Stasiuk & Guild

Case [2021] FamCAFC 62


FAMILY COURT OF AUSTRALIA

Stasiuk & Guild [2021] FamCAFC 62

Appeal from: Guild & Stasiuk (No. 2) [2020] FamCA 564
Appeal number(s): SOA 69 of 2020
File number(s): MLC 13949 of 2018
Judgment of: STRICKLAND, RYAN & KENT JJ
Date of judgment: 6 May 2021
Catchwords: 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 Kohan and 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
Cases cited:

Browne v Green (2002) FLC 93-115; [2002] FamCA 791

Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Harris and Harris (1991) FLC 92-254; [1991] FamCA 124

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kapiris Bros (Vic) Pty Ltd v Zausa [2006] VSCA 15

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21

Mansfield and Ors & Mansfield and Anor (2019) FLC 
93-920; [2019] FamCAFC 186

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC
93-664; [2015] FamCAFC 157

Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105

Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5

Steele & Stanley [2009] FamCAFC 39

Division: Appeal Division
Number of paragraphs: 25
Date of hearing: 16 February 2021
Place: Melbourne (by videolink)
Solicitor for the Appellant: Berger Kordos
Counsel for the Appellant: Mr Bartfeld QC
Solicitor for the Respondent: Lander & Rogers
Counsel for the Respondent: Dr Smith

ORDERS

SOA 69 of 2020
MLC 13949 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

Mr STASIUK

Appellant

AND:

Ms GUILD

Respondent

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).

REASONS FOR JUDGMENT

STRICKLAND, RYAN & KENT JJ:

  1. The appellant,…

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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

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Evidence

Evidence Before The Court

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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.

Ratio Decidendi

Legal Principle Established

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