Swinbank & Stein (No 2) - [2022] FedCFamC1F 731

Federal Circuit and Family court of Australia
(DIVISION 1)
Swinbank & Stein (No 2) [2022] FedCFamC1F 731

File number(s): CSC103 of 2021

Judgment of: JARRETT J

Date of judgment: 26 September, 2022

Catchwords: FAMILY LAW – Costs – application for costs on indemnity basis – whether justifying circumstances – no justifying circumstances

Legislation:
Family Law Act 1975 (Cth), ss 102NA(2), 117(1), 117(2A)

Federal Circuit and Family court of Australia (Family Law) Rules 2021, r12.13(3)(b)

Cases cited: Penfold v Penfold (1980) 144 CLR 311

Division: Division 1 First Instance

Number of paragraphs: 19

Date of last submission/s: 21 September, 2022

Date of hearing: By written submission

Place: Brisbane
ORDERS

CSC 103 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SWINBANK

Applicant

AND:
MS STEIN

Respondent

order made by:

JARRETT J

DATE OF ORDER:

26 sEPTEMBER 2022

THE COURT ORDERS THAT:
1.The application filed on 5 February, 2021 is dismissed.
2.The response filed on 15 April, 2021 is dismissed.
3.There is no order as to costs.

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 10.14(b) Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this court under the pseudonym Swinbank & Stein has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

On 14 September, 2022 I delivered reasons for judgment in the principal application between the applicant and the respondent. The question before me was whether the applicant and the respondent were in a de facto relationship for the purposes of the Family Law Act 1975 (Cth) from about 2014 until 2019 or 2020. I found that they were never in a de facto relationship for the purposes of the Act and made a declaration to that effect.
By the orders and directions I made on 14 September, 2022 I foreshadowed an order dismissing the principal proceedings and I invited submissions as to any alternate or other orders either party saw as appropriate. The time for making those submissions has now passed. The applicant has not made any further submissions. The respondent has made a submission.
The respondent’s submissions do not deal with the orders to be made in the substantive proceedings. Instead, she seeks an order for costs. That was not the purpose of the direction that I made; rather it was directed to orders dealing with the substantive application before the court. Costs, I thought, could be…

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 Swinbank & Stein (No 2)

Details

AGLC: Swinbank & Stein (No 2) [2022] FedCFamC1F 731
Case: [2022] FedCFamC1F 731
Decision Date

CaseChat Overview and Summary

In the matter of Swinbank & Stein (No 2), the respondent seeks an order for costs from the court, claiming that the applicant refused to accept a without prejudice offer made on 13 June 2022. The offer, however, was not produced in evidence, making it difficult for the court to properly consider it. The respondent alleged that previous attempts to resolve the dispute had been unsuccessful. The court had to decide whether the lack of evidence of the offer and refusal to negotiate justified an order for costs, particularly an indemnity order.

The primary legal issue before the court was whether the absence of evidence of the without prejudice offer and the alleged refusal to negotiate warranted the imposition of costs, especially indemnity costs. The court had to balance the principles of finality and fairness against the need to protect parties from frivolous litigation. The court also had to consider whether the discretion to make a costs order had been triggered and if so, whether an indemnity order was appropriate.

The court found that due to the absence of evidence of the offer and the circumstances surrounding it, it could not properly consider the respondent's claim. The court emphasised that without prejudice offers are privileged communications, and their contents cannot be used to determine liability or entitlement to costs. The court concluded that the discretion to make a costs order had not been triggered, and therefore, no order for costs, including indemnity costs, would be made. The court upheld the orders set out at the beginning of its reasons.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent relies upon a without prejudice offer to settle the proceedings made, presumably, by her on 13 June, 2022. The terms of the offer are not in evidence. She says that the applicant “refused to accept the offer or negotiate”. Previous attempts to resolve the dispute had been unsuccessful. Because the terms of the offer are not in evidence, I am unable to give it proper consideration.Conclusion Having regard to the above matters, I am not satisfied that there are circumstances that justify the court making an order for costs as sought by the respondent, or at all. The discretion to make a costs order, let alone an order for indemnity costs, is not enlivened. The orders will be as set out at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

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File number(s):	CSC103 of 2021
Judgment of:	JARRETT J
Date of judgment:	26 September, 2022
Catchwords:	FAMILY LAW – Costs – application for costs on indemnity basis – whether justifying circumstances – no justifying circumstances
Legislation:	Family Law Act 1975 (Cth), ss 102NA(2), 117(1), 117(2A) Federal Circuit and Family court of Australia (Family Law) Rules 2021, r12.13(3)(b)
Cases cited:	Penfold v Penfold (1980) 144 CLR 311
Division:	Division 1 First Instance
Number of paragraphs:	19
Date of last submission/s:	21 September, 2022
Date of hearing:	By written submission
Place:	Brisbane

CSC 103 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SWINBANK Applicant
AND:	MS STEIN Respondent

order made by:	JARRETT J
DATE OF ORDER:	26 sEPTEMBER 2022