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Smith & Fields (Third Party Costs)

Smith & Fields (Third Party Costs)

Case [2013] FamCA 505 2 July 2013

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FAMILY COURT OF AUSTRALIA

SMITH & FIELDS (THIRD PARTY COSTS)

[2013] FamCA 505

FAMILY LAW – COSTS – Where final property orders made between the applicant and respondent – where the applicant husband seeks as against the respondent wife an order for his costs of the proceedings, on an indemnity basis – where the wife subsequently sought orders pursuant to the Family Law Rules 2004 that her former legal practitioner/s should be personally responsible for her costs – where the wife pleaded a claim not based upon the Rules, but in causes of action at common law (and in equity) in respect of which a finding was necessary that the Court had accrued jurisdiction to determine the claim – where the wife filed a Notice of Discontinuance less than one week prior to the hearing of, inter alia, the wife’s claim against the third parties – where the third parties each seek an order that the wife pay their costs on an indemnity basis – where wife concedes an order for costs is warranted but contends it ought be made on a party/party basis – whether costs should be ordered on an indemnity basis – where certain conduct of the wife, including issuing of subpoenae which were plainly too wide and were tantamount to an abuse of process, warrants an order that costs be paid on an indemnity basis for a portion of the proceedings – orders made that the wife pay the third parties’ costs of the proceedings up to a specified date on a party/party basis and thereafter on an indemnity basis.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406
Colgate Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248
Kohan & Kohan (1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
NMFM Property Pty Ltd v Citibank (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77
Noll & Noll [2013] FamCAFC 24
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Smith

RESPONDENT:

Ms Fields

1^ST OTHER PARTY:

Ms D

2^ND OTHER PARTY:

Mr E

FILE NUMBER:

BRC

4610

2009

DATE DELIVERED:

2 July 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

25 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Harrison of McCowans Specialist Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Page QC

SOLICITOR FOR THE RESPONDENT:

Lynn & Rowland Lawyers

COUNSEL FOR THE 1^ST OTHER PARTY:

Mr Hodge

SOLICITOR FOR THE 1^ST OTHER PARTY:

Carter Newell

COUNSEL FOR THE 2^ND OTHER PARTY:

Mr Williams

SOLICITOR FOR THE 2^ND OTHER PARTY:

Barry Nilsson Lawyers

Orders

The wife pay the costs of each of the First and Second Other Party of and incidental to these proceedings in such amount as might be agreed between the…

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.

Continue reading Smith & Fields (Third Party Costs)

Details

AGLC: Smith & Fields (Third Party Costs) [2013] FamCA 505
Case: [2013] FamCA 505
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application for costs in proceedings between Mr Smith (applicant husband) and Ms Fields (respondent wife). The substantive property settlement orders between the parties had already been made. The wife had also sought orders against her former legal practitioners, Ms D and Mr E (the first and second other parties), seeking to hold them personally responsible for her costs. However, the wife subsequently filed a Notice of Discontinuance against these third parties shortly before their costs hearing. Both Ms D and Mr E sought their costs on an indemnity basis.

The primary legal issues before the court were whether costs should be awarded on an indemnity basis against the wife in favour of the third parties, and if so, from what date. The court also considered the wife's contention that any costs order should be made on a party-party basis. The third parties argued that their involvement in the proceedings was as strangers to the matrimonial dispute, and that the wife's claims against them were significantly different from representations made to the court, involving common law and equitable causes of action that required the court to have accrued jurisdiction.

The court reasoned that while costs orders on an indemnity basis are exceptional, they are permissible in circumstances that warrant such an approach, particularly where conduct amounts to an abuse of process. The court noted that the wife's conduct, including the issuance of subpoenas that were considered plainly too wide and tantamount to an abuse of process, justified an order for indemnity costs for a portion of the proceedings. The court also acknowledged that the wife had conceded that costs were warranted against her.

Ultimately, the court ordered that the wife pay the costs of the first and second other parties. These costs were to be assessed on a party-party basis from the date of the wife's response seeking relief against the third parties up to a specified date, and thereafter on an indemnity basis from that date until the discontinuance of the proceedings against them.

Orders