
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Robinson and Higginbotham (1991) FLC 92-209
Wensinger and Summers Partners [2003] FCWA 1

APPELLANT:

Mr Rayburn

RESPONDENT:

Ms Pritchard

FILE NUMBER:

PTW

1897

2000

APPEAL NUMBER:

2012

DATE DELIVERED:

13 February 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Finn & Duncanson JJ

HEARING DATE:

11 April 2013

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

16 March 2012

LOWER COURT MNC:

[2012] FCWA 26

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ashdown

SOLICITOR FOR THE APPELLANT:

WA Costs Consultants Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Hooper SC

SOLICITOR FOR THE RESPONDENT:

Summers Legal

Orders

Leave to appeal against the orders of the Honourable Justice Martin made on 16 March 2012 be granted.
The appeal be allowed.
The orders made on 16 March 2012 be set aside.
The wife’s application to file an itemised costs account out of time be dismissed.
The parties bear their own costs of the appeal.
The Court grants to the appellant husband a costs certificate pursuant to the provisions 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 husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 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 respondent wife in respect of the costs incurred by her in relation to…

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: Rayburn & Pritchard [2014] FamCAFC 13
Case: [2014] FamCAFC 13
Decision Date

CaseChat Overview and Summary

The appeal before the Full Court was brought by the husband against orders made by Martin J on 16 March 2012 in proceedings between the husband and Ms Pritchard (the wife). The husband appealed against the orders which extended the time in which the wife could file an itemised costs account. The appeal was allowed and the wife’s application to file an itemised costs account out of time was dismissed. The Full Court found that the trial judge erred in extending the time for the wife to file an itemised costs account as she had failed to provide an adequate explanation for the lengthy delay and had not considered the effect of the delay on the administration of justice. The Full Court re-exercised its discretion and dismissed the wife’s application to extend time.

Orders