FAMILY LAW – APPEAL – COSTS – Appeal against costs awarded on indemnity basis – Consideration of whether case was “exceptional” to warrant costs on indemnity basis – Application of principle in Kohanand Kohan (1993) FLC 92-340 – Doctrine of precedent – Appeal allowed and orders set aside – Re-exercise of discretion.
Legislation:
Family Law Act 1975 (Cth) s 117 Statute of Gloucester 1278, 6 Edw 1
2)Orders (1) and (2) dated 17 July 2020 be set aside.
3)In the event that the parties propose that the appeal is finalised by consent, direct that the proposed orders be filed by 24 May 2021.
4)In the event that the appeal is not finalised by consent, judgment will be given at 10.00 am on 25 May 2021.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stasiuk & Guild has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, RYAN & KENT JJ:
The appellant,…
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
Stasiuk & Guild [2021] FamCAFC 62
Case
[2021] FamCAFC 62
Decision Date
CaseChat Overview and Summary
The appeal in Stasiuk & Guild was between the parties to a family law matter, with the focus on the costs awarded on an indemnity basis. The matter was heard by the Family Court of Australia. The primary issue before the court was whether the case was "exceptional" enough to justify awarding costs on an indemnity basis, a principle that had been previously established in Kohan and Kohan (1993) FLC 92-340. The court was also tasked with examining the application of the doctrine of precedent in the context of family law cost decisions.
The court found that the primary judge had erred by rejecting the Kohan principle and instead applying a wrong principle. This error was significant enough to warrant setting aside the orders made by the primary judge. Both parties requested that the court re-exercise the discretion on the available material. The court agreed to do so to avoid further legal costs, and decided to delay judgment to allow the parties to negotiate a possible resolution to their dispute. The court noted that if the parties reached a resolution, they could present consent orders to finalise the outstanding issues. If no resolution was reached, judgment would be given on a specified date.
The court allowed the appeal, set aside the orders made by the primary judge, and directed that if the parties finalised the appeal by consent, the proposed orders be filed by a certain date. If no resolution was reached, judgment would be given on a later date. The form of the order was subject to review and possible variation in accordance with the Family Law Rules 2004 (Cth). The judgment was approved for publication under a pseudonym by the Chief Justice in accordance with the Family Law Act 1975 (Cth).
Orders
Orders of the court
ORDER MADE BY:
STRICKLAND, RYAN & KENT JJ
DATE OF ORDER:
6 MAY 2021
THE COURT ORDERS THAT:
1) The appeal be allowed.
2) Orders (1) and (2) dated 17 July 2020 be set aside.
3) In the event that the parties propose that the appeal is finalised by consent, direct that the proposed orders be filed by 24 May 2021.
4) In the event that the appeal is not finalised by consent, judgment will be given at 10.00 am on 25 May 2021.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stasiuk & Guild has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
By rejecting Kohan and the large number of decisions by this Court which have embraced the principles there stated, the primary judge acted on a wrong principle and thus erred in a House sense. The effect of this is that the orders should be set aside. In that event, both parties asked us to re-exercise the discretion of the primary judge on the material available to us. In the interests of saving further legal costs, we propose to do so. CONCLUSION In light of the concession made as to party/party costs, the only question which requires consideration is whether or not this case is sufficiently exceptional to justify an order for indemnity costs. On 30 April 2021, the parties were notified that judgment in this appeal would be delivered on 6 May 2021. At 9.24 am on 6 May 2021, the Court received an email from the parties’ solicitors requesting that we defer judgment for 14 days so that the parties could continue to explore a possible resolution to their dispute. An agreed outcome is obviously desirable and in our view the appropriate course is that we delay judgment on the re-exercise. This enables the negotiations underway to take place on a certain footing; namely with the orders under appeal having been set aside and to decide for themselves, the consequences which flow. The parties will be given the opportunity to present consent orders which finalise the outstanding issues, failing which judgment will be given on 25 May 2021.