Somers & Ettridge - [2020] FamCAFC 37

FAMILY COURT OF AUSTRALIA

SOMERS & ETTRIDGE

[2020] FamCAFC 37

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs on an indemnity basis – Where the appellant opposes the application but did not raise any issues about how the amount was calculated and no challenge was made to the amount – Where there are circumstances that justify an order for costs being made – Where there is a clear basis for indemnity costs to be awarded – Costs ordered in favour of the respondent in the sum as sought by her.

Family Law Act 1975 (Cth) s 117

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D (Costs) (No 2) (2010) FLC 93-435
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Another (2005) 33 Fam LR 123
Munday v Bowman (1997) FLC 92-784
Somers & Ettridge (No 3) [2019] FamCAFC 234

APPLICANT:

Mr Somers

RESPONDENT:

Ms Ettridge

FILE NUMBER:

MLC

11262

2015

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

21 February 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

Written Submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 September 2017,
29 October 2018,
20 November 2018,
7 December 2018

LOWER COURT MNC:

[2017] FamCA 1173
[2018] FamCA 863
[2018] FamCA 943
[2018] FamCA 1042

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Paterson

SOLICITOR FOR THE RESPONDENT:

Carew Counsel Pty Ltd

Order

The applicant Mr Somers pay the costs of the respondent Ms Ettridge of and incidental to the Application in an Appeal filed on 7 June 2019 calculated on an indemnity basis and fixed in the sum of $14,682.80.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 31 of 2019
File Number: MLC 11262 of 2015

Mr Somers

Applicant

And

Ms Ettridge

Respondent

REASONS FOR JUDGMENT

Introduction

On 25 November 2019 an order was made dismissing the Application in an Appeal filed by Mr Somers (“the applicant”) on 7 June 2019, seeking extensions of time to file appeals against four sets of orders. Then, on 4 December 2019, orders were made for written submissions to be filed in relation to the oral application made by Ms Ettridge (“the respondent”) for costs, consequent upon the order of 25 November 2019.
On 17 December 2019, the respondent filed…

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 Somers & Ettridge

Details

AGLC: Somers & Ettridge [2020] FamCAFC 37
Case: [2020] FamCAFC 37
Decision Date: 21 February 2020

CaseChat Overview and Summary

The Family Court of Australia considered an appeal brought by Mr Somers against several orders made in family law proceedings between him and Ms Ettridge. The court dismissed the appeal and ordered Mr Somers to pay Ms Ettridge's costs on an indemnity basis. Ms Ettridge applied for costs based on Mr Somers' unsuccessful appeal and his conduct during the proceedings. The court found that the circumstances justified making a costs order in Ms Ettridge's favour, considering Mr Somers' conduct, including his unsuccessful appeal and his delay in filing the appeal, which the court considered vexatious and an attempt to frustrate the implementation of previous orders. The court also found that Ms Ettridge's application for indemnity costs was supported by clear grounds, as Mr Somers had not challenged the calculation or the amount of the costs sought. The court concluded that the circumstances warranted the exercise of the discretion to award indemnity costs, and ordered Mr Somers to pay the costs sought by Ms Ettridge.

The final order made by the court was that Mr Somers pay the costs of Ms Ettridge in the sum of $14,682.80, to be calculated on an indemnity basis. The form of the order is subject to the entry of the order in the Court’s records.

Orders