REANEY & PAGGETT - [2021] FCCA 190

FEDERAL CIRCUIT COURT OF AUSTRALIA

REANEY & PAGGETT

[2021] FCCA 190

Catchwords:
FAMILY LAW – Costs – Application for the solicitor for the applicant to personally pay the respondent’s costs on an indemnity basis – Application granted

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Fitzgerald v Fish (2005) 33 FamLR 123

Z (A Solicitor) v Limousin (2010) FLC 93-433

Panwar & Panwar and Anor (No. 2) [2020] FamCA 724

Forster & Forster (2012) Fam LR 77

White Industries (Qld) Pty Ltd v. Flower & Hart (a firm) (1998) 156 ALR 169

InEx Christmas Islanders Association Inc v Attorney-General (Cth) (No 2)(2006)

233 ALR 97
Colgate Palmolive v Cussons (1993) 118 ALR 248
Preston v Preston [1982] 1 All ER 41

Applicant:

MR REANEY

Respondent:

MS PAGGETT

File Number:

BRC 13799 of 2019

Judgment of:

Judge Lapthorn

Hearing date:

15 April 2020

Date of Last Submission:

5 November 2020

Delivered at:

Brisbane

Delivered on:

4 February 2021

REPRESENTATION

Solicitors for the Applicant:

C Lawyers

Solicitors for the Respondent:

Lloyds Solicitors

ORDERS

That Mr C, solicitor for the applicant, personally pay the respondent’s costs of the Application in a Case filed 5 March 2020 and the Application in a Case filed 1 May 2020 on an indemnity basis within 60 days of the date of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 13799 of 2019

MR REANEY

Applicant

And

MS PAGGETT

Respondent

REASONS FOR JUDGMENT

On 21 October 2020, I dismissed the applicant's Applications in a Case for the appointment of a litigation guardian (the applications). The respondent had in her submissions in response to the applications sought an order that the applicant's solicitor, Mr C, personally pay her costs of the applications on an indemnity basis (the costs application). I directed the solicitor for the applicant to make written submissions in relation to the costs application and made provision for the respondent to file any submissions in reply. This judgment relates to the costs application only and should be read in conjunction with my judgment delivered on 21 October 2020.
By way of background the applicant filed an Initiating Application for property adjustment orders on 13 November 2019 in relation to a de facto relationship between him and the respondent. On 5 March 2020 the applicant’s solicitor filed an Application in a Case seeking that he be appointed the applicant’s litigation guardian. He filed a further Application in a Case on 15 April 2020 seeking the appointment of Mr D as the litigation guardian although no notice of discontinuance was filed in relation to the earlier Application in a Case. The respondent argued that it was entirely inappropriate for the solicitor for the applicant to propose the appointment of himself as the litigation guardian; purport to give evidence of his client’s mental state; and to bring the application in…

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: REANEY & PAGGETT [2021] FCCA 190
Case: [2021] FCCA 190
Decision Date: 4 February 2021

CaseChat Overview and Summary

This matter concerned an application by the respondent for the solicitor for the applicant, Mr C, to be ordered to personally pay the respondent's costs on an indemnity basis. The applications in question were filed on 5 March 2020 and 1 May 2020. The decision was made by Judge Lapthorn.

The central legal issue before the court was whether the conduct of the applicant's solicitor warranted an order for him to personally pay the respondent's costs on an indemnity basis. This required the court to consider the circumstances surrounding the applications and the solicitor's conduct in relation to them.

Judge Lapthorn found that the applications filed by the applicant's solicitor were vexatious and an abuse of process. The court determined that the solicitor had acted improperly and without reasonable grounds, leading to unnecessary costs being incurred by the respondent. Consequently, the court ordered that Mr C, the solicitor for the applicant, personally pay the respondent's costs of the two specified applications on an indemnity basis within 60 days of the date of the orders.

Orders

Orders of the court

That Mr C, solicitor for the applicant, personally pay the respondent’s costs of the Application in a Case filed 5 March 2020 and the Application in a Case filed 1 May 2020 on an indemnity basis within 60 days of the date of these orders.

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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